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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
FOODARAMA SUPERMARKETS, INC.
(Exact name of registrant as specified in its charter)
New Jersey 21-0717108
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Building 6, Suite 1
922 Highway 33
Freehold, New Jersey 07728
(Address, including zip code, of registrant's principal executive offices)
FOODARAMA SUPERMARKETS, INC. 2001 STOCK INCENTIVE PLAN
(Full title of the plan)
MICHAEL SHAPIRO
Senior Vice President and Chief Financial Officer
Foodarama Supermarkets, Inc.
Building 6, Suite 1
922 Highway 33
Howell, New Jersey 07731
(732) 462-4700
(Name, address and telephone number, including area code of agent for service)
Copies to:
JOHN A. AIELLO, ESQ.
Giordano, Halleran & Ciesla
A Professional Corporation
P.O. Box 190
125 Half Mile Road
Middletown, New Jersey 07748
1
CALCULATION OF REGISTRATION FEE
--------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Amount to be offering aggregate Amount of
Title of securities to registered price per offering price registration
be registered (2) share (3) (3) fee (4) (5)
--------------------------------------------------------------------------------
Common Stock,
$1.00 par value, of
Foodarama
Supermarkets, Inc. (1) 65,000 $28.10 $28.10 $148
--------------------------------------------------------------------------------
Options to purchase
Common Stock, $1.00
par value, of
Foodarama
Supermarkets, Inc. (1) 65,000 --- --- ---
--------------------------------------------------------------------------------
TOTAL REGISTRATION FEE $148
--------------------------------------------------------------------------------
(1) Under the Foodarama Supermarkets, Inc. 2001 Stock Incentive Plan, as
amended (the "2001 Plan").
(2) In accordance with Rule 416(c) under the Securities Act of 1933, this
registration statement also covers such additional indeterminate numbers
of shares as may become issuable pursuant to anti-dilution provisions of
the 2001 Plan to adjust for the occurrence of certain corporate
transactions or events including, without limitation, a stock split or
stock dividend.
(3) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended (the "Securities Act"), solely for purposes of calculating the
registration fee and based upon the average of the high and low sales
prices of the Common Stock as reported on the American Stock Exchange on
September 2, 2003.
(4) Based on 65,000 additional shares subject to the 2001 Plan, as provided in
the General Instructions "E. Registration of Additional Securities."
(5) In accordance with Rule 457(p), a previously paid filing fee of $227 is
being offset against the filing fee currently due. The previously paid
filing fee was submitted in connection with Post-Effective Amendment No. 1
to Registration Statement on Form S-8, file number 333-96551, filed for
the purpose of amending Registration Statement on Form S-8, file number
333-65328. Foodarama Supermarkets, Inc. was the registrant under the
previously filed registration statement, which was initially filed on July
18, 2001, and amended by Post-Effective Amendment No. 1 to Registration
Statement on Form S-8, filed on July 16, 2002. An application for
withdrawal of Post-Effective Amendment No. 1 to Registration Statement on
Form S-8 is filed simultaneously herewith.
EXPLANATORY NOTE
This Registration Statement on Form S-8 has been filed with the Securities
and Exchange Commission (the "Commission") for the purpose of registering
additional securities of the same class as the securities registered pursuant to
the Registration Statement on Form S-8 filed by Foodarama Supermarkets, Inc.
("the Company" or the "Registrant") on July 18, 2001, file number 333-65328 (the
"Registration Statement"). The contents of the Registration Statement are
incorporated herein by reference. This Registration Statement covers offers and
sales by certain shareholders of shares of Common Stock, par value $1.00 per
share (the "Common Stock") of the Company, issued by the Company to certain
employees of the Company under the Foodarama Supermarkets, Inc. 2001 Stock
Incentive Plan, as amended (the "2001 Plan").
PART I
Not required as provided by the General Instructions "E. Registration of
Additional Securities."
PART II
Items 1 through 7. Not required as provided by the General Instructions "E.
Registration of Additional Securities."
2
Item 8. Exhibits.
Exhibit Number Description
-------------- -----------
5 Opinion and Consent of Giordano, Halleran &
Ciesla, P.C.
10 Foodarama Supermarkets, Inc. 2001 Stock
Incentive Plan, as amended
23.01 Consent of Amper, Politziner & Mattia, P.C.
23.02 Consent of Giordano, Halleran & Ciesla, P.C.
(filed with Exhibit 5).
24 Power of Attorney (filed with signature pages).
Item 9. Not required as provided by the General Instructions "E. Registration
of Additional Securities."
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Township of Howell, State of New Jersey, on the 4th day
of September, 2003.
FOODARAMA SUPERMARKETS, INC.
