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EXHIBIT 10-1
SAVANNAH FOODS & INDUSTRIES, INC.
1996 EQUITY INCENTIVE PLAN
SECTION 1
PURPOSE
The purpose of this Plan is to promote the interests of the Company, its
Subsidiaries and its shareholders by enabling the Company and its Subsidiaries
to attract, retain and motivate employees or those who will become employees,
and to align the interests of those individuals and the Company's shareholders.
To do this, the Plan offers equity-based opportunities providing such
employees with a proprietary interest in maximizing the growth, profitability
and overall success of the Company and its Subsidiaries.
SECTION 2
DEFINITIONS
Each term set forth in this Section shall have the meaning set forth
opposite such term for purposes of this Plan and, for purposes of such
definitions, the singular shall include the plural and the plural shall include
the singular.
2.1 Award means an award or grant of an Option or Restricted Stock made to
a Participant under this Plan.
2.2 Award Agreement means the agreement executed by a Participant pursuant
to this Plan in connection with the granting of an Award.
2.3 Board means the Board of Directors of the Company, as constituted
from time to time.
2.4 Change in Control has the meaning set forth in Section 15.
2.5 Code means the Internal Revenue Code of 1986, as amended.
2.6 Committee means the committee of the Board established to administer
the Plan, as appointed under Section 5 of the Plan.
2.7 Common Stock means the $.25 par value common stock of the Company.
2.8 Company means Savannah Foods & Industries, Inc., a Delaware
corporation, and any successor to such organization.
2.9 Disability means disability as defined in the Participant's then
effective employment agreement, or if the Participant is not then a party to an
effective employment agreement with the Company which defines disability,
"Disability" means disability as determined by the Committee in accordance with
standards and procedures similar to those under the Company's long-term
disability plan, if any. Subject to the first sentence of this Section 2.9, at
any time that the Company does not maintain a long-term disability plan,
"Disability" shall mean any physical or mental disability which is determined
to be total and permanent by a physician selected in good faith by the Company.
2.10 Employee means an employee of the Company, a Subsidiary or a Parent.
2.11 Exchange Act means the Securities Exchange Act of 1934, as amended.
2.12 Fair Market Value means on, or with respect to, any given date(s),
the average of the highest and lowest market prices of the Common Stock, as
reported on the consolidated reporting system for the New York Stock Exchange
for
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such date(s) or, if the Common Stock was not traded on such date(s), on the
next preceding day or days on which the Common Stock was traded. If at any
time the Common Stock is not traded on such exchange, the Fair Market Value of
a share of the Common Stock shall be determined in good faith by the Board.
2.13 Option means an option to purchase Shares granted under this Plan.
2.14 Option Price means the price which shall be paid to purchase one (1)
Share upon the exercise of an Option granted under this Plan.
2.15 Parent means any corporation which is a parent corporation of the
Company within the meaning of Section 424(e) of the Code.
2.16 Participant means any individual who is selected from time to time to
receive an Award under the Plan.
2.17 Plan means the Savannah Foods & Industries, Inc. 1996 Equity
Incentive Plan, as amended from time to time.
2.18 Restricted Stock means Shares granted pursuant to Section 9.
2.19 Retirement means the voluntary retirement by the Participant from
active employment with the Company and its Subsidiaries on or after the
attainment of (i) age 65, or (ii) 60, with the consent of the Board.
2.20 Share means a share of the Common Stock of the Company.
2.21 Subsidiary means any corporation which is a subsidiary corporation of
the Company within the meaning of Section 424(f) of the Code.
2.22 Surrendered Shares means the Shares described in Section 8.7 which
(in lieu of being purchased) are surrendered for cash or Shares, or for a
combination of cash and Shares, in accordance with Section 8.7.
SECTION 3
SHARES SUBJECT TO PLAN
The total number of Shares that may be issued pursuant to Options or
Restricted Stock Grants granted under this Plan shall not exceed One Million
Two Hundred and Fifty Thousand (1,250,000) Shares, as adjusted below and
pursuant to Section 12. Such Shares shall be reserved to the extent that the
Company deems appropriate from authorized but unissued Shares and from Shares
which have been reacquired by the Company. Furthermore, any Shares subject to
an Award granted hereunder which remain after the cancellation, expiration or
exchange of such Award shall again become available for use under this Plan,
but any Surrendered Shares which remain after the surrender of an Option under
Section 8.7 shall not again become available for use under this Plan.
