As filed with the Securities and Exchange Commission on June 3, 2005
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT
OF 1933
ALLIANCE ONE INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
|
|
|
|
|
VIRGINIA
|
|
54-1746567
|
|
(State or other jurisdiction of incorporation or organization)
|
|
(I.R.S. Employer Identification No.)
|
512 Bridge Street
Danville, Virginia 24541
(434) 792-7511
(Address of principal executive offices, including zip code)
Standard Commercial Corporation Performance Improvement Compensation Plan
Standard Commercial Corporation 2001 Performance Improvement Compensation Plan
(Full titles of the plans)
James A. Cooley
Executive Vice President - Chief Financial Officer
Alliance One International, Inc.
512 Bridge Street
Danville, Virginia 24541
(434)
792-7511
(Name, address and telephone number, including area code, of agent for service)
With copies to:
Thurston R. Moore, Esq.
Randall S. Parks, Esq.
Hunton &
Williams LLP
951 East Byrd Street
Richmond, Virginia 23219
(804) 788-8200
(804) 788-8218 (Fax)
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
Title of securities
to be registered
|
|
Amount
to be
registered
(1)
|
|
Proposed
maximum
offering price
per share
(2)
|
|
Proposed
maximum
aggregate
offering price
(2)
|
|
Amount of
registration
fee
(3)
|
|
Common Stock, without par value per share
|
|
774,021 shares
|
|
$6.41
|
|
$4,961,475
|
|
$584
|
|
|
(1)
|
Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended, the number of shares of Common Stock registered hereunder includes such indeterminate number of
additional shares of Common Stock as may be offered or issued in the future to prevent dilution resulting from stock splits, stock dividends or similar transactions.
|
|
(2)
|
Estimated solely for the purpose of computing the registration fee. This amount was calculated pursuant to Rule 457(h) under the Securities Act of 1933, as amended, on the basis of
$6.41 per share, which was the average of the high and low prices of the Common Stock on the New York Stock Exchange on May 31, 2005.
|
|
(3)
|
Calculated by multiplying the estimated aggregate offering price of securities to be registered by .0001177.
|
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
|
Item 1.
|
Plan Information.
|
Not required to be filed with the Securities and Exchange Commission (the “Commission”).
|
Item 2.
|
Registrant Information and Employee Plan Annual Information.
|
Not required to be filed with the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement on Form S-8 is filed by Alliance One International, Inc., a Virginia corporation (the “Company” or the
“Registrant”) relating to 774,021 shares of its common stock, without par value per share, issuable pursuant to the Standard Commercial Corporation Performance Improvement Compensation Plan and the Standard Commercial Corporation 2001
Performance Improvement Compensation Plan, each as assumed by the Company in connection with its merger with Standard Commercial Corporation, effective May 13, 2005.
|
Item 3.
|
Incorporation of Documents by Reference.
|
The Company hereby incorporates by reference into this registration statement the following documents filed with the SEC by the Company:
|
|
(a)
|
Annual Report on Form 10-K for the fiscal year ended March 31, 2004, as amended;
|
|
|
(b)
|
Quarterly Reports on Form 10-Q for the fiscal quarter ended June 30, 2004, as filed on August 3, 2004, for the fiscal quarter ended September 30, 2004, as filed on November 9, 2004,
and for the fiscal quarter ended December 31, 2004, as filed on February 8, 2005, each as amended; and
|
|
|
(c)
|
Current Reports on Form 8-K, filed on April 1, 2004, August 26, 2004, October 12, 2004, October 20, 2004, October 28, 2004, November 1, 2004, November 3, 2004, November 8, 2004,
December 10, 2004, December 22, 2004, March 1, 2005, March 4, 2005, March 8, 2005, March 22, 2005, April 1, 2005, April 4, 2005, April 12, 2005, April 18, 2005, April 19, 2005, April 22, 2005, April 25, 2005, May 2, 2005, May 3, 2005, May 4, 2005,
May 5, 2005, May 6, 2005, May 9, 2005, May 10, 2005, May 11, 2005, May 16, 2005, May 16, 2005 and May 19, 2005, each as amended.
|
|
|
(d)
|
The description of the Company’s common stock, without par value, contained in the Company’s registration statement on Form S-4/A as filed March 3, 2005.
|
All documents subsequently filed by the
Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the “1934 Act”) and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing such documents. Any statement contained in this registration statement
shall be deemed to be modified or superseded to the extent that a statement contained in a subsequently filed document which is, or is deemed to be, incorporated by reference herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. 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 in any other subsequently filed document that is or is deemed to be incorporated by reference herein, modifies or supersedes such statement.
2
|
Item 4.
|
Description of Securities.
|
Not applicable.
|
Item 5.
|
Interests of Named Experts and Counsel.
|
Not applicable.
|
Item 6.
|
Indemnification of Directors and Officers.
|
The Virginia Stock Corporation Act (the “VSCA”) permits, and the Company’s amended and restated articles of incorporation provide for, the
indemnification of the Company’s directors and officers in a variety of circumstances, which may include indemnification for liabilities under the Securities Act. Under sections 13.1-697 and 13.1-702 of the VSCA, a Virginia corporation
generally is authorized to indemnify its directors and officers in civil and criminal actions if they acted in good faith and believed their conduct to be in the best interests of the corporation and, in the case of criminal actions, had no
reasonable cause to believe that the conduct was unlawful. The Company’s amended and restated articles of incorporation require indemnification of directors and officers with respect to certain liabilities and expenses imposed upon them by
reason of having been a director or officer, except in the case of willful misconduct or a knowing violation of criminal law. The Company has obtained insurance on behalf of its directors, officers, employees or agents that may cover liabilities
under the Securities Act. In addition, the VSCA and the Company’s amended and restated articles of incorporation eliminate the liability for monetary damages of a director or officer in a shareholder or derivative proceeding. This elimination
of liability will not apply in the event of willful misconduct or a knowing violation of criminal law or any federal or state securities law. Sections 13.1-692.1 and 13.1-696 through 704 of the VSCA are incorporated into this paragraph by reference.
|
Item 7.
|
Exemption from Registration Claimed.
|
Not applicable.
|
|
|
|
Exhibit No.
|
|
Description
|
|
|
|
|
4.1
|
|
Amended and Restated Articles of Incorporation of Alliance One International, Inc. (incorporated by reference to the Company’s Current Report on Form 8-K filed May 19,
2005).
|
|
|
|
|
4.2
|
|
Amended and Restated Bylaws of Alliance One International, Inc. (incorporated by reference to the Company’s Current Report on Form 8-K filed May 19, 2005).
|
|
|
|
|
4.3
|
|
Specimen of Alliance One International, Inc. Common Stock Certificate (filed herewith).
|
|
|
|
|
5.1
|
|
Opinion of Hunton & Williams LLP as to the legality of the securities being registered (filed herewith).
|
|
|
|
|
23.1
|
|
Consent of Hunton & Williams LLP (included in the opinion filed as Exhibit 5.1).
|
|
|
|
|
23.2
|
|
Consent of Ernst & Young LLP (filed herewith).
|
|
|
|
|
23.3
|
|
Consent of Deloitte & Touche LLP (filed herewith).
|
|
|
|
|
24.1
|
|
Powers of Attorney (included on signature page).
|
|
|
|
|
99.1
|
|
Standard Commercial Corporation Performance Improvement Compensation Plan (filed herewith).
|
|
|
|
|
99.2
|
|
Standard Commercial Corporation 2001 Performance Improvement Compensation Plan (incorporated by reference to Appendix A to Standard Commercial Corporation’s definitive proxy solicitation
materials filed June 28, 2001).
|
3
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
|
|
|
(iii)
|
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change in 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 with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange 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.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona
fide
offering thereof.
(c) Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described under Item 6 above, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange 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.
4
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of
Danville, Commonwealth of Virginia, on this 3
rd
day of June, 2005.
|
|
|
|
|
ALLIANCE ONE INTERNATIONAL, INC.
|
|
|
|
|
By:
|
|
/s/ James A. Cooley
|
|
|
|
James A. Cooley
|
|
|
|
Executive Vice President - Chief Financial Officer
|
5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose
signature appears below constitutes and appoints James A. Cooley and Thomas G. Reynolds, and each of them (with full power to act alone) as true and lawful attorneys-in-fact, and stead, in any and all capacities, to sign any amendments to this
registration statement and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact, or their substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this amendment to the registration statement has been signed below by the following persons in the capacities indicated on June 3, 2005.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Brian J. Harker
|
|
|
|
By:
|
|
/s/ Gilbert L. Klemann, II
|
|
|
|
Brian J. Harker
Chairman of the Board of Directors and Chief Executive Officer
(Principal Executive Officer)
|
|
|
|
|
|
Gilbert L. Klemann, II
Director
|
|
|
|
|
|
|
|
By:
|
|
/s/ Robert E. Harrison
|
|
|
|
By:
|
|
/s/ Joseph L. Lanier, Jr.
|
|
|
|
Robert E. Harrison
President and Chief Operating Officer
(Principal Operating Officer)
|
|
|
|
|
|
Joseph L. Lanier, Jr.
