CONSTELLATION
BRANDS, INC.
|
(Exact
name of registrant as specified in its
charter)
|
Delaware
|
001-08495
|
16-0716709
|
||
(State
or other jurisdiction
of
incorporation)
|
(Commission
File
Number)
|
(IRS
Employer
Identification
No.)
|
Registrant’s
telephone number, including area code
|
(585)
218-3600
|
Not
Applicable
|
(Former
name or former address, if changed since last
report)
|
o
|
Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
|
o
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
o
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
|
o
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
|
Item
3.03.
|
Material
Modification to Rights of Security
Holders.
|
Item
5.02.
|
Departure
of Directors or Certain Officers; Election of Directors; Appointment
of
Certain Officers; Compensatory Arrangements of Certain
Officers.
|
Item
5.03.
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
|
Item
9.01.
|
Financial
Statements and Exhibits.
|
(a)
|
Financial statements of businesses acquired. |
Not applicable. | |
(b)
|
Pro forma financial information. |
Not applicable. | |
(c)
|
Shell company transactions. |
Not applicable. | |
(d)
|
Exhibits. |
The following exhibits are filed as part of this Form 8-K: |
Exhibit
No.
|
Description
|
|
3.1
|
Restated
Certificate of Incorporation of Constellation Brands,
Inc.
|
|
3.2
|
Amended
and Restated By-Laws of Constellation Brands, Inc.
|
|
99.1
|
Constellation
Brands, Inc. Long-Term Stock Incentive Plan Amended and Restated
as of
December 6, 2007
|
|
99.2
|
Form
of Stock Option Amendment
|
|
99.3
|
Form
of Terms and Conditions Memorandum for Employees with respect to
grants of
options to purchase Class 1 Stock pursuant to the Company’s Long-Term
Stock Incentive Plan (grants before July 26,
2007)
|
99.4
|
Form
of Terms and Conditions Memorandum for Employees with respect to
grants of
options to purchase Class 1 Stock pursuant to the Company’s Long-Term
Stock Incentive Plan (grants on or after July 26, 2007)
|
|
99.5
|
Form
of Terms and Conditions Memorandum for Directors with respect to
grants of
options to purchase Class 1 Stock pursuant to the Company’s Long-Term
Stock Incentive Plan
|
Date: December 12, 2007 | CONSTELLATION BRANDS, INC. | ||
By: | /s/ Robert Ryder | ||
Name: | Robert Ryder | ||
Title: |
Executive
Vice President and
Chief
Financial Officer
|
||
Exhibit
No.
|
Description
|
(1)
|
UNDERWRITING
AGREEMENT
|
|
Not
Applicable.
|
||
(2)
|
PLAN
OF ACQUISITION, REORGANIZATION, ARRANGEMENT, LIQUIDATION OR
SUCCESSION
|
|
Not
Applicable.
|
||
(3)
|
ARTICLES
OF INCORPORATION AND BYLAWS
|
|
(3.1)
|
Restated
Certificate of Incorporation of Constellation Brands,
Inc.
|
|
(3.2)
|
Amended
and Restated By-Laws of Constellation Brands, Inc.
|
|
(4)
|
INSTRUMENTS
DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING
INDENTURES
|
|
Not
Applicable.
|
||
(7)
|
CORRESPONDENCE
FROM AN INDEPENDENT ACCOUNTANT REGARDING NON-RELIANCE ON A PREVIOUSLY
ISSUED AUDIT REPORT OR COMPLETED INTERIM REVIEW
|
|
Not
Applicable.
|
||
(14)
|
CODE
OF ETHICS
|
|
Not
Applicable.
|
||
(16)
|
LETTER
RE CHANGE IN CERTIFYING ACCOUNTANT
|
|
Not
Applicable.
|
||
(17)
|
CORRESPONDENCE
ON DEPARTURE OF DIRECTOR
|
|
Not
Applicable.
|
||
(20)
|
OTHER
DOCUMENTS OR STATEMENTS TO SECURITY HOLDERS
|
|
Not
Applicable.
|
||
(23)
|
CONSENTS
OF EXPERTS AND COUNSEL
|
|
Not
Applicable.
|
||
(24)
|
POWER
OF ATTORNEY
|
|
Not
Applicable.
