SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
Commission File No. 1-8183
SUPREME INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-1670945
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2581 E. Kercher Road
P.O. Box 237
GOSHEN, INDIANA 46528
(Address, including zip code, of registrant's
principal executive offices)
SUPREME INDUSTRIES, INC.
2004 STOCK OPTION PLAN
(Full title of the plan)
RICE M. TILLEY, JR.
LAW, SNAKARD & GAMBILL, P.C.
1600 West 7th Street, Suite 500
FORT WORTH, TEXAS 76102
(817) 878-6350
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
WITH A COPY TO:
JAMES O. WYSS
LAW, SNAKARD & GAMBILL, P.C.
1600 West 7th Street, Suite 500
FORT WORTH, TEXAS 76102
(817) 878-6338
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of offering aggregate Amount of
securities to Amount to price offering registration
be registered be registered per share price fee
Class A Common
Stock (par value
$.10 per share) 600,000(1) $6.29(2) $3,774,000(3) $478.17
(1) Issuable upon exercise of options not yet granted under Registrant's 2004
Stock Option Plan. This Registration Statement also covers such indeterminable
number of additional shares as may become deliverable due to future adjustments
under terms of such Plan.
(2) Computed in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. Computation based on the average of the high
and low prices of the Class A Common Stock as reported on the American Stock
Exchange on August 18, 2004, given that the price, at which options to be
granted in the future may be exercised, is not currently determinable.
(3) Calculated in accordance with Rule 457(h) based on the average of the high
and low prices of the Class A Common Stock as reported on the American Stock
Exchange on August 18, 2004, for options not yet granted under the 2004 Stock
Option Plan.
This Registration Statement shall be deemed to cover securities resulting
from stock splits, stock dividends, or similar transactions as provided in Rule
416(c) of the Act. Pursuant thereto, this Registration Statement also covers
an indeterminate amount of interests to be offered or sold pursuant to the stock
option plan described herein.
Part I
Pursuant to the Note to Part I of Form S-8, the information required by
Items 1 and 2 of Form S-8 is not filed as part of this Registration Statement.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, previously filed (Commission File No. 1-8183) with
the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act"), are, as of their
respective dates, incorporated in this Registration Statement by reference and
made a part hereof:
(1) The Annual Report on Form 10-K of Supreme Industries, Inc. (the
"Company" or "Registrant") for the fiscal year ended December 27, 2003;
and
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual
Report referred to in (1) above.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all of the securities offered have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in and a part of this Registration Statement from the
date of filing of such documents.
Any statement contained in a document incorporated, or deemed to be
incorporated, by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained in a subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters in connection with this offering have been passed
upon for the Company by Law, Snakard & Gambill, a Professional Corporation, Fort
Worth, Texas. Rice M. Tilley, Jr. is a shareholder of Law, Snakard & Gambill,
P.C., and a Director and Assistant Secretary of the Company. Mr. Tilley is the
beneficial owner of 26,562 shares of Company's Class A Common Stock and holds
stock options to purchase 19,388 shares of Company's Class A Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation and Bylaws, and Indemnification
Agreements between the Company and each of its directors and officers, provide
that the Company shall indemnify all directors and officers of the Company to
the full extent permitted by the Delaware General Corporation Law. Under such
provisions any director or officer who, in his capacity as such, is made or
threatened to be made, a party to any suit or proceeding, shall be indemnified
if such director or officer acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
Company. The Certificate of Incorporation, Bylaws, such Indemnification
Agreements, and the Delaware General Corporation Law further provide that such
indemnification is not exclusive of any other rights to which such individuals
may be entitled under the Certificate of Incorporation, Bylaws, such
Indemnification Agreements, or any Agreement, vote of stockholders or
disinterested directors, or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit Number Description
4.1 2004 Stock Option Plan.
5.1 Opinion of Counsel as to legality of securities being
registered.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Registered Public Accounting
Firm.
24.1 Power of Attorney.
ITEM 9. UNDERTAKINGS
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933 (the "Act"), each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned Registrant hereby undertakes that, for the purposes of
determining any liability under that Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers, and controlling persons of the Registrant
pursuant to the provisions described in Item 6 or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing Form S-8 and has duly caused this Registration Statement
to be signed on its behalf by the undersigned thereunto duly authorized, in the
City of New York, State of New York, on August 18, 2004.
SUPREME INDUSTRIES, INC.
By: /s/ Herbert M. Gardner
Name: Herbert M. Gardner
Title: Chairman of the Board of Directors,
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on August 18, 2004, by the following
persons in the capacities indicated.
Signatures Title Date
/s/ Herbert M. Gardner Chairman of the Board August 18, 2004
Herbert M. Gardner and President
(Principal Executive Officer)
/s/ Omer G. Kropf Executive Vice President August 18, 2004
Omer G. Kropf and Director
/s/ William J. Barrett Secretary, Assistant August 18, 2004
William J. Barrett Treasurer, Director
/s/ Robert W. Wilson Executive Vice President, August 18, 2004
Robert W. Wilson Treasurer, Chief Financial
Officer and Assistant
Secretary (Principal
Financial and Accounting
Officer)
/s/ Rice M. Tilley, Jr. Assistant Secretary, Director August 18, 2004
Rice M. Tilley, Jr.
/s/ Robert J. Campbell Director August 18, 2004
Robert J. Campbell
/s/ Thomas Cantwell Director August 18, 2004
Thomas Cantwell
/s/ Mark C. Neilson Director August 18, 2004
Mark C. Neilson
/s/ H. Douglas Schrock Director August 18, 2004
H. Douglas Schrock
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 2004 Stock Option Plan.
5.1 Opinion of Counsel as to legality of securities
being registered.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Registered Public
Accounting Firm.
24.1 Power of Attorney.
Exhibit 4.1
2004 Stock Option Plan
of
Supreme Industries, Inc.