Director
|
|
|
|
|
|
|
|
By:
|
|
/s/ James A. Cooley
|
|
|
|
By:
|
|
/s/ Albert C. Monk III
|
|
|
|
James A. Cooley
Executive Vice President-Chief Financial Officer
(Principal Financial Officer)
|
|
|
|
|
|
Albert C. Monk III
Director
|
|
|
|
|
|
|
|
By:
|
|
/s/ Thomas G. Reynolds
|
|
|
|
By:
|
|
/s/ B. Clyde Preslar
|
|
|
|
Thomas G. Reynolds
Vice President-Controller
(Principal Accounting Officer)
|
|
|
|
|
|
B. Clyde Preslar
Director
|
|
|
|
|
|
|
|
By:
|
|
/s/ C. Richard Green, Jr.
|
|
|
|
By:
|
|
/s/ Norman A. Scher
|
|
|
|
C. Richard Green, Jr.
Director
|
|
|
|
|
|
Norman A. Scher
Director
|
|
|
|
|
|
|
|
By:
|
|
/s/ John M. Hines
|
|
|
|
By:
|
|
/s/ William S. Sheridan
|
|
|
|
John M. Hines
Director
|
|
|
|
|
|
William S. Sheridan
Director
|
|
|
|
|
|
|
|
By:
|
|
/s/ Nigel G. Howard
|
|
|
|
By:
|
|
/s/ Martin R. Wade III
|
|
|
|
Nigel G. Howard
Director
|
|
|
|
|
|
Martin R. Wade III
Director
|
|
|
|
|
|
|
|
By:
|
|
/s/ Mark W. Kehaya
|
|
|
|
|
|
|
|
|
|
Mark W. Kehaya
Director
|
|
|
|
|
|
|
6
EXHIBIT INDEX
|
|
|
|
Exhibit No.
|
|
Description
|
|
|
|
|
4.1
|
|
Amended and Restated Articles of Incorporation of Alliance One International, Inc. (incorporated by reference to the Company’s Current Report on Form 8-K filed May 19,
2005).
|
|
|
|
|
4.2
|
|
Amended and Restated Bylaws of Alliance One International, Inc. (incorporated by reference to the Company’s Current Report on Form 8-K filed May 19, 2005).
|
|
|
|
|
4.3
|
|
Specimen of Alliance One International, Inc. Common Stock Certificate (filed herewith).
|
|
|
|
|
5.1
|
|
Opinion of Hunton & Williams LLP as to the legality of the securities being registered (filed herewith).
|
|
|
|
|
23.1
|
|
Consent of Hunton & Williams LLP (included in the opinion filed as Exhibit 5.1).
|
|
|
|
|
23.2
|
|
Consent of Ernst & Young LLP (filed herewith).
|
|
|
|
|
23.3
|
|
Consent of Deloitte & Touche LLP (filed herewith).
|
|
|
|
|
24.1
|
|
Powers of Attorney (included on signature page).
|
|
|
|
|
99.1
|
|
Standard Commercial Corporation Performance Improvement Compensation Plan (filed herewith).
|
|
|
|
|
99.2
|
|
Standard Commercial Corporation 2001 Performance Improvement Compensation Plan (incorporated by reference to Appendix A to Standard Commercial Corporation’s definitive proxy solicitation
materials filed June 28, 2001).
|
7
Exhibit 4.3
Specimen of Alliance One International, Inc. Common Stock Certificate
The Corporation will furnish to any shareholder, without charge and upon request in writing to the office of the
Corporation, a full statement of the designations, relative rights, preferences and limitations of the shares of each class authorized to be issued, and the variations in the relative rights, preferences and limitations between the shares of each
series of any class of shares authorized to be issued in series, so far as the same have been fixed and determined, and the authority of the board of directors to fix and determine the relative rights, preferences and limitations of subsequent
series of shares of any such class.
The following
abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations :
|
|
|
|
|
|
|
|
|
|
|
TEN COM
|
|
— as tenants in common
|
|
UNIF GIFT MIN ACT —
|
|
Custodian
|
|
|
|
|
|
|
|
TEN ENT
|
|
— as tenants by the entireties
|
|
|
|
(Cust)
|
|
(Minor)
|
|
JT TEN
|
|
— as joint tenants with right of survivorship and not as tenants in common
|
|
|
|
under Uniform Gifts to Minors
|
|
|
|
|
|
Act
|
|
|
|
|
|
(State)
|
|
|
|
|
|
|
Additional abbreviations may also be used though not in the above list.
|
For value received,
hereby sell, assign and transfer unto
|
|
|
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
|
|
|
|
|
Please print or
typewrite name and address including postal zip code of assignee
Shares
of the capital stock represented by the
within Certificate, and do hereby irrevocably constitute and appoint
Attorney to transfer the said stock
on the books of the within-named Corporation with full power of substitution in the premises.
Dated,
|
|
|
|
|
|
|
NOTICE: The signature(s) to this assignment must correspond with the name(s) as written upon the face of the Certificate, in every particular, without alteration or enlargement, or any change
whatever.
|
|
|
|
|
|
SIGNATURE(S) GUARANTEED:
|
|
|
|
|
|
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOANS ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
|
KEEP THIS
CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, MUTILATED OR DESTROYED, THE CORPORATION MAY REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
Exhibit 5.1
Opinion of Hunton & Williams LLP
[Letterhead of Hunton & Williams LLP]
June 3, 2005
Board of Directors
Alliance One International, Inc.
512 Bridge Street
Danville, Virginia 24541
Alliance One International, Inc.
Registration Statement on Form S-8 Relating to the
Standard Commercial Corporation Performance Improvement Compensation Plan and the
Standard
Commercial Corporation 2001 Performance Improvement Compensation Plan
Gentlemen:
We have acted as counsel for Alliance One
International, Inc., a Virginia corporation (the “Company”), in connection with the Registration Statement on Form S-8 (the “Registration Statement”) filed by the Company on or about June 3, 2005, with the Securities and Exchange
Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), with respect to 774,021 shares of the Company’s common stock, no par value per share (the “Shares”), issuable
pursuant to the Standard Commercial Corporation Performance Improvement Compensation Plan and the Standard Commercial Corporation 2001 Performance Improvement Compensation Plan (collectively, the “Plans”), as referenced in the Registration
Statement. This opinion is being furnished in accordance with the requirements of Item 8(a) of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
In rendering this opinion, we have relied upon, among other things, our examination of the Plans and such records of the Company and certificates of its
officers and of public officials as we have deemed necessary.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the Commonwealth of Virginia.
2. The Shares have been duly authorized and, when issued in accordance with the terms of the Plans will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the
Commission thereunder. We do not undertake to advise you of any changes in the opinions expressed herein based on matters that might hereafter arise or be brought to our attention.
Very truly yours,
/s/ Hunton & Williams LLP
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We agree to the incorporation by reference in the Registration Statement (Form S-8) for the
registration of shares of Alliance One International, Inc. (formerly DIMON Incorporated) pertaining to the Standard Commercial Corporation Performance Improvement Compensation Plan and the Standard Commercial Corporation 2001 Performance Improvement
Compensation Plan, of our report dated May 27, 2004 (except for Note G, as to which the date is June 9, 2004 and Note B, as to which the date is September 30, 2004), with respect to the consolidated financial statements and schedule of Alliance One
International, Inc. included in its Current Report on Form 8-K dated December 10, 2004, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Greensboro, North
Carolina
May 31, 2005
Exhibit 23.3
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement on Form S-8 of
Alliance One International, Inc., filed June 3, 2005, of our report on the consolidated financial statements of Standard Commercial Corporation and subsidiaries dated June 14, 2004 (December 3, 2004 as to the impact of restating the Italian
operation as discontinued operation to conform to SFAS No. 144 discussed on Note 2) (which report expresses an unqualified opinion and includes explanatory paragraphs relating to the adoption of Statement of Financial Standards (“SFAS”)
No. 142,
Goodwill and Other Intangible Assets,
on April 1, 2002, the adoption of SFAS 144,
Accounting for the Impairment or Disposal of Long-Lived Assets,
on March 31, 2002, and the adoption of SFAS No. 133,
Accounting for
Derivative Instruments and Hedging Activities,
on April 1, 2001 and the adoption of SFAS No. 145,
Rescission of FASB Statements No. 4, 44 and 64, Amendment of FASB Statement No. 13 and Technical Corrections
) appearing in the Amendment No.
1 to the Current Report on Form 8-K/A of Alliance One International, Inc., filed June 3, 2005.
/s/ Deloitte & Touche LLP
Raleigh, North Carolina
May 31, 2005
Exhibit 99.1
THE COMPANY’S PERFORMANCE IMPROVEMENT
COMPENSATION PLAN
STANDARD COMMERCIAL CORPORATION
PERFORMANCE IMPROVEMENT COMPENSATION PLAN
TABLE OF CONTENTS
|
|
|
|
|
ARTICLE I - GENERAL PROVISIONS
|
|
1
|
|
|
|
|
ARTICLE II - DEFINITIONS
|
|
2
|
|
|
|
|
ARTICLE III - ADMINISTRATION
|
|
6
|
|
|
|
|
ARTICLE IV - INCENTIVE STOCK OPTIONS
|
|
10
|
|
|
|
|
ARTICLE V - NONQUALIFIED STOCK OPTIONS
|
|
12
|
|
|
|
|
ARTICLE VI - STOCK APPRECIATION RIGHTS
|
|
13
|
|
|
|
|
ARTICLE VII - INCIDENTS OF STOCK OPTIONS AND STOCK RIGHTS
|
|
15
|
|
|
|
|
ARTICLE VIII - RESTRICTED STOCK
|
|
17
|
|
|
|
|
ARTICLE IX - DEFERRED STOCK
|
|
19
|
|
|
|
|
ARTICLE X - STOCK AWARDS
|
|
21
|
|
|
|
|
ARTICLE XI - PERFORMANCE SHARES
|
|
22
|
|
|
|
|
ARTICLE XII - OTHER STOCK-BASED AWARDS
|
|
24
|
|
|
|
|
ARTICLE XIII - ACCELERATION EVENTS
|
|
26
|
|
|
|
|
ARTICLE XIV - AMENDMENT AND TERMINATION
|
|
29
|
|
|
|
|
ARTICLE XV - MISCELLANEOUS PROVISIONS
|
|
30
|
-i-
STANDARD COMMERCIAL CORPORATION
PERFORMANCE IMPROVEMENT COMPENSATION PLAN
ARTICLE I - GENERAL PROVISIONS
|
1.1
|
The Plan is designed, for the benefit of the Company, to attract and retain for the Company personnel of exceptional ability; to motivate such personnel through added incentives to
make a maximum contribution to greater profitability; to develop and maintain a highly competent management team; and to be competitive with other companies with respect to executive compensation.
|
|
1.2
|
Awards under the Plan may be made to Participants in the form of (i) Incentive Stock Options; (ii) Nonqualified Stock Options; (iii) Stock Appreciation Rights; (iv) Restricted
Stock; (v) Deferred Stock; (vi) Stock Awards; (vii) Performance Shares; and (viii) Other Stock-Based Awards and other forms of equity-based compensation as may be provided and are permissible under this Plan and the law.
|
|
1.3
|
The Plan shall be effective August 11, 1992 (the “Effective Date”).
