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EXHIBIT 4.1
ALLIED HOLDINGS, INC.
AMENDED AND RESTATED 1999 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
PURPOSE AND APPROVAL
1.1 PURPOSE OF THE PLAN. The purpose of the Allied Holdings, Inc. 1999
Employee Stock Purchase Plan is to provide a method whereby Employees of the
Company may acquire a proprietary interest in the Company through the purchase
of Shares of common stock of Allied Holdings, Inc. The Plan is intended to
qualify as an "Employee Stock Purchase Plan" as defined 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 the Code.
1.2 APPROVAL OF THE PLAN. The Plan was adopted by the Board on December 16,
1998, subject to approval by the Company's shareholders, as required by the
Code. The Plan was adopted by the shareholders on May 12, 1999. The Board
approved the Amended and Restated 1999 Employee Stock Purchase Plan on February
21, 2001, and the shareholders adopted this Amended and Restated 1999 Employee
Stock Purchase Plan on May 15, 2001.
ARTICLE II
DEFINITIONS
2.1 "ACCOUNT" means the account maintained by the Company for a Participant
pursuant to Section 3.3.
2.2 "ACT" means the Securities Exchange Act of 1934, as amended.
2.3 "BOARD" means the Board of Directors of Allied Holdings, Inc.
2.4 "CODE" means the Internal Revenue Code of 1986, as amended.
2.5 "COMMITTEE" means the Compensation Committee of the Board, or such
other Committee as the Board may designate to administer the Plan pursuant to
Article VI.
2.6 "COMPANY" means Allied Holdings, Inc. and its Subsidiaries.
2.7 "COMPENSATION" means all base straight time gross earnings,
commissions, overtime and other compensation, but shall not include income
recognized pursuant to stock options or Shares purchased hereunder or to imputed
fringe benefit income.
2.8 "ELIGIBLE EMPLOYEE" means an Employee described in Section 3.2.
2.9 "EMPLOYEE" means any person who is an employee of the Company for tax
purposes, subject to the exclusion of such persons or classes of persons as the
Committee may determine
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to be consistent with Code Section 423 and other applicable law.
2.10 "EXERCISE PRICE" means the purchase price for Shares purchased pursuant
to the exercise of an Option identified in Section 4.1.
2.11 "FAIR MARKET VALUE" means,
(a) If the Shares are listed on any established stock exchange or
a national market system, including without limitation the Nasdaq National
Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market
Value shall be the closing sales price for such Shares (or the closing bid, if
no sales were reported) as quoted on such exchange or system on the date of such
determination, as reported in "The Wall Street Journal" or such other source as
the Committee deems reliable, or;
(b) If the Shares are regularly quoted by a recognized securities
dealer but selling prices are not reported, Fair Market Value shall be the mean
of the closing bid and asked prices for Shares on the date of such
determination, as reported in "The Wall Street Journal" or such other source as
the Committee deems reliable, or;
(c) In the absence of an established market for the Shares, the
Fair Market Value thereof shall be determined in good faith by the Committee.
2.12 "HOLDING PERIOD" means that period beginning on an Offering Termination
Date on which Shares purchased by Participants and ending twelve (12) calendar
months later.
2.13 "OFFERING" means an offering to Participants of Options to purchase
Shares under Section 4.1.
2.14 "OFFERING COMMENCEMENT DATE" means the first business day of the
calendar quarter applicable to the Offering.
2.15 "OFFERING TERMINATION DATE" means the last business day of the calendar
quarter applicable to the Offering.
2.16 "OPTION" means an option to purchase Shares granted pursuant to the
Plan.
2.17 "PARTICIPANT" means an Eligible Employee who has elected to participate
in the Plan pursuant to Section 3.3, and who has not become an ineligible
Employee or withdrawn from participation in the Plan pursuant to Article III.
2.18 "PLAN" means the Allied Holdings, Inc. 1999 Employee Stock Purchase
Plan.
2.19 "PLAN ADMINISTRATOR" means the Vice President, Human Resources of
Allied Industries Incorporated or such other individual as the Committee may
designate to administer
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the Plan pursuant to Article VI.
