Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K 10-K Text 63 331K
3: EX-10 Exhibit 10.10 23 94K
4: EX-10 Exhibit 10.10.1 2 12K
5: EX-10 Exhibit 10.11 26 105K
6: EX-10 Exhibit 10.11.1 2 13K
7: EX-10 Exhibit 10.22.4 3 14K
8: EX-10 Exhibit 10.25 15 60K
9: EX-10 Exhibit 10.29.2 4 17K
10: EX-10 Exhibit 10.33.1 4 19K
2: EX-10 Exhibit 10.8.3 7 29K
11: EX-21 Exhibit 21.1 1 5K
12: EX-23 Exhibit 23.0 1 6K
13: EX-27 Financial Data Schedule 1 8K
EX-10 — Exhibit 10.25
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EXHIBIT 10.25
BEN & JERRY'S HOMEMADE, INC.
1999 EQUITY INCENTIVE PLAN (Excluding Officers and Directors)
1. PURPOSE
The purpose of this 1999 Equity Incentive Plan (the "Plan") is to advance
the interests of Ben & Jerry's Homemade, Inc. (the "Company") by enhancing its
ability to attract and retain key employees (other than officers or directors of
the Company) who are in a position to make significant contributions to the
success of the Company and its subsidiaries through ownership of shares of the
Company's Class A Common Stock ("Stock").
The Plan is intended to accomplish these goals by enabling the Company to
grant Awards in the form of Options, Stock Appreciation Rights, Restricted Stock
or Unrestricted Stock Awards, Deferred Stock Awards, Cash or Stock Performance
Awards, Loans or Supplemental Grants, or combinations thereof, all as more fully
described below.
2. ADMINISTRATION
The Board may, in its discretion, delegate some or all of its powers with
respect to the Plan to a committee, shall consist of at least two directors. A
majority of the members of the committee shall constitute a quorum, and all
determinations of the committee shall be made by a majority of its members. Any
determination of the committee under the Plan may be made without notice or
meeting of the committee by a writing signed by a majority of the committee
members.
The Board of Directors has determined that the Plan will be administered by
the Compensation Committee of the Board of Directors of the Company (the
"Committee"). The Committee will have authority, not inconsistent with the
express provisions of the Plan and in addition to other authority granted under
the Plan, to (a) grant Awards at such time or times as it may choose; (b)
determine the size of each Award, including the number of shares of Stock
subject to the Award; (c) determine the type or types of each Award; (d)
determine the terms and conditions of each Award, including without limitation,
any required holding period (without regard to requirements under the Securities
Act of 1933) on stock acquired upon exercise of options granted under the plan;
(e) waive compliance by a Participant (as defined below) with any obligations to
be performed by the Participant under an Award and waive any term or condition
of an Award; (f) amend or cancel an existing Award in whole or in part (and if
an Award is cancelled, grant another Award in its place on such terms as the
Committee shall specify), or settle any award by paying the cash value of the
Stock otherwise issuable, except that the Committee may not, without the consent
of the holder of an Award, take any action under this clause with respect to
such Award if such action would adversely affect the rights of such holder; (g)
prescribe the form or forms of instruments that are required or deemed
appropriate under the Plan, including any written notices and elections required
of Participants, and change such forms from time to time; (h) adopt, amend and
rescind rules and regulations for the administration of the Plan; and (i)
interpret the Plan and decide any questions and settle all controversies and
disputes that may arise in connection with the Plan. Such determinations and
actions of the Committee, and all other determinations and actions of the
Committee made or taken under authority granted by any provision of the Plan,
will be conclusive and will bind all parties. Nothing in this paragraph shall be
construed as limiting the power of the Board or the Committee to make
adjustments under Section 7.3 or Section 8.6.
3. EFFECTIVE DATE AND TERM OF PLAN
The Plan, having been adopted by the Board of Directors on January 21, 1999
is effective on said date.
No Award may be granted under the Plan after January 20, 2009, but Awards
previously granted may extend beyond that date.
4. SHARES SUBJECT TO THE PLAN
Subject to the adjustment as provided in Section 8.6 below, the aggregate
number of shares of Stock that may be delivered under the Plan will be 200,000.
If any Award requiring exercise by the Participant for delivery of Stock
terminates without having been exercised in full, or if any Award payable in
Stock or cash is satisfied in cash rather than Stock, the number of shares of
Stock as to which such Award was not exercised or for which cash was substituted
will be available for future grants.
