Exhibit 4 ( c ) (iii)
ESKIMO PIE CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
TABLE OF CONTENTS
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ARTICLE Page
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I Definition of Terms........................................ 1
II Eligibility and Participation.............................. 3
III Funding.................................................... 4
IV Stock Purchases............................................ 5
V Holding of Stock........................................... 6
VI Vesting.................................................... 7
VII Distributions of Accounts.................................. 9
VIII Death Beneficiary.......................................... 9
IX Plan Administration........................................ 10
X Amendment and Termination of the Plan...................... 11
XI Miscellaneous.............................................. 11
XII Adoption of the Plan....................................... 12
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ESKIMO PIE CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
Definition of Terms
The following words and terms as used herein shall have the meaning set
forth below, unless a different meaning is clearly required by the context:
1.1 "Account": The account maintained to record a Participant's
contributions to the Plan, the Employer's contributions on behalf of the
Participant, and the Stock acquired by the Participant pursuant to the Plan.
1.2 "Administrator": The Plan Administrator provided for in ARTICLE IX
hereof.
1.3 "Affiliate": Any present or future corporation which would be a
"parent corporation" or a "subsidiary corporation" of the Plan Sponsor as those
terms are defined in Section 424 of the Code.
1.4 "Beneficiary": The person or persons designated by a Participant or
otherwise entitled pursuant to paragraph 8.2 to receive benefits under the Plan
attributable to such Participant after the death of such Participant.
1.5 "Board": The present and any succeeding Board of Directors of the
Plan Sponsor, unless such term is used with respect to a particular Employer and
its Employees, in which event it shall mean the present and any succeeding Board
of Directors of that Employer.
1.6 "Code": The Internal Revenue Code of 1986, as the same may be
amended from time to time, or the corresponding section of any subsequent
Internal Revenue Code, and, to the extent not inconsistent therewith,
regulations issued thereunder.
1.7 "Compensation": An Employee's:
(i) Regular base salary for salaried employees,
(ii) Straight time earnings for all hours worked and paid
non-work hours, which shall include shift differential, vacation, sick,
jury, witness, bereavement and non-worked holiday pay, for hourly
employees,
(iii) Guaranteed commissions for salespersons who are not
compensated strictly on a commissioned basis (i.e., who have a
guaranteed base), and
(iv) Ninety percent (90%) of commissions for salespersons
who are compensated strictly on a commissioned basis (i.e., who have
no guaranteed base),
payable to the Employee for services as an Eligible Employee, directly from the
Employer (but not from any Affiliate which is not a participating employer
unless otherwise expressly provided) for a Plan Year, including in any case
employee elective salary reduction or similar contributions under a cafeteria
plan described in Section 125 of the Code and employee elective salary reduction
or similar contributions under a cash or deferred arrangement described in
Section 401(k) of the Code (to the extent not already included therein), and not
including in any case any contribution by the Employer to or benefits under this
Plan or any other employee benefit or stock purchase plan or trust in connection
therewith, nor any amount otherwise paid as compensation but finally determined
not to be deductible as compensation in determining the Employer's federal
taxable income.
1.8 "Compensation Committee": The committee of the Plan Sponsor's
Board known as the Compensation Committee, or its successor.
1.9 "Eligible Employee": Any person who is employed as a common law
employee by the Employer, who is customarily employed for at least 5 months in a
calendar year and at least 30 hours per week, and who is not a 5% or more owner
of the Employer. A 5% or more owner of the Employer is a person who owns stock,
and/or holds outstanding options to purchase stock, possessing 5% or more of the
total combined voting power or value of all classes of stock of the Plan Sponsor
(for purposes of this paragraph, the rules of Section 424(d) of the Code shall
apply in determining stock ownership).
1.10 "Employee": Any person considered a common law employee of the
Employer or any Affiliate.
1.11 "Employer": The Plan Sponsor and each other employer now or
hereafter executing or adopting the Plan with the consent of the Board as a
participating Employer, collectively unless the context otherwise indicates, for
as long as it remains a participating Employer; and with respect to any
Employee, any one or more of such Employers by which he is at any time employed.
The Administrator shall maintain a list of all such Employers who are, from time
to time, participating Employers in the Plan.
1.12 "Leave of Absence": A leave of absence authorized by an Employer.
For purposes of participation in the Plan, a leave of absence shall in any event
be considered ended on the 91st day thereof unless the person's right to
reemployment is guaranteed by law or by contract.
