EXHIBIT 10.20
WORKING COPY OF
ESKIMO PIE CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
AS OF NOVEMBER 7, 1997
Including
1. First Amendment dated November 7, 1997
TABLE OF CONTENTS
PAGE
ARTICLE PAGE
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Definition of Terms...................................... 1
Eligibility and Participation............................ 3
Funding.................................................. 4
Stock Purchases.......................................... 5
Holding of Stock......................................... 6
Vesting.................................................. 8
Distributions of Accounts................................ 9
Death Beneficiary........................................ 10
Plan Administration...................................... 11
Amendment and Termination of the Plan.................... 11
Miscellaneous............................................ 12
Adoption of the Plan..................................... 13
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,
which account shall be divided into the following subaccounts:
1.1(a) "PARTICIPANT CONTRIBUTION ACCOUNT": This subaccount consists of all
contributions by a Participant to the Plan and to Stock or other assets
attributable to such contributions.
1.1(b) "UNVESTED COMPANY CONTRIBUTION ACCOUNT": This subaccount consists
of all contributions by the Employer to the Plan on behalf of a Participant and
Stock or other assets attributable to such contributions for so long as such
amounts are not vested.
1.1(c) "VESTED COMPANY CONTRIBUTION ACCOUNT": This subaccount consists of
all contributions by the Employer to the Plan on behalf of a Participant and
Stock or other assets attributable to such contributions after such amounts are
vested.
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 shall be credited to his Participant Contribution Account, and all
contributions by the Employer on behalf of a Participant shall initially be
credited to his Unvested Company Contribution 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 and the
Employer'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 either
be registered in book entry form in the name of the Participant for whom
purchased or held by a custodian appointed by and acting at the direction of the
Administrator, and, when issued in certificate form, shall be held in
safekeeping by the Administrator or the custodian appointed 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 of 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 such
additional Stock and any Stock or additional securities referred to in clause
(ii) in book entry registry or cause the same to be held by a custodian as
provided in paragraph 5.1. 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 OF UNVESTED COMPANY CONTRIBUTION ACCOUNT 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 Unvested Company Contribution 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 OF UNVESTED COMPANY CONTRIBUTION ACCOUNT AT OTHER TIMES. At
all times when a Participant's Unvested Company Contribution Account is not
fully vested under paragraph 6.1, vesting shall occur as follows:
(i) Stock purchased with contributions to the Plan and held in the
Unvested Company Contribution Account 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 Unvested
Company Contribution 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 Unvested Company
Contribution 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 TRANSFER OF AMOUNTS FROM UNVESTED COMPANY CONTRIBUTION ACCOUNT TO
VESTED COMPANY CONTRIBUTION ACCOUNT AT VESTING. When amounts in a Participant's
Unvested Company Contribution Account vest, they shall be transferred to the
Participant's Vested Company Contribution Account for recordkeeping purposes.
6.4 VESTING OF PARTICIPANT CONTRIBUTION ACCOUNT AND VESTED COMPANY
CONTRIBUTION ACCOUNT. The Participant Contribution Account and the Vested
Company Contribution Account of a Participant shall be fully vested and
non-forfeitable at all times.
6.5 FORFEITURES.
6.5(a) If a Participant ceases to be an Employee and his entire Unvested
Company Contribution Account does not thereby become vested, then his Unvested
Company Contribution Account shall be forfeited to the Employer.
6.5(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 at any
time elect to withdraw all or part of his Stock in his Vested Company
Contribution Account and his Participant Contribution Account.
7.1(b) If a Participant withdraws all or part of his Stock in his
Participant Contribution Account which is attributable to his contributions made
in the current or immediately preceding calendar year (determined at the date of
the withdrawal):
(i) He may not make contributions to the Plan until the calendar
year following the calendar year of the withdrawal, and
(ii) He shall be deemed to terminate employment with the Employer
for purposes of determining his vesting and forfeiture of his Unvested
Company Contribution Account.
A Participant's withdrawal of Stock in his Participant Contribution Account
which is attributable to his contributions made in any calendar year which
precedes the year of withdrawal by at least two years shall not have any effect
upon his eligibility to participate or vesting under the Plan.
7.1(c) Withdrawals will be considered made first from account balances
which do not result in forfeiture and suspension from participation.
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: 4-10-97 Eskimo Pie Corporation,
----------------- Plan Sponsor and participating Employer
By: s/ Thomas M. Mishoe, Jr. (SEAL)
-------------------------------------
Its Vice President, Treasurer & CFO
-----------------------------------
Attest:
s/ Robert R. Staples
- ---------------------------
Its Assistant Secretary
----------------------
Date 4-10-97 Eskimo, Inc., participating Employer
----------------------
By: s/ Thomas M. Mishoe, Jr. (SEAL)
-------------------------------------
Its Vice President, Treasurer and CFO
------------------------------------
Attest:
s/ Robert R. Staples
- ---------------------------
Its Assistant Secretary
-----------------------
Date: 4-10-97 Sugar Creek Foods, Inc., participating
---------------------- Employer
By: s/ Thomas M. Mishoe, Jr. (SEAL)
------------------------------------
Its Vice President, Treasurer and CFO
-----------------------------------
Attest:
s/ Robert R. Staples
- ---------------------------
Its Assistant Secretary
------------------------