Shares of Restricted Stock that have been forfeited in accordance with the
terms of the applicable Award and shares held back, in satisfaction of the
exercise price or tax withholding requirements, from shares that would otherwise
have been delivered pursuant to an Award shall also be available for future
grants. The number of shares of Stock delivered under an Award shall be
determined net of any previously acquired Shares tendered by the Participant in
payment of the exercise price or of withholding taxes.
Stock delivered under the Plan may be either authorized but unissued Stock
or previously issued Stock acquired by the Company and held in treasury. No
fractional shares of Stock will be delivered under the Plan.
5. ELIGIBILITY AND PARTICIPATION
Those eligible to be selected to receive Awards under the Plan
("Participants") will be key persons in the employ of the Company or any of its
subsidiaries ("Employees") excluding all employees who are officers or directors
of the Company. A "subsidiary" for purposes of the Plan will be a corporation in
which the Company owns, directly or indirectly, stock possessing 50% or more of
the total combined voting power of all classes of stock. Eligibility for ISO's
is further limited to those individuals whose employment status would qualify
them for the tax treatment described in Section 421 and 422 of the Internal
Revenue Code.
Options for no more than 10,000 shares can be granted to any individual in
any one year under the Plan.
6. TYPES OF AWARDS
6.1. Options
(a) Nature of Options. An Option is an Award entitling the recipient on
exercise thereof to purchase Stock at a specified exercise price. Options that
are not incentive stock options, may be granted under the Plan. Incentive stock
options may not be granted under the Plan.
(b) Exercise Price. The exercise price of an Option will be determined by
the Committee, subject to the following:
(1) In no case may the exercise price paid for Stock be less than the
par value per share of the Stock.
(2) The Committee may reduce the exercise price of an Option at any
time after the time of grant.
(c) Duration of Options. The latest date on which an Option may be
exercised will be the tenth anniversary of the day immediately preceding the
date the Option was granted, or such earlier date as may have been specified by
the Board at the time the Option was granted.
(d) Exercise of Options. An Option will become exercisable at such time or
times, and on such conditions, as the Committee may specify. The Committee may
at any time and from time to time accelerate the time at which all or any part
of the Option may be exercised. If desired, the Committee may provide for
vesting prior to the date the option becomes exercisable.
Any exercise of an Option must be in writing, signed by the proper person
and delivered or mailed to the Company, accompanied by (1) any documents
required by the Committee and (2) payment in full in accordance with paragraph
(e) below for the number of shares for which the Option is exercised.
(e) Payment for Stock. Stock purchased on exercise of an Option must be
paid for as follows: (1) in cash or by check (acceptable to the Company in
accordance with guidelines established for this purpose), bank draft or money
order payable to the order of the Company, or (2) through the delivery of shares
of Stock (which in the case of Shares acquired from the Company, have been
outstanding for at least six months) having a fair market value on the last
business day preceding the date of exercise equal to the purchase price, or (3)
by delivery of an unconditional and irrevocable undertaking by a broker to
deliver promptly to the Company sufficient funds to pay the exercise price, or
(4) if so permitted by the instrument evidencing the Option (or by the Committee
on or after grant of the Option), by delivery of a promissory note of the Option
holder to the Company, payable on such terms as are specified by the Committee,
provided that if the stock delivered in exercise of the Option is an original
issue of authorized stock, then so much of the purchase price as represents par
value of the stock shall be paid in cash, or (5) by any combination of the
permissible forms of payment; provided, that if the Stock delivered upon
exercise of the Option is an original issue of authorized Stock, at least so
much of the exercise price as represents the par value of such Stock must be
paid in cash. In the event that payment of the Option price is made under (2)
above, the Committee may provide that the Option holder be granted an additional
Option covering the numbers of shares surrendered, at an exercise price equal to
the fair market value of a share of Stock on the date of surrender.
(f) Discretionary Payments. If the market price of shares of Stock subject
to an Option (other than an Option which is in tandem with a Stock Appreciation
Right as described in Section 6.2 below) exceeds the exercise price of the
Option at the time of its exercise, the Committee may cancel the Option and
cause the Company to pay in cash or in shares of Common Stock (at a price per
share equal to the fair market value per share) to the person exercising the
Option an amount equal to the difference between the fair market value of the
Stock which would have been purchased pursuant to the exercise (determined on
the date the Option is cancelled) and the aggregate exercise price which would
have been paid. The Committee may exercise its discretion to take such action
only if it has received a written request from the person exercising the Option,
but such a request will not be binding on the Committee.