1.13 "Market Value": The closing sale price per share of Stock as
reported in The Wall Street Journal or other authoritative sources for the day
on which the purchase, sale or transfer of Stock is to take place. If such price
is not supplied by The Wall Street Journal or other authoritative sources, then
the price per share will be determined pursuant to the valuation method or
procedure determined by the Compensation Committee or the Administrator of
Eskimo Pie in good faith.
1.14 "Period of Service": A period of continuous employment as an
Employee, including Leaves of Absence. For purposes of determining Periods of
Service, the following rules shall apply:
(i) The Administrator is authorized to treat service with any
organization as service with an Affiliate if substantially all the
operating assets of that organization are acquired by the Plan Sponsor
or an Affiliate.
(ii) Service with any organization which becomes an Affiliate
shall be considered as service with the Affiliate even though such
service occurs before the date the organization becomes an Affiliate,
unless otherwise provided by the Administrator.
1.15 "Participant": An Eligible Employee who is eligible and who
elects to participate in the Plan for so long as he is considered a
Participant as provided in ARTICLE II hereof.
1.16 "Plan": The Plan as contained herein or duly amended which shall be
known as the "Eskimo Pie Corporation Employee Stock Purchase Plan".
1.17 "Plan Sponsor": Eskimo Pie Corporation, a Virginia corporation, or
its successor.
1.18 "Plan Year": The fiscal year of the Plan, which is the calendar
year.
1.19 "Stock": The common stock, $1.00 par value, of the Plan Sponsor.
1.20 "Valuation Date": The last day of each calendar month or such
other date or dates as the Administrator may determine.
ARTICLE II
Eligibility and Participation
2.1 Eligibility and Date of Participation.
2.1(a) Each Eligible Employee who is credited with a 3 month Period of
Service as of the first day of any calendar month shall be eligible to
participate in the Plan by making contributions to the Plan for such month. The
Administrator is authorized to waive the service requirement in whole or in part
from time to time on direction or authorization of the Board for one or more
Eligible Employees or classes of Eligible Employees.
2.1(b) An Eligible Employee who meets the requirements of subparagraph
2.1(a) with respect to a calendar month shall become a Participant by filing an
enrollment form with the Administrator on or before the date set therefor by the
Administrator, which date normally shall be prior to the first day of the
calendar month with respect to contributions made by payroll deduction or prior
to the 25th of the calendar month with respect to contributions made by lump sum
deposit (or such earlier date or dates as may be required by the Administrator
from time to time). The enrollment form shall contain either an authorization
for payroll deductions from the Participant's Compensation and/or a lump sum
contribution election and may contain such other information as the
Administrator may determine.
2.1(c) An individual who becomes a Participant shall be or remain a
Participant for so long as he remains an Eligible Employee who has a payroll
deduction authorization in force or a lump sum contribution and purchase request
pending and thereafter while he is entitled to future benefits under the terms
of the Plan.
2.2 Leave of Absence.
2.2(a) For purposes of participation in the Plan, an Eligible Employee
on a Leave of Absence shall be deemed to be an Employee for such Leave of
Absence and such Employee's employment shall be deemed to have terminated at the
end of such Leave of Absence unless the Employee shall have returned to regular
employment with the Employer at the end of such Leave of Absence. Termination by
the Employer of any Employee's Leave of Absence, other than termination of such
Leave of Absence on return to employment, shall terminate an Employee's
employment for all purposes of the Plan and shall terminate the Employee's
participation in the Plan and trigger any applicable forfeiture and distribution
of Plan benefits.
2.2(b) If a Participant who is an Eligible Employee goes on a Leave of
Absence, the Participant shall have the right to elect (i) to discontinue his
contributions to the Plan or (ii) to remain a Participant in the Plan during
such Leave of Absence, authorizing deductions to be made from any payments by
the Employer to the Participant during such Leave of Absence and retaining the
right to make lump sum contributions to the Plan. If the Participant's Leave of
Absence ends by his return to employment as an Eligible Employee and he has not
elected to discontinue his participation in the Plan, and his payroll deduction
were terminated, he must file a new enrollment form to recommence his payroll
deduction contributions to the Plan.
2.2(c) A Participant on a Leave of Absence shall, subject to the
election made by the Participant pursuant to subparagraph 2.2(b), continue to be
a Participant and to be considered an Eligible Employee for purposes of the Plan
so long as he is on continuous Leave of Absence.