2.20 "SHARE" means one share of common stock no par value of Allied
Holdings, Inc.
2.21 "SUBSIDIARY" means a corporation (or other form of entity which the
Committee has determined shall be treated as a corporation for purposes of Code
Section 423), domestic or foreign, of which not less than fifty percent (50%) of
the voting shares are held by the Company or a Subsidiary, whether or not such
corporation now exists or is hereafter organized or acquired by the Company or
Subsidiary.
2.22 "TRANSFER AGENT" means the officially designated transfer agent of the
Company.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 GRANTING OF OPTIONS TO EMPLOYEES
A. GRANTING OF OPTIONS TO COMPANY EMPLOYEES ONLY. To the extent
permitted by the Plan, Options to purchase Shares hereunder, shall only
be granted to Employees of the Company.
B. EMPLOYEE RIGHTS AND PRIVILEGES. All Employees granted Options
under the Plan shall have the same rights and privileges, except that
the Committee may from time to time provide for differences in the
rights and privileges of Employees granted Options hereunder, so long
as such differences do not jeopardize the qualification of the Plan
under Code Section 423 or violate other applicable law.
3.2 ELIGIBILITY OF EMPLOYEES. Employees who qualify as Eligible Employees
pursuant to this Section shall be eligible to elect to participate in the Plan
in accordance with Section 3.3.
A. ELIGIBLE EMPLOYEE DEFINED. Except as otherwise required by
Code Section 423 or other applicable law, including, without
limitation, securities laws of a foreign jurisdiction applicable to
such Employee, an Employee shall be considered an Eligible Employee for
purposes of participation in the Plan as of the first Offering
Commencement Date after Employee attains the age of twenty-one (21),
provided, that, such Employee's customary employment with the Company
is at least twenty (20) hours per week and more than five (5) months
per calendar year. For purposes of the Plan, the employment
relationship shall be treated as continuing intact while the individual
is on sick leave or other leave of absence approved by the Company.
Where the period of leave exceeds ninety (90) days and the individual's
right to reemployment is not guaranteed either by statute or by
contract, the employment relationship shall be deemed to have
terminated on the ninety-first (91)st day of such leave.
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B. REHIRED EMPLOYEES. If an Eligible Employee who has ceased to
be an Employee becomes an Employee again on a date thereafter, such
Employee automatically shall become an Eligible Employee effective as
of the Offering Commencement Date following such date.
C. EMPLOYEES DEEMED INELIGIBLE FOR PARTICIPATION
(i) 5% OWNERS. No Option shall be granted hereunder to
any Employee who, immediately after the Option is granted, would own,
within the meaning of Code Section 424(d), Shares possessing 5% or more
of the total combined voting power or value of all classes of stock of
the Company. For purposes of this Section, Shares that an Employee
would be entitled to purchase on the Offering Termination Date
applicable to an Option that has been granted pursuant to Section 4.1
shall be treated as owned by the Employee.
(ii) EMPLOYEES WITH EXERCISE RIGHTS IN EXCESS OF $25,000
PER YEAR. No Option shall be granted hereunder to any Employee if,
within the calendar year in which such Option first becomes
exercisable, such Option (together with any other options that first
become exercisable in such year that have been granted to the Employee
under the Plan or any other qualified employee stock purchase plan
maintained by the Company) would provide the Employee with the right in
such year to purchase Shares having a Fair Market Value (determined on
the Offering Commencement Date applicable to each such Option) in
excess of $25,000.
(iii) OTHER EMPLOYEES. The Committee may from time to time
deem ineligible for participation hereunder any class or group of
Employees, so long as the exclusion of such class or group from
participation does not jeopardize the qualification of the Plan under
Code Section 423 or violate other applicable law.