Table of Contents
Page
Article I: Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 1:1. Act . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 1:2. Affiliates. . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 1:3. Agreement . . . . . . . . . . . . . . . . . . . . . . . 2
Sec. 1:4. Board of Directors. . . . . . . . . . . . . . . . . . . 2
Sec. 1:6. Committee . . . . . . . . . . . . . . . . . . . . . . . 2
Sec. 1:7. Eligible Individuals. . . . . . . . . . . . . . . . . . 2
Sec. 1:8. Fair Market Value . . . . . . . . . . . . . . . . . . . 2
Sec. 1:9. Holder. . . . . . . . . . . . . . . . . . . . . . . . . 2
Sec. 1:10. Incentive Stock Options . . . . . . . . . . . . . . . . 2
Sec. 1:11. Nonstatutory Stock Options. . . . . . . . . . . . . . . 2
Sec. 1:12. Options . . . . . . . . . . . . . . . . . . . . . . . . 2
Sec. 1:13. Stock . . . . . . . . . . . . . . . . . . . . . . . . . 2
Article II: Stock and Maximum Number of Shares Subject to the Plan . . . 3
Sec. 2:1. Description of Stock and Maximum Shares Allocated . . . 3
Sec. 2:2. Restoration of Shares . . . . . . . . . . . . . . . . . 3
Article III: Administration of the Plan. . . . . . . . . . . . . . . . . 3
Sec. 3:1. Stock Option Committee. . . . . . . . . . . . . . . . . 3
Sec. 3:2. Duration, Removal, Etc. . . . . . . . . . . . . . . . . 3
Sec. 3:3. Meetings and Actions of Committee . . . . . . . . . . . 3
Sec. 3:4. Committee's Powers. . . . . . . . . . . . . . . . . . . 3
Article IV: Eligibility and Participation. . . . . . . . . . . . . . . . 4
Sec. 4:1. Eligible Individuals. . . . . . . . . . . . . . . . . . 4
Sec. 4:2. No Right to Option. . . . . . . . . . . . . . . . . . . 4
Article V: Grant of Options and Certain Terms of the Agreements. . . . . 4
Sec. 5:1. Determination of Eligible Individuals . . . . . . . . . 4
Sec. 5:2. Date of Grant . . . . . . . . . . . . . . . . . . . . . 5
Sec. 5:3. Stock Option Agreement. . . . . . . . . . . . . . . . . 5
Sec. 5:4. Forfeiture of Stock . . . . . . . . . . . . . . . . . . 5
Sec. 5:5. Cash Awards . . . . . . . . . . . . . . . . . . . . . . 5
Article VI: Terms and Conditions of Options. . . . . . . . . . . . . . . 6
Sec. 6:1. Number of Shares. . . . . . . . . . . . . . . . . . . . 6
Sec. 6:2. Exercise Price. . . . . . . . . . . . . . . . . . . . . 6
Sec. 6:3. Medium and Time of Payment, Method of Exercise, and
Withholding Taxes . . . . . . . . . . . . . . . . . . 7
Sec. 6:4. Terms, Time of Exercise, and Transferability of
Options . . . . . . . . . . . . . . . . . . . . . . . 8
Sec. 6:5. Limitation on Aggregate Value of Shares That
May Become First Exercisable During Any
Calendar Year Under an Incentive Stock Option . . . . 11
Sec. 6:6. Adjustments Upon Changes in Capitalization,
Merger, Etc.. . . . . . . . . . . . . . . . . . . . . 12
Sec. 6:7. Rights as a Shareholder . . . . . . . . . . . . . . . . 12
Sec. 6:8. Modification, Extension, and Renewal of Options . . . . 13
Sec. 6:9. Furnish Information . . . . . . . . . . . . . . . . . . 13
Sec. 6:10. Obligation to Exercise; Termination of Employment . . . 13
Sec. 6:11. Agreement Provisions. . . . . . . . . . . . . . . . . . 13
Article VII: Duration of Plan. . . . . . . . . . . . . . . . . . . . . . 14
Article VIII: Amendment of Plan. . . . . . . . . . . . . . . . . . . . . 14
Article IX: General. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Sec. 9:1. Application of Funds. . . . . . . . . . . . . . . . . . 14
Sec. 9:2. Right of Company and Affiliates to Terminate
Employment . . . . . . . . . . . . . . . . . . . . . . 14
Sec. 9:3. No Liability for Good Faith Determinations. . . . . . . 14
Sec. 9:4. Information Confidential. . . . . . . . . . . . . . . . 15
Sec. 9:5. Other Benefits. . . . . . . . . . . . . . . . . . . . . 15
Sec. 9:6. Execution of Receipts and Releases. . . . . . . . . . . 15
Sec. 9:7. No Guarantee of Interests . . . . . . . . . . . . . . . 15
Sec. 9:8. Payment of Expenses . . . . . . . . . . . . . . . . . . 15
Sec. 9:9. Company Records . . . . . . . . . . . . . . . . . . . . 15
Sec. 9:10. Information . . . . . . . . . . . . . . . . . . . . . . 15
Sec. 9:11. No Liability of Company . . . . . . . . . . . . . . . . 16
Sec. 9:12. Company Action. . . . . . . . . . . . . . . . . . . . . 16
Sec. 9:13. Severability. . . . . . . . . . . . . . . . . . . . . . 16
Sec. 9:14. Notices . . . . . . . . . . . . . . . . . . . . . . . . 16
Sec. 9:15. Waiver of Notice. . . . . . . . . . . . . . . . . . . . 16
Sec. 9:16. Successors. . . . . . . . . . . . . . . . . . . . . . . 16
Sec. 9:17. Headings. . . . . . . . . . . . . . . . . . . . . . . . 16
Sec. 9:18. Governing Law . . . . . . . . . . . . . . . . . . . . . 16
Sec. 9:19. Word Usage. . . . . . . . . . . . . . . . . . . . . . . 17
Sec. 9:20. Remedies. . . . . . . . . . . . . . . . . . . . . . . . 17
Article X: Approval of Shareholders. . . . . . . . . . . . . . . . . . . 17
2004 Stock Option Plan
of
Supreme Industries, Inc.
This Supreme Industries, Inc. 2004 Stock Option Plan (the "Plan") provides
for the granting of:
(a) Incentive Stock Options (hereinafter defined) to certain key
employees of Supreme Industries, Inc., a Delaware corporation ("Company"),
and/or its Affiliates (hereinafter defined), and
(b) Nonstatutory Stock Options (hereinafter defined) to certain key
employees of Company, and/or its Affiliates, and to certain individuals who are
not employees of Company or its Affiliates.
The purpose of the Plan is to provide an incentive for key employees of
Company and/or its Affiliates, and for individuals who are not employees of
Company and/or its Affiliates but who from time to time provide substantial
advice or other assistance or services to Company and/or its Affiliates, to
remain in the service of Company and/or its Affiliates or continue to provide
such assistance, to extend to them the opportunity to acquire a proprietary
interest in Company so that they will apply their best efforts for the benefit
of Company, and to aid Company in attracting able persons to enter the service
of Company and/or its Affiliates or provide such assistance.
Article I
Definitions
Sec. 1:1. Act. "Act" shall mean the Securities Exchange Act of 1934,
as amended.
Sec. 1:2. Affiliates. "Affiliates" shall mean: (a) any corporation,
other than Company, in an unbroken chain of corporations ending with Company if
each of the corporations, other than Company, owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain; and (b) any corporation, other
than Company, in an unbroken chain of corporations beginning with Company if
each of the corporations, other than the last corporation in the unbroken chain,
owns stock possessing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.
Sec. 1:3. Agreement. "Agreement" shall mean the written agreement
between Company and a Holder evidencing the Option granted by Company and the
understanding of the parties with respect thereto.
Sec. 1:4. Board of Directors. "Board of Directors" shall mean the
board of directors of Company.
Sec. 1:5. Code. "Code" shall mean the Internal Revenue Code of 1986,
as amended.