|
||
(99)
|
ADDITIONAL
EXHIBITS
|
|
(99.1)
|
Constellation
Brands, Inc. Long-Term Stock Incentive Plan Amended and Restated
as of
December 6, 2007
|
|
(99.2)
|
Form
of Stock Option Amendment
|
|
(99.3)
|
Form
of Terms and Conditions Memorandum for Employees with respect to
grants of
options to purchase Class 1 Stock pursuant to the Company’s Long-Term
Stock Incentive Plan (grants before July 26, 2007)
|
|
(99.4)
|
Form
of Terms and Conditions Memorandum for Employees with respect to
grants of
options to purchase Class 1 Stock pursuant to the Company’s Long-Term
Stock Incentive Plan (grants on or after July 26, 2007)
|
|
(99.5)
|
Form
of Terms and Conditions Memorandum for Directors with respect to
grants of
options to purchase Class 1 Stock pursuant to the Company’s Long-Term
Stock Incentive Plan
|
|
(100)
|
XBRL-RELATED
DOCUMENTS
|
|
Not
Applicable.
|
/s/ Robert Sands | |
Name:
|
Robert
Sands
|
Title:
|
President
and Chief Executive Officer
|
Dated:
December 6, 2007
|
CONSTELLATION
BRANDS, INC.
|
|
/
s/
L. Denise Watson
|
||
By:
|
L. Denise Watson | |
Title:
|
Senior
Vice President,
Global
Compensation and Benefits
|
1.
|
The
Option is hereby amended to:
|
a.
|
make
the Option subject to and governed by the Company’s Long-Term Stock
Incentive Plan Amended and Restated as of December 6, 2007 to the
extent
necessary to permit the Option to be amended so that it relates
to Class 1
Stock instead of Class A Stock; otherwise, the Option shall continue
to be
subject to and governed by the terms of the Plan in effect as of
the date
the Option was originally granted;
|
b.
|
replace
references to Class A Stock in the Option with references to Class
1 Stock
as appropriate;
|
c.
|
amend
the provision relating to the payment of the exercise price and
tax
withholding to (i) permit the Participant to satisfy such payment
obligations by tendering previously acquired shares of Class A
Stock or
Class 1 Stock to the Company (instead of Class A Stock only), and
(ii)
clarify that the cashless exercise process will entail the sale
of Class A
Stock received upon the conversion of Class 1 Stock received from
the
exercise of the Option (instead of the sale of Class A Stock received
from
the exercise of the Option);
|
d.
|
confirm
that the Class 1 Stock is not listed for trading on any stock exchange
or
trading market but may be converted into Class A Stock which is
listed for
trading on the New York Stock Exchange;
and
|
e.
|
effect
any other changes reflected in the Memorandum setting forth the
Terms and
Conditions of the Option attached hereto as Exhibit A (the “Restated
Memorandum”).
|
2.
|
The
Restated Memorandum replaces and supersedes in its entirety the
original
Memorandum and the award letter issued by the Company with respect
to the
Option, which original Memorandum and award letter are null and
void and
shall be of no further force or
effect.
|
3.
|
The
Participant acknowledges that the Participant has been advised
to consult
with and rely on the Participant’s own tax adviser concerning the tax
effects of the transactions contemplated by this
Agreement.
|
4.
|
This
Agreement shall be binding upon and inure to the benefit of any
successor(s)-in-interest of the Company and the
Participant.
|
Constellation
Brands, Inc.
|
|
|
|
By:
|
|
Title:
|
|
[Participant]
|
|
Signature:
|
|
Exhibit 99.3
|
1.
|
Term
of Options
. The Options, granted on _______________ (the “Date of
Grant”), will terminate and expire, to the extent not previously
exercised, at 5:00 p.m. Eastern Time on _______________, or such
earlier
date upon which the Options, or portion thereof, terminate or expire
pursuant to the terms of the Plan (the “Expiration
Date”).
|
2.
|
Exercise
of Options
.
|
(a)
|
The
Options may be exercised, in whole or in part at any time prior to
the
Expiration Date or an earlier termination, according to the percentages
and exercise dates set forth in the following vesting
schedule: 25% of the shares subject to the Options (the “Option
Shares”) shall become exercisable on _______________; an additional 25%
of
the Option Shares shall become exercisable on _______________; an
additional 25% of the Option Shares shall become exercisable on
_______________; and the remaining balance of the Option Shares shall
become exercisable on _______________. No Options may be
exercisable after the Expiration
Date.