|
1
ARTICLE II - DEFINITIONS
DEFINITIONS
. Except where the context otherwise indicates, the
following definitions apply:
|
2.1
|
“Acceleration Event” means the occurrence of an event defined in Article XIII of the Plan.
|
|
2.2
|
“Act” means the Securities Exchange Act of 1934, as now in effect or as hereafter amended. (All citations to sections of the Act or rules thereunder are to such sections
or rules as they may from time to time be amended or renumbered.)
|
|
2.3
|
“Agreement” means the written agreement evidencing each Award granted to a Participant under the Plan.
|
|
2.4
|
“Award” means an award granted to a Participant in accordance with the provisions of the Plan, including, but not limited to, a Stock Option, Stock Right, Restricted or
Deferred Stock, Stock Awards, Performance Shares, Other Stock-Based Award, or any combination of the foregoing.
|
|
2.5
|
“Board” means the Board of Directors of Standard Commercial Corporation.
|
|
2.6
|
“Code” means the Internal Revenue Code of 1986, as now in effect or as hereafter amended. (All citations to sections of the Code are to such sections as they may from time
to time be amended or renumbered.)
|
|
2.7
|
“Committee” means the Compensation Committee or such other committee consisting of three or more members as may be appointed by the Board to administer this Plan pursuant
to Article III. To the extent required by Rule 16b-3 under the Act, the Committee shall consist of individuals who are members of the Board and Disinterested Persons. Committee members may also be appointed for such limited purposes as may be
provided by the Board.
|
|
2.8
|
“Company” means Standard Commercial Corporation, a North Carolina corporation, and its successors and assigns. The term “Company” shall include any corporation
which is a member of a controlled group of corporations (as defined in § 414(b) of the Code, as modified by § 415(h) of the Code) which includes the Company; any trade or business (whether or not incorporated) which is under common control
(as defined in § 414(c) of the Code, as modified by § 415(h) of the Code) with the Company; any organization (whether or not incorporated) which is a member of an affiliated service group (as defined in § 414(m) of the Code) which
includes the Company; and any other entity required to be aggregated with the Company pursuant to regulations under § 414(o) of the Code. With respect to all purposes of the Plan, including, but not limited to, the establishment, amendment,
termination, operation and administration of the Plan, Standard Commercial Corporation shall be authorized to act on behalf of all other entities included within the definition of Company.
|
|
2.9
|
“Deferred Stock” means the stock awarded under Article IX of the Plan.
|
2
|
2.10
|
“Disability” means disability as determined under procedures established by the Committee or in any Award.
|
|
2.11
|
“Discount Stock Options” means the Nonqualified Stock Options which provide for an exercise price of less than the Fair Market Value of the Stock at the date of the Award.
|
|
2.12
|
“Disinterested Person” shall have the meaning set forth in Rule 16b-3 under the Act.
|
|
2.13
|
“Early Retirement” means retirement from active employment with the Company, with the express consent of the Committee, pursuant to the early retirement provisions
established by the Committee or in any Award.
|
|
2.14
|
“Eligible Participant” means any employee of the Company, as shall be determined by the Committee, as well as any other person, including directors, subject to such
limitations imposed on a person designated as a Disinterested Person, whose participation the Committee determines is in the best interest of the Company, subject to limitations as may be provided by the Code, the Act or the Committee.
|
|
2.15
|
“Fair Market Value” means, with respect to any given day, the closing price of the Stock reported on the New York Stock Exchange for such day, or if the Stock was not
traded on the New York Stock Exchange on such day, then on the next day on which the Stock was traded, all as reported by such source as the Committee may select. The Committee may establish an alternative method of determining Fair Market Value.
|
|
2.16
|
“Incentive Stock Option” means a Stock Option granted under Article IV of the Plan, and as defined in Section 422A of the Code.
|
|
2.17
|
“Limited Stock Appreciation Rights” means a Stock Right which is exercisable only in the event of a Change in Control and/or a Potential Change in Control, as described in
Section 6.9 of this Plan, which provides for an amount payable solely in cash, equal to the excess of the Stock Appreciation Right Fair Market Value of a share of Stock on the day the Stock Right is surrendered over the price at which a Participant
could exercise a related Stock Option to purchase the share of Stock.
|
|
2.18
|
“Nonqualified Stock Option” means a Stock Option granted under Article V of the Plan.
|
|
2.19
|
“Normal Retirement” means retirement from active employment with the Company on or after age 65, or pursuant to such other requirements as may be established by the
Committee or in any Award.
|
|
2.20
|
“Option Grant Date” means, as to any Stock Option, the latest of:
|
|
|
(a)
|
the date on which the Committee grants the Stock Option by entering into an Award Agreement with the Participant;
|
|
|
(b)
|
the date the Participant receiving the Stock Option becomes an employee of the Company, to the extent employment status is a condition of the grant or a requirement of the Code or
the Act; or
|
3
|
|
(c)
|
such other date (later than the dates described in (i) and (ii) above) as the Committee may designate.
|
|
2.21
|
“Participant” means an Eligible Participant to whom an Award of equity-based compensation has been granted and who has entered into an Agreement evidencing the Award.
|
|
2.22
|
“Performance Share” means an Award under Article XI of the Plan of a unit valued by reference to a designated number of shares of Stock, which value may be paid to the
Participant by delivery of such property as the Committee shall determine, including without limitation, cash or Stock, or any combination thereof, upon achievement of such Performance Objectives during the Performance Period as the Committee shall
establish at the time of such Award or thereafter.
|
|
2.23
|
“Plan” means the Standard Commercial Corporation Performance Improvement Compensation Plan, as amended from time to time.
|
|
2.24
|
“Restricted Stock” means an Award of Stock under Article VIII of the Plan, which Stock is issued with the restriction that the holder may not sell, transfer, pledge, or
assign such Stock and with such other restrictions as the Committee, in its sole discretion, may impose, including without limitation, any restriction on the right to vote such Stock, and the right to receive any cash dividends, which restrictions
may lapse separately or in combination at such time or times, in installments or otherwise, as the Committee may deem appropriate.
|
|
2.25
|
“Restriction Period” means the period commencing on the date an Award of Restricted Stock is granted and ending on such date as the Committee shall determine.
|
|
2.26
|
“Retirement” means Normal or Early Retirement.
|
|
2.27
|
“Stock” means shares of common stock of Standard Commercial Corporation, as may be adjusted pursuant to the provisions of Section 3.11.
|
|
2.28
|
“Stock Appreciation Right” means a Stock Right, as described in Article VI of this Plan, which provides for an amount payable in Stock and/or cash, as determined by the
Committee, equal to the excess of the Fair Market Value of a share of Stock on the day the Stock Right is exercised over the price at which the Participant could exercise a related Stock Option to purchase the share of Stock.
|
|
2.29
|
“Stock Appreciation Right Fair Market Value” means a value established by the Committee for the exercise of a Stock Appreciation Right or a Limited Stock Appreciation
Right. If such exercise occurs during any quarterly “window period,” as specified by Rule 16b-3 under the Act, the Committee may establish a common value for exercises during such window period.
|
|
2.30
|
“Stock Award” means an Award of Stock granted in payment of compensation, as provided in Article X of the Plan.
|
4
|
2.31
|
“Stock Option” means an Award under Article IV or V of the Plan of an option to purchase Stock. A Stock Option may be either an Incentive Stock Option or a Nonqualified
Stock Option.
|
|
2.32
|
“Stock Right” means an Award under Article VI of the Plan. A Stock Right may be either a Stock Appreciation Right or a Limited Stock Appreciation Right.
|
|
2.33
|
“Termination of Employment” means the discontinuance of employment of a Participant with the Company for any reason. The determination of whether a Participant has
discontinued employment shall be made by the Committee in its discretion. In determining whether a Termination of Employment has occurred, the Committee may provide that service as a consultant or service with a business enterprise in which the
Company has a significant ownership interest shall be treated as employment with the Company. The Committee shall have the discretion, exercisable either at the time the Award is granted or at the time the Participant terminates employment, to
establish as a provision applicable to the exercise of one or more Awards that during the limited period of exercisability following Termination of Employment, the Award may be exercised not only with respect to the number of shares of Stock for
which it is exercisable at the time of the Termination of Employment but also with respect to one or more subsequent installments for which the Award would have become exercisable had the Termination of Employment not occurred.
|
5
ARTICLE III -
ADMINISTRATION
|
3.1
|
This Plan shall be administered by the Committee. A Committee member who is not a Disinterested Person, with respect to action to be taken by the Committee, shall not be able to
participate in the decision to the extent prescribed by Rule 16b-3 under the Act. The Committee, in its discretion, may delegate to one or more of its members such of its powers as it deems appropriate. The Committee also may limit the power of any
member to the extent necessary to comply with Rule 16b-3 under the Act or any other law. Members of the Committee shall be appointed originally, and as vacancies occur, by the Board, to serve at the pleasure of the Board. The Board may serve as the
Committee, if by the terms of the Plan all Board members are otherwise eligible to serve on the Committee.
|
|
3.2
|
The Committee shall meet at such times and places as it determines. A majority of its members shall constitute a quorum, and the decision of a majority of those present at any
meeting at which a quorum is present shall constitute the decision of the Committee. A memorandum signed by all of its members shall constitute the decision of the Committee without necessity, in such event, for holding an actual meeting.
|
|
3.3
|
The Committee shall have the exclusive right to interpret, construe and administer the Plan, to select the persons who are eligible to receive an Award, and to act in all matters
pertaining to the granting of an Award and the contents of the Agreement evidencing the Award, including without limitation, the determination of the number of Stock Options, Stock Rights, shares of Stock or Performance Shares subject to an Award
and the form, terms, conditions and duration of each Award, and any amendment thereof consistent with the provisions of the Plan. All acts, determinations and decisions of the Committee made or taken pursuant to grants of authority under the Plan or
with respect to any questions arising in connection with the administration and interpretation of the Plan, including the severability of any and all of the provisions thereof, shall be conclusive, final and binding upon all Participants, Eligible
Participants and their beneficiaries.
|
|
3.4
|
The Committee may adopt such rules, regulations and procedures of general application for the administration of this Plan, as it deems appropriate.