Sec. 1:6. Committee. "Committee" shall mean the committee designated
in Article III hereof by the Board of Directors to administer this Plan.
Sec. 1:7. Eligible Individuals. "Eligible Individuals" shall mean:
(a) key employees, including officers and/or directors who are also employees
of Company and/or of any of its Affiliates; and (b) individuals who are not
employees of Company and/or of its Affiliates but who from time to time provide
substantial advice or other assistance or services to Company and/or its
Affiliates.
Sec. 1:8. Fair Market Value. "Fair Market Value" shall mean, if the
Stock is traded on one or more established markets or exchanges, the mean of the
opening and closing prices of the Stock on the primary market or exchange on
which the Stock is traded, and if the Stock is not so traded or the Stock does
not trade on the relevant date, the value determined in good faith by the Board
of Directors. For purposes of valuing Incentive Stock Options, the Fair Market
Value of stock shall be determined without regard to any restriction other than
one which, by its terms, will never lapse.
Sec. 1:9. Holder. "Holder" shall mean an Eligible Individual to whom
an Option has been granted.
Sec. 1:10. Incentive Stock Options. "Incentive Stock Options" shall
mean stock options that are intended to satisfy the requirements of Sec. 422 of
the Code.
Sec. 1:11. Nonstatutory Stock Options. "Nonstatutory Stock Options"
shall mean stock options that are not intended to be, or are not denominated as,
Incentive Stock Options.
Sec. 1:12. Options. "Options" shall mean either Incentive Stock
Options or Nonstatutory Stock Options, or both.
Sec. 1:13. Stock. "Stock" shall mean Company's authorized $.10 par
value Class A Common Stock.
Article II
Stock and Maximum Number of Shares Subject to the Plan
Sec. 2:1. Description of Stock and Maximum Shares Allocated. The Stock
which Options granted hereunder give a Holder the right to purchase may be
unissued or reacquired shares of Stock, as the Board of Directors may, in its
sole and absolute discretion, from time to time determine. Subject to the
adjustments in Sec. 6.6 hereof, the aggregate number of shares of Stock to be
issued pursuant to the exercise of all Options granted hereunder may equal, but
may not exceed, 600,000 shares of Company's Stock.
Sec. 2:2. Restoration of Shares. If an Option hereunder expires,
terminates, or is not exercised for any reason during the term of this Plan, the
shares of Stock which were subject to such Option shall be "restored" to the
Plan by again being available for Options granted after the shares' restoration,
effective as of the first day of the year following such expiration,
termination, or non-exercise.
Article III
Administration of the Plan
Sec. 3:1. Stock Option Committee. This Plan will be administered by
a Committee consisting of between three and six members to be appointed by
Company's Board of Directors. The members of the Stock Option Committee must
be members of the Company's Board of Directors.
Sec. 3:2. Duration, Removal, Etc. The members of the Committee shall
serve at the pleasure of the Board of Directors, which shall have the power, at
any time and from time to time, to remove members from the Committee or to add
members thereto. Vacancies on the Committee, however caused, shall be filled
by the Board of Directors.
Sec. 3:3. Meetings and Actions of Committee. The Committee shall elect
one of its members as its Chairman and shall hold its meetings at such times and
places as it may determine. All decisions and determinations of the Committee
shall be made by the majority vote of all of its members present at a meeting;
provided, however, that any decision or determination reduced to writing and
signed by all of the members of the Committee shall be as fully effective as if
it had been made at a meeting duly called and held. The Committee may make any
rules and regulations for the conduct of its business that are not inconsistent
with the provisions hereof and with the Bylaws of Company.
Sec. 3:4. Committee's Powers. Subject to the express provisions
hereof, the Committee shall have the authority, in its sole and absolute
discretion to: (a) adopt, amend, and rescind administrative and interpretive
rules and regulations relating to the Plan; (b) determine the terms and
provisions of the respective Agreements (which need not be identical), including
provisions defining or otherwise relating to: (i) subject to Article VI of the
Plan, the term and the period or periods and extent of exercisability of the
Options, (ii) the extent to which the transferability of shares of Stock issued
upon exercise of Options is restricted, (iii) the effect of termination of
employment upon the exercisability of the Options, and (iv) the effect of
approved leaves of absence (consistent with any applicable regulations of the
Internal Revenue Service); (c) accelerate the time of exercisability of any
Option that has been granted; (d) construe the respective Option Agreements and
the Plan; and (e) make all other determinations and perform all other acts
necessary or advisable for administering the Plan, including the delegation of
such ministerial acts and responsibilities as the Committee deems appropriate.
The Committee may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any Agreement in the manner and to the extent
it shall deem expedient to carry it into effect, and it shall be the sole and
final judge of such expediency. The determination of the Committee on the
matters referred to in this Sec. 3.4 shall be final and conclusive.
Article IV
Eligibility and Participation
Sec. 4:1. Eligible Individuals. Options may be granted hereunder only
to persons who are Eligible Individuals at the time of the grant thereof.
Notwithstanding any provision contained herein to the contrary, a person may not
receive an Incentive Stock Option hereunder unless he or she is an employee of
Company and/or an Affiliate, nor shall a person be eligible to receive an
Incentive Stock Option hereunder if he or she, at the time such Option is
granted, would own (within the meaning of Secs. 422 and 424 of the Code) stock
possessing more than ten percent (10%) of the total combined voting power or
value of all classes of stock of Company or an Affiliate, unless at the time
such Incentive Stock Option is granted the exercise price per share is at least
one hundred ten percent (110%) of the Fair Market Value of each share of stock
to which the Incentive Stock Option relates and the Incentive Stock Option is
not exercisable after the expiration of five (5) years from the date it is
granted.
Sec. 4:2. No Right to Option. The adoption of the Plan shall not be
deemed to give any person a right to be granted an Option.
Article V
Grant of Options and Certain Terms of the Agreements
Sec. 5:1. Determination of Eligible Individuals. Subject to the
express provisions hereof, the Committee shall determine which Eligible
Individuals shall be granted Options hereunder from time to time. In making
grants, the Committee shall take into consideration the contribution the
potential Holder has made or may make to the success of Company and/or its
Affiliates along with such other considerations as the Board of Directors may
from time to time specify. The Committee shall also determine the number of
shares subject to each of such Options and shall authorize and cause Company to
grant Options in accordance with such determinations.
Sec. 5:2. Date of Grant. The date on which the Committee completes all
action constituting an offer of an Option to an individual, including the
specification of the number of shares of Stock to be subject to the Option,
shall be the date on which the Option covered by an Agreement is granted, even
though certain terms of the Agreement may not be determined at such time and
even though the Agreement may not be executed until a later time. For purposes
of the preceding sentence, an offer shall be deemed made if the Committee has
completed all such action and has communicated the grant thereof to the
potential Holder. In no event, however, may an Optionee gain any rights in
addition to those specified by the Committee in its grant, regardless of the
time that may pass between the grant of the Option and the actual execution of
the Agreement by Company and the Optionee.