SECTION 4
EFFECTIVE DATE
The effective date of this Plan shall be the date it is adopted by the
Board, provided the shareholders of the Company approve this Plan within twelve
(12) months after such effective date. If such effective date comes before
such shareholder approval, any Awards granted under this Plan before the date
of such approval shall automatically be granted subject to such approval.
SECTION 5
ADMINISTRATION
5.1 The Committee. This Plan shall be administered by the Committee. The
Committee shall be appointed from time to time by the Board and shall consist
of not less than three (3) of the then members of the Board who are
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Non-Employee Directors (within the meaning of Rule 16b-3(b)(3) promulgated
pursuant to the Exchange Act) of the Company. No member of the Committee shall
be eligible to receive Awards under the Plan. Consistent with the Bylaws
of the Company, members of the Committee shall serve at the pleasure of the
Board and the Board, subject to the immediately preceding sentence, may at any
time and from time to time remove members from, or add members to, the
Committee.
5.2 Powers of the Committee. The Committee, acting in its absolute
discretion, shall exercise such powers and take such action as expressly called
for under this Plan. The Committee shall have the power to interpret this Plan
and, subject to Section 14, to take such other action in the administration and
operation of the Plan as it deems equitable under the circumstances. The
Committee's actions shall be binding on the Company, on each affected
Participant, and on each other person directly or indirectly affected by such
action.
5.3 Liability Limitation. Neither the Board nor the Committee, nor any
member of either, shall be liable for any act, omission, interpretation,
construction or determination made in good faith in connection with the Plan
(or any Award Agreement), and the members of the Board and the Committee shall
be entitled to indemnification and reimbursement by the Company in respect of
any claim, loss, damage or expense (including, without limitation, attorneys'
fees) arising or resulting therefrom to the fullest extent permitted by law
and/or under any directors and officers liability insurance coverage which may
be in effect from time to time.
SECTION 6
ELIGIBILITY
Only Employees, or those who will become Employees, shall be eligible for
the grant of an Award under this Plan, but no Employee shall have the right to
be granted an Award under this Plan merely as a result of his or her status as
an Employee.
SECTION 7
GRANT OF AWARDS
7.1 Selection by Committee. The Committee, in its absolute discretion,
may grant Awards under this Plan from time to time and shall have the right to
grant new Awards in exchange for outstanding Awards. Awards shall be granted
to Employees selected by the Committee and the Committee shall be under no
obligation whatsoever to grant Awards to all Employees, to grant Awards
uniformly or to grant all Awards subject to the same terms and conditions. In
determining Employee(s) to whom an Award shall be granted and the number of
Shares to be covered by such Award, the Committee may take into account the
recommendations of the President of the Company and its other officers, the
duties of the Employee, the present and potential contributions of the Employee
to the success of the Company, the anticipated number of years of service
remaining before the attainment by the Employee of retirement age, and other
factors deemed relevant by the Committee, in its sole discretion, in connection
with accomplishing the purpose of this Plan. An Employee who has been granted
an Award, whether under this Plan or otherwise, may be granted one or more
additional Awards.
7.2 Award Agreements. Each grant of an Award shall be evidenced by an
Award Agreement and shall incorporate such terms and conditions as the
Committee, acting in its absolute discretion, deems consistent with the terms
of this Plan.
SECTION 8
STOCK OPTIONS
8.1 Terms and Conditions. Options granted under the Plan shall be in
respect of Common Stock. Such Options shall be subject to the terms and
conditions set forth in this Section 8 and any additional terms and conditions,
not inconsistent with the express terms and provisions of the Plan, as the
Committee shall set forth in the relevant Award Agreement. Options granted
hereunder shall not be intended to satisfy the requirements of Section 422 of
the Code as incentive stock options.