6.2. Stock Appreciation Rights.
(a) Nature of Stock Appreciation Rights. A Stock Appreciation Right is an
Award entitling the recipient on exercise of the Right to receive an amount, in
cash or Stock or a combination thereof (such form to be determined by the
Committee), determined in whole or in part by reference to appreciation in Stock
value.
Except as provided below, a Stock Appreciation Right entitles the
Participant to receive, with respect to each share of Stock as to which the
Right is exercised, the excess of the share's fair market value on the date of
exercise over its fair market value on the date the Right was granted. The
Committee may provide at the time of grant that the amount the recipient is
entitled to receive will be adjusted upward or downward under rules established
by the Committee to take into account the performance of the Stock in comparison
with the performance of other stocks or an index or indices of other stocks. The
Committee may also grant Stock Appreciation Rights providing that following a
Change in Control of the Company, as defined in Exhibit A, the holder of such
Right will be entitled to receive, with respect to each share of Stock subject
to the Right, an amount equal to the excess of a specified value (which may
include an average of values) for a share of Stock during a period preceding
such Change in Control over the fair market value of a share of Stock on the
date the Right was granted.
(b) Grant of Stock Appreciation Rights. Stock Appreciation Rights may be
granted in tandem with, or independently of, Options granted under the Plan. A
Stock Appreciation Right granted in tandem with an Option which is not an ISO
may be granted either at or after the time the Option is granted. A Stock
Appreciation Right granted in tandem with an ISO may be granted only at the time
the Option is granted.
(c) Rules Applicable to Tandem Awards. When Stock Appreciation Rights are
granted in tandem with Options, the following will apply:
(1) The Stock Appreciation Right will be exercisable only at such time
or times, and to the extent, that the related Option is exercisable and
will be exercisable in accordance with the procedure required for exercise
of the related Option.
(2) The Stock Appreciation Right will terminate and no longer be
exercisable upon the termination or exercise of the related Option, except
that a Stock Appreciation Right granted with respect to less than the full
number of shares covered by an Option will not be reduced until the number
of shares as to which the related Option has been exercised or has
terminated exceeds the number of shares not covered by the Stock
Appreciation Right.
(3) The Option will terminate and no longer be exercisable upon the
exercise of the related Stock Appreciation Right.
(4) The Stock Appreciation Right will be transferable only with the
related Option.
(5) A Stock Appreciation Right granted in tandem with an ISO may be
exercised only when the market price of the Stock subject to the Option
exceeds the exercise price of such option.
(d) Exercise of Independent Stock Appreciation Rights. A Stock Appreciation
Right not granted in tandem with an Option will become exercisable at such time
or times, and on such conditions, as the Committee may specify. The Committee
may at any time accelerate the time at which all or any part of the Right may be
exercised.
Any exercise of an independent Stock Appreciation Right must be in writing,
signed by the proper person and delivered or mailed to the Company, accompanied
by any other documents required by the Committee.
6.3. Restricted and Unrestricted Stock.
(a) Nature of Restricted Stock Award. A Restricted Stock Award entitles the
recipient to acquire, for a purchase price to be specified by the Committee, but
in no event less than par value, shares of Stock subject to the restrictions
described in paragraph (d) below ("Restricted Stock").
(b) Acceptance of Award. A Participant who is granted a Restricted Stock
Award will have no rights with respect to such Award unless the Participant
accepts within 60 days or such other period specified by the Committee, the
Award by written instrument delivered or mailed to the Company accompanied by
payment in full of the specified purchase price, if any, of the shares covered
by the Award. Payment may be by certified or bank check or other instrument
acceptable to the Committee.
(c) Rights as a Stockholder. A Participant who receives Restricted Stock
will have all the rights of a stockholder with respect to the Stock,
including voting and dividend rights, subject to the restrictions described in
paragraph (d) below and any other conditions imposed by the Committee at the
time of grant. Unless the Committee otherwise determines, certificates
evidencing shares of Restricted Stock will remain in the possession of the
Company until such shares are free of all restrictions under the Plan.