(Registrant)
By: /s/ Joseph J. Saker
---------------------------------------
Joseph J. Saker
Chairman of the Board
3
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Joseph J. Saker and Richard J. Saker and each of
them, his true and lawful attorney-in-fact and agent for him and in his name,
place and stead, in any and all capacities to sign any and all amendments
(including post-effective amendments) to this registration statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, 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 in and about the
premises, as fully to all intents and purposes as they 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.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Joseph J. Saker Joseph J. Saker September 4, 2003
------------------------- Chairman of the Board
/s/ Richard J. Saker Richard J. Saker September 4, 2003
------------------------- President and
Secretary
/s/ Charles T. Parton Charles T. Parton September 4, 2003
------------------------- Director
/s/ Albert A. Zager Albert A. Zager September 4, 2003
------------------------- Director
/s/ Robert H. Hutchins Robert H. Hutchins September 4, 2003
------------------------- Director
/s/ Michael Shapiro Michael Shapiro September 4, 2003
------------------------- Senior Vice
President, Chief
Financial Officer and
Treasurer
/s/ Thomas H. Flynn Thomas H. Flynn September 4, 2003
------------------------- Chief Accounting
Officer
4
EXHIBIT INDEX
Exhibit Number Description
Opinion and Consent of Giordano,
5 Halleran & Ciesla, P.C.
Foodarama Supermarkets, Inc. 2001
10 Stock Incentive Plan, as amended
Consent of Amper, Politziner &
23.01 Mattia, P.C.
Consent of Giordano, Halleran &
23.02 Ciesla, P.C. (filed with Exhibit 5)
Power of Attorney (filed with
24 signature pages)
5
EXHIBIT 5
GIORDANO, HALLERAN & CIESLA
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW JOHN C. GIORDANO, JR. MICHAEL A. BRUNO
JOHN R. HALLERAN KURT E. ANDERSON
PLEASE RESPOND TO: FRANK R. CIESLA PAUL T. COLELLA OF
U.S. POSTAL SERVICE ADDRESS: BERNARD J. BERRY, JR. GERALD P. LALLY COUNSEL:
POST OFFICE BOX 190 THOMAS A. PLISKIN SEAN E. REGAN S. THOMAS
MIDDLETOWN, NEW JERSEY 07748 JOHN A. AIELLO JAY S. BECKER GAGLIANO
MICHAEL J. GROSS TIMOTHY D.LYONS
OR: JOHN A. GIUNCO J. SCOTT ANDERSON
HAND DELIVERY AND OVERNIGHT EDWARD S. RADZELY PETER B. BENNETT
SERVICE ADDRESS: SHARLENE A. HUNT LAURENCE I.ROTHSTEIN
125 HALF MILE ROAD PHILIP D FORLENZA ROBERT J.FEINBERG JOHN C.
RED BANK, NEW JERSEY 07701 MICHAEL J. CANNING |_| PATRICK S.CONVERY GIORDANO
PAUL H. SCHNEIDER MICHAEL A. PANE, JR.
(732) 741-3900 ELIZABETH CHRISTIAN DERRICK A. SCENNA
FAX: (732) 224-6599 ANDREW B. ROBINS (1921-1989)
www.ghclaw.com ----- -----
|_| CERTIFIED
BY THE SUPREME
. COURT OF
NEW JERSEY
AS A CIVIL
TRIAL ATTORNEY
LAURA N. ANDERSON LISA MICELI WATERS
PAMELA J.KNAUER JAYNE M. WESLER
STEVEN M.DALTON GREGORY BANACKI, JR.
TARA L. BENSON MICHAEL N.DASARO
CATHERINE J. RICE ROBERT E. BRENNAN, JR.
MONICA J. CERES BRIAN H. HARVEY
CRAIG D. GOTTILLA
DIRECT DIAL NUMBER DIRECT E-MAIL CLIENT/MATTER NO.
(732) 741-3900 info@ghclaw.com 09808-0072
September 4, 2003
Foodarama Supermarkets, Inc.
922 Highway 33
Building 6, Suite 1
Freehold, New Jersey 07728
Re: Registration Statement on Form S-8 relating to the
Foodarama Supermarkets, Inc. 2001 Stock Incentive Plan.
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, filed on this date by
Foodarama Supermarkets, Inc. (the "Company") with the Securities and Exchange
Commission, to which this opinion letter is attached as an exhibit, for the
registration of 65,000 additional shares of Foodarama Supermarkets, Inc. Common
Stock, $1.00 par value per share ("Common Stock"), which have been reserved for
issuance under the Foodarama Supermarkets, Inc. 2001 Stock Incentive Plan, as
amended (the "2001 Stock Plan").
We have examined the original or a photostatic or certified copy of such
documents, records, and other information as we deemed relevant and necessary as
the basis for the opinion set forth below. In such examination, we have assumed,
the authenticity of each document submitted to us as an original, the conformity
to the original document of each document submitted to us as a certified copy or
photostatic copy, and the authenticity of the original of each such latter
document. In addition, we have assumed, in rendering the opinion set forth
below, that any stock certificate evidencing any shares of the Company's Common
Stock registered by this Registration Statement, when issued under the 2001
Stock Plan, will have been duly executed on behalf of the Company and will have
been countersigned by the Company's transfer agent and registered by the
Company's registrar prior to its issuance.