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8.2 Option Price. The Option Price for each Share subject to such Option
shall be no less than the Fair Market Value of a Share on the date such Option
is granted. The Option Price shall be payable in full upon the exercise of any
Option, and an Award Agreement, at the discretion of the Committee may provide
for the payment of the Option Price either in cash or in Shares acceptable to
the Committee or in any combination of cash and Shares acceptable to the
Committee. Any payment made in Shares shall be treated as equal to the Fair
Market Value of such Shares on the date the properly endorsed certificate for
such Shares is delivered to the Committee (or to its delegate).
Notwithstanding the above, and in the sole discretion of the Committee, an
Option may be exercised as to a portion or all (as determined by the Committee)
of the number of Shares specified in the Award Agreement by delivery to the
Company of a secured promissory note to be executed by the Optionee. The
promissory note shall include, along with such other terms and conditions as
the Committee shall determine, provisions in a form approved by the Committee
under which (a) the balance of the aggregate purchase price shall be payable in
equal installments over such period and shall bear interest at such rate (which
shall not be less than the prime bank loan rate as determined by the Committee)
as the Committee shall approve and (b) the Optionee shall be personally liable
for payment of the unpaid principal balance and all accrued but unpaid
interest.
8.3 Option Exercise Period.
(a) Each Option granted under this Plan shall be exercisable in whole or
in part at such time or times as set forth in the related Award Agreement, but
no Award Agreement shall:
(i) make an Option exercisable before the date such Option is granted or;
(ii) make an Option exercisable after the earlier of the:
(A) the date such Option is exercised in full; or
(B) the date which is the tenth
(10th) anniversary of the date such Option is
granted.
(b) If a Participant's employment with the Company and/or any Parent or
Subsidiary shall be terminated for any reason, except death, Disability or
Retirement, the Option shall terminate upon the date of such termination of
employment, unless the Award Agreement for the Option expressly provides
otherwise, except as otherwise provided herein.
(c) If a Participant shall become Disabled while an employee of the
Company or any Parent or Subsidiary or after the date of termination of
employment but prior to the expiration of the Option, or if a Participant shall
Retire, the Retired Participant, the transferee of the Option pursuant to
Section 8.6 or the Disabled Participant shall have the right to exercise the
Option, and the right to exercise the Option shall terminate as provided by the
terms of the Award Agreement for the Option. If a Participant shall die while
an employee of the Company or any Parent or Subsidiary or after the date of
termination of employment but prior to the expiration of the Option, the
executor or administrator of the Participant's estate or a transferee of the
Option pursuant to Section 8.6 shall have the right to exercise the Option, and
the right to exercise the Option shall terminate upon the earliest of (i) the
expiration of twelve (12) months from the date of such termination of
employment, (ii) the expiration of twelve (12) months from the date of the
Participant's death, or (iii) as otherwise provided by the terms of the Award
Agreement for the Option. The occurrence of a Change in Control shall have no
effect on the duration of the exercise period.
(d) Whether military or other government or eleemosynary service or other
leave of absence will constitute termination of employment shall be determined
in each case by the Committee in its sole discretion.
(e) Notwithstanding the foregoing termination provisions, the Committee
may, in its sole discretion, establish different terms and conditions
pertaining to the effect of an Participant's termination on the expiration or
exercisability of newly granted options or (with the consent of the affected
Participant) outstanding options. However, no Option can have a term of more
than ten (10) years.
8.4 Vesting. In respect of any Option granted under this Plan, unless
otherwise (a) determined by the Committee (in its sole discretion) at any time
and from time to time in respect of any such Option, or (b) provided in the
Award Agreement or in the Participant's employment agreement in respect of any
such Option, such Option shall become
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exercisable as to the aggregate number of shares of Common Stock underlying
such Option, as determined on the date of grant, as follows:
(a) 33 1/3%, on the first anniversary of the date of
grant of the Option, provided the Participant is then employed
by the Company and/or one of its Subsidiaries;
(b) 66 2/3%, on the second anniversary of the date of
grant of the Option, provided the Participant is then employed
by the Company and/or one of its Subsidiaries; and
(c) 100%, on the third anniversary of the date of grant
of the Option, provided the Participant is then employed by the
Company and/or one of its Subsidiaries.