(d) Restrictions. Except as otherwise specifically provided by the Plan,
Restricted Stock may not be sold, assigned, transferred, pledged or otherwise
encumbered or disposed of, and if the Participant ceases to be an Employee or
otherwise suffers a Status Change (as defined at Section 7.2 below) for any
reason, must be offered to the Company for purchase for the amount of cash paid
for the Stock, or forfeited to the Company if no cash was paid. These
restrictions will lapse at such time or times, and on such conditions, as the
Committee may specify. Upon lapse of all restrictions, Stock will cease to be
Restricted Stock for purposes of the Plan. The Committee may at any time
accelerate the time at which the restrictions on all or any part of the shares
will lapse.
(e) Notice of Election. Any Participant making an election under Section
83(b) of the Code with respect to Restricted Stock must provide a copy thereof
to the Company within 10 days of the filing of such election with the Internal
Revenue Service.
(f) Other Awards Settled with Restricted Stock. The Committee may, at the
time any Award described in this Section 6 is granted, provide that any or all
the Stock delivered pursuant to the Award will be Restricted Stock.
(g) Unrestricted Stock. The Committee may, in its sole discretion, approve
the sale to any Participant of shares of Stock free of restrictions under the
Plan for a price which is not less than the par value of the Stock.
6.4. Deferred Stock Awards.
A Deferred Stock Award entitles the recipient to receive shares of Stock to
be delivered in the future. Delivery of the Stock will take place at such time
or times, and on such conditions, as the Committee may specify. The Committee
may specify that a Deferred Stock Award may be forfeited if certain conditions
are or are not satisfied. The Committee may at any time accelerate the time at
which delivery of all or any part of the Stock will take place. At the time any
Award described in this Section 6 is granted, the Committee may provide that, at
the time Stock would otherwise be delivered pursuant to the Award, the
Participant will instead receive an instrument evidencing the Participant's
right to future delivery of Stock.
6.5. Performance Awards; Performance Goals.
(a) Nature of Performance Awards. A Performance Award entitles the
recipient to receive, without payment, an amount in cash or Stock or a
combination thereof (such form to be determined by the Committee) following the
attainment of Performance Goals. "Performance Goals" are goals which may be
related to personal performance, corporate performance, departmental performance
or any other category of performance deemed by the Committee to be important to
the success of the Company. The Committee will determine the Performance Goals,
the period or periods during which performance is to be measured and all other
terms and conditions applicable to the Award.
(b) Other Awards Subject to Performance Condition. The Committee may, at
the time any Award described in this Section 6 is granted, impose the condition
(in addition to any conditions specified or authorized in this Section 6 or any
other provision of the Plan) that Performance Goals be met prior to the
Participant's realization of any payment or benefit under the Award.
6.6. Loans and Supplemental Grants.
(a) Loans. The Company may make a loan to a Participant ("Loan"), either on
the date of or after the grant of any Award to the Participant. A Loan may be
made either in connection with the purchase of Stock under the Award or with the
payment of any Federal, state and local income tax with respect to income
recognized as a result of the Award. The Committee will have full authority to
decide whether to make a Loan and to determine the amount, terms and conditions
of the Loan, including the interest rate (which may be zero), whether the Loan
is to be secured or unsecured or with or without recourse against the borrower,
the terms on which the Loan is to be repaid and the conditions, if any, under
which it may be forgiven. However, no Loan may have a term (including
extensions) exceeding ten years in duration.
(b) Supplemental Grants. In connection with any Award, the Committee may at
the time such Award is made or at a later date, provide for and grant a cash
award to the Participant ("Supplemental Grant") not to exceed an amount equal to
(1) the amount of any federal, state and local income tax on ordinary income for
which the Participant may be liable with respect to the Award, determined by
assuming taxation at the highest marginal rate, plus (2) an additional amount on
a grossed-up basis intended to make the Participant whole on an after-tax basis
after discharging all the Participant's income tax liabilities arising from all
payments under this Section 6. Any payments under this subsection (b) will be
made at the time the Participant incurs Federal income tax liability with
respect to the Award.