Sec. 5:3. Stock Option Agreement. Each Option granted hereunder shall
be evidenced by an Agreement, executed by Company and the Eligible Individual
to whom the Option is granted, incorporating such terms as the Committee deems
necessary or desirable. More than one Option may be granted hereunder to the
same Eligible Individual and be outstanding concurrently hereunder. In the
event an Eligible Individual is granted both one or more Incentive Stock Options
and one or more Nonstatutory Stock Options, such grants shall be evidenced by
separate Agreements, one for each of the Incentive Stock Option grants and one
for each of the Nonstatutory Stock Option grants.
Sec. 5:4. Forfeiture of Stock. Each Agreement may provide for
conditions giving rise to the forfeiture of the Stock acquired pursuant to an
Option granted hereunder and/or such restrictions on the transferability of
shares of Stock acquired pursuant to an Option granted hereunder as the
Committee in its sole and absolute discretion deems proper or advisable. Such
conditions giving rise to forfeiture may include, but need not be limited to,
the requirement that the Holder render substantial services to Company and/or
its Affiliates for a specified period of time. Such restrictions on
transferability may include, but need not be limited to, options and rights of
first refusal in favor of Company.
Sec. 5:5. Cash Awards. In addition, the Board of Directors may
authorize the Committee to grant cash awards payable in connection with the
exercise of an Option upon such terms and conditions as are specified by the
Board of Directors; provided that no such cash award shall be effective unless
it complies with any applicable requirements for exemption from liability
pursuant to Rule 16b-3 promulgated under the Act.
Article VI
Terms and Conditions of Options
All Options granted hereunder shall comply with, be deemed to include, and
shall be subject to, the following terms and conditions:
Sec. 6:1. Number of Shares. Each Agreement shall state the number of
shares of Stock to which it relates. Except to the extent an Agreement
otherwise provides, the following limitations shall apply to the exercise of
each Option:
A. First Year. A Holder may not exercise his or her Option during
the first twelve (12) month period following the date of grant of such Option.
B. After First Year. A Holder may exercise up to (but not more
than) one-third of the total shares of Stock subject to his or her Option at any
time after the first twelve (12) month period following the day of grant of such
Option.
C. After Second Year. A Holder may exercise up to (but not more
than) two-thirds of the total shares of Stock subject to his or her Option at
any time after the first twenty-four (24) month period following the date of
grant of such Option.
D. After Third Year. A Holder may exercise all of the shares of
Stock subject to his or her Option at any time after the first thirty-six (36)
month period following the date of grant of such Option.
E. Senior Status. Notwithstanding the limitations stated above,
if a Holder is sixty-five (65) years of age or older at the time his or her
Option is granted, such Holder may exercise up to (but not more than) one-half
of the total shares of Stock subject to such Option at any time during the first
twelve (12) month period following the date of grant of such Option and
thereafter may exercise all of the shares of Stock subject to such Option.
F. De Minimus Limitation. Subject to the limitations stated
above, each Option may be exercised at one time or on several successive
occasions; however, each Option may not be exercised in an amount less than one
hundred (100) shares at any one time (unless such exercise is being made as to
the entire portion of Stock which may be purchased pursuant to this Plan).
Sec. 6:2. Exercise Price. Each Agreement shall state the exercise
price per share of Stock. The exercise price per share of stock subject to an
Incentive Stock Option shall not be less than the greater of: (a) the par value
per share of the Stock; or (b) one hundred percent (100%) of the Fair Market
Value per share of Company's Stock on the date of the grant of the Option. The
exercise price per share of stock subject to a Nonstatutory Stock Option shall
not be less than fifty percent (50%) of the Fair Market Value per share of the
Stock on the date of the grant of the Option.
Sec. 6:3. Medium and Time of Payment, Method of Exercise, and
Withholding Taxes.
A. Exercise of Option. Except as otherwise permitted below, the
exercise price of stock covered by an Option shall be payable upon the exercise
of the Option in cash, by certified or cashier's check. Exercise of an Option
shall not be effective until Company has received written notice of exercise.
Such notice must specify the number of whole shares to be purchased and be
accompanied by payment in full of the aggregate exercise price of the number of
shares purchased. Company shall not in any case be required to sell, issue, or
deliver a fractional share with respect to any Option.
1. Stock-for-Stock Exercise. With the consent of the
Committee, the Holder may pay the exercise price with shares of Stock of Company
which have been held by the Holder for at least six (6) months prior to the date
of exercise, or with the consent of the Committee, by a combination of cash and
such shares. Such Stock shall be duly endorsed for transfer to Company. Such
Stock shall be deemed to have a fair market value on the date of delivery equal
to the aggregate purchase price of the shares with respect to which such Option
or portion thereof is being exercised.
2. Cashless Exercise/Sale Method. With the consent of the
Committee, payment in full of the exercise price of the Option may be made
through the Company's receipt of a copy of instructions to a broker directing
such broker to sell the Stock for which the Option is being exercised, to remit
to the Company an amount equal to the aggregate exercise price of such Option,
with the balance being remitted to Holder.
B. New Options. In the event that a Holder pays the exercise
price of his Option, in whole or in part, with previously owned shares of Stock,
pursuant to the rules specified above, then, if and to the extent approved by
the Committee, in addition to the shares of Stock purchased pursuant to the
Option exercise, such Holder shall also receive a new Option, subject to the
terms and conditions set forth below and in the Holder's individual Stock Option
Agreement. Upon exercise of the Option with payment in the form of either
shares of Stock or a combination of cash and shares of Stock, the Committee may,
in its sole and absolute discretion, grant the Holder a new Option for shares
of Stock equal to the number of shares that were delivered by the Holder to
Company to pay, in whole or in part, the exercise price of the previous Option.
The exercise price of the new Option shall be equal to at least 100% of the Fair
Market Value per share of the Stock on the date of the exercise of the previous
Option. Provided, however, the new Option cannot be exercised by the Holder
until the later of: (1) the exercisability dates specified in the individual
Option Agreement; or (2) six (6) months after the date of grant. As a further
condition on the exercisability of the new Option, the shares of Stock received
by the Holder upon exercise of his or her previous Option must be held by the
Holder for at least six (6) months prior to any sale of such shares by the
Holder. Any sale of such shares by a Holder prior to the expiration of the six
(6) month holding period shall render the new Option non-exercisable. Nothing
in this paragraph shall prevent the Committee from granting a Holder another new
Option in the future when the previous new Option is exercised by the Holder
with the payment of previously owned shares of Stock.