ARTICLE III
Funding
3.1 Participant Payroll Deduction and Lump Sum Contributions.
3.1(a) At the time a Participant files his enrollment form, he may elect
to have deductions made from his Compensation on each payday during the period
he is a Participant and an Eligible Employee at a fixed rate of 1% to 100%,
inclusive but in whole percentages, or in any dollar amount of his Compensation,
subject only to the requirement that the minimum monthly payroll deduction
contribution be $20 and to any uniform maximum limitation which the Compensation
Committee may impose from time to time for all Participants. Payroll deduction
contribution elections are continuing elections. Payroll deduction contributions
may only commence as of the first day of a calendar month. A Participant may
discontinue, increase, reduce, or restart his payroll deduction contributions to
the Plan as of the first day of any calendar month by filing a written notice
thereof with the Administrator, with such advance notice as the Administrator
may require.
3.1(b) At the time a Participant files his enrollment form or thereafter
while he is an Eligible Employee, he may make an election to make a lump sum
contribution, subject only to the requirement that the minimum monthly lump sum
contribution be $20 and to any uniform maximum limitation which the Compensation
Committee may impose from time to time for all Participants, to the Plan prior
to the 25th of the calendar month (or any earlier date the Administrator may
require) and in such manner as the Administrator may permit. Lump sum
contributions are not continuing elections, and a separate contribution form
must be filed for each lump sum contribution.
3.2 Contributions by the Employer. The Employer shall make a matching
contribution on behalf of each Participant who is employed as an Eligible
Employee on the last day of each calendar month equal to 15% (or such lesser
percentage, if any, determined by the Compensation Committee from time to time)
of the payroll deduction and lump sum contributions made by the Participant for
the calendar month. The Employer's contribution shall be made monthly at or
shortly after the end of each calendar month.
3.3 Participant Accounts.
3.3(a) All payroll deduction and lump sum contributions made by a
Participant and all contributions by the Employer on behalf of a Participant
shall be credited to his Account under the Plan. A Participant's Account is a
bookkeeping account maintained by one or more Employers designated by the
Administrator to reflect a Participant's contributions accumulated under the
Plan and Stock held for the Participant under the Plan.
3.3(b) Each Participant's Account shall be appropriately credited for
contributions under the Plan and debited for distributions and forfeitures from
the Account to the Participant or his Beneficiary.
3.3(c) The Administrator shall maintain appropriate records to determine
the number of whole and fractional shares of Stock maintained in a Participant's
Account and the portions thereof which are vested and unvested at any time. In
determining Account balances:
(i) As of each Valuation Date, the Administrator shall allocate
to each Participant's Account the number of full shares and the
fractional interest (calculated to the second, third or fourth decimal
place, as determined by the Administrator) of Stock transferred to or
acquired by a Participant's Account and shall decrease the number
thereof at the last preceding Valuation Date by the shares or interest
sold by, distributed from or otherwise removed from such Account.
(ii) If the outstanding shares of Stock have increased,
decreased, changed into, or been exchanged for a different number or
kind of shares or securities of the Plan Sponsor through reorganization,
merger, recapitalization, reclassification, stock split, reverse stock
split, stock dividend or similar transaction, there shall be credited to
each affected Account a proportionate number of full and fractional
shares of Stock received by the Administrator as a result of such
dividend, split or other change based on the number of shares and
fraction thereof in such account as of the Valuation Date (or such date
as the Administrator may direct) coinciding with or next following the
ex-dividend or record date as applicable.
3.3(d) No interest shall be paid or allowed on any money paid into the
Plan or credited to the Account of any Participant.
3.3(e) The Employer shall not be required to segregate the
contributions made by Participants or by it from its own corporate funds.
3.3(f) Where an error or omission is discovered in the Account of a
Participant, the Administrator shall be authorized to make such equitable
adjustment as it deems appropriate.
3.3(g) Within ninety (90) days after the end of each Plan Year (or more
frequently if the Administrator determines) and at the date a Participant's
Account becomes payable under the Plan, the Administrator shall provide to each
Participant (or, if deceased, to his Beneficiary) a statement of the balance as
of such date of his Account and the vested and unvested interests therein.
3.4 Plan Costs and Expenses. All costs and expenses of the Plan,
including brokerage commissions and fees and legal, accounting, recording,
custodial and other fees and expenses incurred in the establishment, amendment,
administration and termination of the Plan, shall be paid by the Employers from
their general assets in such manner and proportions as the Plan Sponsor shall
determine.