3.3 ELECTION TO PARTICIPATE
A. PAYROLL DEDUCTION AUTHORIZATION FORM. An Eligible Employee may
elect to participate in the Plan by filing a properly completed
authorization form, or such other authorization as the Plan
Administrator shall require, with the party designated by the Plan
Administrator no later than ten (10) business days before the Offering
Commencement Date. Such form shall authorize automatic payroll
deductions from a Participant's Compensation for each pay period
commencing on the Offering Commencement Date next succeeding receipt of
the timely filed authorization form by the designated party (or such
other date as may be designated by the Plan Administrator), and
continuing until (i) the Participant changes the amount of such payroll
deductions pursuant to Section 3.3(C), (ii) the Participant becomes an
ineligible Employee or withdraws from participation in the Plan
pursuant to Article III, (iii) the Plan is suspended or terminated
pursuant to Section 7.11, or (iv) the Committee otherwise determines.
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B. AMOUNT OF PAYROLL DEDUCTIONS; CALENDAR YEAR LIMIT. The payroll
deductions authorized by the Participant shall be in whole percentages,
not less than 1% and not more than 10% of Compensation, for each pay
period, in effect on the date the payroll deductions to which the
authorization form relates are made. Purchases under the Plan will be
limited to the lesser of (i) $10,000 of the Fair Market Value of Shares
(determined as of the Offering Commencement Date), or (ii) six hundred
(600) Shares for each calendar year (or at such other limit as
determined by the Committee).
C. CHANGES IN PAYROLL DEDUCTIONS. Subject to Section 3.3(B), a
Participant may increase or decrease the amount of payroll deductions
previously authorized by filing a properly completed change form, or
such other authorization as the Plan Administrator shall require, with
the party and by the date designated by the Plan Administrator. Such
change shall be made in whole percentages of Compensation, and shall be
effective beginning on the Offering Commencement Date next succeeding
the receipt of the timely filed change form by the designated party (or
such other date as may be designated by the Plan Administrator).
D. PARTICIPANT'S ACCOUNT. The Company shall cause to be
maintained payroll deduction Accounts for all Participants. Payroll
deductions made from a Participant's Compensation shall be credited to
the Participant's Account, and shall be applied for the purchase of
Shares pursuant to Article IV. No interest shall be paid or allowed on
any payroll deductions credited to a Participant's Account.
3.4 WITHDRAWAL FROM PARTICIPATION
A. IN GENERAL. A Participant may withdraw from participation in
the Plan at any time up to ten (10) business days prior to the Offering
Termination Date by filing a properly completed withdrawal form, or
such other authorization as the Plan Administrator shall require, with
the party and by the date designated by the Plan Administrator. As soon
as practicable after receipt of the timely filed withdrawal form by the
designated party, (i) all payroll deductions then credited to the
Participant's Account which have not already been applied for the
purchase of Shares hereunder shall be paid to the Participant, and (ii)
no further payroll deductions shall be made from the Participant's
Compensation and no Options shall be granted to the Participant during
any Offering commencing thereafter, unless the Participant elects again
to participate in the Plan pursuant to Section 3.3. Partial withdrawals
from participation shall not be permitted.
B. TERMINATION OF EMPLOYMENT.
(i) If a Participant ceases to be an Employee for any
reason other than death or retirement, on or before the last working
day preceding the 10th day prior to any Offering Termination Date, the
Participant shall be deemed to have filed a withdrawal
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form in accordance with Section 3.4(A) on the date such Participant
ceases to be an Employee. If the Participant ceases to be an Employee
after such last working day, the Participant shall be deemed to have
(x) exercised any outstanding Options in accordance with Article IV,
and (y) immediately thereafter filed a withdrawal form in accordance
with Section 3.4(A). The deemed filing of a withdrawal form pursuant to
this Section shall have the same consequences as would the actual
filing of a withdrawal form pursuant to Section 3.4(A). Shares in the
Account of a Participant who experiences a termination of employment
under the circumstances described in this Section 3.4(B) (i) will
continue to be subject to the twelve (12)-month restriction period as
discussed in Section 4.2(B) (iv).
(ii) In the event of the retirement or death of a
Participant, prior to an Offering Termination Date, the Participant or
his personal representative shall receive the Shares to which the
Participant would have been entitled to receive as a result of such
Participant's payroll deductions, for the current Offering up to the
time of retirement or death. Shares in the Account of a Participant who
experiences a termination of employment described in this Section
3.4(B) (ii) will not be subject to the twelve-month restriction period
described in Section 4.2(B) (iv).