|
|
3.5
|
Without limiting the foregoing Sections 3.1, 3.2, 3.3 and 3.4, and notwithstanding any other provisions of the Plan, the Committee is authorized to take such action as it determines
to be necessary or advisable, and fair and equitable to Participants, with respect to an Award in the event of an Acceleration Event as defined in Article XIII. Such action may include, but shall not be limited to, establishing, amending or waiving
the forms, terms, conditions and duration of an Award and the Award Agreement, so as to provide for earlier, later, extended or additional times for exercise or payments, differing methods for calculating payments, alternate forms and amounts of
payment, an accelerated release of restrictions or other modifications. The Committee may take such actions pursuant to this Section 3.5 by adopting rules and regulations of general applicability to all Participants or to certain categories of
Participants, by including, amending or waiving terms and conditions in an Award and the Award Agreement, or by taking action with respect to individual Participants.
|
6
|
3.6
|
The aggregate number of shares of Stock which are subject to an Award under the Plan shall be 500,000 shares, plus six percent of any increase, other than any increase due to Awards
under this Plan or any other similar plan of the Company, in the number of authorized and issued shares of Stock above the number of authorized and outstanding shares as of the date the Plan was adopted. Such shares of Stock shall be made available
from authorized and unissued shares of the Company.
|
|
|
(a)
|
If, for any reason, any shares of Stock or Performance Shares awarded or subject to purchase under the Plan are not delivered or purchased, or are reacquired by the Company, for
reasons including, but not limited to, a forfeiture of Restricted Stock or termination, expiration or cancellation of a Stock Option, Stock Right or Performance Share, or any other termination of an Award without payment being made in the form of
Stock, whether or not Restricted Stock, such shares of Stock or Performance Shares shall not be charged against the aggregate number of shares of Stock available for Awards under the Plan, and may again be available for Award under the Plan.
|
|
|
(b)
|
For all purposes under the Plan, each Performance Share awarded shall be counted as one share of Stock subject to an Award.
|
|
|
(c)
|
To the extent a Stock Right granted in connection with a Stock Option is exercised without payment being made in the form of Stock, whether or not Restricted Stock, the shares of
Stock which otherwise would have been issued upon the exercise of such related Stock Option shall not be charged against the aggregate number of shares of Stock subject to Awards under the Plan, and may again be available for Award under the Plan.
|
|
3.7
|
Each Award granted under the Plan shall be evidenced by a written Award Agreement. Each Award Agreement shall be subject to and incorporate, by reference or otherwise, the
applicable terms and conditions of the Plan, and any other terms and conditions, not inconsistent with the Plan, required by the Committee.
|
|
3.8
|
The Company shall not be required to issue or deliver any certificates for shares of Stock prior to:
|
|
|
(a)
|
the listing of such shares on any stock exchange on which the Stock may then be listed; and
|
|
|
(b)
|
the completion of any registration or qualification of such shares of Stock under any federal or state law, or any ruling or regulation of any government body which the Company
shall, in its discretion, determine to be necessary or advisable.
|
|
3.9
|
All certificates for shares of Stock delivered under the Plan shall also be subject to such stop-transfer orders and other restrictions as the Committee may deem
advisable under the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Stock is then listed and any applicable federal or state laws, and the Committee may cause a legend or
legends to be placed on
|
7
|
|
any such certificates to make appropriate reference to such restrictions. In making such determination, the Committee may rely upon an opinion of counsel for
the Company.
|
|
3.10
|
Subject to the restrictions on Restricted Stock, as provided in Article VIII of the Plan and in the Restricted Stock Award Agreement, each Participant who receives an Award of
Restricted Stock shall have all of the rights of a shareholder with respect to such shares of Stock, including the right to vote the shares to the extent, if any, such shares possess voting rights and receive dividends and other distributions.
Except as provided otherwise in the Plan or in an Award Agreement, no Participant awarded a Stock Option, Stock Right, Deferred Stock, Stock Award, Performance Share shall have any right as a shareholder with respect to any shares of Stock covered
by his or her Stock Option, Stock Right, Deferred Stock, Stock Award or Performance Share prior to the date of issuance to him or her of a certificate or certificates for such shares of Stock.
|
|
3.11
|
If any reorganization, recapitalization, reclassification, stock split-up, stock dividend, or consolidation of shares of Stock, merger or consolidation of the Company or sale or
other disposition by the Company of all or a portion of its assets, any other change in the Company’s corporate structure, or any distribution to shareholders other than a cash dividend results in the outstanding shares of Stock, or any
securities exchanged therefor or received in their place, being exchanged for a different number or class of shares of Stock or other securities of the Company, or for shares of Stock or other securities of any other corporation; or new, different
or additional shares or other securities of the Company or of any other corporation being received by the holders of outstanding shares of Stock, then equitable adjustments shall be made by the Committee in:
|
|
|
(a)
|
the limitation of the aggregate number of shares of Stock that may be awarded as set forth in Section 3.6 of the Plan;
|
|
|
(b)
|
the number and class of Stock that may be subject to an Award, and which have not been issued or transferred under an outstanding Award;
|
|
|
(c)
|
the purchase price to be paid per share of Stock under outstanding Stock Options and the number of shares of Stock to be transferred in settlement of outstanding Stock Rights; and
|
|
|
(d)
|
the terms, conditions or restrictions of any Award and Award Agreement, including the price payable for the acquisition of Stock; provided, however, that all adjustments made as the
result of the foregoing in respect of each Incentive Stock Option shall be made so that such Stock Option shall continue to be an Incentive Stock Option, as defined in Section 422A of the Code.
|
|
3.12
|
In addition to such other rights of indemnification as they may have as directors or as members of the Committee, the members of the Committee shall be indemnified
by the Company against reasonable expenses, including attorney’s fees, actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them
may be a party by reason of any action taken or failure to act under or in connection with the Plan or any Award granted
|
8
|
|
thereunder, and against all amounts paid by them in settlement thereof, provided such settlement is approved by independent legal counsel selected by the
Company, or paid by them in satisfaction of a judgment or settlement in any such action, suit or proceeding, except as to matters as to which the Committee member has been negligent or engaged in misconduct in the performance of his duties;
provided, that within 60 days after institution of any such action, suit or proceeding, a Committee member shall in writing offer the Company the opportunity, at its own expense, to handle and defend the same.
|
|
3.13
|
The Committee may require each person purchasing shares of Stock pursuant to a Stock Option or other Award under the Plan to represent to and agree with the Company in writing that
he is acquiring the shares of Stock without a view to distribution thereof. The certificates for such shares of Stock may include any legend which the Committee deems appropriate to reflect any restrictions on transfer.
|
|
3.14
|
The Committee shall be authorized to make adjustments in performance based criteria or in the terms and conditions of other Awards in recognition of unusual or nonrecurring events
affecting the Company or its financial statements or changes in applicable laws, regulations or accounting principles. The Committee may correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award Agreement in the
manner and to the extent it shall deem desirable to carry it into effect. In the event the company shall assume outstanding employee benefit awards or the right or obligation to make future such awards in connection with the acquisition of another
corporation or business entity, the Committee may, in its discretion, make such adjustments in the terms of Awards under the Plan as it shall deem appropriate.
|
|
3.15
|
The Committee shall have full power and authority to determine whether, to what extent and under what circumstances, any Award shall be canceled or suspended. In particular, but
without limitation, all outstanding Awards to any Participant may be canceled if (a) the Participant, without the consent of the Committee, while employed by the Company or after termination of such employment, becomes associated with, employed by,
renders services to, or owns any interest in, other than any nonsubstantial interest, as determined by the Committee, any business that is in competition with the Company or with any business in which the Company has a substantial interest as
determined by the Committee; or (b) is terminated for cause as determined by the Committee.
|
9
ARTICLE IV - INCENTIVE
STOCK OPTIONS
|
4.1
|
Each provision of this Article IV and of each Incentive Stock Option granted hereunder shall be construed in accordance with the provisions of Section 422A of the Code, and any
provision hereof that cannot be so construed shall be disregarded. Incentive Stock Options shall be granted only to Eligible Participants, each of whom may be granted one or more such Incentive Stock Options at such time or times determined by the
Committee following the Effective Date until August 11, 2002, subject to the following conditions:
|
|
|
(a)
|
The Incentive Stock Option price per share of Stock shall be set in the Award Agreement, but shall not be less than 100% of the Fair Market Value of the Stock at the Option Grant
Date.
|
|
|
(b)
|
The Incentive Stock Option and its related Stock Right, if any, may be exercised in whole or in part from time to time within ten years from the Option Grant Date, or such shorter
period as may be specified by the Committee in the Award; provided, that in any event, the Incentive Stock Option and related Stock Right shall lapse and cease to be exercisable upon, or within such period following, a Termination of Employment as
shall have been determined by the Committee and as specified in the Incentive Stock Option Award Agreement or its related Stock Right Award Agreement; provided, however, that such period following a Termination of Employment shall not exceed three
months unless employment shall have terminated:
|
|
|
(i)
|
as a result of death or Disability, in which event, such period shall not exceed one year after the date of death or Disability; and
|
|
|
(ii)
|
as a result of death, if death shall have occurred following a Termination of Employment and while the Incentive Stock Option or Stock right was still exercisable, in which event,
such period shall not exceed one year after the date of death;
|
provided, further, that such period following a Termination of Employment shall in no event extend the original exercise period of the Incentive Stock Option or any related Stock Right.
|
|
(c)
|
The aggregate Fair Market Value, determined as of the Option Grant Date, of the shares of Stock with respect to which Incentive Stock Options are first exercisable during any
calendar year by any Eligible Participant shall not exceed $100,000; provided, however, to the extent permitted under Section 422A of the Code:
|
|
|
(i)
|
if a Participant’s employment is terminated by reason of death, Disability or Retirement and the portion of any Incentive Stock Option that is otherwise
exercisable during the post-termination period applied without regard to the $100,00 limitation contained in Section 422A(b)(7) of the Code is greater than the portion of such option that is immediately exercisable as an Incentive Stock Option
during such post-termination
|
10
|
|
period under Section 422A, such excess shall be treated as a Nonqualified Stock Option; and
|
|
|
(ii)
|
if the exercise of an Incentive Stock Option is accelerated by reason of an Acceleration Event, any portion of such Award that is not exercisable as an Incentive Stock Option by
reason of the $100,000 limitation contained in Section 422A(b)(7) of the Code shall be treated as a Nonqualified Stock Option.