|
(b)
|
The
Optionee can exercise Options by complying with the provisions of
the Plan
and by following instructions provided in materials distributed by
the
Company. The exercise price, $_______________ per share (the
“Exercise Price”), for the number of Option Shares being purchased and any
related withholding tax obligations may be paid by the Optionee by
(i)
delivery of cash, money order or a certified or cashier’s check; (ii)
tendering previously acquired Shares or shares of Class A Common
Stock,
par value $.01 per share, of the Company (“Class A Shares”), as provided
for in the Plan; (iii) delivery of a conversion notice or other
|
|
conversion
instructions acceptable to the Company irrevocably electing to convert
a
sufficient number of Shares received under the Option into Class
A Shares
(“Conversion Shares”) together with delivery of irrevocable instructions
to a broker or other agent acceptable to the Company to promptly
sell the
Conversion Shares and to deliver to the Company the appropriate amount
of
proceeds; and/or (iv) any other payment method that is established
by the
Company (which payment method may be restricted or eliminated from
time to
time by the Company, in its sole
discretion).
|
(c)
|
The
Company will, without transfer or issue tax to the Optionee, issue
and
cause to be delivered to the Optionee the number of Option Shares
purchased as soon as reasonably practicable after the Optionee has
appropriately exercised any Options. The Company is not
required to issue Shares to the Optionee until all obligations to
withhold
taxes and similar charges have been resolved to the satisfaction
of the
Company.
|
3.
|
Termination
of Relationship
.
|
(a)
|
Acceleration
upon Termination of Relationship.
Subject to Section
3(c)(iii) below, if an Optionee’s employment with the Company or the
subsidiary by whom the employee is employed (the “Employer”) terminates
for reasons of Retirement (as defined in the Plan), Disability (as
defined
in the Plan) or death, all the unvested Option Shares shall become
immediately vested and exercisable on the date of Retirement, date
of
Disability or date of death.
|
(b)
|
Duration
of Exercise Following Termination of Relationship.
Subject
to Section 3(c) below, Options which have vested prior to the termination
of the Optionee’s employment with the Employer may be exercised as
follows:
|
(i)
|
within
thirty (30) days after the date on which the Optionee’s employment with
the Employer terminates (the “Termination Date”), except as otherwise
provided in Subsections 3(b)(ii), (iii) and (iv)
below;
|
(ii)
|
if
the Optionee’s employment with the Employer terminates as a result of the
Optionee’s Retirement, within one (1) year after the date of
Retirement;
|
(iii)
|
if
the Optionee’s employment terminates as a result of a Disability, within
one (1) year after the date of Disability;
or
|
(iv)
|
if
the Optionee’s employment terminates as a result of death, within one (1)
year after the date of death by the Optionee’s designated beneficiary,
legal representative or permitted
transferee.
|
(c)
|
Limitations
on Exercise Following Termination of
Relationship
.
|
(i)
|
The
time periods set forth in Section 3(b) above are subject to the
restriction that Options may not be exercised after their Expiration
Date.
|
(ii)
|
The
time periods set forth in Section 3(b) are also subject to the restriction
that no Option may be exercised by any person if the Optionee (i)
is, or
at any time after the date of grant has been, in competition with
the
Company or its affiliates, or (ii) has been terminated by the Employer
for
Cause, as defined in the Plan.
|
(iii)
|
Except
as otherwise provided by the Committee administering the Plan or
by an
employment agreement between the Optionee and the Employer, (i) the
only
Options that may be exercised after the Termination Date, date of
Retirement, date of Disability or date of death (as applicable, the
“Event
Date”) are those Options that were exercisable by the Optionee on the
Event Date; and (ii) any Options which are not exercisable on the
Event
Date will automatically terminate on the Event
Date.
|
(iv)
|
Any
Options which are exercisable on the Event Date, but which are not
exercised within the applicable period specified in Section 3(b)
above,
will automatically terminate at the end of that applicable
period.
|
4.
|
Adjustments
for Certain Events
. The number and kind of unexercised
Options and the Exercise Price of such Options are subject to adjustment
in the event that certain transactions are taken by the Company which
affect the Company’s capital stock.