On the basis of our examination mentioned above, subject to the
assumptions stated and relying on statements of fact contained in the documents
that we have examined, we are of the opinion that the shares of Common Stock
registered pursuant to the Registration Statement have been duly and validly
authorized and reserved for issuance and that upon the issuance of such shares
in accordance with the provisions of the 2001 Stock Plan, the shares of Common
Stock will be validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not thereby admit that we are within
the category of persons whose consent is required by Section 7 of the Securities
Act of 1933, as amended, or the General Rules and Regulations of the Securities
and Exchange Commission.
Very truly yours,
/s/ GIORDANO, HALLERAN & CIESLA
A Professional Corporation
PJK/me
2
EXHIBIT 10
Second Amendment to
Foodarama Supermarkets, Inc.
2001 STOCK INCENTIVE PLAN
This Second Amendment ("Amendment") to the Foodarama Supermarkets, Inc.
2001 Stock Incentive Plan (as amended, the "Plan"), is made as of the 29th day
of August, 2003, pursuant to Section 8(a) of the Plan. Capitalized terms used
and not defined herein shall have the meanings ascribed to such terms by the
Plan.
WHEREAS, Section 8(a) of the Plan provides that the Board may amend the
Plan, provided that no amendment shall be made without the approval of the
Company's shareholders to the extent such approval is required by law, Agreement
or the rules of any stock exchange or market on which the Stock is listed; and
WHEREAS, on April 30, 2003, the Board of Directors approved the terms of
a settlement of certain litigation involving the Company, its directors and
executive officers, which terms provided, among other things, that the Plan be
amended so that the maximum number of shares that can be awarded to any
individual thereunder shall be 50,000, and that the exercise price of any
options or other stock-based compensation granted thereunder shall be equal to
the closing market price of the Company's Stock on the date of grant; and
WHEREAS, no further approval of the Company's shareholders for the
proposed amendments is required by law, Agreement or the rules of any stock
exchange or market on which the Stock is listed;
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Subparagraph (c) of the third paragraph of Section 2, "ADMINISTRATION;
ELIGIBILITY," is hereby deleted in its entirety, and replaced with the
following:
(c) to determine the number of shares of Stock to be covered by each
Award granted hereunder, not inconsistent with the terms of this
Plan;
2. Subparagraph (e) of the third paragraph of Section 2, "ADMINISTRATION;
ELIGIBILITY," is hereby deleted in its entirety, and replaced with the
following:
(e) to determine the terms and conditions, not inconsistent with the
terms of this Plan, of any Award granted hereunder (including, but
not limited to, the option price, any vesting restriction or
limitation, any vesting acceleration or forfeiture waiver and any
right of repurchase, right of first refusal or other transfer
restriction regarding any Award and the shares of Stock relating
thereto, based on such factors or criteria as the Administrator
shall determine); provided, however, that (i) for Awards subject to
payment of an exercise price, the exercise price for any Award
granted shall not be less than the Fair Market Value on the grant
date, and (ii) for Awards granted in consideration of cash, cash
equivalents, or past or future services, the value of the
consideration, as determined by the Board, shall not be less than
the Fair Market Value on the grant date;
3. Subparagraph (h) of the third paragraph of Section 2, "ADMINISTRATION;
ELIGIBILITY," is hereby deleted in its entirety, and replaced with the
following:
(h) to determine the Fair Market Value, not inconsistent with the terms
of this Plan;
4. The third paragraph of Section 3, "STOCK SUBJECT TO PLAN," is hereby deleted
in its entirety, and replaced with the following:
Subject to adjustment as provided in this Section 3, the maximum number of
shares of Stock that may be covered by Stock Options, Stock Appreciation
Rights, Stock Awards, Phantom Stock and Performance Awards in the
aggregate, granted to any one Participant for the life of the Plan shall
be fifty thousand (50,000) shares.
5. Subsection (a) of the fifth paragraph of Section 4, "STOCK OPTIONS," is
hereby deleted in its entirety, and replaced with the following:
(a) Exercise Price. The exercise price per share of Stock purchasable
under a Stock Option shall be determined by the Administrator, not
inconsistent with the terms of this Plan. The Stock Option exercise
price per share shall not be less than the Fair Market Value per
share on the date the Stock Option is granted, or if the Stock
Option is intended to qualify as an Incentive Stock Option granted
to an individual who is a Ten Percent Holder, not less than 110% of
such Fair Market Value per share.
6. The third paragraph of Section 6, "STOCK AWARDS OTHER THAN OPTIONS," is
hereby deleted in its entirety, and replaced with the following:
A Stock Award may be issued in exchange for any consideration which the
Administrator may deem appropriate in each individual instance, including,
without limitation, any one or combination of the following:
(i) cash or cash equivalents;
(ii) past services rendered to the Company or any Subsidiary or
Affiliate; or
(iii) future services to be rendered to the Company or any
Subsidiary or Affiliate (provided that, in such case, the par
value of the stock subject to such Stock Award shall be paid
in cash or cash equivalents, unless the Administrator provides
otherwise);
provided further, that the value of such consideration, as determined by
the Administrator, shall not be less than the Fair Market Value of the
Award on the grant date.