ARTICLE IV
Stock Purchases
4.1 Monthly Purchase of Stock.
4.1(a) At or as soon as practicable following the end of each calendar
month, the Administrator shall use the amount of the cash balance in the Account
of each Participant who is then an Employee (whether attributable to
contributions by the Participant or the Employer, to dividends or to other
sources) to purchase fully paid and non-assessable shares (including fractional
shares) of Stock. Stock held in the Plan for a Participant shall not be
transferable until it is vested.
4.1(b) Purchases of Stock may be made on the open market or from the
Plan Sponsor (if the Plan Sponsor consents) as determined by the Administrator
from time to time or as directed by the Plan Sponsor.
4.1(c) The purchase price of Stock purchased from the Plan Sponsor shall
be equal to its Market Value, except when purchased pursuant to any dividend
reinvestment plan (other than this Plan) in which case the purchase price shall
be determined pursuant to such dividend reinvestment plan.
4.2 Shares Available for Purchase pursuant to the Plan.
4.2(a) The maximum number of shares of Stock which shall be issued under
the Plan shall, subject to adjustment upon changes in capitalization of the Plan
Sponsor as provided in subparagraph 4.2(c) or any amendment of the Plan, be
50,000.
4.2(b) If the total cash amount available to purchase Stock at any time
exceeds the maximum number of shares remaining available under the Plan, the
Administrator shall make a pro rata allocation of the available shares in as
nearly a uniform manner as shall be practicable and as it shall determine to be
equitable, and the balance of each Participant's Account under the Plan
attributable to contributions made by him shall be returned to him, without
interest, as promptly as possible.
4.2(c) If the outstanding shares of Stock have increased, decreased,
changed into, or been exchanged for a different number or kind of shares or
securities of the Plan Sponsor through reorganization, merger, recapitalization,
reclassification, stock split, reverse stock split, stock dividend or similar
transaction, appropriate and proportionate adjustments may be made by the
Administrator in the number and/or kind of shares which are subject to purchase
under the Plan. In addition, in any such event, the number and/or kind of shares
which may be purchased pursuant to the Plan (as described in subparagraph
4.2(a)) shall also be proportionately adjusted.
4.4 Non-Transferability of Purchase Rights. A Participant's right
to purchase Stock pursuant to the Plan shall not be transferable and shall only
be exercisable by the Participant.
4.5 Restrictions on Stock Purchases. The Board may, in its
discretion, require as a condition to the purchase of Stock under the Plan and
issuance of any shares that the shares of Stock reserved for issuance are
registered pursuant to a Registration Statement under the Securities Act of
1933, as amended, with respect to said shares shall be effective.
ARTICLE V
Holding of Stock
5.1 Holding and Status of Stock Purchased under the Plan. Shares of
Stock purchased under the Plan shall be fully issued and nonassessable, shall be
registered in book entry form in the name of the Participant for whom purchased,
and shall be held in safekeeping by the Administrator. Such Stock shall be
considered owned by the Participant for all purposes, but such Stock and
dividends or securities attributable to such Stock shall be subject to the
vesting, forfeiture, holding and distribution provisions of the Plan.
5.2 Dividends and Other Distributions. If the Administrator
receives on behalf of a Participant in respect of any Stock held under the Plan:
(i) Cash dividends, or
(ii) Other or additional shares Stock or other securities (by
way of dividend or otherwise),
then the Administrator shall use any dividends referred to in clause (i) to
purchase additional Stock as provided in paragraph 4.1 and shall hold in book
entry registry and safekeeping any additional securities referred to in clause
(ii) and unless otherwise provided in the Plan such Stock purchased with cash
dividends and such securities shall vest at the same time and in the same manner
as the vesting of, and shall be subject to the same distributions rules
applicable to, the Stock in respect of which such dividends or additional
securities were issued.
5.3 Proxy Materials and Other Shareholder Communications. If the
Administrator receives on behalf of a Participant in respect of any Stock held
under the Plan:
(i) Options or rights to purchase additional securities of
the Plan Sponsor or any other corporation, or
(ii) Any notice of meeting, proxy statement and proxy for
any meeting of holders of Stock (or other securities held under the
Plan),
then the Administrator shall forward such items to such Participant, at his or
her last address according to the register maintained under the Plan.