8.5 Acceleration of Vesting upon Death, Disability or Retirement.
Notwithstanding anything to the contrary contained in Section 8.4, such Option
shall become one hundred percent (100%) exercisable as to the aggregate number
of shares of Common Stock underlying such Option upon the death, Disability or
Retirement of the Participant. Death or Disability of the Participant
occurring after termination of employment with the Company and/or any Parent or
Subsidiary shall not cause any Options to become exercisable.
8.6 Non-Transferable. No Option granted under this Plan shall be
transferable by a Participant other than by will or by the laws of descent and
distribution, and such Option shall be exercisable during a Participant's
lifetime only by the Participant. The person or persons to whom an Option is
transferred by will or by the laws of descent and distribution thereafter shall
be treated as the Participant.
8.7 Surrender of Options.
(a) General Rule. The Committee, acting in its absolute discretion, may
incorporate a provision in an Award Agreement to allow a Participant to
surrender his or her Option in whole or in part in lieu of the exercise in
whole or in part of that Option on any date that:
(i) the Fair Market Value of the Shares subject to such Option
exceeds the Option Price for such Shares; and
(ii) the Option to purchase such Shares is otherwise
exercisable.
(b) Procedure. The surrender of an Option in whole or in part shall be
effected by the delivery of the Award Agreement to the Committee (or to its
delegate) together with a statement signed by the Participant which specifies
the number of Shares ("Surrendered Shares") as to which the Participant
surrenders his or her Option and how he or she desires payment be made for such
Surrendered Shares.
(c) Payment. A Participant in exchange for his or her Surrendered Shares
shall receive Shares equal in amount on the date such surrender is effected to
the excess of the Fair Market Value of the Surrendered Shares on such date over
the Option Price for the Surrendered Shares. If any exercise under this
Section 8.7 creates a right to acquire a fractional Share, such fractional
Share shall be disregarded and the number of Shares to be issued shall be the
next lower number of Shares, rounding all fractions downward.
(d) Restrictions. Any Award Agreement for an Option which incorporates a
provision to allow a Participant to surrender his or her Option in whole or in
part also shall incorporate such additional restrictions on the exercise or
surrender of such Option as the Committee deems necessary to satisfy the
conditions to the exemption under Rule 16b-3 (or any successor exemption) to
Section 16(b) of the Exchange Act.
SECTION 9
RESTRICTED STOCK
9.1. Terms and Conditions. Awards of Restricted Stock shall be subject to
the terms and conditions set forth in this Section 9 and any additional terms
and conditions, not inconsistent with the express terms and provisions of the
Plan, as
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the Committee shall set forth in the relevant Award Agreement. Restricted
Stock may be granted alone or in addition to any other Awards under the Plan.
Subject to the terms of the Plan, the Committee shall determine the number of
Shares of Restricted Stock to be granted to a Participant and the Committee
may provide or impose different terms and conditions on any particular
Restricted Stock Award made to any Participant. With respect to each
Participant receiving an Award of Restricted Stock, there shall be issued a
stock certificate (or certificates) in respect of such Restricted Stock. Such
stock certificate(s) shall be registered in the name of such Participant, shall
be accompanied by a stock power duly executed by such Participant, and shall
bear, among other required legends, the following legend:
"The transferability of this certificate and the shares
of stock represented hereby are subject to the terms and
conditions (including, without limitation, forfeiture
events) contained in the Savannah Foods & Industries,
Inc. 1996 Equity Incentive Plan and an Award Agreement
entered into between the registered owner hereof and
Savannah Foods & Industries, Inc. Copies of such Plan
and Award Agreement are on file in the office of the
Secretary of Savannah Foods & Industries, Inc.,
Savannah, Georgia. Savannah Foods & Industries, Inc.
will furnish to the record holder of the certificate,
without charge and upon written request at its principal
place of business, a copy of such Plan and Award
Agreement. Savannah Foods & Industries, Inc. reserves
the right to refuse to record the transfer of this
certificate until all such restrictions are satisfied,
all such terms are complied with and all such conditions
are satisfied."
Such stock certificate evidencing such shares shall, in the sole discretion of
the Committee, be deposited with and held in custody by the Company until the
restrictions thereon shall have lapsed and all of the terms and conditions
applicable to such grant shall have been satisfied.