|
5.
|
Type
of Options
. The Options are nonqualified stock options
granted pursuant to Section 5 of the
Plan.
|
6.
|
No
Transfer of Options
. Unless transferability is
authorized by the Option grant or otherwise permitted by the Committee,
Options are not transferable by the Optionee other than (i) by will
or the
laws of descent and distribution, or (ii) pursuant to a domestic
relations
order. Because of laws affecting the transferability of the
Option Shares, the Optionee should understand the securities laws
and
other implications of any transfer of
Options.
|
7.
|
General
Restriction on Issuance of Stock
. The Company may require
information or documents which enable it to insure compliance with
any law
or Rules (as defined in the Plan) of the Securities and Exchange
Commission or any other governmental authority having jurisdiction
under
the Plan before it issues any Shares upon the exercise of any
Options. If at any time the Committee administering the Plan
shall determine that the listing, registration or qualification of
the
Option Shares under any state or federal law or other applicable
Rule, or
the consent or approval of any governmental regulatory body, is necessary
or desirable as a condition of the granting of the Options or the
issue or
purchase of Shares thereunder, such Options may not be exercised
in whole
or in part unless such listing, registration, qualification, consent
or
approval shall have been effected or obtained free of any conditions
not
acceptable to the Committee.
|
8.
|
Limitation
on Sale or Disposition of Option Shares.
If the Committee determines
that the ability of the Optionee to sell or transfer Option Shares
is
restricted, then the Company may place a restrictive legend or stop
transfer notation on its books with respect to such Option
Shares. If a legend or stop transfer notation is placed on the
Company’s books
|
|
with
respect to an Optionee’s Option Shares, the Optionee may only sell such
Option Shares in compliance with such legend or
notation.
|
9.
|
No
Listing of Option Shares; Conversion
. The Company has not
listed the Option Shares for trading on the New York Stock Exchange
and
does not intend to effect such a listing. Pursuant to the
Certificate of Incorporation of the Company, Option Shares may be
converted into Class A Shares, but only if the Class A Shares received
upon the conversion are sold or transferred immediately following
the
conversion in a market transaction or qualifying private transaction
as
such terms are defined in the Company’s Certificate of
Incorporation. The Class A Shares into which Option Shares may
be converted have been or will, prior to issuance, be listed for
trading
on the New York Stock Exchange.
|
10.
|
Incorporation
of Plan
. The Options are subject to the terms and
conditions of the Plan, which are incorporated herein by
reference. The Company, upon request, will provide a copy of
the Plan to the Optionee. To the extent that the terms and
conditions of the Documents are inconsistent with the Plan, the provisions
of the Plan shall control.
|
11.
|
Applicable
Times and Dates
. All references to times and dates in the
Plan and in documents relating to the Plan refer, respectively, to
Eastern
Standard Time (or Eastern Daylight Savings Time, as appropriate)
in the
United States of America and to dates in New York State based on
such
Eastern Standard Time (or Eastern Daylight Savings Time, as
appropriate).
|
Exhibit 99.4
|
1.
|
Term
of Options
. The Options, granted on _______________ (the “Date of
Grant”), will terminate and expire, to the extent not previously
exercised, at 5:00 p.m. Eastern Time on _______________, or such
earlier
date upon which the Options, or portion thereof, terminate or expire
pursuant to the terms of the Plan (the “Expiration
Date”).
|
2.
|
Exercise
of Options
.
|
(a)
|
The
Options may be exercised, in whole or in part at any time prior
to the
Expiration Date or an earlier termination, according to the percentages
and exercise dates set forth in the following vesting
schedule: 25% of the shares subject to the Options (the “Option
Shares”) shall become exercisable on _______________; an additional 25%
of
the Option Shares shall become exercisable on _______________;
an
additional 25% of the Option Shares shall become exercisable on
_______________; and the remaining balance of the Option Shares
shall
become exercisable on _______________. No Options may be
exercisable after the Expiration
Date.