|
|
|
(d)
|
Incentive Stock Options shall be granted only to an Eligible Participant who, at the Option Grant Date, does not own stock possessing more than ten percent of the total combined
voting power of all classes of stock of the Company.
|
|
|
(e)
|
Subject to the limitations of Section 3.6, the maximum number of shares of Stock subject to Incentive Stock Option Awards shall be 150,000.
|
|
|
(f)
|
The Committee may adopt any other terms and conditions which it determines should be imposed for the Incentive Stock Option to qualify under Section 422A of the Code, as well as any
other terms and conditions not inconsistent with this Article IV as determined by the Committee.
|
|
4.2
|
The Committee may at any time offer to buy out for a payment in cash, Stock, Deferred Stock or Restricted Stock an Incentive Stock Option previously granted, based on such terms and
conditions as the Committee shall establish and communicate to the Participant at the time that such offer is made.
|
|
4.3
|
If the Incentive Stock Option Award Agreement so provides, the Committee may require that all or part of the shares of Stock to be issued upon the exercise of an Incentive Stock
Option shall take the form of Deferred or Restricted Stock, which shall be valued on the date of exercise, as determined by the Committee, on the basis of the Fair Market Value of such Deferred Stock or Restricted Stock determined without regard to
the deferral limitations and/or forfeiture restrictions involved.
|
11
ARTICLE V - NONQUALIFIED
STOCK OPTIONS
|
5.1
|
One or more Stock Options may be granted as Nonqualified Stock Options to Eligible Participants to purchase shares of Stock at such time or times determined by the Committee,
following the Effective Date, subject to the terms and conditions set forth in this Article V.
|
|
5.2
|
The Nonqualified Stock Option price per share of Stock shall be established in the Award Agreement and may be less than 100% of the Fair Market Value at the time of the grant, or at
such later date as the Committee shall determine.
|
|
5.3
|
The Nonqualified Stock option and its related Stock Right, if any, may be exercised in full or in part from time to time within such period as may be specified by the Committee or
in the Award Agreement; provided, that, in any event, the Nonqualified Stock Option and the related Stock Right shall lapse and cease to be exercisable upon, or within such period following, Termination of Employment as shall have been determined by
the Committee and as specified in the Nonqualified Stock Option Award Agreement or Stock Right Award Agreement; provided, however, that such period following Termination of Employment shall not exceed three months unless employment shall have
terminated:
|
|
|
(a)
|
as a result of Retirement or Disability, in which event, such period shall not exceed one year after the date of Retirement or Disability, or within such longer period as the
Committee may specify; and
|
|
|
(b)
|
as a result of death, or if death shall have occurred following a Termination of Employment and while the Nonqualified Stock Option or Stock Right was still exercisable, in which
event, such period may exceed one year after the date of death, as provided by the Committee or in the Award Agreement.
|
|
5.4
|
The Nonqualified Stock Option Award Agreement may include any other terms and conditions not inconsistent with this Article V or in Article VII, as determined by the Committee.
|
12
ARTICLE VI - STOCK
APPRECIATION RIGHTS
|
6.1
|
A Stock Appreciation Right may be granted to an Eligible Participant in connection with an Incentive Stock Option or a Nonqualified Stock Option granted under Article IV or Article
V of this Plan, or may be granted independent of any related Stock Option.
|
|
6.2
|
A related Stock Appreciation Right shall entitle a holder of a Stock Option, within the period specified for the exercise of the Stock Option, to surrender the unexercised Stock
Option, or a portion thereof, and to receive in exchange therefor a payment in cash or shares of Stock having an aggregate value equal to the amount by which the Fair Market Value of each share of Stock exceeds the Stock Option price per share of
Stock, times the number of shares of Stock under the Stock Option, or portion thereof, which is surrendered.
|
|
6.3
|
Each related Stock Appreciation Right granted hereunder shall be subject to the same terms and conditions as the related Stock Option, including limitations on transferability, and
shall be exercisable only to the extent such Stock Option is exercisable and shall terminate or lapse and cease to be exercisable when the related Stock Option terminates or lapses. The grant of Stock Appreciation Rights related to Incentive Stock
Options must be concurrent with the grant of the Incentive Stock Options. With respect to Nonqualified Stock Options, the grant either may be concurrent with the grant of the Nonqualified Stock Options, or in connection with Nonqualified Stock
Options previously granted under Article V, which are unexercised and have not terminated or lapsed.
|
|
6.4
|
The Committee shall have sole discretion to determine in each case whether the payment with respect to the exercise of a Stock Appreciation Right will be in the form of all cash or
all Stock, or any combination thereof. If payment is to be made in Stock, the number of shares of Stock shall be determined based on the Fair Market Value of the Stock on the date of exercise. If the Committee elects to make full payment in Stock,
no fractional shares of Stock shall be issued and cash payments shall be made in lieu of fractional shares.
|
|
6.5
|
The Committee shall have sole discretion as to the timing of any payment made in cash or Stock, or a combination thereof, upon exercise of Stock Appreciation Rights. Payment may be
made in a lump sum, in annual installments or may be otherwise deferred; and the Committee shall have sole discretion to determine whether any deferred payments may bear amounts equivalent to interest or cash dividends.
|
|
6.6
|
Upon exercise of a Stock Appreciation Right, the number of shares of Stock subject to exercise under any related Stock Option shall automatically be reduced by the number of shares
of Stock represented by the Stock Option or portion thereof which is surrendered.
|
|
6.7
|
Notwithstanding any other provision of the Plan, the exercise of a Stock Appreciation Right is required to satisfy the applicable requirements under Rule 16b-3 of the Act.
|
|
6.8
|
The Committee, in its sole discretion, may also provide that, in the event of a Change in Control and/or a Potential Change in Control, as defined in Article XIII,
the amount to be
|
13
|
|
paid upon the exercise of a Stock Appreciation Right or Limited Stock Appreciation Right shall be based on the Change in Control Price, as defined in Section
13.9, subject to such terms and conditions as the Committee may specify.
|
|
6.9
|
In its sole discretion, the Committee may grant Limited Stock Appreciation Rights under this Article VI. Limited Stock Appreciation Rights become exercisable only in the event of a
Change in Control and/or a Potential Change in Control, subject to such terms and conditions as the Committee, in its sole discretion, may specify. Such Limited Stock Appreciation Rights shall be settled solely in cash. A Limited Stock Appreciation
Right shall entitle the holder of the related Stock Option to surrender such Stock Option, or any portion thereof, to the extent unexercised in respect of the number of shares of Stock as to which such Limited Stock Appreciation Right is exercised,
and to receive a cash payment equal to the difference between (a) the Stock Appreciation Right Fair Market Value, at the date of surrender, of a share of Stock for which the surrendered Stock Option or portion thereof is then exercisable, and (b)
the price at which a Participant could exercise a related Stock Option to purchase the share of Stock. Such Stock Option shall, to the extent so surrendered, thereupon cease to be exercisable. A Limited Stock Appreciation Right shall be subject to
such further terms and conditions as the Committee shall, in its sole discretion, deem appropriate, including any restrictions necessary to comply with Section 16(b) of the Act.
|
14
ARTICLE VII - INCIDENTS OF
STOCK OPTIONS AND STOCK RIGHTS
|
7.1
|
Each Stock Option and Stock Right shall be granted subject to such terms and conditions, if any, not inconsistent with this Plan, as shall be determined by the Committee, including
any provisions as to continued employment as consideration for the grant or exercise of such Stock Option or Stock Right and any provisions which may be advisable to comply with applicable laws, regulations or rulings of any governmental authority.
|
|
7.2
|
A Stock Option or Stock Right shall not be transferable by the Participant other than by will or by the laws of descent and distribution, or, to the extent otherwise allowed by Rule
16b-3 under the Act, or other applicable law, pursuant to a qualified domestic relations order as defined by the Code or the Employee Retirement Income Security Act, or the rules thereunder, and shall be exercisable during the lifetime of the
Participant only by him or by his guardian or legal representative.
|
|
7.3
|
Shares of Stock purchased upon exercise of a Stock Option shall be paid for in such amounts, at such times and upon such terms as shall be determined by the Committee, subject to
limitations set forth in the Stock Option Award Agreement. Without limiting the foregoing, the Committee may establish payment terms for the exercise of Stock Options which permit the Participant to deliver shares of Stock, or other evidence of
ownership of Stock satisfactory to the Company, with a Fair Market Value equal to the Stock Option price as payment.
|
|
7.4
|
No cash dividends shall be paid on shares of Stock subject to unexercised Stock Options. The Committee may provide, however, that a Participant to whom a Stock Option has been
granted which is exercisable in whole or in part at a future time for shares of Stock shall be entitled to receive an amount per share equal in value to the cash dividends, if any, paid per share on issued and outstanding Stock, as of the dividend
record dates occurring during the period between the date of the grant and the time each such share of Stock is delivered pursuant to exercise of such Stock Option or the related Stock Right. Such amounts (herein called “dividend
equivalents”) may, in the discretion of the Committee, be:
|
|
|
(a)
|
paid in cash or Stock either from time to time prior to, or at the time of the delivery of, such Stock, or upon expiration of the Stock Option if it shall not have been fully
exercised; or
|
|
|
(b)
|
converted into contingently credited shares of Stock, with respect to which dividend equivalents may accrue, in such manner, at such value, and deliverable at such time or times, as
may be determined by the Committee.
|
Such Stock,
whether delivered or contingently credited, shall be charged against the limitations set forth in Section 3.6.
|
7.5
|
The Committee, in its sole discretion, may authorize payment of interest equivalents on dividend equivalents which are payable in cash at a future time.
|
15
|
7.6
|
In the event of Disability or death, the Committee, with the consent of the Participant or his legal representative, may authorize payment, in cash or in Stock, or partly in cash
and partly in Stock, as the Committee may direct, of an amount equal to the difference at the time between the Fair Market Value of the Stock subject to a Stock Option and the Option price in consideration of the surrender of the Stock Option.