7. Subsection (d) of Section 8, "MISCELLANEOUS," is hereby deleted in its
entirety, and replaced with the following:
2
(d) Declining Market Price. In the event the Fair Market Value of the
Stock declines below the exercise price set forth in any Option, the
Committee may at any time, subject to the approval of the Board and
not inconsistent with the terms of this Plan, adjust, reduce, cancel
and re-grant any unexercised Option or take any similar action it
deems to be for the benefit of the Participant in light of the
declining fair market value of the Stock,.
8. Subparagraph (o) of Section 10, "DEFINITIONS," is hereby deleted in its
entirety, and replaced with the following:
(o) "Fair Market Value" means, as of any given date, the closing sales
price per share of the Stock on the American Stock Exchange (or the
principal stock exchange or market on which the Stock is then
traded) on the date as of which such value is being determined or
the last previous day on which a sale was reported; provided,
however, that if the Stock is not traded on a stock exchange or
market, then the Fair Market Value shall mean, as of any given date,
the price per share of the Stock determined by the Administrator
pursuant to procedures established by the Administrator.
9. Except as amended hereby, all of the terms of the Plan shall remain in full
force and effect.
IN WITNESS WHEREOF, this Second Amendment to Foodarama Supermarkets, Inc.
2001 Stock Incentive Plan is executed as of the date first written above.
FOODARAMA SUPERMARKETS, INC.
/s/ Joseph J. Saker
-----------------------------------
By Joseph J. Saker, Chairman of the
Board of Directors
3
First Amendment to
Foodarama Supermarkets, Inc.
2001 STOCK INCENTIVE PLAN
This First Amendment ("Amendment") to the Foodarama Supermarkets, Inc.
2001 Stock Incentive Plan (as amended, the "Plan"), is made as of the 8th day of
May, 2002, pursuant to Section 8(a) of the Plan. Capitalized terms used and not
defined herein shall have the meanings ascribed to such terms by the Plan.
WHEREAS, Section 8(a) of the Plan provides that the Board may amend the
Plan, provided that no amendment shall be made without the approval of the
Company's shareholders to the extent such approval is required by law, Agreement
or the rules of any stock exchange or market on which the Stock is listed; and
WHEREAS, on January 29, 2002, the Board of Directors voted that the Plan
be amended to increase the number of shares of Common Stock reserved for
issuance thereunder from 150,000 shares to 215,000 shares, an increase of 65,000
shares, subject to the approval of such amendment by the Company's shareholders;
and
WHEREAS, on May 8, 2002, the amendment proposed by the Board of Directors
was approved by a majority of the shares voting in person or by proxy at the
Company's Annual Meeting of Shareholders;
NOW, THEREFORE, the Plan is hereby amended as follows:
1. The first paragraph of Section 3, "STOCK SUBJECT TO PLAN," is hereby deleted
in its entirety, and replaced with the following:
Subject to adjustment as provided in this Section 3, the aggregate number
of shares of Stock which may be delivered under this Plan shall not exceed
two hundred fifteen thousand (215,000) shares of Stock. Stock issuable
pursuant to the Plan may be authorized and unissued shares of Stock or
shares of Stock held in treasury by the Company.
2. The third paragraph of Section 3, "STOCK SUBJECT TO PLAN," is hereby deleted
in its entirety, and replaced with the following:
Subject to adjustment as provided in this Section 3, the maximum number of
shares of Stock that may be covered by Stock Options, Stock Appreciation
Rights, Stock Awards, Phantom Stock and Performance Awards in the
aggregate, granted to any one Participant for the life of the Plan shall
be equal to one-third (1/3) of the shares reserved for delivery under the
Plan (71,667 shares as of the date of the adoption of the First Amendment
to the plan), or as otherwise determined by the Board.
3. Except as amended hereby, all of the terms of the Plan shall remain in full
force and effect.
IN WITNESS WHEREOF, this First Amendment to Foodarama Supermarkets, Inc.
2001 Stock Incentive Plan is executed as of the date first written above.
FOODARAMA SUPERMARKETS, INC.
/s/ Joseph J. Saker
----------------------
By Joseph J. Saker, Chairman of the
Board of Directors
2
FOODARAMA SUPERMARKETS, Inc.
2001 STOCK INCENTIVE PLAN
Foodarama Supermarkets, Inc.
2001 STOCK INCENTIVE PLAN
1. ESTABLISHMENT AND PURPOSE.
Foodarama Supermarkets, Inc. 2001 Stock Incentive Plan (the "Plan") is
established by Foodarama Supermarkets, Inc. and its present and future
Subsidiary corporations (collectively the "Company" unless otherwise expressly
provided herein) to attract and retain persons eligible to participate in the
Plan; motivate Participants to achieve long-term Company goals; promote
continuity of management; and further align Participants' interests with those
of the Company's other shareholders. This Plan was adopted as of February 14,
2001 by the Board of Directors of the Company, and was approved as of April 4,
2001 by the Company's shareholders. Unless this Plan is discontinued earlier by
the Board as provided herein, no Award shall be granted hereunder on or after
the date 10 years after the Effective Date.