|
(b)
|
The
Optionee can exercise Options by complying with the provisions
of the Plan
and by following instructions provided in materials distributed
by the
Company. The exercise price, $_______________ per share (the
“Exercise Price”), for the number of Option Shares being purchased and any
related withholding tax obligations may be paid by the Optionee
by (i)
delivery of cash, money order or a certified or cashier’s check; (ii)
tendering previously acquired Shares or shares of Class A Common
Stock,
par value $.01 per share, of the Company (“Class A Shares”), as provided
for in the Plan; (iii) delivery of a conversion notice or other
|
conversion
instructions acceptable to the Company irrevocably electing to
convert a
sufficient number of Shares received under the Option into Class
A Shares
(“Conversion Shares”) together with delivery of irrevocable instructions
to a broker or other agent acceptable to the Company to promptly
sell the
Conversion Shares and to deliver to the Company the appropriate
amount of
proceeds; and/or (iv) any other payment method that is established
by the
Company (which payment method may be restricted or eliminated from
time to
time by the Company, in its sole
discretion).
|
(c)
|
The
Company will, without transfer or issue tax to the Optionee, issue
and
cause to be delivered to the Optionee the number of Option Shares
purchased as soon as reasonably practicable after the Optionee
has
appropriately exercised any Options. The Company is not
required to issue Shares to the Optionee until all obligations
to withhold
taxes and similar charges have been resolved to the satisfaction
of the
Company.
|
3.
|
Termination
of Relationship
.
|
(a)
|
Acceleration
upon Termination of Relationship.
Subject to Section
3(c)(iii) below, if an Optionee’s employment with the Company or the
subsidiary by whom the employee is employed (the “Employer”) terminates
for reasons of Retirement (as defined in the Plan), Disability
(as defined
in the Plan) or death, all the unvested Option Shares shall become
immediately vested and exercisable on the date of Retirement, date
of
Disability or date of death.
|
(b)
|
Duration
of Exercise Following Termination of Relationship.
Subject
to Section 3(c) below, Options which have vested prior to the termination
of the Optionee’s employment with the Employer may be exercised as
follows:
|
(i)
|
within
ninety (90) days after the date on which the Optionee’s employment with
the Employer terminates (the “Termination Date”), except as otherwise
provided in Subsections 3(b)(ii), (iii) and (iv)
below;
|
(ii)
|
if
the Optionee’s employment with the Employer terminates as a result of the
Optionee’s Retirement, within one (1) year after the date of
Retirement;
|
(iii)
|
if
the Optionee’s employment terminates as a result of a Disability, within
one (1) year after the date of Disability;
or
|
(iv)
|
if
the Optionee’s employment terminates as a result of death, within one (1)
year after the date of death by the Optionee’s designated beneficiary,
legal representative or permitted
transferee.
|
(c)
|
Limitations
on Exercise Following Termination of
Relationship
.
|
(i)
|
The
time periods set forth in Section 3(b) above are subject to the
restriction that Options may not be exercised after their Expiration
Date.
|
(ii)
|
The
time periods set forth in Section 3(b) are also subject to the
restriction
that no Option may be exercised by any person if the Optionee (i)
is, or
at any time after the date of grant has been, in competition with
the
Company or its affiliates, or (ii) has been terminated by the Employer
for
Cause, as defined in the Plan.
|
(iii)
|
Except
as otherwise provided by the Committee administering the Plan or
by an
employment agreement between the Optionee and the Employer, (i)
the only
Options that may be exercised after the Termination Date, date
of
Retirement, date of Disability or date of death (as applicable,
the “Event
Date”) are those Options that were exercisable by the Optionee on the
Event Date; and (ii) any Options which are not exercisable on the
Event
Date will automatically terminate on the Event
Date.
|
(iv)
|
Any
Options which are exercisable on the Event Date, but which are
not
exercised within the applicable period specified in Section 3(b)
above,
will automatically terminate at the end of that applicable
period.
|
4.
|
Adjustments
for Certain Events
. The number and kind of unexercised
Options and the Exercise Price of such Options are subject to adjustment
in the event that certain transactions are taken by the Company
which
affect the Company’s capital stock.
|
5.
|
Type
of Options
. The Options are nonqualified stock options
granted pursuant to Section 5 of the
Plan.
|
6.
|
No
Transfer of Options
. Unless transferability is
authorized by the Option grant or otherwise permitted by the Committee,
Options are not transferable by the Optionee other than (i) by
will or the
laws of descent and distribution, or (ii) pursuant to a domestic
relations
order. Because of laws affecting the transferability of the
Option Shares, the Optionee should understand the securities laws
and
other implications of any transfer of
Options.