|
|
7.7
|
If a Participant is required to pay to the Company an amount with respect to income and employment tax withholding obligations in connection with exercise of a Nonqualified Stock
Option, and/or with respect to certain dispositions of Stock acquired upon the exercise of an Incentive Stock option, the Committee, in its discretion and subject to such rules as it may adopt, may permit the Participant to satisfy the obligation,
in whole or in part, by making an irrevocable election that a portion of the total Fair Market Value of the shares of Stock subject to the Nonqualified Stock Option and/or with respect to certain dispositions of Stock acquired upon the exercise of
the Incentive Stock Option, be paid in the form of cash in lieu of the issuance of Stock and that such cash payment be applied to the satisfaction of the withholding obligations. The amount to be withheld shall not exceed the statutory minimum
federal and state income and employment tax liability arising from the Stock Option exercise transaction. Notwithstanding any other provision of the Plan, any election under this Section 7.7 is required to satisfy the applicable requirements under
Rule 16b-3 of the Act.
|
|
7.8
|
The Committee may permit the voluntary surrender of all or a portion of any Stock Option granted under the Plan to be conditioned upon the granting to the Participant of a new Stock
Option for the same or a different number of shares of Stock as the Stock Option surrendered, or may require such surrender as a condition precedent to a grant of a new Stock Option to such Participant. Subject to the provisions of the Plan, such
new Stock Option shall be exercisable at the same price, during such period and on such other terms and conditions as are specified by the Committee at the time the new Stock Option is granted. Upon surrender, the Stock Options surrendered shall be
canceled and the shares of Stock previously subject to them shall be available for the grant of other Stock Options.
|
16
ARTICLE VIII - RESTRICTED
STOCK
|
8.1
|
Restricted Stock Awards may be made to certain Participants as an incentive for the performance of future services that will contribute materially to the successful operation of the
Company. Awards of Restricted Stock may be made either alone, in addition to or in tandem with other Awards granted under the Plan and/or cash payments made outside of the Plan.
|
|
8.2
|
With respect to Awards of Restricted Stock, the Committee shall:
|
|
|
(a)
|
determine the purchase price, if any, to be paid for such Restricted Stock, which may be equal to or less than par value and may be zero, subject to such minimum consideration as
may be required by applicable law;
|
|
|
(b)
|
determine the length of the Restriction Period;
|
|
|
(c)
|
determine any restrictions applicable to the Restricted Stock such as service or performance, other than those set forth in this Article VIII;
|
|
|
(d)
|
determine if the restrictions shall lapse as to all shares of Restricted Stock at the end of the Restriction Period or as to a portion of the shares of Restricted Stock in
installments during the Restriction Period; and
|
|
|
(e)
|
determine if dividends and other distributions on the Restricted Stock are to be paid currently to the Participant or paid to the company for the account of the Participant.
|
|
8.3
|
Awards of Restricted Stock must be accepted within a period of 60 days, or such shorter period as the Committee may specify, by executing a Restricted Stock Award Agreement and
paying whatever price, if any, is required.
|
The
prospective recipient of a Restricted Stock Award shall not have any rights with respect to such Award, unless such recipient has executed a Restricted Stock Award Agreement and has delivered a fully executed copy thereof to the Committee, and has
otherwise complied with the applicable terms and conditions of such Award.
|
8.4
|
Except when the Committee determines otherwise, or as otherwise provided in the Restricted Stock Award Agreement, if a Participant terminates employment with the Company for any
reason before the expiration of the Restriction Period, all shares of Restricted Stock still subject to restriction shall be forfeited by the Participant and shall be reacquired by the Company.
|
|
8.5
|
Except as otherwise provided in this Article VIII, no shares of Restricted Stock received by a Participant shall be sold, exchanged, transferred, pledged, hypothecated or otherwise
disposed of during the Restriction Period.
|
|
8.6
|
To the extent not otherwise provided in a Restricted Stock Award Agreement, in cases of death, Disability or Retirement or in cases of special circumstances, the
Committee, if it
|
17
|
|
finds that a waiver would be appropriate, may elect to waive any or all remaining restrictions with respect to such Participant’s Restricted Stock.
|
|
8.7
|
In the event of hardship or other special circumstances of a Participant whose employment with the Company is involuntarily terminated, the Committee may waive in whole or in part
any or all remaining restrictions with respect to any or all of the Participant’s Restricted Stock, based on such factors and criteria as the Committee may deem appropriate.
|
|
8.8
|
The certificates representing shares of Restricted Stock may either:
|
|
|
(a)
|
be held in custody by the company until the Restriction Period expires or until restrictions thereon otherwise lapse, and the Participant shall deliver to the Company a stock power
endorsed in blank relating to the Restricted Stock; and/or
|
|
|
(b)
|
be issued to the Participant and registered in the name of the Participant, and shall bear an appropriate restrictive legend and shall be subject to appropriate stop-transfer
orders.
|
|
8.9
|
Except as provided in this Article VIII, a Participant receiving a Restricted Stock Award shall have, with respect to the shares of Restricted Stock covered by any Award, all of the
rights of a shareholder of the Company, including the right to vote the shares to the extent, if any, such shares possess voting rights and the right to receive any dividends; provided, however, the Committee may require that any dividends on such
shares of Restricted Stock shall be automatically deferred and reinvested in additional Restricted Stock subject to the same restrictions as the underlying Award, or may require that dividends and other distributions on Restricted Stock shall be
paid to the Company for the account of the Participant. The Committee shall determine whether interest shall be paid on such amounts, the rate of any such interest, and the other terms applicable to such amounts.
|
|
8.10
|
If and when the Restriction Period expires without a prior forfeiture of the Restricted Stock subject to such Restriction Period, unrestricted certificates for such shares shall be
delivered to the Participant.
|
|
8.11
|
In order to better ensure that Award payments actually reflect the performance of the Company and the service of the Participant, the Committee may provide, in its sole discretion,
for a tandem performance-based or other Award designed to guarantee a minimum value, payable in cash or Stock to the recipient of a Restricted Stock Award, subject to such performance, future service, deferral and other terms and conditions as may
be specified by the Committee.
|
18
ARTICLE IX - DEFERRED
STOCK
|
9.1
|
Shares of Deferred Stock together with cash dividend equivalents, if so determined by the Committee, may be issued either alone or in addition to other Awards granted under the Plan
in the discretion of the Committee. The Committee shall determine the individuals to whom, and the time or times at which, such Awards will be made, the number of shares to be awarded, the price, if any, to be paid by the recipient of a Deferred
Stock Award, the time or times within which such Awards may be subject to forfeiture, and all other conditions of the Awards. The Committee may condition Awards of Deferred Stock upon the attainment of specified performance goals or such other
factors or criteria as the Committee may determine.
|
|
9.2
|
Deferred Stock Awards shall be subject to the following terms and conditions:
|
|
|
(a)
|
Subject to the provisions of this Plan and the applicable Award Agreement, Deferred Stock Awards may not be sold, transferred, pledged, assigned or otherwise encumbered during the
period specified by the Committee for purposes of such Award (the “Deferral Period”). At the expiration of the Deferral Period, or the Elective Deferral Period defined in Section 9.3, share certificates shall be delivered to the
Participant, or his legal representative, in a number equal to the number of shares of Stock covered by the Deferred Stock Award.
|
Based on service, performance and/or such other factors or criteria as the Committee may determine, the Committee, however, at or after grant, may
accelerate the vesting of all or any part of any Deferred Stock Award and/or waive the deferral limitations for all or any part of such Award.
|
|
(b)
|
Unless otherwise determined by the Committee, amounts equal to any dividends that would have been payable during the Deferral Period with respect to the number of shares of Stock
covered by a Deferred Stock Award if such shares of Stock had been outstanding shall be automatically deferred and deemed to be reinvested in additional Deferred Stock, subject to the same deferral limitations as the underlying Award.
|
|
|
(c)
|
Except to the extent otherwise provided in this Plan or in the applicable Award Agreement, upon Termination of Employment during the Deferral Period for a given Award, the Deferred
Stock covered by such Award shall be forfeited by the Participant; provided, however, the Committee may provide for accelerated vesting in the event of Termination of Employment due to death, Disability or Retirement, or in the event of hardship or
other special circumstances as the Committee deems appropriate.
|
|
|
(d)
|
The Committee may require that a designated percentage of the total Fair Market Value of the shares of Deferred Stock held by one or more Participants be paid in
the form of cash in lieu of the issuance of Stock and that such cash payment be applied to the satisfaction of the federal and state income and employment tax withholding obligations that arise at the time the Deferred Stock becomes free of
|
19
|
|
all restrictions. The designated percentage shall be equal to the minimum income and employment tax withholding rate in effect at the time under applicable
federal and state laws.
|
|
|
(e)
|
The Committee may provide one or more Participants subject to the mandatory cash payment with an election to receive an additional percentage of the total value of the Deferred
Stock in the form of a cash payment in lieu of the issuance of Deferred Stock. The additional percentage shall not exceed the difference between 50% and the designated percentage cash payment.
|
|
|
(f)
|
The Committee may impose such further terms and conditions on partial cash payments with respect to Deferred Stock as it deems appropriate, including any restrictions necessary to
comply with Section 16(b) of the Act.
|
|
9.3
|
A Participant may elect to further defer receipt of Def erred Stock for a specified period or until a specified event (the “Elective Deferral Period”), subject in each
case to the Committee’s approval and to such terms as are determined by the Committee. Subject to any exceptions adopted by the Committee, such election must generally be made at least 12 months prior to completion of the Deferral Period for
the Deferred Stock Award in question, or for the applicable installment of such an Award.
|
|
9.4
|
Each Award shall be confirmed by, and subject to the terms of, a Deferred Stock Award Agreement.
|
|
9.5
|
In order to better ensure that the Award actually reflects the performance of the Company and the service of the Participant, the Committee may provide, in its sole discretion, for
a tandem performance-based or other Award designed to guarantee a minimum value, payable in cash or Stock to the recipient of a Deferred Stock Award, subject to such performance, future service, deferral and other terms and conditions as may be
specified by the Committee.
|
20
ARTICLE X - STOCK AWARDS
|
10.1
|
A Stock Award shall be granted only in payment of compensation that has been earned or as compensation to be earned, including without limitation, compensation awarded concurrently
with or prior to the grant of the Stock Award.