Certain terms used herein are defined as set forth in Section 10.
2. ADMINISTRATION; ELIGIBILITY.
This Plan shall be administered by a Committee; provided, however, that, if at
any time no Committee shall be in office, this Plan shall be administered by the
Board. As used herein, the term "Administrator" means the Board or any Committee
administering this Plan.
The Administrator shall have plenary authority to grant Awards pursuant to the
terms of this Plan to Eligible Individuals. Participation shall be limited to
such persons as are selected by the Administrator. Awards may be granted as
alternatives to, in exchange or substitution for, or replacement of, Awards
outstanding under this Plan or awards outstanding under any other plan or
arrangement of the Company or any Subsidiary or Affiliate (including a plan or
arrangement of a business or entity, all or a portion of which is acquired by
the Company or any Subsidiary or Affiliate). The provisions of Awards need not
be the same with respect to each Participant.
Among other things, the Administrator shall have the authority, subject to the
terms of this Plan:
(a) to select the Eligible Individuals to whom Awards may from time to
time be granted;
(b) to determine whether and to what extent Awards, including but not
limited to Stock Options, Stock Appreciation Rights, Restricted or
Non-Restricted Stock Awards ("Stock Awards"), Phantom Stock and
Performance Awards or any combination thereof, are to be granted
hereunder;
(c) to determine the number of shares of Stock to be covered by each
Award granted hereunder;
(d) to approve forms of Agreement for use under this Plan ;
2
(e) to determine the terms and conditions, not inconsistent with the
terms of this Plan, of any Award granted hereunder (including, but
not limited to, the option price, any vesting restriction or
limitation, any vesting acceleration or forfeiture waiver and any
right of repurchase, right of first refusal or other transfer
restriction regarding any Award and the shares of Stock relating
thereto, based on such factors or criteria as the Administrator
shall determine);
(f) subject to Section 8(a) to modify, amend or adjust the terms and
conditions of any Award, at any time or from time to time,
including, but not limited to, with respect to (i) performance goals
and targets applicable to performance-based Awards pursuant to the
terms of this Plan and (ii) extension of the post-termination
exercisability period of Stock Options;
(g) to determine to what extent and under what circumstances Stock and
other amounts payable with respect to an Award shall be deferred;
(h) to determine the Fair Market Value; and
(i) to determine the type and amount of consideration to be received by
the Company for any Stock Award issued under Section 6.
The Administrator shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing this Plan as it shall,
from time to time, deem advisable, to interpret the terms and provisions of this
Plan and any Award issued under this Plan (and any Agreement relating thereto)
and to otherwise supervise the administration of this Plan.
Except to the extent prohibited by applicable law, the Administrator may
allocate all or any portion of its responsibilities and powers to any one or
more of its members and may delegate all or any portion of its responsibilities
and powers to any other person or persons selected by it. Any such allocation or
delegation may be revoked by the Administrator at any time. The Administrator
may authorize any one or more of its members or any officer of the Company to
execute and deliver documents on behalf of the Administrator.
Any determination made by the Administrator or any appropriately delegated
officer pursuant to the provisions of this Plan with respect to any Award shall
be made in the sole discretion of the Administrator or such officer at the time
of the grant of the Award or, unless in contravention of any express term of
this Plan, at any time thereafter. All decisions made by the Administrator or
any appropriately delegated officer pursuant to the provisions of this Plan
shall be final and binding on all persons, including the Company and
Participants.
No member of the Administrator, and no officer of the Company, shall be liable
for any action taken or omitted to be taken by such individual or by any other
member of the Administrator or officer of the Company in connection with the
performance of duties under this Plan, except for such individual's own willful
misconduct or as expressly provided by law.
3
3. STOCK SUBJECT TO PLAN.
-------------------------
Subject to adjustment as provided in this Section 3, the aggregate number of
shares of Stock which may be delivered under this Plan shall not exceed one
hundred fifty thousand (150,000) shares of Stock. Stock issuable pursuant to the
Plan may be authorized and unissued shares of Stock or shares of Stock held in
treasury by the Company.
To the extent any shares of Stock covered by an Award are not delivered to a
Participant or beneficiary thereof because the Award expires, is forfeited,
canceled or otherwise terminated, or the shares of Stock are not delivered
because the Award is settled in cash or used to satisfy the applicable tax
withholding obligation, such shares shall not be deemed to have been delivered
for purposes of determining the maximum number of shares of Stock available for
delivery under this Plan.
Subject to adjustment as provided in this Section 3, the maximum number of
shares of Stock that may be covered by Stock Options, Stock Appreciation Rights,
Stock Awards, Phantom Stock and Performance Awards in the aggregate, granted to
any one Participant for the life of the Plan shall be equal to one-third (1/3)
of the shares reserved for delivery under the Plan (50,000 shares as of the date
of the adoption of the plan), or as otherwise determined by the Board.