5.4 Voting.
5.4(a) Voting rights with respect to Stock (and any other securities of
the Employer) held under the Plan and allocated to Participants' Accounts as of
the applicable record date shall be passed through to Participants (or if
deceased, to their Beneficiaries). When so required to be passed through, such
rights which are not so exercised shall not be exercised by the Administrator.
5.4(b) Whenever voting rights of Stock (or any other securities of the
Employer) are passed through to Participants under subparagraph 5.4(a), each
Participant (or if deceased, his Beneficiary) shall have the right to direct the
manner in which such Stock (or other securities) is to be voted pursuant to
clause (i) hereof or to actually or by attorney vote such Stock (or other
securities) pursuant to clause (ii) hereof as determined by the Administrator.
Within a reasonable time before such voting rights are to be exercised, the
Administrator shall notify each Participant (or if deceased, his Beneficiary) of
the occasion for the exercise of such rights and shall cause to be sent to each
such Participant (or if deceased, his Beneficiary entitled to benefits
hereunder) all information that the Plan Sponsor or issuer distributes to
shareholders (or security holders) regarding the exercise of such rights.
(i) Unless otherwise determined pursuant to clause (ii) of this
subparagraph, any direction made pursuant to this paragraph shall be
made in writing on a form provided by the Administrator, executed by the
Participant (or if deceased, his Beneficiary), and delivered to the
Administrator by 5:00 p.m. of the second day preceding (or such other
period as the Administrator may establish) the date such voting rights
are to be exercised. To the extent permitted by law, the Administrator
shall exercise such rights as directed and shall not exercise such
rights which are not so directed.
(ii) Notwithstanding the foregoing, the Administrator may
execute and give each Participant (or if deceased, his Beneficiary) a
power of attorney with respect to such Stock (or other securities), and
the Participant (or if deceased, his Beneficiary) may then vote such
Stock (or other securities) directly or through his attorney. If the
Administrator determines to pass through voting rights pursuant to this
clause (ii), such Stock (or other securities) which is not voted by
Participants (or if deceased, their Beneficiaries) shall not be voted.
ARTICLE VI
Vesting
6.1 Vesting at Retirement, Death or Disability.
6.1(a) Upon a Participant's terminating employment with the Employer
either:
(i) After attaining age 65 (normal or delayed retirement),
(ii) After reaching age 55 and then being credited
with at least a 10 year Period of Service (early retirement),
(iii) On account of his disability, or
(iv) On account of his death,
the Account of such Participant shall be fully vested and non-forfeitable.
6.1(b) For purposes of the Plan, "disability" means the Participant's
inability, because of a physical or mental impairment, either to perform the
duties of his customary employment or to engage in any gainful activity for an
indefinite period. The determination of disability shall be made by the
Administrator, on the advice of one or more physicians appointed or approved by
the Administrator if deemed necessary or advisable by the Administrator, and the
Administrator shall have the right to require further medical examinations from
time to time to determine whether there has been any change in the Participant's
physical condition. The Administrator shall have the right to require such proof
of disability as it deems appropriate, and failure by the Employee to provide
such proof, and submit to such examinations, as may be required by the
Administrator shall result in the determination that the Participant is not
disabled for purposes of the Plan.
6.2 Vesting at Other Times. At all times when a Participant's
Account is not fully vested under paragraph 6.1, vesting shall be occur as
follows:
(i) Stock purchased with contributions to the Plan shall be
fully vested and non-forfeitable at the December 31 of the calendar year
immediately following the calendar year for which the contributions were
made to the Plan provided the Participant has continuously remained an
Employee from the month of contribution to such December 31.
(ii) Stock purchased with dividends or attributable to a
reorganization, merger, recapitalization, reclassification, stock split,
reverse stock split, stock dividend or similar transaction shall be
fully vested and non-forfeitable when the underlying Stock with respect
to which such dividends were paid or additional stock issued vests.
(iii) Notwithstanding the foregoing, all Stock held in the
Account of a Participant who is an Employee at the date of the complete
termination of the Plan shall be fully vested and non-forfeitable.
(iv) Notwithstanding the foregoing, if the Compensation
Committee so decides in its sole discretion, all Stock held in the
Account of a Participant who is an Employee at the date of a change in
control (as determined by the Compensation Committee) of the Plan
Sponsor shall be fully vested and non-forfeitable.