9.2 Restricted Stock Award. An Award of Restricted Stock is an Award of
shares of Common Stock granted to a Participant, subject to such restrictions,
terms and conditions as the Committee deems appropriate, including, without
limitation, (a) restrictions on the sale, assignment, transfer, hypothecation
or other disposition of such shares, (b) the requirement that the Participant
deposit such shares with the Company while such shares are subject to such
restrictions, and (c) the requirement that such shares be forfeited upon
termination of employment for specified reasons within a specified period of
time or for other reasons (including, without limitation, the failure to
achieve designated performance goals).
9.3 Restriction Period. In accordance with Sections 9.1 and 9.2 of the
Plan and unless otherwise determined by the Committee (in its sole discretion)
at any time and from time to time, Restricted Stock shall only become
unrestricted and vested in the Participant in accordance with such vesting
schedule relating to such Restricted Stock, if any, as the Committee may
establish in the relevant Award Agreement (the "Restriction Period").
Notwithstanding the preceding sentence, in no event shall the Restriction
Period be less than six (6) months after the date of grant of the Award.
During the Restriction Period, such stock shall be and remain unvested and a
Participant may not sell, assign, transfer, pledge, encumber or otherwise
dispose of or hypothecate such Award. Upon satisfaction of the vesting
schedule and any other applicable restrictions, terms and conditions, the
Participant shall be entitled to receive payment of the Restricted Stock or a
portion thereof, as the case may be, as provided in Section 9.4 of the Plan.
9.4 Payment of Restricted Stock. After the satisfaction and/or lapse of
the restrictions, terms and conditions established by the Committee in respect
of an Award of Restricted Stock, a new certificate, without the legend set
forth in Section 9.1 of the Plan, for the number of shares of Common Stock
which are no longer subject to such restrictions, terms and conditions shall,
as soon as practicable thereafter, be delivered to the Participant.
9.5 Shareholder Rights. A Participant shall have, with respect to the
shares of Common Stock underlying an Award of Restricted Stock, all of the
rights of a shareholder of such stock (except as such rights are limited or
restricted under the Plan or in the relevant Award Agreement). Any stock
dividends paid in respect of unvested Restricted Stock shall be treated as
additional Restricted Stock and shall be subject to the same restrictions and
other terms and conditions that apply to the unvested Restricted Stock in
respect of which such stock dividends are issued.
SECTION 10
SECURITIES REGISTRATION
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Each Award Agreement may provide that, upon the receipt of Shares as a
result of the surrender or exercise of an Award, the Employee shall, if so
requested by the Company, hold such Shares for investment and not with a view
of resale or distribution to the public and, if so requested by the Company,
shall deliver to the Company a written statement satisfactory to the Company to
that effect. Each Award Agreement also may provide that, if so requested by
the Company, the Employee shall make a written representation to the Company
that he or she will not sell or offer to sell any of such Shares unless a
registration statement shall be in effect with respect to such Shares under the
Securities Act of 1933, as amended ("1933 Act") and any applicable state
securities law or unless he or she shall have furnished to the Company an
opinion, in form and substance satisfactory to the Company, of legal counsel
acceptable to the Company, that such registration is not required.
Certificates representing the Shares transferred upon the grant, exercise or
surrender of an Award granted under this Plan may at the discretion of the
Company bear a legend to the effect that such Shares have not been registered
under the 1933 Act or any applicable state securities law and that such Shares
may not be sold or offered for sale in the absence of an effective registration
statement as to such Shares under the 1933 Act and any applicable state
securities law or an opinion, in form and substance satisfactory to the
Company, of legal counsel acceptable to the Company, that such registration is
not required.
SECTION 11
LIFE OF PLAN
No Award shall be granted under this Plan on or after the tenth (10th)
anniversary of the effective date of the Plan, in which case the Plan otherwise
shall continue in effect until the later of (i) all outstanding Options have
been terminated, surrendered or exercised in full or no longer are exercisable
or (ii) all restrictions on Shares transferred as Restricted Stock have lapsed.