C. Withholding.
1. General. The Committee may, in its discretion, require
a Holder to pay to Company at the time of exercise of an Option (or portion
thereof) the amount that Company deems necessary to satisfy its obligation to
withhold Federal, state, or local income or other taxes incurred by reason of
the exercise. Upon the exercise of an Option requiring tax withholding, a
Holder may make a written request to have shares of stock withheld by Company
from the shares otherwise to be received. The number of shares so withheld
shall have an aggregate Fair Market Value on the date of exercise sufficient to
satisfy the applicable withholding taxes. The acceptance of any such request
by a Holder shall be at the sole discretion of the Committee, including, if
deemed necessary by the Committee, approval by the Securities and Exchange
Commission and the satisfaction of any additional requirements necessary to
obtain such approval.
2. Additional Sec. 16b Requirements. Currently, with respect
to Option holders subject to liability under Section 16b of the Act, such
additional requirements include the following: (1) any previously owned shares
of Stock used to satisfy the withholding obligation must have been held by the
taxpayer for at least six (6) months, and any Option shares otherwise issuable
hereunder to be withheld to satisfy such obligations may be so withheld only if
both the exercise of the Option and the election to have shares withheld are
made at least six (6) months after the date of grant; (2) the Option holder's
election must be made: (a) at least six (6) months less one day prior to the
date on which the option exercise becomes taxable, or (b) within a 10-day
"window period" beginning on the third business day following the release of
Company's annual or quarterly financial reports and ending on the twelfth day
thereafter (but in no event later than the date the option exercise becomes
taxable); (3) Company has been subject to the Act's reporting requirements for
more than a year and has filed all reports and statements required to be filed
pursuant to Section 13 of the Act; (4) Company regularly issues quarterly or
annual summary statements of sales and earnings; (5) all members of the
Committee administering the Plan with respect to Option holders subject to
liability under Section 16b of the Act are "disinterested" in accordance with
Rule 16b-3 promulgated under the Act; (6) the Committee will be empowered to
consent to or disapprove an Option holder's withholding election; and (7) any
withholding election will be required to be irrevocable.
Sec. 6:4. Terms, Time of Exercise, and Transferability of Options.
A. Decrease in Term of Option. In addition to such other terms
and conditions as may be included in a particular Agreement granting an Option,
an Option shall be exercisable during a Holder's lifetime only by him or her or
by his or her guardian or legal representative (or assignee after a permitted
assignment). An Incentive Stock Option shall not be transferrable other than
by will or by the laws of descent and distribution. A non-statutory stock
option shall not be transferrable other than by will or the laws of descent and
distribution or to a qualified charity or a member of the Holder's family. For
this purpose, a "qualified charity" shall mean an organization described in
Section 170(c) of the Internal Revenue Code of 1986, as amended. Each Option
shall also be subject to the following terms and conditions (except to the
extent a Holder's Agreement otherwise provides):
1. Termination of Employment or Directorship.
(a) Voluntary Termination. If a Holder ceases to
be employed by at least one of the employers in the group of employers
consisting of Company and its Affiliates because the Holder voluntarily
terminates his or her employment with such group of employers and the Holder
does not remain or thereupon become a director of Company or one or more of its
Affiliates, or if a Holder ceases to be a director of at least one of the
corporations in the group of corporations consisting of Company and its
Affiliates and the Holder does not remain or thereupon become an employee of
Company or one or more of its Affiliates, the portion (if any) of an Option that
remains unexercised, including that portion (if any) that pursuant to the
Agreement is not yet exercisable, as of the date of the Holder's termination of
employment or ceasing to be a director, whichever occurs later, shall terminate
and cease to be exercisable as of such date (or ninety [90] days prior thereto
if the Holder elected to exercise his or her Option in anticipation of such
termination [to be determined in the sole discretion of the Committee]).
(b) Termination for Cause. If a Holder ceases to
be employed by at least one of the employers in the group of employers
consisting of Company and its Affiliate because any of such entities terminates
the Holder's employment for cause, the portion (if any) of an Option that
remains unexercised, including that portion (if any) that pursuant to the
Agreement is not yet exercisable, at the time of the Holder's termination of
employment, shall terminate and cease to be exercisable immediately upon such
termination (or ninety [90] days prior thereto if the Holder elected to exercise
his or her Option in anticipation of such termination [to be determined in the
sole discretion of the Committee]). A Holder's employment shall be deemed
terminated "for cause" if terminated by the Board of Directors of Company (or
the board of directors of an Affiliate) because of incompetence,
insubordination, dishonesty, other acts detrimental to the interest of Company
and/or its Affiliates, or any material breach by the Holder of any employment,
nondisclosure, noncompetition, or other contract with Company and/or one of its
Affiliates. Whether "cause" exists shall be determined by such Board of
Directors in its sole discretion and in good faith. The exercise of an option
in anticipation of a termination for cause shall be null and void.
(c) Termination Without Cause. If a Holder ceases
to be employed by at least one of the employers in the group of employers
consisting of Company and its Affiliates because one or more of such entities
terminates the employment of the Holder for otherwise than for "cause," and the
Holder does not remain or thereupon become a director of Company and/or one or
more of its Affiliates, the Holder shall have the right for thirty (30) days
following such termination to exercise the Option with respect to that portion
thereof that has become exercisable pursuant to Holder's Agreement as of the
date of such termination, and thereafter the Option shall terminate and cease
to be exercisable.
2. Disability. If a Holder ceases to be employed by at
least one of the employers in the group of employers consisting of Company and
its Affiliates by reason of disability (as defined in Sec. 22(e)(3) of the Code)
and does not remain or thereupon become a director of Company or one or more of
its Affiliates, or if the Holder ceases by reason of such disability to be a
director of at least one of the corporations in the group of corporations
consisting of Company and its Affiliates, the Holder shall have the right for
ninety (90) days after the date of termination of employment with, or cessation
of directorship of, such group of employers by reason of disability, whichever
occurs later, to exercise an Option to the extent such Option is exercisable on
the date of his or her termination of employment, and thereafter the Option
shall terminate and cease to be exercisable.
3. Death. If a Holder dies while in the employ of Company
or an Affiliate, or dies while a director of Company or an Affiliate, his or her
Option shall be exercisable by his or her legal representatives, legatees, or
distributees for six (6) months following the date of the Holder's death to the
extent such Option is exercisable on the Holder's date of death, and thereafter
the Option shall terminate and cease to be exercisable.
B. Term of Option. Notwithstanding any other provision of this
Plan, including the provisions of Subsection A above, no Incentive Stock Option
may be exercised after the expiration of ten (10) years from the date it was
granted (or the period specified in Sec. 4.1, if applicable). The Committee may
prescribe in any Agreement that the Option evidenced thereby may be exercised
in full or in part as to any number of shares subject thereto at any time or
from time to time during the term of the Option, or in such installments at such
times during said term as the Committee may prescribe. Except as provided above
and unless otherwise provided in any Agreement, an Option may be exercised at
any time or from time to time during the term of the Option. Such exercise may
be as to any or all whole (but no fractional) shares which have become
purchasable under the Option.