7. EVENTS AFFECTING OUTSTANDING AWARDS
7.1. Death and Total or Permanent Disability.
Except as otherwise provided by the Committee, if a Participant dies or is
totally or permanently disabled as determined by the Committee, the following
will apply:
(a) All Options and Stock Appreciation Rights held by the Participant
immediately prior to death or total or permanent disability, as the case may be,
shall, if not then exercisable, be accelerated and become exercisable at such
time and then all options so held by the Participant. may be exercised by the
Participant's executor or administrator or the person or persons to whom the
Option or Right is transferred by will or the applicable laws of descent and
distribution or the Participant's guardian, at any time within the one year
period ending with the first anniversary of the Participant's death, or total or
permanent disability, as the case may be (or such longer period as the Committee
may determine), and shall thereupon
terminate. In no event, however, shall an Option or Stock Appreciation Right
remain exercisable beyond the latest date on which it could have been exercised
without regard to this Section 7.
(b) Except as otherwise determined by the Committee, all Restricted Stock,
as to which the forfeiture restrictions have not lapsed, held by the Participant
must be transferred to the Company (and, in the event the certificates
representing such Restricted Stock are held by the Company, such Restricted
Stock will be so transferred without any further action by the Participant) in
accordance with Section 6.3 above.
(c) Any payment or benefit under a Deferred Stock Award, Performance Award,
or Supplemental Grant to which the Participant was not irrevocably entitled
prior to death or total or permanent disability, as the case may be, will be
forfeited and the Award canceled as of the time of death, or total or permanent
disability, as the case may be, unless otherwise determined by the Committee.
7.2. Termination of Service (Other Than By Death or Disability).
If a Participant who is an Employee ceases to be an Employee for any reason
other than death or total or permanent disability, as the case may be, or if
there is a termination (other than by reason of death or total or permanent
disability, as the case maybe) of the consulting, service or similar
relationship in respect of which a non-Employee Participant was granted an Award
hereunder (such termination of the employment or other relationship being herein
referred to as a "Status Change"), the following will apply:
(a) Except as otherwise determined by the Committee, all Options and Stock
Appreciation Rights held by the Participant that were not exercisable
immediately prior to the Status Change shall terminate at the time of the Status
Change provided that options that are not then exercisable on such date which
are held by a Participant who retires and who is at least 60 years of age and
has completed at least ten or more years of service (as determined by the
Committee) shall continue to vest. Any Options or Rights that were exercisable
immediately prior to the Status Change will continue to be exercisable for a
period of one year (or such longer period as the Committee may determine), and
shall thereupon terminate, unless the Award provides by its terms for immediate
termination in the event of a Status Change. Any Options or Rights that were not
exercisable immediately prior to the Status Change but which continued to vest
thereafter pursuant to the proviso above in this Section 7.2(a) will be
exercisable for a period of one year (or such longer period as the Committee may
determine) after the date such Option or Right vests, and shall thereafter
terminate unless the Award provides by its terms for immediate termination in
the event of a Status Change. If the Status Change results from a discharge for
cause (gross negligence or acts done with a malicious intent, as determined by
the Committee), all Awards will terminate if the Committee so determines in its
discretion either before or after such termination of employment. In no event,
however, shall an Option or Stock Appreciation Right remain exercisable beyond
the latest date on which it could have been exercised without regard to this
Section 7. For purposes of this paragraph, in the case of a Participant who is
an Employee, a Status Change shall not be deemed to have resulted by reason of
(i) a sick leave or other bona fide leave of absence approved for purposes of
the Plan by the Committee, so long as the Employee's right to reemployment is
guaranteed either by statute or by contract, or (ii) a transfer of employment
between the Company and a subsidiary or between subsidiaries, or to the
employment of a corporation (or a parent or subsidiary corporation of such
corporation) issuing or assuming an option in a transaction to which section
424(a) of the Code applies.
(b) Except as otherwise determined by the Committee, all Restricted Stock,
as to which the forfeiture restrictions have not lapsed, held by the Participant
at the time of the Status Change must be transferred to the Company (and, in the
event the certificates representing such Restricted Stock are held by the
Company, such Restricted Stock will be so transferred without any further action
by the Participant) in accordance with Section 6.3 above.
(c) Any payment or benefit under a Deferred Stock Award, Performance Award,
or Supplemental Grant to which the Participant was not irrevocably entitled
prior to the Status Change will be forfeited and the Award cancelled as of the
date of such Status Change unless otherwise determined by the Committee.