6.3 Forfeitures.
6.3(a) If a Participant ceases to be an Employee and his entire Account
is not vested, then the unvested portion of his Account shall be forfeited to
the Employer, and the Participant shall be entitled to receive in cash an amount
(which is then considered part of the vested portion of his Account) equal to
the then uninvested cash contributions made to the Plan by him and the lesser
of:
(i) The amount of contributions made by him which were used
to purchase the unvested portion of Stock in his Account, or
(ii) The percentage of the proceeds of sale of the unvested
portion of Stock in his Account (or if the Administrator directs, the
Market Value of the unvested portion of Stock in his Account at the time
of his forfeiture) equal to the percentage of the purchase price thereof
paid by contributions made by him compared to the total purchase price
of such Stock.
6.3(b) No Participant shall make an election under Section 83(b) of the
Code to be taxed on any Stock purchased under the Plan at the time of purchase.
If such an election has been made, the Participant shall forfeit the purchased
Stock for which such election was made.
ARTICLE VII
Distribution of Accounts
7.1 Voluntary Withdrawals.
7.1(a) By written notice to the Administrator, a Participant may elect
to withdraw his vested Stock in his Account at any time. A Participant's
withdrawal of vested Stock shall not have any effect upon his eligibility to
participate in the Plan.
7.1(b) By written notice to the Administrator, a Participant may elect
to withdraw the entire unvested portion of his Account attributable to
contributions made by him to the Plan at any time. If a Participant withdraws
the unvested portion of his Account, he may not make contributions to the Plan
until the calendar year following the calendar year of the withdrawal. In the
event of such a withdrawal, the Participant shall be deemed to terminate
employment with the Employer for purposes of determining his vesting, forfeiture
and distribution of the unvested portion of his Account.
7.2 Termination of Employment. Upon termination of the Participant's
employment as an Employee for any reason (including retirement, death or
disability), whether voluntarily or involuntarily, the vested balance in the
Participant's Account shall be distributed to him or, if he is deceased, to his
Beneficiary as soon as reasonably possible after his termination of employment.
7.3 Distribution Rules.
7.3(a) All distributions of a Participant's vested Account held in Stock
shall be made to the Participant or his Beneficiary by the transfer of either
cash or the issuance in certificate form of whole shares of Stock and cash in
lieu of a fractional share, as follows:
(i) If the number of shares which would otherwise be
distributed is less than ten (10) (as adjusted automatically from time
to time to reflect Stock dividends or splits or other capitalization
changes occurring after March 31, 1997), payment shall be made entirely
in cash.
(ii) If the number of shares to be distributed is at least ten
(10) (as adjusted automatically from time to time to reflect Stock
dividends or splits or other capitalization changes occurring after
March 31, 1997), payment shall be made in whole shares and cash in lieu
of a fractional share.
(iii) Any whole shares of Stock which are converted to cash for
payment purposes shall be disposed of at or about the time of
distribution either on the open market or by sale to the Plan Sponsor at
Market Value or transfer at Market Value to other Participants'
accounts, as directed by the Administrator.
7.3(b) All distributions of a Participant's vested Account other than
the portion held and distributable in Stock shall be made in cash.
ARTICLE VIII
Death Beneficiary
8.1 Disposition of Plan Benefits after Death. Upon the death of a
Participant and upon receipt by the Administrator of proof of the Participant's
death and the determination and identity of the Participant's Beneficiary, the
Administrator shall deliver such Stock and/or cash to such Beneficiary as is due
under the Plan.
8.2 Beneficiary Designation.
8.2(a) Each Participant shall have the right to notify the Administrator
in writing of any designation of a Beneficiary to receive, if alive, benefits
under the Plan in the event of his death. Such designation may be changed from
time to time by notice in writing to the Administrator.
8.2(b) If a Participant dies without having designated a Beneficiary, or
if the Beneficiary so designated has predeceased the Participant or cannot be
located by the Administrator within one year after the date when the
Administrator commenced making a reasonable effort to locate such Beneficiary,
then his surviving spouse, or if none, then his surviving children, including
adopted children, in equal shares, or if none, then his surviving parents in
equal shares, or if none, then his estate shall be deemed to be his Beneficiary.