ARTICLE IV
GRANTING AND EXERCISE OF OPTIONS
4.1 GRANTING OF OPTIONS
A. QUARTERLY OFFERINGS. The Plan shall be implemented by
Offerings to Participants of Options to purchase Shares. Offerings
shall be made each calendar quarter. Each Offering shall commence on
the Offering Commencement Date and shall terminate on the Offering
Termination Date. The first Offering Commencement Date shall be the
Effective Date of the Plan as provided in Section 7.8. Offerings shall
continue to be made under the Plan until the later of (i) the date the
maximum number of Shares identified in Article V has been purchased
pursuant to Options granted hereunder, or (ii) the Plan is terminated
or suspended pursuant to Section 7.11. The Committee shall have the
power to change the duration of Offerings (including the commencement
dates thereof) with respect to future Offerings, without shareholder
approval, if such change is announced at least two (2) days prior to
the scheduled beginning of the first Offering to be affected
thereafter.
B. GRANTING OF OPTIONS. On the Offering Commencement Date for
each Offering period, a Participant automatically shall be granted a
separate Option to purchase for the applicable Exercise Price a maximum
number of Shares equal to the accumulated payroll deductions credited
to the Participant's Account as of the Offering Termination Date for
such period, divided by 85% of the lesser of (i) the Fair Market Value
of the Shares on the Offering Commencement Date, or (ii) the Fair
Market Value of the Shares on the Offering Termination Date.
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C. EXERCISE PRICE. The Exercise Price for Options granted
hereunder shall be set by the Committee, provided, however, that the
Exercise price shall not be less than 85% of the lesser of (i) the Fair
Market Value of the Shares on the Offering Commencement Date, or (ii)
the Fair Market Value of the Shares on the Offering Termination Date.
Unless otherwise provided by the Committee prior to the commencement of
an Offering, the Exercise Price for that Offering shall be 85% of the
lesser of (i) the Fair Market Value of the Shares on the Offering
Commencement Date, or (ii) the Fair Market Value of the Shares on the
Offering Termination Date.
4.2 EXERCISE OF OPTIONS
A. AUTOMATIC EXERCISE. Except as otherwise provided in the Plan
or determined by the Committee, an Option granted to a Participant
hereunder shall be deemed to have been exercised automatically on the
Offering Termination Date applicable to such Option. Such exercise
shall be for the purchase, on or as soon as practicable after the
Offering Termination Date, of the number of full and/or fractional
Shares that the accumulated payroll deductions credited to the
Participant's Account as of the Offering Termination Date will purchase
at the applicable Exercise Price (but not in excess of the number of
Shares for which an Option has been granted to the Participant pursuant
to Section 4.1). The Participant's Account shall be charged for the
amount of the purchase, and the Participant's ownership of the Shares
purchased shall be appropriately evidenced on the books of the Company.
B. RESTRICTIONS ON EXERCISE OF OPTIONS
(i) EXERCISE OF OPTIONS. As required by Code Section 423,
any Option granted hereunder shall in no event be exercisable after the
expiration of twenty-seven (27) months following the Offering
Commencement Date applicable thereto.
(ii) EXERCISE BY THE PARTICIPANT ONLY. During the
Participant's lifetime, any Option granted to the Participant shall be
exercisable only by such Participant.
(iii) OTHER RESTRICTIONS. Under no circumstances shall any
Option be exercised, nor shall any Shares be issued hereunder, until
such time as the Company shall have complied with all applicable
requirements of (a) the Act, (b) all applicable listing requirements of
any securities exchange on which the Shares are listed, and (c) all
other applicable requirements of law or regulation.