Unless the Committee expressly provides otherwise, a Participant's
"employment or other service relationship with the Company and its Subsidiaries"
will be deemed to have ceased, in the case of an employee Participant, upon
termination of the Participant's employment with the Company and its
Subsidiaries (whether or not the Participant continues in the service of the
Company or its Subsidiaries in some capacity other than that of an employee of
the Company or its Subsidiaries), and in the case of any other Participant, when
the service relationship in respect of which the Award was granted terminates
(whether or not the Participant continues in the service of the Company or its
Subsidiaries in some other capacity).
7.3 A Change in Control Provision
As used herein, a Change in Control and related definitions shall have the
meanings as set forth in Section 7.3 C below.
Immediately prior to the occurrence of a Change in Control:
(a) Each Option and Stock Appreciation Right shall automatically become
fully exercisable unless the Committee shall otherwise expressly provide at the
time of grant.
(b) Restrictions and conditions on Restricted Stock, Deferred Stock,
Performance Units and Other Stock-based Awards shall automatically be deemed
waived to the extent, if any, specified (whether at or after time of grant) by
the Committee.
In addition to the foregoing and Sections 6.1(d), 6.2(d), 6.3(d) and 6.4,
the Committee may at any time prior to or after a Change in Control accelerate
the exercisability of any Options and Stock Appreciation Rights and may waive
restrictions, limitations and conditions on Restricted Stock, Deferred Stock,
Performance Units and Other Stock-based Awards to the extent it shall in its
sole discretion determine.
7.3 B Certain Corporate Transactions
(a) In the event of a consolidation or merger in which the Company is not
the surviving corporation or which results in the acquisition of substantially
all the Company's outstanding Stock by a single person or entity or by a group
of persons and/or entities acting in concert, or in the event of the complete
liquidation of the Company or the sale or transfer of substantially all of the
company's assets (a "Covered Transaction"), all outstanding options will
terminate as of the effective date of the Covered Transaction, provided that at
least twenty (20) days prior to the effective date of any such merger,
consolidation, liquidation or sale of assets, but subject to Paragraphs (c) and
(d) below, the Committee shall make all outstanding Options exercisable
immediately prior to consummation of such Covered Transaction (to the extent
that such Options are not exercisable immediately prior to the consummation of
the Covered Transaction pursuant to Section 7.3A).
(b) Subject to Paragraphs (c) and (d) below, the Committee may, in its sole
discretion, prior to the effective date of the Covered Transaction, (1) remove
the restrictions from each outstanding share of Restricted Stock, (2) cause the
Company to make any payment and provide any benefit under each outstanding
Deferred Stock Award, Performance Award, and Supplemental Grant which would have
been made or provided with the passage of time had the transaction not occurred
and the Participant remained an employee, and (3) forgive all or any portion of
the principal of or interest on a loan.
(c) If an outstanding option or Other Award is subject to performance or
other conditions (other than conditions relating the mere passage of time and
continued employment) which will not have been satisfied at the time of the
Covered Transaction the Committee may, in its sole discretion, remove such
conditions. If it does not do so however, such Option or Other Award will
terminate, because the conditions have not been satisfied, as of the date of the
Covered Transaction notwithstanding Paragraph (a) and (b) above.
(d) With respect to an outstanding Option or Other Award held by the
participant who, following the Covered Transaction, will be employed by a
corporation which is a surviving or acquiring corporation in such transaction or
an affiliate of such a corporation, the committee may, in lieu of the action of
the Committee described in Paragraphs (a) or (b) above or in addition to any
Option being exercisable immediately prior to consummation of the Covered
Transaction pursuant to Section 7.3A above, arrange to have such surviving or
acquiring corporation or affiliate assume the Option or Other Award or grant to
the Participant a replacement or substitute Option or other Award on such terms
as the Committee approves. In the case of an assumed or substitute Option
intended to be an Incentive Stock Option, the requirements of Section 424 (a) of
the code shall be satisfied except as otherwise provided by the Committee.