In the event of any Company stock dividend, stock split, combination or exchange
of shares, recapitalization or other change in the capital structure of the
Company, corporate separation or division of the Company (including, but not
limited to, a split-up, spin-off, split-off or distribution to Company
shareholders other than a normal cash dividend), sale by the Company of all or a
substantial portion of its assets (measured on either a stand-alone or
consolidated basis), reorganization, rights offering, partial or complete
liquidation, or any other corporate transaction, Company share offering or other
event involving the Company and having an effect similar to any of the
foregoing, the Administrator may make such substitution or adjustments in the
(a) number and kind of shares that may be delivered under this Plan, (b)
additional maximums imposed in the immediately preceding paragraph, (c) number
and kind of shares subject to outstanding Awards, (d) exercise price of
outstanding Stock Options and Stock Appreciation Rights and (d) other
characteristics or terms of the Awards as it may determine appropriate in its
sole discretion to equitably reflect such corporate transaction, share offering
or other event; provided, however, that the number of shares subject to any
Award shall always be a whole number.
4. STOCK OPTIONS.
Stock Options may be granted alone or in addition to other Awards granted under
this Plan and may be of two types: Incentive Stock Options and Non-Qualified
Stock Options. Any Stock Option granted under this Plan shall be in such form as
the Administrator may from time to time approve.
The Administrator shall have the authority to grant any Participant Incentive
Stock Options, Non-Qualified Stock Options or both types of Stock Options (in
each case with or without Stock Appreciation Rights). Incentive Stock Options
may be granted only to employees of the Company or any Subsidiary of the
Company. To the extent that any Stock Option is not designated as an Incentive
4
Stock Option or, even if so designated, does not qualify as an Incentive Stock
Option, it shall constitute a Non-Qualified Stock Option. Incentive Stock
Options may be granted only within 10 years from the date this Plan is adopted,
or the date this Plan is approved by the Company's shareholders, whichever is
earlier.
Stock Options shall be evidenced by option Agreements, each in a form approved
by the Administrator. An option Agreement shall indicate on its face whether it
is intended to be an Agreement for an Incentive Stock Option or a Non-Qualified
Stock Option. The grant of a Stock Option shall occur as of the date the
Administrator determines.
Anything in this Plan to the contrary notwithstanding, no term of this Plan
relating to Incentive Stock Options shall be interpreted, amended or altered,
nor shall any discretion or authority granted under this Plan be exercised, so
as to disqualify this Plan under Section 422 of the Code or, without the consent
of the Optionee affected, to disqualify any Incentive Stock Option under Section
422 of the Code.
Stock Options granted under this Section 4 shall be subject to the following
terms and conditions and shall contain such additional terms and conditions as
the Administrator shall deem desirable:
(a) Exercise Price. The exercise price per share of Stock purchasable
under a Stock Option shall be determined by the Administrator. If
the Stock Option is intended to qualify as an Incentive Stock
Option, the exercise price per share shall be not less than the Fair
Market Value per share on the date the Stock Option is granted, or
if granted to an individual who is a Ten Percent Holder, not less
than 110% of such Fair Market Value per share.
(b) Option Term. The term of each Stock Option shall be fixed by the
Administrator, but no Incentive Stock Option shall be exercisable
more than 10 years (or five years in the case of an individual who
is a Ten Percent Holder) after the date the Incentive Stock Option
is granted.
(c) Exercisability. Except as otherwise provided herein, Stock Options
shall be exercisable at such time or times, and subject to such
terms and conditions, as shall be determined by the Administrator.
If the Administrator provides that any Stock Option is exercisable
only in installments, the Administrator may at any time waive such
installment exercise provisions, in whole or in part, based on such
factors as the Administrator may determine. In addition, the
Administrator may at any time, in whole or in part, accelerate the
exercisability of any Stock Option.
(d) Method of Exercise. Subject to the provisions of this Section 4,
Stock Options may be exercised, in whole at any time or in part from
time to time during the option term by giving written notice of
intent to exercise to the Company specifying the number of shares of
Stock subject to the Stock Option to be purchased.
The option price of any Stock Option shall be paid in full in cash
(by certified or bank check or such other instrument as the Company
5
may accept) or, unless otherwise provided in the applicable option
Agreement, by one or more of the following: (i) in the form of
unrestricted Stock already owned by the Optionee (or, in the case of
the exercise of a Non-Qualified Stock Option, Restricted Stock (as
defined in Section 6 hereof) subject to a Stock Award hereunder)
based in any such instance on the Fair Market Value of the Stock on
the date the Stock Option is exercised; (ii) by certifying ownership
of shares of Stock owned by the Optionee to the satisfaction of the
Administrator for later delivery to the Company as specified by the
Company; (iii) by irrevocably authorizing a third party to sell
shares of Stock (or a sufficient portion of the shares) acquired
upon exercise of the Stock Option and remit to the Company a
sufficient portion of the sale proceeds to pay the entire exercise
price and any tax withholding resulting from such exercise; or (iv)
by any combination of cash and/or any one or more of the methods
specified in clauses (i), (ii) and (iii). Notwithstanding the
foregoing, a form of payment shall not be permitted to the extent it
would cause the Company to recognize a compensation expense (or
additional compensation expense) with respect to the Stock Option
for financial reporting purposes.