|
|
10.2
|
For the purposes of this Plan, in determining the value of a Stock Award, all shares of Stock subject to such Stock Award shall be valued at not less than 100% of the Fair Market
Value of such shares of Stock on the date such Stock Award is granted, regardless of whether or when such shares of Stock are issued or transferred to the Participant and whether or not such shares of Stock are subject to restrictions which affect
their value.
|
|
10.3
|
Shares of Stock subject to a Stock Award may be issued or transferred to the Participant at the time the Stock Award is granted, or at any time subsequent thereto, or in
installments from time to time, as the Committee shall determine. If any such issuance or transfer shall not be made to the Participant at the time the Stock Award is granted, the Committee may provide for payment to such Participant, either in cash
or shares of Stock, from time to time or at the time or times such shares of Stock shall be issued or transferred to such Participant, of amounts not exceeding the dividends which would have been payable to such Participant in respect of such shares
of Stock, as adjusted under Section 3.11, if such shares of Stock had been issued or transferred to such Participant at the time such Stock Award was granted. Any issuance payable in shares of Stock under the terms of a Stock Award, at the
discretion of the Committee, may be paid in cash on each date on which delivery of shares of Stock would otherwise have been made, in an amount equal to the Fair Market Value on such date of the shares of Stock which would otherwise have been
delivered.
|
|
10.4
|
A Stock Award shall be subject to such terms and conditions, including without limitation, restrictions on the sale or other disposition of the Stock Award or of the shares of Stock
issued or transferred pursuant to such Stock Award, as the Committee shall determine; provided, however, that upon the issuance or transfer of shares pursuant to a Stock Award, the Participant, with respect to such shares of Stock, shall be and
become a shareholder of the Company fully entitled to receive dividends, to vote to the extent, if any, such shares possess voting rights and to exercise all other rights of a shareholder except to the extent otherwise provided in the Stock Award.
Each Stock Award shall be evidenced by a written Award Agreement in such form as the Committee shall determine.
|
21
ARTICLE XI - PERFORMANCE
SHARES
|
11.1
|
Awards of Performance Shares may be made to certain Participants as an incentive for the performance of future services that will contribute materially to the successful operation
of the company. Awards of Performance Shares may be made either alone, in addition to or in tandem with other Awards granted under the Plan and/or cash payments made outside of the Plan.
|
|
11.2
|
With respect to Awards of Performance Shares, which may be issued for no consideration or such minimum consideration as is required by applicable law, the Committee shall:
|
|
|
(a)
|
determine and designate from time to time those Participants to whom Awards of Performance Shares are to be made;
|
|
|
(b)
|
determine the performance period (the “Performance Period”) and/or performance objectives (the “Performance Objectives”) applicable to such Awards;
|
|
|
(c)
|
determine the form of settlement of a Performance Share; and
|
|
|
(d)
|
generally determine the terms and conditions of each such Award. At any date, each Performance Share shall have a value equal to the Fair Market Value, determined as set forth in
Section 2.15.
|
|
11.3
|
Performance Periods may overlap, and Participants may participate simultaneously with respect to Performance Shares for which different Performance Periods are prescribed.
|
|
11.4
|
The Committee shall determine the Performance Objectives of Awards of Performance Shares. Performance Objectives may vary from Participant to Participant and between Awards and
shall be based upon such performance criteria or combination of factors as the Committee may deem appropriate, including for example, but not limited to, minimum earnings per share or return on equity. If during the course of a Performance Period
there shall occur significant events which the Committee expects to have a substantial effect on the applicable Performance Objectives during such period, the Committee may revise such Performance Objectives.
|
|
11.5
|
The Committee shall determine for each Participant the number of Performance Shares which shall be paid to the Participant if the applicable Performance Objectives are exceeded or
met in whole or in part.
|
|
11.6
|
If a Participant terminates service with the Company during a Performance Period because of death, Disability, Retirement or under other circumstances in which the
Committee in its discretion finds that a waiver would be appropriate, that Participant, as determined by the Committee, may be entitled to a payment of Performance Shares at the end of the Performance Period based upon the extent to which the
Performance Objectives were satisfied at the end of such period and pro rated for the portion of the Performance Period during which the Participant was employed by the Company; provided, however, the Committee may provide for an earlier payment in
settlement of such Performance Shares in such amount and under such terms and conditions as the
|
22
|
|
Committee deems appropriate or desirable. If a Participant terminates service with the Company during a Performance Period for any other reason, then such
Participant shall not be entitled to any payment with respect to that Performance Period unless the Committee shall otherwise determine.
|
|
11.7
|
Each Award of a Performance Share shall be paid in whole shares of Stock, or cash, or a combination of Stock and cash as the Committee shall determine, with payment to be made as
soon as practicable after the end of the relevant Performance Period.
|
|
11.8
|
The Committee shall have the authority to approve requests by Participants to defer payment of Performance Shares on terms and conditions approved by the Committee and set forth in
a written Award Agreement between the Participant and the Company entered into in advance of the time of receipt or constructive receipt of payment by the Participant.
|
23
ARTICLE XII - OTHER
STOCK-BASED AWARDS
|
12.1
|
Other awards that are valued in whole or in part by reference to, or are otherwise based on, Stock (“Other Stock-Based Awards”), including without limitation, convertible
preferred stock, convertible debentures, exchangeable securities, phantom stock and Stock awards or options valued by reference to book value or performance, may be granted either alone or in addition to or in tandem with Stock Options, Stock
Rights, Restricted Stock, Deferred Stock or Stock Awards granted under the Plan and/or cash awards made outside of the Plan.
|
Subject to the provisions of the Plan, the Committee shall have authority to determine the Eligible Participants to whom and the time or times at which
such Awards shall be made, the number of shares of Stock subject to such Awards, and all other conditions of the Awards. The Committee also may provide for the grant of shares of Stock upon the completion of a specified Performance Period.
The provisions of Other Stock-Based Awards need not be the
same with respect to each recipient.
|
12.2
|
Other Stock-Based Awards made pursuant to this Article XII shall be subject to the following terms and conditions:
|
|
|
(a)
|
Subject to the provisions of this Plan and the Award Agreement, shares of Stock subject to Awards made under this Article XII may not be sold, assigned, transferred, pledged or
otherwise encumbered prior to the date on which the shares are issued, or, if later, the date on which any applicable restriction, performance or deferral period lapses.
|
|
|
(b)
|
Subject to the provisions of this Plan and the Award Agreement and unless otherwise determined by the Committee at the time of the Award, the recipient of an Award under this
Article XII shall be entitled to receive, currently or on a deferred basis, interest or dividends or interest or dividend equivalents with respect to the number of shares covered by the Award, as determined at the time of the Award by the committee,
in its sole discretion, and the Committee may provide that such amounts, if any, shall be deemed to have been reinvested in additional Stock or otherwise reinvested.
|
|
|
(c)
|
Any Award under this Article XII and any Stock covered by any such Award shall vest or be forfeited to the extent so provided in the Award Agreement, as determined by the Committee,
in its sole discretion.
|
|
|
(d)
|
Upon the Participant’s Retirement, Disability or death, or in cases of special circumstances, the Committee may, in its sole discretion, waive in whole or in part any or all of
the remaining limitations imposed hereunder, if any, with respect to any or all of an Award under this Article XII.
|
24
|
|
(e)
|
Each Award under this Article XII shall be confirmed by, and subject to the terms of, an Award Agreement.
|
|
|
(f)
|
Stock, including securities convertible into Stock, issued on a bonus basis under this Article XII may be issued for no cash consideration.
|
|
12.3
|
Other Stock-Based Awards may include a phantom stock Award, which is subject to the following terms and conditions:
|
|
|
(a)
|
The Committee shall select the Eligible Participants who may receive phantom stock Awards. The Eligible Participant shall be awarded a phantom stock unit, which shall be the
equivalent to a share of Stock.
|
|
|
(b)
|
Under an Award of phantom stock, payment shall be made on the dates or dates as specified by the Committee or as stated in the Award Agreement and phantom stock Awards may be
settled in cash, Stock, or some combination thereof.
|
|
|
(c)
|
The Committee shall determine such other terms and conditions of each Award as it deems necessary in its sole discretion.
|
25
ARTICLE XIII -
ACCELERATION EVENTS
|
13.1
|
For the purposes of the Plan, an Acceleration Event shall occur in the event of a “Potential Change in Control,” or “Change in Control” or a “Board-Approved
Change in Control”, as those terms are defined below.
|
|
13.2
|
A “Change in Control” shall be deemed to have occurred if:
|
|
|
(a)
|
Any “Person” as defined in-Section 3(a)(9) of the Act, including a “group” (as that term is used in Sections 13(d)(3) and l4(d)(2) of the Act), but excluding the
Company and any employee benefit plan sponsored or maintained by the Company, including any trustee of such plan acting as trustee, who:
|
|
|
(i)
|
makes a tender or exchange offer for any shares of the Company’s Stock (as defined below) pursuant to which any shares of the Company’s Stock are purchased (an
“Offer”); or
|
|
|
(ii)
|
together with its “affiliates” and “associates” (as those terms are defined in Rule 12b-2 under the Act) becomes the “Beneficial Owner” (within the
meaning of Rule 13d-3 under the Act) of at least 20% of the Company’s Stock (an “Acquisition”);
|
|
|
(b)
|
The shareholders of the Company approve a definitive agreement or plan to merge or consolidate the Company with or into another corporation, to sell or otherwise dispose of all or
substantially all of its assets, or to liquidate the Company (individually, a “Transaction”); or
|
|
|
(c)
|
When, during any period of 24 consecutive months during the existence of the Plan, the individuals who, at the beginning of such period, constitute the Board (the “Incumbent
Directors”) cease for any reason other than death to constitute at least a majority thereof; provided, however, that a director who was not a director at the beginning of such 24 month period shall be deemed to have satisfied such 24 month
requirement, and be an Incumbent Director, if such director was elected by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually, because they were
directors at the beginning of such 24 month period, or by prior operation of this Section 13.2(c).