SECTION 12
ADJUSTMENT
The number of Shares reserved under Section 3 of this Plan and the number
of Shares subject to Awards granted under this Plan and the exercise price or
other price per Share relating to outstanding Awards shall be adjusted by the
Committee in an equitable manner to reflect any change in the capitalization of
the Company, including, but not limited to, such changes as stock dividends or
stock splits. Furthermore, the Committee shall have the right to adjust the
number of Shares reserved under Section 3 of this Plan and the number of Shares
subject to Awards granted under this Plan and the exercise price or other price
per Share relating to outstanding Awards in the event of any merger,
consolidation, division, acquisition, reorganization or liquidation which
provides for the substitution or assumption of such Awards. If any adjustment
under this Section 12 creates a fractional Share or a right to acquire a
fractional Share, such fractional Share shall be disregarded and the number of
Shares reserved under this Plan and the number subject to any Awards granted
under this Plan shall be the next lower number of Shares, rounding all
fractions downward. An adjustment made under this Section 12 by the Committee
shall be conclusive and binding on all affected persons and, further, shall not
constitute an increase in the number of Shares reserved under Section 3 of this
Plan.
SECTION 13
SALE OR MERGER OF THE COMPANY
If the Company agrees to sell substantially all of its assets for cash or
property or for a combination of cash and property or agrees to any merger,
consolidation, reorganization, division or other transaction in which Shares
are converted into another security or into the right to receive securities or
property and such agreement does not provide for the assumption or substitution
of the Options granted under this Plan, each Option, at the direction and
discretion of the Committee, or as is otherwise provided in the Award
Agreements, may be canceled unilaterally by the Company in exchange for the
whole Shares which each Participant otherwise would receive if he or she had
the right to surrender his or her outstanding Option in full under Section 8.7
of this Plan and he or she exercised that right exclusively for Shares on a
date fixed by the Committee which comes before such sale or other corporate
transaction.
SECTION 14
AMENDMENT OR TERMINATION
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This Plan may be amended by the Board from time to time to the extent that
the Board deems necessary or appropriate; provided, however, no such amendment
shall be made absent the approval of the shareholders of the Company (1) to
increase the number of Shares reserved under Section 3, except as set forth in
Section 12, (2) to extend the maximum life of the Plan under Section 11 or the
maximum exercise period under Section 8.3, (3) to decrease the Option Price
under Section 8.2, or (4) to change the designation of Employees eligible for
Awards under Section 6. The Board also may suspend the granting of Awards
under this Plan at any time and may terminate this Plan at any time; provided,
however, the Company shall not have the right to modify, amend or cancel any
Award granted before such suspension or termination unless (i) the Participant
consents in writing to such modification, amendment or cancellation or (ii)
there is a dissolution or liquidation of the Company or a transaction described
in Section 12 or Section 13 of this Plan.
SECTION 15
CHANGE IN CONTROL
15.1 Acceleration of Awards Vesting. Anything in the Plan to the contrary
notwithstanding, if a Change in Control of the Company occurs (a) all Options
then unexercised and outstanding shall become fully vested and exercisable as
of the date of the Change in Control, and (b) all restrictions, terms and
conditions applicable to all Restricted Stock then outstanding shall be deemed
lapsed and satisfied as of the date of the Change in Control. The immediately
preceding sentence shall apply to only those Participants (i) who are employed
by the Company and/or one of its Subsidiaries as of the date of the Change in
Control, or (ii) to whom Section 15.3 below is applicable.
15.2 Payment After Change in Control. Notwithstanding anything to the
contrary in the Plan, within thirty (30) days after a Change in Control occurs,
(a) the holder of an Award of Restricted Stock vested under Section
15.1(b) above shall receive a new certificate for such shares without the
legend set forth in Section 9 of the Plan and, in the case only of a Change in
Control under Section 15.4(a) of the Plan, such holder shall have the right,
but not the obligation, to elect, within ten (10) business days after the
Participant has actual or constructive knowledge of the occurrence of such
Change in Control, to require the Company to purchase such shares from the
Participant at their then Fair Market Value, and (b) in the case only of a
Change in Control under Section 15.4(a) of the Plan, the holders of any Options
shall have the right, but not the obligation, to elect, within ten (10)
business days after the Participant has actual or constructive knowledge of the
occurrence of such Change in Control, to require the Company to purchase such
Options from the Participant for an aggregate amount equal to the then
aggregate Fair Market Value of the Common Stock underlying such Awards
tendered, less the aggregate exercise price of such tendered Awards.