(iv) HOLDING PERIOD. Shares purchased pursuant to this
Plan may not be sold, assigned, transferred, pledged, exchanged,
encumbered or otherwise disposed of in any way (other than by will or
the laws of descent or distribution) during the applicable Holding
Period, except in the event of Death or Disability as discussed in
Section
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3.4(B); provided, however, that the Committee, in its discretion, may
shorten the Holding Period or otherwise provide for the lapse of any
restrictions outstanding on any Shares. All certificates issued to
Participants following each Offering Termination Date shall bear a
legend in substantially the following form:
The shares represented by this certificate may not be sold,
assigned, transferred, pledged, exchanged, encumbered or otherwise
disposed of in any way (other than by will or the laws of descent and
distribution) for a period commencing on [insert applicable Purchase
Date] and ending one (1) year thereafter (the "Holding Period");
provided, however, that the committee administering the Allied
Holdings, Inc. 1999 Employee Stock Purchase Plan, in its discretion,
may shorten the Holding Period or otherwise provide for the lapse of
any restrictions outstanding on any such shares.
C. ISSUANCE OF CERTIFICATES. Certificates with respect to Shares
purchased hereunder shall be issued to the Participant upon request by
the Participant to the Transfer Agent. The Transfer Agent shall issue
and deliver such certificates as soon as practicable after receipt of
such a request. The Participant shall pay any fees charged by the
Transfer Agent for its services. The Company shall not be required to
issue any certificates for fractional Shares. If a Participant requests
certificates for Shares for the purpose of disposing of all of the
Participant's Shares, the Company shall pay to the Participant cash in
lieu of any fractional Shares, based on the Fair Market Value of such
fractional Shares as of the date of the issuance of such certificates.
D. REGISTRATION OF CERTIFICATES. Certificates shall be registered
only in the name of the Participant or the Participant and his or her
spouse.
E. RIGHTS AS A SHAREHOLDER. The Participant shall have no rights
or privileges of a shareholder of the Company with respect to Options
granted or Shares purchased hereunder, unless and until such Shares
shall have been appropriately evidenced on the books of the Company.
ARTICLE V
STOCK
5.1 MAXIMUM SHARES. The maximum aggregate number of Shares which may be
purchased under the Plan shall be 700,000, subject to adjustment upon certain
corporate changes as provided in Section 5.2. If the total number of Shares for
which Options are exercised on any Offering Termination Date exceeds such
maximum number, the Committee shall make a pro rata allocation of the Shares
available for purchase in as nearly a uniform manner as shall be practicable and
as it shall determine to be equitable, and the balance of payroll deductions
credited to the Account of each Participant shall, to the extent not applied for
the purchase of Shares, be refunded to the Participants as soon as practicable
thereafter.
5.2 ADJUSTMENT UPON CORPORATE CHANGES. In the event of any stock dividend,
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stock split, recapitalization (including, without limitation, the payment of an
extraordinary dividend), merger, consolidation, combination, spin-off,
distribution of assets to shareholders (other than ordinary cash dividends),
exchange of Shares, or other similar corporate change with respect to the
Company, the Committee (i) shall determine the kind of Shares that may be
purchased under the Plan after such event, and (ii) may, in its discretion,
adjust the aggregate number of Shares available for purchase under the Plan or
subject to outstanding Options and the respective Exercise Prices applicable to
outstanding Options. Any adjustment made by the Committee pursuant to the
preceding sentence shall be conclusive and binding on the Company and all
Employees.
ARTICLE VI
ADMINISTRATION
6.1 APPOINTMENT OF COMMITTEE. Except as otherwise delegated by the
Committee pursuant to this Article VI, (i) the Plan shall be administered by the
Committee, (ii) the Committee shall have full authority to administer and
interpret the Plan in any manner it deems appropriate in its sole discretion,
and (iii) the determinations of the Committee shall be binding on and conclusive
as to all parties.
6.2 DELEGATION OF CERTAIN AUTHORITY TO PLAN ADMINISTRATOR. Except as
otherwise provided in the Plan, required by applicable law, or determined by the
Committee, (i) the Plan Administrator shall be responsible for the performance
of such administrative duties under the Plan not otherwise reserved to the
Committee, (ii) the Plan Administrator shall have full authority to administer
and interpret the Plan in any manner it deems appropriate in its sole
discretion, and (iii) the determinations of the Plan Administrator shall be
binding on and conclusive as to all parties.