|
7.
|
General
Restriction on Issuance of Stock
. The Company may require
information or documents which enable it to insure compliance with
any law
or Rules (as defined in the Plan) of the Securities and Exchange
Commission or any other governmental authority having jurisdiction
under
the Plan before it issues any Shares upon the exercise of any
Options. If at any time the Committee administering the Plan
shall determine that the listing, registration or qualification
of the
Option Shares under any state or federal law or other applicable
Rule, or
the consent or approval of any governmental regulatory body, is
necessary
or desirable as a condition of the granting of the Options or the
issue or
purchase of Shares thereunder, such Options may not be exercised
in whole
or in part unless such listing, registration, qualification, consent
or
approval shall have been effected or obtained free of any conditions
not
acceptable to the Committee.
|
8.
|
Limitation
on Sale or Disposition of Option Shares.
If the Committee determines
that the ability of the Optionee to sell or transfer Option Shares
is
restricted, then the Company may place a restrictive legend or
stop
transfer notation on its books with respect to such Option
Shares. If a legend or stop transfer notation is placed on the
Company’s books
|
with
respect to an Optionee’s Option Shares, the Optionee may only sell such
Option Shares in compliance with such legend or
notation.
|
9.
|
No
Listing of Option Shares; Conversion
. The Company has not
listed the Option Shares for trading on the New York Stock Exchange
and
does not intend to effect such a listing. Pursuant to the
Certificate of Incorporation of the Company, Option Shares may
be
converted into Class A Shares, but only if the Class A Shares received
upon the conversion are sold or transferred immediately following
the
conversion in a market transaction or qualifying private transaction
as
such terms are defined in the Company’s Certificate of
Incorporation. The Class A Shares into which Option Shares may
be converted have been or will, prior to issuance, be listed for
trading
on the New York Stock Exchange.
|
10.
|
Incorporation
of Plan
. The Options are subject to the terms and
conditions of the Plan, which are incorporated herein by
reference. The Company, upon request, will provide a copy of
the Plan to the Optionee. To the extent that the terms and
conditions of the Documents are inconsistent with the Plan, the
provisions
of the Plan shall control.
|
11.
|
Applicable
Times and Dates
. All references to times and dates in the
Plan and in documents relating to the Plan refer, respectively,
to Eastern
Standard Time (or Eastern Daylight Savings Time, as appropriate)
in the
United States of America and to dates in New York State based on
such
Eastern Standard Time (or Eastern Daylight Savings Time, as
appropriate).
|
1.
|
Term
of Options
. The Options, granted on __________________ (the
“Date of Grant”), will terminate and expire, to the extent not previously
exercised, at 5:00 p.m. Eastern Time on ___________________, or such
earlier date upon which the Options, or portion thereof, terminate
or
expire pursuant to the terms of the Plan (the “Expiration
Date”).
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(a)
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The
Options may be exercised in whole or in part at any time on or after
________________ but no Options may be exercisable after the Expiration
Date.
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(b)
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The
Optionee can exercise Options by complying with the provisions of
the Plan
and by following instructions provided in materials distributed by
the
Company. The exercise price, $__________ per share (the
“Exercise Price”), for the number of shares subject to the Option (the
“Option Shares”) being purchased and any related withholding tax
obligations may be paid by the Optionee by (i) delivery of cash,
money
order or a certified or cashier’s check; (ii) tendering previously
acquired Shares or shares of Class A Common Stock, par value $.01
per
share, of the Company (“Class A Shares”), as provided for in the Plan;
(iii) delivery of a conversion notice or other conversion
instructions acceptable to the Company irrevocably electing to convert
a
sufficient number of Shares received under the Option into Class
A Shares
(“Conversion Shares”) together with delivery of irrevocable instructions
to a broker or other agent acceptable to the Company to promptly
sell the
Conversion Shares and to deliver to the Company the appropriate amount
of
proceeds; and/or (iv) any other payment method that is established
by the
Company (which payment method may be restricted or eliminated from
time to
time by the Company, in its sole
discretion).