15.3 Termination as a Result of a Change in Control. Anything in the Plan
to the contrary notwithstanding, if a Change in Control occurs and if the
Participant's employment is terminated before such Change in Control and it is
reasonably demonstrated by the Participant that such employment termination (a)
was at the request, directly or indirectly, of a third party who has taken
steps reasonably calculated to effect the Change in Control, or (b) otherwise
arose in connection with or in anticipation of the Change in Control, then for
purposes of this Section 15, the Change in Control shall be deemed to have
occurred immediately prior to such Participant's employment termination.
15.4 Change in Control. For purposes of this Plan, a Change in Control
shall be deemed to have occurred when and only when the first of the following
events occurs:
(a) Any "person" (as that term is used in Sections 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), other
than (1) any employee plan established by the Company, (2) the Company, (3) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (4) a corporation owned, directly or indirectly, by stockholders
of the Company in substantially the same proportions as their ownership of the
Company) is or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 20% or more of the combined voting power
of the Company's then outstanding voting securities; or
(b) During any period of two consecutive years, individuals who at the
beginning of such period constituted the Board and any new director (other than
an individual whose nomination for election is in connection with an actual or
threatened election contest relating to the election of the directors of the
Company, as such terms are used in Rule 14a-11 of Regulation 14A under the
Exchange Act) whose appointment, election, or nomination for election by the
Company's shareholders, was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either
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were directors at the beginning of the period or whose appointment, election or
nomination for election was previously so approved, cease for any reason to
constitute a majority of the Board; or
(c) There is consummated a merger or consolidation of the Company or a
subsidiary thereof with or into any other corporation, other than a merger or
consolidation which would result in the holders of the voting securities of the
Company outstanding immediately prior thereto holding securities which
represent immediately after such merger or consolidation more than 80% of the
combined voting power of the voting securities of either the Company or the
other entity which survives such merger or consolidation or the parent of the
entity which survives such merger or consolidation; or
(d) There is consummated a sale or disposition by the Company of all or
substantially all of the Company's assets.
SECTION 16
MISCELLANEOUS
16.1 Shareholder Rights. No Participant shall have any rights as a
shareholder of the Company as a result of the grant of an Award to him or to
her under this Plan or his or her exercise or surrender of such Award pending
the actual delivery of Shares subject to such Award to such Participant.
16.2 No Contract of Employment. The grant of an Award to an Employee
under this Plan shall not constitute a contract of employment or other
association with the Company, and shall not confer on an Employee any rights
upon his or her termination of employment or other association with the
Company, in addition to those rights, if any, expressly set forth in the
applicable Award Agreement.
16.3 Withholding. The Company shall have the right to deduct from any
payment or settlement under the Plan, including, without limitation, the
exercise of any Option, or the delivery, transfer or vesting of any Common
Stock or Restricted Stock, any federal, state, local or other taxes of any kind
which the Committee, in its sole discretion, deems necessary to be withheld to
comply with the Code and/or any other applicable law, rule or regulation. If
the Committee, in its sole discretion, permits shares of Common Stock to be
used to satisfy any such tax withholding, such Common Stock shall be valued
based on the Fair Market Value of such stock as of the date the tax withholding
is required to be made, such date to be determined by the Committee. The
Committee may establish rules limiting the use of Common Stock to meet
withholding requirements by Participants who are subject to Section 16 of the
Exchange Act. The exercise or surrender of any Option granted under this Plan
shall constitute an Employee's full and complete consent to whatever action the
Committee directs to satisfy the federal and state tax withholding
requirements, if any, which the Committee in its discretion deems applicable to
such exercise or surrender.
16.4 Transfer. The transfer of an Employee between or among the Company,
a Subsidiary or a Parent shall not be treated as a termination of his or her
employment under this Plan.
16.5 Construction. This Plan shall be construed under the laws of the
State of Georgia.
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