C. Issuance of Stock Certificates. Within a reasonable time, or
such time as may be permitted by law, after Company receives written notice that
the Holder has elected to exercise all or a portion of an Option, such notice
to be accompanied by payment in full of the aggregate exercise price of the
number of shares purchased, Company shall issue and deliver a certificate
representing the shares acquired as a result of the exercise and any other
amounts payable in consequence of such exercise. In the event that a Holder
exercises both an Incentive Stock Option, or portion thereof, and a Nonstatutory
Stock Option, or a portion thereof, separate Stock certificates shall be issued,
one for the Stock subject to the Incentive Stock Option and one for the Stock
subject to the Nonstatutory Stock Option. The number of shares of Stock
transferrable due to an exercise of an Option under this Plan shall not be
increased due to the passage of time, except as may be provided in an Agreement.
D. Issuance in Compliance With Securities Laws. Nothing herein
or in any Option granted hereunder shall require Company to issue any shares
upon exercise of any Option if such issuance would, in the opinion of counsel
for Company, constitute a violation of the Securities Act of 1933, as amended,
or any similar or superseding statute or statutes, or any other applicable
statute or regulation, as then in effect.
E. Investment Legend. At the time of exercise of an Option,
Company may, as a condition precedent to the exercise of such Option, require
from the Holder of the Option (or in the event of his or her death, his or her
legal representatives, legatees, or distributees) such written representations,
if any, concerning his or her intentions with regard to the retention or
disposition of the shares being acquired by exercise of such Option and such
written covenants and agreements, if any, as to the manner of disposal of such
shares as, in the opinion of counsel to Company, may be necessary to ensure that
any disposition by such Holder (or in the event of his or her death, his or her
legal representatives, legatees, or distributees), will not involve a violation
of the Securities Act of 1933, as amended, or any similar or superseding statute
or statutes, or any other applicable state or federal statute or regulation, as
then in effect. Certificates for shares of Stock, when issued, may have the
following legend, or statements of other applicable restrictions, endorsed
thereon, and may not be immediately transferable:
The shares of Stock evidenced by this certificate have been
issued to the registered owner in reliance upon written
representations that these shares have been purchased for
investment. These shares may not be sold, transferred, or
assigned unless, in the opinion of Company and its legal
counsel, such sale, transfer, or assignment will not be in
violation of the Securities Act of 1933, as amended, applicable
rules and regulations of the Securities and Exchange Commission,
and any applicable state securities laws.
Sec. 6:5. Limitation on Aggregate Value of Shares That May Become First
Exercisable During Any Calendar Year Under an Incentive Stock Option. With
respect to any Incentive Stock Option granted under this Plan, to the extent
that the aggregate Fair Market Value of shares of Stock exceed $100,000, then
such excess over $100,000 shall not be considered as subject to an Incentive
Stock Option, but rather shall be considered as subject to a Nonstatutory Stock
Option. This rule shall be applied by taking shares of Stock subject to
Incentive Stock Options that are purchasable for the first time in the calendar
year into account in the order in which such Incentive Stock Options were
granted.
Sec. 6:6. Adjustments Upon Changes in Capitalization, Merger, Etc.
A. Method of Adjustment. In the event of any change in the number
of outstanding shares of Stock effected without receipt of consideration
therefor by Company (other than as a result of the conversion of Company's Class
B Common Stock into Class A Common Stock) by reason of a stock dividend, or
split, combination, exchange of shares or other recapitalization, merger, or
otherwise, in which Company is the surviving corporation, the aggregate number
and class of the reserved shares, the number and class of shares subject to each
outstanding Option, and the exercise price of each outstanding Option shall be
automatically adjusted to accurately and equitably reflect the effect thereon
of such change (provided that any fractional share resulting from such
adjustment may be eliminated). In the event of a dispute concerning such
adjustment, the decision of the Committee shall be conclusive. The number of
reserved shares or the number of shares subject to any outstanding Option shall
be automatically reduced by any fraction included therein which results from any
adjustment made pursuant hereto.
B. Termination of Option. The following provisions shall apply
unless a Holder's Agreement provides otherwise. A dissolution or liquidation
of Company; a sale of all or substantially all of the assets of Company where
it is contemplated that within a reasonable period of time thereafter Company
will either be liquidated or converted into a nonoperating company or an
extraordinary dividend will be declared resulting in a partial liquidation of
Company (but in all cases only with respect to those employees whom it is
anticipated will lose their employment with Company and its Affiliates as a
result of such sale of assets); a merger or consolidation (other than a merger
effecting a reincorporation of Company in another state or any other merger or
a consolidation in which the shareholders of the surviving corporation and their
proportionate interests therein immediately after the merger or consolidation
are substantially identical to the shareholders of Company and their
proportionate interests therein immediately prior to the merger or
consolidation) in which Company is not the surviving corporation (or survives
only as a subsidiary of another corporation in a transaction in which the
shareholders of the parent of Company and their proportionate interests therein
immediately after the transaction are not substantially identical to the
shareholders of Company and their proportionate interests therein immediately
prior to the transaction) shall cause every Option then outstanding to
terminate, but the Holders of each such then outstanding Option shall, in any
event, have the right, immediately prior to such dissolution, liquidation, sale
of assets, merger, consolidation, or transaction, to exercise each such Option,
to the extent not theretofore exercised, without regard to the determination as
to the periods and installments of exercisability made pursuant to a Holder's
Agreement if (and only if) such Options have not at that time expired or been
terminated.
Sec. 6:7. Rights as a Shareholder. A Holder shall have no right as a
shareholder with respect to any shares covered by his or her Option until a
certificate representing such shares is issued to him or her. No adjustment
shall be made for dividends (ordinary or extraordinary, whether in cash or other
property) or distributions or other rights for which the record date is prior
to the date such certificate is issued (except as provided in Sec. 6.6. hereof).
Sec. 6:8. Modification, Extension, and Renewal of Options. Subject to
the terms and conditions of and within the limitations of the Plan, the
Committee may modify, extend, or renew outstanding Options granted under the
Plan, or accept the surrender of Options outstanding hereunder (to the extent
not theretofore exercised) and authorize the granting of new Options hereunder
in substitution therefor (to the extent not theretofore exercised). The
Committee may not, however, without the consent of the Holder, modify any
outstanding Incentive Stock Options so as to specify a lower exercise price or
accept the surrender of outstanding Incentive Stock Options and authorize the
granting of new Options in substitution therefor specifying a lower option
price. In addition, no modification of an Option granted hereunder may, without
the consent of the Holder, alter or impair any rights or obligations under any
Option theretofore granted hereunder to such Holder under the Plan, except as
may be necessary with respect to Incentive Stock Options to satisfy the
requirements of Sec. 422 of the Code.
Sec. 6:9. Furnish Information. Each Holder shall furnish to Company
all information requested by Company to enable it to comply with any reporting
or other requirements imposed upon Company by or under any applicable statute
or regulation.