7.3 C Change in Control and Related Definitions
A "Change in Control" shall be deemed to have occurred if the conditions
set forth in any one of the following paragraphs shall have been satisfied:
(a) any Person is or becomes the Beneficial Owner, directly or indirectly,
of securities of the Company representing 35% or more of the combined voting
power of the Company's then outstanding securities; or
(b) during any period of not more than two consecutive years (not including
any period prior to December 31, 1996), individuals who at the beginning of such
period constitute the Board and any new director (other than a director
designated by a Person who has entered into an agreement with the Company to
effect a transaction described in Clause (a), (b), or (c) of Section 7.3 C)
whose election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof; or
(c) the shareholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than:
(1) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or being converted into
voting securities of the surviving entity) 60% or more of the combined
voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation; or
(2) a merger or consolidation effected to implement a recapitalization
of the Company (or similar transaction) in which no person acquires 35% or
more of the combined voting power of the Company's then outstanding
securities;
(d) the shareholders of the Company approve a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the Company of all
or substantially all the Company's assets.
Notwithstanding the foregoing provisions of this Section 7.3C, a "Change in
Control" will not be deemed to have occurred solely because of (i) the ownership
or acquisition of securities of the Company (or any reporting requirement under
the Securities Exchange Act of 1934) relating thereto) by an employee benefit
plan maintained by the Company for the benefit of employees or by ownership or
acquisition (whether accomplished by merger, consolidation, purchase or
otherwise) by any of Ben Cohen, Jerry Greenfield, Jeffrey Furman and Perry Odak
or their "affiliates" or "associates" (as such terms are defined in Rule 12b-2
under the Act) or members of their families (or trusts for their benefit) or
charitable trusts established by any of them and/or other related Company
management group.
In the foregoing provisions of this Section 7.3, the following terms shall
have the meanings set forth below:
"Person" shall have the meaning given in Section 3 (a) (9) of the
Securities Exchange Act of 1934, as modified and used in Sections 13 9D and 14
(d) thereof; however, a Person shall not include:
(1) the Company or any controlled subsidiary of the Company;
(2) a trustee or other fiduciary holding securities under an employee
benefit plan of the Company; or,
(3) a corporation or other entity owned, directly or indirectly, by
the shareholders of the Company in substantially the same proportions as
their ownership of stock of the Company.
"Beneficial Owner" shall have the meaning defined in Rule 13d-3 under the
Securities Exchange Act of 1934 as amended from time to time.
8. GENERAL PROVISIONS
8.1. Documentation of Awards.
Awards will be evidenced by such written instruments, if any, as may be
prescribed by the Board from time to time. Such instruments may be in the form
of agreements to be executed by both the Participant and the Company, or
certificates, letters or similar instruments, which need not be executed by the
Participant but acceptance of which will evidence agreement to the terms
thereof.
8.2. Rights as a Stockholder, Dividend Equivalents.
Except as specifically provided by the Plan, the receipt of an Award will
not give a Participant rights as a stockholder; the participant will obtain such
rights, subject to any limitations imposed by the Plan or the instrument
evidencing the Award, upon actual receipt of Stock. However, the Committee may,
on such conditions as it deems appropriate, provide that a Participant will
receive a benefit in lieu of cash dividends that would have been payable on any
or all Stock subject to the Participant's Award had such Stock been outstanding.
Without limitation, the Committee may provide for payment to the Participant of
amounts representing such dividends, either currently or in the future, or for
the investment of such amounts on behalf of the Participant.
8.3. Conditions on Delivery of Stock.
The Company will not be obligated to deliver any shares of Stock pursuant
to the Plan or to remove restriction from shares previously delivered under the
Plan (a) until all conditions of the Award have been satisfied or removed, (b)
until, in the opinion of the Company's counsel, all applicable federal and state
laws and regulation have been complied with, (c) if the outstanding Stock is at
the time listed on any stock exchange, until the shares to be delivered have
been listed or authorized to be listed on such exchange upon official notice of
notice of issuance, and (d) until all other legal
matters in connection with the issuance and delivery of such shares have been
approved by the Company's counsel. If the sale of Stock has not been registered
under the Securities Act of 1933, as amended, the Company may require, as a
condition to exercise of the Award, such representations or agreements as
counsel for the Company may consider appropriate to avoid violation of such Act
and may require that the certificates evidencing such Stock bear an appropriate
legend restricting transfer.
If an Award is exercised by the Participant's legal representative, the
Company will be under no obligation to deliver Stock pursuant to such exercise
until the Company is satisfied as to the authority of such representative.
8.4. Tax Withholding.
The Company will withhold from any cash payment made pursuant to an Award
an amount sufficient to satisfy all federal, state and local withholding tax
requirements (the "withholding requirements").