If payment of the option exercise price of a Non-Qualified Stock
Option is made in whole or in part in the form of Restricted Stock,
the number of shares of Stock to be received upon such exercise
equal to the number of shares of Restricted Stock used for payment
of the option exercise price shall be subject to the same forfeiture
restrictions to which such Restricted Stock was subject, unless
otherwise determined by the Administrator.
No shares of Stock shall be issued upon exercise of a Stock Option
until full payment therefor has been made. Upon exercise of a Stock
Option (or a portion thereof), the Company shall have a reasonable
time to issue the Stock for which the Stock Option has been
exercised, and the Optionee shall not be treated as a shareholder
for any purposes whatsoever prior to such issuance. No adjustment
shall be made for cash dividends or other rights for which the
record date is prior to the date such Stock is recorded as issued
and transferred in the Company's official shareholder records,
except as otherwise provided herein or in the applicable option
Agreement.
(e) Transferability of Stock Options. Except as otherwise provided in
the applicable Agreement, a Non-Qualified Stock Option shall not be
transferable except by will or the laws of descent and distribution.
An Incentive Stock Option also shall not be transferable except by
will or the laws of descent and distribution. A Stock Option shall
be exercisable, during the Optionee's lifetime, only by the Optionee
or by the guardian or legal representative of the Optionee or
assignee, if permitted, it being understood that the terms "Holder"
and "Optionee" include the guardian and legal representative of the
Optionee named in the applicable Agreement and any person to whom
the Stock Option is transferred by will or the laws of descent and
distribution or as otherwise permitted. Notwithstanding the
foregoing, references herein to the termination of an Optionee's
employment or provision of services shall mean the termination of
employment or provision of services of the person to whom the
Stock Option was originally granted.
6
(f) Termination by Death. Unless otherwise provided in the applicable
option Agreement, if an Optionee's employment or provision of
services terminates by reason of death, any Stock Option held by
such Optionee shall become immediately exercisable in full and shall
terminate upon the earlier to occur of (i) the expiration of the
period of one (1) year after the date of such Participant's death
and (ii) the expiration of the stated term of such Option. In the
event of termination of employment or provision of services due to
death, if an Incentive Stock Option is exercised after the
expiration of the exercise periods that apply for purposes of
Section 422 of the Code, such Stock Option will thereafter be
treated as a Non-Qualified Stock Option.
(g) Termination by Reason of Disability. Unless otherwise provided in
the applicable option Agreement, if an Optionee's employment or
provision of services terminates by reason of Disability, any Stock
Option held by such Optionee shall become immediately exercisable in
full and shall terminate upon the earlier to occur of (i) the
expiration of the period of ninety (90) days after the date of such
Disability and (ii) the expiration of the stated term of such
Option; provided, however, that if the Optionee dies within such
period, an unexercised Stock Option held by such Optionee shall,
notwithstanding the expiration of such period, continue to be
exercisable to the extent to which it was exercisable at the time of
death for a period of 90 days from the date of such death or until
the expiration of the stated term of such Stock Option, whichever
period is shorter. In the event of termination of employment or
provision of services by reason of Disability, if an Incentive Stock
Option is exercised after the expiration of the exercise periods
that apply for purposes of Section 422 of the Code, such Stock
Option will thereafter be treated as a Non-Qualified Stock Option.
(h) Termination by Reason of Retirement. Unless otherwise provided in
the applicable option Agreement, if an Optionee's employment or
provision of services terminates by reason of Retirement, any Stock
Option held by such Optionee shall become immediately exercisable in
full and shall terminate upon the earlier to occur of (i) the
expiration of the period of ninety days after the date of such
Retirement and (ii) the expiration of the stated term of such
Option; provided, however, that if the Optionee dies within such
period, any unexercised Stock Option held by such Optionee shall,
notwithstanding the expiration of such period, continue to be
exercisable to the extent to which it was exercisable at the time of
death for a period of 90 days from the date of such death or until
the expiration of the stated term of such Stock Option, whichever
period is shorter. In the event of termination of employment or
provision of services by reason of Retirement, if an Incentive Stock
Option is exercised after the expiration of the exercise periods
that apply for purposes of Section 422 of the Code, such Stock
Option will thereafter be treated as a Non-Qualified Stock Option.
(i) Other Termination. Unless otherwise provided in the applicable
option Agreement, if an Optionee's employment or provision of
services terminates for any reason other than death, Disability or
7
Retirement, any Stock Option held by such Optionee shall thereupon
terminate; provided, however, that, if such termination of
employment or provision of services is involuntary on the part of
the Optionee and without Cause, such Stock Option, to the extent
then exercisable, or on such accelerated basis as the Administrator
may determine, may be exercised for the lesser of 30 days from the
date of such termination of employment or provision of services or
the remainder of such Stock Option's term, and provided, further,
that if the Optionee dies within such period, any unexercised Stock
Option held by such Optionee shall, notwithstanding the expiration
of such period, continue to be exercisable to the extent to which it
was exercisable at the time of death for a period of 90 days from
the date of such death or until the expiration of the stated term of
such Stock Option, whichever period is shorter. In the event of
termination of employment or provision of services for any reason
other than death, Disability or Retirement, if an Incentive Stock
Option is exercised after the expiration of the exercise periods
that apply for purposes of Section 422 of the Code, such Stock
Option will thereafter be treated as a Non-Qualified Stock Option.