6.3 COMPLIANCE WITH APPLICABLE LAW. The Plan shall not be interpreted or
administered in any way that would cause the Plan to be in violation of Code
Section 423 or other applicable law.
6.4 EXPENSES. The Company shall pay all expenses related to the
administration of the Plan, except charges imposed by the Transfer Agent for
issuing certificates for Shares, sales charges and commissions applicable to
Shares, charges for back records and research performed at the request of the
Participant, and such other expenses as may be designated by the Committee. The
Participant shall pay all expenses related to administration of the Plan that
are not paid for by the Company.
ARTICLE VII
MISCELLANEOUS
7.1 NO EMPLOYMENT RIGHTS. The Plan shall not, directly or indirectly,
create in any Employee or class of Employees any right with respect to
continuation of employment with the Company. The Plan shall not interfere in any
way with the Company's right to terminate, or
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otherwise modify, an Employee's employment at any time.
7.2 RIGHTS NOT TRANSFERABLE. Any rights of the Participant under the Plan
shall not be transferred other than (i) by will, (ii) by the laws of descent or
distribution, or (iii) pursuant to a qualified domestic relations order, as
defined in the Code.
7.3 WITHHOLDING. The Committee shall have the right to make such provisions
as it deems appropriate to satisfy any obligation of the Company to withhold
federal, state or local income or other taxes incurred by reason of the
operation of the Plan.
7.4 DELIVERY OF SHARES TO ESTATE UPON DEATH. In the event of the death of a
Participant, any Shares purchased by the Participant hereunder, other than
Shares as to which the Participant previously received certificates, shall be
issued and delivered to the estate of the Participant as soon as practical
thereafter.
7.5 EFFECT OF PLAN. The provisions of the Plan shall be binding upon, and
inure to the benefit of, all successors of each Participant, including without
limitation the 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.
7.6 USE OF FUNDS. All funds received or held by the Company pursuant to the
Plan may be used by the Company for any corporate purpose, and the Company shall
not be obligated to segregate such funds from its general assets.
7.7 PLAN SHARE PURCHASES. Shares subject to purchase by Participants under
the Plan shall, in the discretion of the Committee, be made available from
treasury Shares, authorized but unissued Shares, reacquired Shares, and/or
Shares purchased on the open market.
7.8 EFFECTIVE DATE. The Plan shall be effective on the first business day
of the calendar quarter occurring on or after the later of (i) February 1, 1999,
(ii) the effective date of the Form S-8 Registration Statement covering Shares
authorized for purchase under the Plan, or (iii) such other date as may be
designated by the Committee. The Plan shall remain in effect for a term of ten
(10) years thereafter, unless sooner terminated pursuant to Section 7.10.
7.9 AMENDMENTS TO THE PLAN. The Committee may from time to time make
amendments to the Plan that it deems advisable and consistent with the purposes
of the Plan and applicable law. Notwithstanding the foregoing, no amendment that
would (i) effect an increase in the number of Shares which may be purchased
under the Plan, which increase is of a type that would require shareholder
approval under Code Section 423, or (ii) effect a change in the designation of
the corporations whose Employees may be offered Options under the Plan, which
change is of a type that would require shareholder approval under Code Section
423, shall become effective unless the shareholder approval required by Code
Section 423 is obtained.
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7.10 TERMINATION OR SUSPENSION OF THE PLAN. The Committee shall have the
power at any time to terminate or suspend the Plan and all rights of Employees
under the Plan.
7.11 GOVERNING LAW. The laws of the State of Georgia shall govern all
matters relating to the Plan, except to the extent such laws are superseded by
the laws of the United States.
7.12 MERGER CLAUSE. The terms of the Plan are wholly set forth in this
document, including certain standards of certain other plans which are to be
applied to an Employee for purposes of the Plan to the extent provided herein,
regardless of whether such Employee is covered under such plans. This Section
shall in no way limit the authority of the Committee and the Plan Administrator
to administer the Plan as provided herein.
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