8.2(c) Any Beneficiary designation may include multiple, contingent or
successive Beneficiaries and may specify the proportionate distribution to each
Beneficiary. If a Beneficiary shall survive the Participant, but shall die
before the entire benefit payable to such Beneficiary has been distributed, then
absent any other provision by the Participant, the unpaid amount of such benefit
shall be distributed to the estate of the deceased Beneficiary. If multiple
Beneficiaries are designated, absent provisions by the Participant, those named
or the survivors of them shall share equally any benefits payable under the
Plan. Any Beneficiary shall be entitled to disclaim any benefit otherwise
payable to him under the Plan.
ARTICLE IX
Plan Administration
9.1 Appointment of Plan Administrator. The person serving as Vice
President and Treasurer of the Plan Sponsor from time to time shall serve as the
Plan Administrator (the "Administrator") for the purpose of carrying out the
duties specifically imposed on the Administrator by the Plan.
9.2 Authority of Administrator.
9.2(a) Subject to the express provisions of the Plan, the Administrator
shall have plenary authority in its discretion to interpret and construe any and
all provisions of the Plan, to adopt rules and regulations for administering the
Plan, and to make all other determinations deemed necessary or advisable for
administering the Plan. The Administrator may correct any defect or omission or
reconcile any inconsistency in the Plan, in the manner and to the extent it
shall deem appropriate. The Administrator's determination on the foregoing
matters shall be conclusive.
9.2(b) The Administrator shall exercise its power and authority in its
discretion. It is intended that a court review of the Administrator's exercise
of its power and authority with respect to matters relating to the Plan,
including eligibility for participation in and benefits of, Participants and
Beneficiaries shall be made only on an arbitrary and capricious standard.
9.2(c) The Administrator may delegate some or all of its duties and
responsibilities, except where prohibited by the Compensation Committee, to
persons who may are may not be Employees. The delegation permitted under this
subparagraph includes utilizing a custodian to hold Stock and a recordkeeper to
maintain the Plan's Accounts. Any written agreement regarding delegation shall
specifically set forth the duties and responsibilities so delegated, shall
contain reasonable provisions for termination, and shall be executed by the
parties thereto.
9.2(d) The Administrator, and any delegate named pursuant to
subparagraph 9.2(c), may engage agents to assist in its duties and may consult
with counsel, who may be counsel for the Employer, with respect to any matter
affecting the Plan or its obligations and responsibilities hereunder, or with
respect to any action or proceeding affecting the Plan. All compensation and
expenses of such agents and counsel shall be considered an expense of the Plan.
9.2(e) No person serving as the Administrator who is a Participant shall
take any part as the Administrator in any discretionary action in connection
with his participation in the Plan as an individual. Such action shall be taken
by the Plan Sponsor (through other than the Participant in question).
ARTICLE X
Amendment and Termination of Plan
10.1 Amendment and Termination.
10.1(a) The Plan may be amended or terminated in whole or in part at any
time by action of the Board, provided that no amendment or termination shall
adversely affect the rights of a Participant to Plan benefits attributable to
his then Account balance.
10.1(b) A complete termination of the Plan for purposes of clause (iii)
of subparagraph 6.2 means both the termination of the contributions to Plan and
a direction by the Board to vest and distribute all Account balances. If no such
direction by the Board to vest and distribute all Account balances is given, the
Plan shall continue to operate (subject to limits in the Plan on the purchase of
Stock under the Plan) and the rules pertaining to vesting and forfeiture of
Accounts shall continue to be imposed.
10.2 Termination Events with Respect to Employers Other Than the Plan
Sponsor.
10.2(a) The Plan shall terminate with respect to any Employer other than
the Plan Sponsor, and such Employer shall automatically cease to be a
participating Employer in the Plan and its employees shall cease to be
considered Eligible Employees, upon the happening of any of the following
events:
(i) Action by its Board or the Board terminating the Plan as to
it and specifying the date of such termination. Notice of such
termination shall be delivered to the Administrator and the Plan
Sponsor.
(ii) Its ceasing to be an Affiliate.
10.2(b) Notwithstanding the foregoing provisions of this ARTICLE X, the
merger or liquidation of any Employer into any other Employer or the
consolidation of two (2) or more of the Employers shall not cause the Plan to
terminate with respect to the merging, liquidating or consolidating Employers,
provided that the Plan has been adopted or is continued by and has not
terminated with respect to the surviving or continuing Employer.
ARTICLE XI
Miscellaneous
11.1 Governing Law. The Plan shall be construed, enforced and
administered in accordance with the laws of the Commonwealth of Virginia, and
any federal law preempting the same.