|
|
13.3
|
A “Board-Approved Change in Control” shall be deemed to have occurred if the Offer, Acquisition or Transaction, as the case may be, is approved by a majority of the
Directors serving as members of the Board at the time of the Potential Change in Control or Change in Control.
|
|
13.4
|
A “Potential Change in Control” means the happening of any one of the following:
|
|
|
(a)
|
The approval by shareholders of an agreement by the Company, the consummation of which would result in a Change in Control of the Company, as defined in Section 13.2; or
|
26
|
|
(b)
|
The acquisition of Beneficial Ownership, directly or indirectly, by any entity, person or group, other than the Company or any Company employee benefit plan, including any trustee
of such plan acting as such trustee, of securities of the Company representing five percent or more of the combined voting power of the Company’s outstanding securities and the adoption by the Board of a resolution to the effect that a
Potential Change in Control of the Company has occurred for the purposes of this Plan.
|
|
13.5
|
Upon the occurrence of an Acceleration Event, subject to the approval of the Committee if the Acceleration Event results from a Board-Approved Change in Control, all then
outstanding Performance Shares with respect to which the applicable Performance Period has not been completed shall be paid as soon as practicable as follows:
|
|
|
(a)
|
all Performance Objectives applicable to the Award of Performance Shares shall be deemed to have been satisfied to the extent necessary to result in payment of 100% of the
Performance Shares covered by the Award; and
|
|
|
(b)
|
the applicable Performance Period shall be deemed to have ended on the date of the Acceleration Event;
|
|
|
(c)
|
the payment to the Participant shall be the amount determined either by the Committee, in its sole discretion, or in the manner stated in the Award Agreement. This amount shall then
be multiplied by a fraction, the numerator of which is the number of full calendar months of the applicable Performance Period that have elapsed prior to the date of the Acceleration Event, and the denominator of which is the total number of months
in the original Performance Period; and
|
|
|
(d)
|
upon the making of any such payment, the Award Agreement as to which it relates shall be deemed canceled and of no further force and effect.
|
|
13.6
|
Upon the occurrence of an Acceleration Event, subject to the approval of the Committee if the Acceleration Event results from a Board-Approved Change in Control, the Committee in
its discretion may declare any or all then outstanding Stock Options, and any or all related Stock Rights outstanding for at least six months, not previously exercisable and vested as immediately exercisable and fully vested, in whole or in part.
|
|
13.7
|
Upon the occurrence of an Acceleration Event, subject to the approval of the Committee if the Acceleration Event results from a Board-Approved Change in Control, the Committee in
its discretion, may declare the restrictions applicable to Awards of Restricted Stock, Deferred Stock or other Stock-Based Awards to have lapsed, in which case the Company shall remove all restrictive legends and stop-transfer orders applicable to
the certificates for such shares of Stock, and deliver such certificates to the Participants in whose names they are registered.
|
|
13.8
|
The value of all Outstanding Stock Option, Stock Rights, Restricted Stock, Deferred Stock, Performance Shares, Stock Awards and Other Stock-Based Awards, in each
case to the extent vested, shall, unless otherwise determined by the Committee in its sole discretion at or after grant but prior to any Change in Control, be cashed out on the basis
|
27
|
|
of the “Change in Control Price,” as defined in Section 13.9 as of the date such Change in Control or such Potential Change in Control is
determined to have occurred or such other date as the Committee may determine prior to the change in Control.
|
|
13.9
|
For purposes of Section 13.8, “Change in Control Price” means the highest price per share of Stock paid in any transaction reported on the New York Stock Exchange, or paid
or offered in any bona fide transaction related to a Potential or actual Change in Control of the Company at any time during the 60 day period immediately preceding the occurrence of the Change in Control, or, where applicable, the occurrence of the
Potential Change in Control event, in each case as determined by the Committee except that, in the case of Incentive Stock Options and Stock Appreciation Rights, or Limited Stock Appreciation Rights, relating to such Incentive Stock Options, such
price shall be based only on transactions reported for the date on which the optionee exercises such Stock Appreciation Rights, or Limited Stock Appreciation Rights.
|
28
ARTICLE XIV - AMENDMENT
AND TERMINATION
|
14.1
|
The Board, upon recommendation of the Committee, or otherwise, at any time and from time to time, may amend or terminate the Plan. To the extent required by Rule 16b-3 under the
Act, no amendment, without approval by the Company’s shareholders, shall:
|
|
|
(a)
|
alter the group of persons eligible to participate in the Plan;
|
|
|
(b)
|
except as provided in Section 3.6, increase the maximum number of shares of Stock or Stock Options or Stock Rights which are available for Awards under the Plan;
|
|
|
(c)
|
extend the period during which Incentive Stock Option Awards may be granted beyond August 11, 2002;
|
|
|
(d)
|
limit or restrict the powers of the Committee with respect to the administration of this Plan;
|
|
|
(e)
|
change the definition of an Eligible Participant for the purpose of an Incentive Stock Option or increase the limit or the value of shares of Stock for which an Eligible Participant
may be granted an Incentive Stock Option;
|
|
|
(f)
|
materially increase the benefits accruing to Participants under this Plan;
|
|
|
(g)
|
materially modify the requirements as to eligibility for participation in this Plan; or
|
|
|
(h)
|
change any of the provisions of this Article XIV.
|
|
14.2
|
No amendment to or discontinuance of this Plan or any provision thereof by the Board or the shareholders of the Company shall, without the written consent of the Participant,
adversely affect, as shall be determined by the Committee, any Award theretofore granted to such Participant under this Plan; provided, however, the Committee retains the right and power to:
|
|
|
(a)
|
annul any Award if the Participant is terminated for cause as determined by the Committee;
|
|
|
(b)
|
provide for the forfeiture of shares of Stock or other gain under an Award as determined by the Committee for competing against the Company; and
|
|
|
(c)
|
convert any outstanding Incentive Stock Option to a Nonqualified Stock Option.
|
|
14.3
|
If an Acceleration Event has occurred, no amendment or termination shall impair the rights of any person with respect to an outstanding Award as provided in Article XIII.
|
29
ARTICLE XV - MISCELLANEOUS
PROVISIONS
|
15.1
|
Nothing in the Plan or any Award granted hereunder shall confer upon any Participant any right to continue in the employ of the Company, or to serve as a director thereof, or
interfere in any way with the right of the Company to terminate his or her employment at any time. Unless specifically provided otherwise, no Award granted under the Plan shall be deemed salary or compensation for the purpose of computing benefits
under any employee benefit plan or other arrangement of the Company for the benefit of its employees unless the Company shall determine otherwise. No Participant shall have any claim to an Award until it is actually granted under the Plan. To the
extent that any person acquires a right to receive payments from the Company under the Plan, such right shall, except as otherwise provided by the Committee, be no greater than the right of an unsecured general creditor of the Company. All payments
to be made hereunder shall be paid from the general funds of the Company, and no special or separate fund shall be established and no segregation of assets shall be made to assure payment of such amounts, except as provided in Article VIII with
respect to Restricted Stock and except as otherwise provided by the Committee.
|
|
15.2
|
The Company may make such provisions and take such steps as it may deem necessary or appropriate for the withholding of any taxes which the Company is required by any law or
regulation of any governmental authority, whether federal, state or local, domestic or foreign, to withhold in connection with any Stock Option or the exercise thereof, any Stock Right or the exercise thereof, or in connection with any other type of
equity-based compensation provided hereunder or the exercise thereof, including, but not limited to, the withholding of payment of all or any portion of such Award or another Award under this Plan until the Participant reimburses the Company for the
amount the Company is required to withhold with respect to such taxes, or canceling any portion of such Award or another Award under this Plan in an amount sufficient to reimburse itself for the amount it is required to so withhold, or selling any
property contingently credited by the Company for the purpose of paying such Award or another Award under this Plan, in order to withhold or reimburse itself for the amount it is required to so withhold.
|
|
15.3
|
The Plan and the grant of Awards shall be subject to all applicable federal and state laws, rules, and regulations and to such approvals by any United States government or
regulatory agency as may be required. Any provision herein relating to compliance with Rule 16b-3 under the Act shall not be applicable with respect to participation in the Plan by Participants who are not subject to Section 16(b) of the Act.
|
|
15.4
|
The terms of the Plan shall be binding upon the Company, and its successors and assigns.
|
|
15.5
|
Neither a Stock Option, Stock Right, nor any other type of equity-based compensation provided for hereunder, shall be transferable except as provided for herein. Unless otherwise
provided by the Committee or in an Award Agreement, transfer restrictions shall only apply to Incentive Stock Options as required in Article IV and to the extent otherwise required by federal or state securities laws. If any Participant makes such a
transfer in violation hereof, any obligation of the Company shall forthwith terminate.
|
30
|
15.6
|
This Plan and all actions taken hereunder shall be governed by the laws of the State of North Carolina, except to the extent preempted by the Employee Retirement Income Security Act
of 1974, as amended.
|
|
15.7
|
The Plan is intended to constitute an “unfunded” plan for incentive and deferred compensation. With respect to any payments not yet made to a Participant by the Company,
nothing contained herein shall give any such Participant any rights that are greater than those of a general creditor of the Company. In its sole discretion, the Committee may authorize the creation of trusts or other arrangements to meet the
obligations created under the Plan to deliver shares of Stock or payments in lieu of or with respect to Awards hereunder; provided, however, that, unless the Committee otherwise determines with the consent of the affected Participant, the existence
of such trusts or other arrangements is consistent with the “unfunded” status of the Plan.
|
|
15.8
|
Each Participant exercising an Award hereunder, agrees to give the Committee prompt written notice of any election made by such Participant under Section 83(b) of the Code, or any
similar provision thereof.
|
|
15.9
|
If any provision of this Plan or an Award Agreement is or becomes or is deemed invalid, illegal or unenforceable in any jurisdiction, or would disqualify the Plan or any Award
Agreement under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to applicable laws or if it cannot be construed or deemed amended without, in the determination of the Committee, materially
altering the intent of the Plan or the Award Agreement, it shall be stricken and the remainder of the Plan or the Award Agreement shall remain in full force and effect.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STANDARD COMMERCIAL CORPORATION
|
|
|
|
|
|
|
ATTEST:
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
Authorized Officer
|
|
(Corporate Seal)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Secretary
|
|
|
|
|
|
|
31