Sec. 6:10. Obligation to Exercise; Termination of Employment. The
granting of an Option hereunder shall impose no obligation upon the Holder to
exercise the same or any part thereof. In the event of a Holder's termination
of employment with Company or an Affiliate, the unexercised portion of an Option
granted hereunder shall terminate in accordance with Sec. 6.4 hereof.
Sec. 6:11. Agreement Provisions. The Agreements authorized under the
Plan shall contain such provisions in addition to those required by the Plan
(including, without limitation, restrictions or the removal of restrictions upon
the exercise of the Option and the retention or transfer of shares thereby
acquired) as the Committee deems advisable. Each Agreement shall identify the
Option evidenced thereby as an Incentive Stock Option or Nonstatutory Stock
Option, as the case may be, and no Agreement shall cover both an Incentive Stock
Option and Nonstatutory Stock Option. Except as provided by Subsection B of
Sec. 6.6, each Agreement relating to an Incentive Stock Option granted hereunder
shall contain such limitations and restrictions upon the exercise of the
Incentive Stock Option to which it relates as is necessary for the Incentive
Stock Option to which such Agreement relates to constitute an incentive stock
option, as defined in Sec. 422 of the Code.
Article VII
Duration of Plan
No Incentive Stock Options may be granted hereunder after the date that is
ten (10) years from the earlier of: (i) the date this Plan is adopted by the
Board of Directors; or (ii) the date this Plan is approved by Company's
shareholders. In addition, with respect to shares of Stock not currently
covered by an outstanding Option, this Plan may be terminated at any time by the
Board of Directors.
Article VIII
Amendment of Plan
The Board of Directors may, insofar as permitted by law, with respect to
any shares at the time are not subject to Options, suspend or discontinue the
Plan or revise or amend it in any respect whatsoever; provided, however, that,
without the approval of the holders of a majority of the outstanding shares of
voting stock of all classes of Company, no such revision or amendment shall:
(a) change the number of shares of the Stock subject to the Plan, (b) change the
designation of the class of employees eligible to receive Options, (c) decrease
the price at which Incentive Stock Options may be granted, (d) remove the
administration of the Plan from the Committee, or (e) without the consent of the
affected Holder, cause the Incentive Stock Options granted hereunder and
outstanding at such time that satisfied the requirements of Sec. 422 of the Code
to no longer satisfy such requirements.
Article IX
General
Sec. 9:1. Application of Funds. The proceeds received by Company from
the sale of shares pursuant to Options shall be used for general corporate
purposes.
Sec. 9:2. Right of Company and Affiliates to Terminate Employment.
Nothing contained in the Plan, or in any Agreement, shall confer upon any Holder
the right to continue in the employ of Company or any Affiliate, or interfere
in any way with the rights of Company or any Affiliate to terminate his or her
employment at any time.
Sec. 9:3. No Liability for Good Faith Determinations. Neither the
members of the Board of Directors nor any member of the Committee shall be
liable for any act, omission, or determination taken or made in good faith with
respect to the Plan or any Option granted under it, and members of the Board of
Directors and the Committee shall be entitled to indemnification and
reimbursement by Company in respect of any claim, loss, damage, or expense
(including attorneys' fees, the costs of settling any suit, provided such
settlement is approved by independent legal counsel selected by Company, and
amounts paid in satisfaction of a judgment, except a judgment based on a finding
of bad faith) arising therefrom to the full extent permitted by law and under
any directors and officers liability or similar insurance coverage that may from
time to time be in effect.
Sec. 9:4. Information Confidential. As partial consideration for the
granting of each Option hereunder, the Holder shall agree with Company that he
or she will keep confidential all information and knowledge that he or she has
relating to the manner and amount of his participation in the Plan; provided,
however, that such information may be disclosed as required by law and may be
given in confidence to the Holder's spouse, tax, and financial advisors, or to
a financial institution to the extent that such information is necessary to
secure a loan. In the event any breach of this promise comes to the attention
of the Committee, it shall take into consideration such breach, in determining
whether to recommend the grant of any future Option to such Holder, as a factor
militating against the advisability of granting any such future Option to such
individual.
Sec. 9:5. Other Benefits. Participation in the Plan shall not preclude
the Holder from eligibility in any other stock option plan of Company or any
Affiliate or any old age benefit, insurance, pension, profit sharing retirement,
bonus, or other extra compensation plans which Company or any Affiliate has
adopted, or may, at any time, adopt for the benefit of its employees.
Sec. 9:6. Execution of Receipts and Releases. Any payment of cash or
any issuance or transfer of shares of Stock to the Holder, or to his or her
legal representative, heir, legatee, or distributee, in accordance with the
provisions hereof, shall, to the extent thereof, be in full satisfaction of all
claims of such persons hereunder. The Committee may require any Holder, legal
representative, heir, legatee, or distributee, as a condition precedent to such
payment, issuance, or transfer, to execute a release and receipt therefor in
such form as it shall determine.
Sec. 9:7. No Guarantee of Interests. Neither the Committee nor Company
guarantees the Stock of Company from loss or depreciation.
Sec. 9:8. Payment of Expenses. All expenses incident to the
administration, termination, or protection of the Plan, including, but not
limited to, legal and accounting fees, shall be paid by Company or its
Affiliates.
Sec. 9:9. Company Records. Records of Company or its Affiliates
regarding the Holder's period of employment, termination of employment and the
reason therefor, leaves of absence, re-employment, and other matters shall be
conclusive for all purposes hereunder, unless determined by the Committee to be
incorrect.
Sec. 9:10. Information. Company and its Affiliates shall, upon request
or as may be specifically required hereunder, furnish or cause to be furnished,
all of the information or documentation which is necessary or required by the
Committee to perform its duties and functions under the Plan.
Sec. 9:11. No Liability of Company. Company assumes no obligation or
responsibility to the Holder or his or her personal representatives, heirs,
legatees, or distributees for any act of, or failure to act on the part of, the
Committee.
Sec. 9:12. Company Action. Any action required of Company shall be by
resolution of its Board of Directors or by a person authorized to act by
resolution of the Board of Directors.
Sec. 9:13. Severability. If any provision of this Plan is held to be
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining provisions hereof, but such provision shall be fully severable,
and the Plan shall be construed and enforced as if the illegal or invalid
provision had never been included herein.
Sec. 9:14. Notices. Whenever any notice is required or permitted
hereunder, such notice must be in writing and personally delivered or sent by
mail. Any notice required or permitted to be delivered hereunder shall be
deemed to be delivered on the date on which it is personally delivered, or,
whether actually received or not, on the third business day after it is
deposited in the United States mail, certified or registered, postage prepaid,
addressed to the person who is to receive it at the address which such person
has theretofore specified by written notice delivered in accordance herewith.
Company or a Holder may change, at any time and from time to time, by written
notice to the other, the address which it or he had theretofore specified for
receiving notices. Until changed in accordance herewith, Company and each
Holder shall specify as its and his or her address for receiving notices the
address set forth in the Agreement pertaining to the shares to which such notice
relates.