11.2 Employment Rights. Participation in the Plan shall not give any
Employee the right to be retained in the Employer's employ nor, upon dismissal
or upon his voluntary termination of employment, to have any right or interest
under the Plan other than as herein provided.
11.3 Effect of Plan. The provisions of the Plan shall, in accordance
with its terms, be binding upon, and inure to the benefit of, all successors of
each Participant, including, without limitation, such Participant's estate and
the executors, administrators or trustees thereof, heirs and legatees, and any
receiver, trustee in bankruptcy or representative of creditors of such
Participant.
11.4 Conclusiveness of Employer Records. The records of the Employer
with respect to age, service, employment history, compensation, absences,
illnesses and all other relevant matters shall be conclusive for purposes of the
administration of the Plan.
11.5 Alienation. Except as may be provided in the Plan in the event
of a Participant's death, no Account balance and no right to purchase Stock
granted hereunder shall be subject in any manner to alienation, whether by
voluntarily or involuntarily, by sale, anticipation, transfer, assignment,
pledge, encumbrance, garnishment, attachment, execution or levy of any kind. Any
such attempted assignment shall be without effect, except that the Administrator
may in its discretion treat such act, where applicable, as an election to cease
participation and withdraw Plan benefits in accordance with paragraph 7.1.
11.6 Notices and Elections.
11.6(a) Except as provided in subparagraph 11.6(b), all notices required
to be given in writing and all elections required to be made in writing, under
any provision of the Plan, shall be invalid unless made on such forms as may be
provided or approved by the Administrator and, in the case of a notice,
election, consent or application by a Participant or Beneficiary, unless
executed by the Participant or Beneficiary (or his legal representative) giving
such notice or making such election, consent or application.
11.6(b) The Administrator is authorized in its discretion to accept
other means for receipt of effective notices, elections, consent and/or
application by Participants and/or Beneficiaries, including but not limited to
interactive voice systems, on such basis and for such purposes as it determines
from time to time.
11.7 Delegation of Authority. Whenever the Plan Sponsor or any
Employer is permitted or required to perform any act, such act may be performed
by its Chief Executive Officer, its President, its Vice President and Treasurer
or its Board of Directors or by any person duly authorized by any of the
foregoing.
11.8 Purpose and Construction. The Plan is intended to provide a
method whereby Eligible Employees of the Plan Sponsor and other Employers have
an opportunity to acquire a proprietary interest in the Plan Sponsor through the
purchase of shares of Stock. It is intended that the Plan be a restricted stock
plan for purposes of Section 83 of the Code and that the Plan satisfy the
requirements of Sections 423(b)(3) and (5) of the Code even though the Plan is
not intended to be an "employee stock purchase plan" otherwise described in
Section 423 of the Code. The provisions of the Plan shall be construed so as to
extend and limit participation in a manner consistent with the requirements of
Section 83 of the Code and Sections 423(b)(3) and (5) of the Code.
ARTICLE XII
Adoption of the Plan
12.1 Establishment and Effectiveness of the Plan. The Plan shall
become effective as of May 1, 1997.
12.2 Adoption by Additional Employers. Any corporation (other than
Eskimo, Inc. and Sugar Creek Foods, Inc. which be participating Employers as
of the effective date of the Plan) which is an Affiliate and which, with the
consent of the Board and the approval of its Board of Directors, desires to
adopt the Plan may do so by executing the Plan as a participating Employer or
by executing an adoption agreement in a form authorized by the Administrator.
ESKIMO PIE CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
Execution Page
IN WITNESS WHEREOF, the Plan Sponsor, pursuant to the resolution duly
adopted by its Board of Directors, has caused its name to be signed to this Plan
by its duly authorized officer with its corporate seal hereunto affixed and
attested by its Secretary or Assistant Secretary, as of the day and year below
written, and each other currently participating Employer has caused its name to
be signed to this Plan by its duly authorized officer with its corporate seal
hereunto affixed and attested by its Secretary or Assistant Secretary.
Date: _________________ Eskimo Pie Corporation,
Plan Sponsor and participating Employer
By: ____________________________________ (SEAL)
Its____________________________________
Attest:
Its
Date: Eskimo, Inc., participating Employer
By: ____________________________________ (SEAL)
Its____________________________________
Attest:
__________________________________
Its_______________________________
Date:_____________________________ Sugar Creek Foods, Inc., participating Employer
By: ____________________________________ (SEAL)
Its____________________________________
Attest:
__________________________________
Its_______________________________