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(c)
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The
Company will, without transfer or issue tax to the Optionee, issue
and
cause to be delivered to the Optionee the number of Option Shares
purchased as soon as reasonably practicable after the Optionee has
appropriately exercised any Options. The Company is not
required to issue Shares to the Optionee until all obligations to
withhold
taxes and similar charges have been resolved to the satisfaction
of the
Company.
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(a)
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The
time period set forth in Section 3 above is subject to the restriction
that Options may not be exercised after their Expiration
Date.
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(b)
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The
time period set forth in Section 3 above is also subject to the
restriction that no Option may be exercised by any person if the
Optionee’s relationship with the Company has been terminated for Cause, as
defined in the Plan.
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(c)
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Except
as otherwise provided by the Committee administering the Plan, (i)
the
only Options that may be exercised after the Termination Date are
those
Options that were exercisable by the Optionee on the Termination
Date; and
(ii) any Options which are not exercisable on the Termination Date
will
automatically terminate on the Termination
Date.
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(d)
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Any
Options which are exercisable on the Termination Date, but which
are not
exercised within the one (1) year period specified in Section 3 above,
will automatically terminate at the end of that
period.
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5.
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Adjustments
for Certain Events
. The number and kind of unexercised
Options and the Exercise Price of such Options are subject to adjustment
in the event that certain transactions are taken by the Company which
affect the Company’s capital stock.
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6.
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Type
of Options
. The Options are nonqualified stock options
granted pursuant to Section 5 of the
Plan.
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7.
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No
Transfer of Options
. Unless transferability is authorized
by the Option grant or otherwise permitted by the Committee, Options
are
not transferable by the Optionee other
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than
(i) by will or the laws of descent and distribution, or (ii) pursuant
to a
domestic relations order. Because of laws affecting the
transferability of the Option Shares, the Optionee should understand
the
securities laws and other implications of any transfer of
Options.
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8.
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General
Restriction on Issuance of Stock
. The Company may require
information or documents which enable it to insure compliance with
any law
or Rules (as defined in the Plan) of the Securities and Exchange
Commission or any other governmental authority having jurisdiction
under
the Plan before it issues any Shares upon the exercise of any
Options. If at any time the Committee administering the Plan
shall determine that the listing, registration or qualification of
the
Option Shares under any state or federal law or other applicable
Rule, or
the consent or approval of any governmental regulatory body, is necessary
or desirable as a condition of the granting of the Options or the
issue or
purchase of Shares thereunder, such Options may not be exercised
in whole
or in part unless such listing, registration, qualification, consent
or
approval shall have been effected or obtained free of any conditions
not
acceptable to the Committee.
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9.
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Limitation
on Sale or Disposition of Option Shares
. If the Committee
determines that the ability of the Optionee to sell or transfer Option
Shares is restricted, then the Company may place a restrictive legend
or
stop transfer notation on its books with respect to such Option
Shares. If a legend or stop transfer notation is placed on the
Company’s books with respect to an Optionee’s Option Shares, the Optionee
may only sell such Option Shares in compliance with such legend or
notation.
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10.
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No
Listing of Option Shares; Conversion
. The Company has not
listed the Option Shares for trading on the New York Stock Exchange
and
does not intend to effect such a listing. Pursuant to the
Certificate of Incorporation of the Company, Option Shares may be
converted into Class A Shares, but only if the Class A Shares received
upon the conversion are sold or transferred immediately following
the
conversion in a market transaction or qualifying private transaction
as
such terms are defined in the Company’s Certificate of
Incorporation. The Class A Shares into which Option Shares may
be converted have been or will, prior to issuance, be listed for
trading
on the New York Stock Exchange.
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12.
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Incorporation
of Plan
. The Options are subject to the terms and
conditions of the Plan, which are incorporated herein by
reference. The Company, upon request, will provide a copy of
the Plan to the Optionee. To the extent that the terms and
conditions of the Documents are inconsistent with the Plan, the provisions
of the Plan shall control.
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13.
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Applicable
Times and Dates
. All references to times and dates in the
Plan and in documents relating to the Plan refer, respectively, to
Eastern
Standard Time (or Eastern Daylight Savings Time, as appropriate)
in the
United States of America and to dates in New York State based on
such
Eastern Standard Time (or Eastern Daylight Savings Time, as
appropriate).
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