Sec. 9:15. Waiver of Notice. Any person entitled to notice hereunder
may waive such notice.
Sec. 9:16. Successors. The Plan shall be binding upon the Holder, his
or her heirs, legatees, and legal representatives, upon Company, its successors,
and assigns, and upon the Committee, and its successors.
Sec. 9:17. Headings. The titles and headings of Sections and
Subsections are included for convenience of reference only and are not to be
considered in construction of the provisions hereof.
Sec. 9:18. Governing Law. All questions arising with respect to the
provisions of the Plan shall be determined by application of the laws of the
State of Delaware except to the extent Delaware law is preempted by federal law.
Questions arising with respect to the provisions of an Agreement that are
matters of contract law shall be governed by the laws of the state specified in
the Agreement, except to the extent Delaware corporate law conflicts with the
contract law of such state, in which event Delaware corporate law shall govern.
The obligation of Company to sell and deliver Stock hereunder is subject to
applicable laws and to the approval of any governmental authority required in
connection with the authorization, issuance, sale, or delivery of such Stock.
Sec. 9:19. Word Usage. Words used in the masculine shall apply to the
feminine where applicable, and wherever the context of this Plan dictates, the
plural shall be read as the singular and the singular as the plural.
Sec. 9:20. Remedies. Company may recover from a Holder reasonable
attorneys' fees incurred in connection with the enforcement of the terms and
provisions of the Plan and any Agreement whether by an action to enforce
specific performance or for damages for its breach or otherwise.
Article X
Approval of Shareholders
The Plan shall be deemed to have taken effect on the date it was adopted
by the Board of Directors. However, if this Plan is not approved by the holders
of a majority of the outstanding shares of Company's Class A and Class B Common
Stock at the Annual Meeting of Shareholders scheduled to be held on April 29,
2004, any Options granted hereunder shall be null, void, and of no force and
effect as of their grant date.
IN WITNESS WHEREOF, Supreme Industries, Inc., acting by and through its
officers hereunto duly authorized has executed this instrument to be effective
the 23rd day of January, 2004.
SUPREME INDUSTRIES, INC.
By: /s/ Herbert M. Gardner
Herbert M. Gardner,
Chairman of the Board
Exhibit 5.1
Opinion of Counsel
LAW, SNAKARD & GAMBILL
A PROFESSIONAL CORPORATION
1600 WEST 7TH STREET, SUITE 500
FORT WORTH, TEXAS 76102
AREA (817) 335-7373
FACSIMILE 332-7473
DIRECT DIAL NUMBER
(817) 878-6350
August 18, 2004
Supreme Industries, Inc.
P.O. Box 463
2581 E. Kercher Road
Goshen, IN 46528
Re: Form S-8 Registration Statement
Gentlemen:
We have acted as counsel to Supreme Industries, Inc., a Delaware
corporation (the "Company"), in connection with the proposed offering of the
following shares of the Company's Class A Common Stock, $.10 par value (the
"Common Stock"): 600,000 shares of Common Stock issuable upon exercise of
options not yet granted under the Company's 2004 Stock Option Plan (the "Plan").
All of the above shares of Common Stock are offered pursuant to a
Registration Statement on Form S-8 (the "Registration Statement") to which this
opinion is being filed as an exhibit.
In our capacity as counsel to the Company, we have examined and relied upon
the Company's Certificate of Incorporation and Bylaws, as amended, the Plan, and
the records of corporate proceedings with respect to the approval of the
proposed registration and the offering and sale of the shares of Common Stock
thereunder, and have made such other investigations as we have deemed necessary
and prudent for the purposes of the opinions expressed herein.
Based upon the foregoing, but subject to the penultimate paragraph of this
letter, we are of the opinion that:
(1) All of the above described shares of Common Stock have been duly
authorized;
(2) When (a) the Registration Statement has become effective; (b) the
applicable provisions of the securities laws of the various states
have been complied with; and (c) the 600,000 shares issuable upon
exercise of options not yet granted under the Plan have been issued
and paid for in accordance with (i) the terms and conditions set
forth in the Registration Statement and (ii) the terms and
conditions in the Plan and related documents entered or to be
entered into between the Company and a particular optionee, then,
upon delivery of such shares of Common Stock, such Common Stock will
be legally issued, fully paid, and nonassessable.
This opinion is limited to the matters expressly set forth herein, and no
opinion is implied or may be inferred beyond the matters expressly so stated.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the aforesaid Registration Statement and
further consent to the use of our name wherever appearing in the Registration
Statement and any subsequent amendments thereto.
Respectfully Submitted,
/s/ Law, Snakard & Gambill, P.C.
LAW, SNAKARD & GAMBILL, P.C.
Exhibit 23.1
[CONTAINED IN EXHIBIT 5.1]
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of our report dated January 30, 2004 on our audits of the
consolidated financial statements and financial statement schedule of Supreme
Industries, Inc. and subsidiaries as of December 27, 2003 and December 28, 2002
and for each of the three years in the period ended December 27, 2003, which
report appears in Supreme Industries, Inc.'s Annual Report on Form 10-K for the
year ended December 27, 2003.
/s/ Crowe Chizek and Company LLC
Crowe Chizek and Company LLC
South Bend, Indiana
August 20, 2004
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors of
Supreme Industries, Inc., a Delaware corporation (the "Company"), hereby
constitutes and appoints Herbert M. Gardner and Robert W. Wilson, or either of
them, his true and lawful attorney in fact and agent, with the full power of
substitution and resubstitution, for him and in his name, place, and stead, in
any and all capacities, to sign a Registration Statement on Form S-8 and any and
all amendments (including post-effective amendments) thereto, and to file the
same, with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission for the purpose of
registering, under the Securities Act of 1933, shares of Company's Class A
common stock ("Common Stock") issuable upon the exercise of options granted
under the Company's 2004 Stock Option Plan granting unto said attorney in fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done as fully to all intents and purposes
as he may, might, or could do in person, hereby ratifying and confirming all
that said attorney in fact and agent may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned have executed this Power of Attorney
effective the 18th day of August, 2004.
SIGNATURES TITLE
/s/ Herbert M. Gardner Chairman of the Board
Herbert M. Gardner and President, Director
(Principal Executive Officer)
/s/ William J. Barrett Secretary, Assistant
William J. Barrett Treasurer, Director
/s/ Omer G. Kropf Executive Vice President
Omer G. Kropf and Director
/s/ Robert W. Wilson Executive Vice President,
Robert W. Wilson Treasurer, Chief Financial Officer,
Assistant Secretary, and Director
(Principal Financial and
Accounting Officer)
/s/ Rice M. Tilley, Jr. Assistant Secretary,
Rice M. Tilley, Jr. Director
/s/ Robert J. Campbell Director
Robert J. Campbell
/s/ Thomas Cantwell Director
Thomas Cantwell
/s/ Mark C. Neilson Director
Mark C. Neilson
/s/ H. Douglas Schrock Director
H. Douglas Schrock