In the case of an Award pursuant to which Stock may be delivered, the
Committee will have the right to require that the Participant or other
appropriate person remit to the Company an amount sufficient to satisfy the
withholding requirements, or make other arrangements satisfactory to the
Committee with regard to such requirements, prior to the delivery of any Stock.
If and to the extent that such withholding is required, the Committee may permit
the Participant or such other person to elect at such time and in such manner as
the Committee provides to have the Company hold back from the shares to be
delivered, or to deliver to the Company, Stock having a value calculated to
satisfy the withholding requirement.
8.5. Nontransferability of Awards.
No Award (other than an Award in the form of an outright transfer of cash
or Unrestricted Stock) may be transferred other than by will or by the laws of
descent and distribution, and during a Participant's lifetime an Award requiring
exercise may be exercised only by him or her (or in the event of the
Participant's incapacity, the person or persons legally appointed to act on the
Participant's behalf).
8.6. Adjustments in the Event of Certain Transactions.
(a) In the event of a stock dividend, stock split or combination of shares,
recapitalization or other change in the Company's capitalization, or other
distribution to common stockholders other than normal cash dividends, after the
effective date of the Plan, the Committee will make any appropriate adjustments
to the maximum number of shares that may be delivered under the Plan under
Section 4 above.
(b) In any event referred to in paragraph (a), the Committee will also make
any appropriate adjustments to the number and kind of shares of stock or
securities subject to Awards then outstanding or subsequently granted, any
exercise prices relating to Awards and any other provision of Awards affected by
such change. The Committee may also make such adjustments to take into account
material changes in law or in accounting practices or principles, mergers,
consolidations, acquisitions, dispositions or similar corporate transactions, or
any other event, if it is determined by the Committee that adjustments are
appropriate to avoid distortion in the operation of the Plan.
8.7. Employment Rights, Etc.
Neither the adoption of the Plan nor the grant of Awards will confer upon
any person any right to continued retention by the Company or any subsidiary as
an Employee or otherwise, or affect in any way the right of the Company or
subsidiary to terminate an employment, service or similar relationship at any
time. Except as specifically provided by the Committee in any particular case,
the loss of existing or potential profit in Awards granted under the Plan will
not constitute an element of damages in the event of termination of an
employment, service or similar relationship even if the termination is in
violation of an obligation of the Company to the Participant.
8.8. Deferral of Payments.
The Committee may agree at any time, upon request of the Participant, to
defer the date on which any payment under an Award will be made.
8.9. Past Services as Consideration.
Where a Participant purchases Stock under an Award for a price equal to the
par value of the Stock the Committee may determine that such price has been
satisfied by past services rendered by the Participant.
8.10. Fair Market Value.
For purposes of the Plan, fair market value of a share of Stock on any date
will be the closing price in the over-the-counter market with respect to such
Stock, as reported by the National Association of Securities Dealers, Inc.
Automated Quotation System or such other similar system then in use; or, if on
any such date such Stock is not quoted by any such organization, the average of
the closing bid and asked prices with respect to such Stock, as furnished by a
professional market maker making a market in such Stock selected by the
Committee; or if such prices are not available, the fair market value of such
Stock as of such date as determined in good faith by the Committee; or, where
necessary, in order to achieve the intended Federal income tax result, the value
of a share of Stock as determined by the Committee in accordance with the
applicable provisions of the Code.
9. EFFECT, DISCONTINUANCE, CANCELLATION, AMENDMENT AND TERMINATION
Neither adoption of the Plan nor the grant of Awards to a Participant will
affect the Company's right to grant to such Participant cash or Stock awards
that are not subject to the Plan, to issue to such Participant Stock as a bonus
or otherwise, or to adopt other plans or arrangements under which Stock be
issued to Employees. The Committee may at any time discontinue granting Awards
under the Plan.
The Board may at any time or times amend the Plan (and the Committee may
amend any outstanding Award) for any purpose which may at the time be permitted
by law, or may at any time terminate the Plan as to any further grants of
Awards, provided that no amendment or termination of the Plan may adversely
affect the rights of any Participant (without the Participant's consent) under
any Award previously granted.
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘10-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 1/20/09 | | 2 | | | | | None on these Dates |
| Filed on: | | 3/26/99 |
| | 1/21/99 | | 2 |
| For Period End: | | 12/26/98 |
| | 12/31/96 | | 11 |
| List all Filings |
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