(j) Participant Loans. The Administrator may in its discretion
authorize the Company to:
(i) lend to an Optionee an amount equal to such portion of the
exercise price of a Stock Option as the Administrator may
determine; or
(ii) guarantee a loan obtained by an Optionee from a third-party
for the purpose of tendering such exercise price.
The terms and conditions of any loan or guarantee, including the
term, interest rate, whether the loan is with recourse against the
Optionee and any security interest thereunder, shall be determined
by the Administrator, except that no extension of credit or
guarantee shall obligate the Company for an amount to exceed the
lesser of (A) the aggregate Fair Market Value on the date of
exercise, less the par value, of the shares of Stock to be purchased
upon the exercise of the Stock Option, and (B) the amount permitted
under applicable laws or the regulations and rules of the Federal
Reserve Board and any other governmental agency having jurisdiction.
5. STOCK APPRECIATION RIGHTS.
Stock Appreciation Rights may be granted in conjunction with all or part of any
Stock Option granted under this Plan. In the case of a Non-Qualified Stock
Option, such rights may be granted either at or after the time of grant of such
Stock Option. In the case of an Incentive Stock Option, such rights may be
granted only at the time of grant of such Stock Option. A Stock Appreciation
Right shall terminate and no longer be exercisable upon the termination or
exercise of the related Stock Option.
A Stock Appreciation Right may be exercised by an Optionee in accordance with
this Section 5 by surrendering the applicable portion of the related Stock
Option in accordance with procedures established by the Administrator. Upon such
8
exercise and surrender, the Optionee shall be entitled to receive an amount
determined in the manner prescribed in this Section 5. Stock Options which have
been so surrendered shall no longer be exercisable to the extent the related
Stock Appreciation Rights have been exercised.
Stock Appreciation Rights shall be subject to such terms and conditions as shall
be determined by the Administrator, including the following:
(i) Stock Appreciation Rights shall be exercisable only at such
time or times and to the extent that the Stock Options to
which they relate are exercisable in accordance with the
provisions of Section 4 and this Section 5.
(ii) Upon the exercise of a Stock Appreciation Right, an Optionee
shall be entitled to receive an amount in cash, shares of
Stock or both equal in value to the excess of the Fair Market
Value of one share of Stock over the exercise price per share
specified in the related Stock Option, multiplied by the
number of shares in respect of which the Stock Appreciation
Right shall have been exercised, with the Administrator having
the right to determine the form of payment.
(iii)A Stock Appreciation Right shall be transferable only to, and
shall be exercisable only by, such persons permitted with
respect to the underlying Stock Option in accordance with
Section 4(e).
6.STOCK AWARDS OTHER THAN OPTIONS.
Stock Awards may be directly issued under this Plan (without any intervening
options), subject to such terms, conditions, performance requirements,
restrictions, forfeiture provisions, contingencies and limitations as the
Administrator shall determine. Stock Awards may vest immediately upon issuance,
in one or more installments over the Participant's period of employment or other
service to the Company or upon the attainment of specified performance
objectives, or the Company may issue Stock Awards which entitle the Participant
to receive a specified number of vested shares of Stock upon the attainment of
one or more performance goals or service requirements established by the
Administrator.
Shares representing a Stock Award shall be evidenced in such manner as the
Administrator may deem appropriate, including book-entry registration or
issuance of one or more certificates (which may bear appropriate legends
referring to the terms, conditions and restrictions applicable to such Award).
The Administrator may require that any such certificates be held in custody by
the Company until any restrictions thereon shall have lapsed and that the
Participant deliver a stock power, endorsed in blank, relating to the Stock
covered by such Award.
A Stock Award may be issued in exchange for any consideration which the
Administrator may deem appropriate in each individual instance, including,
without limitation:
(i) cash or cash equivalents;
(ii) past services rendered to the Company or any Subsidiary or
Affiliate; or
9
(iii) future services to be rendered to the Company or any
Subsidiary or Affiliate (provided that, in such case, the par
value of the stock subject to such Stock Award shall be paid
in cash or cash equivalents, unless the Administrator provides
otherwise).
A Stock Award that is subject to restrictions on transfer and/or forfeiture
provisions may be referred to as an award of "Restricted Stock" or "Restricted
Stock Units."
Phantom Stock. The Administrator may from time to time grant Awards to eligible
participants denominated in stock-equivalent units ("phantom stock") in such
amounts and on such terms and conditions as it shall determine. Phantom stock
units granted to a participant shall be credited to a bookkeeping reserve
account solely for accounting purposes and shall not require a segregation of
any of the Company's assets. An Award of phantom stock may be settled in Stock,
in cash, or in a combination of Stock and cash, as determined in the sole
discretion of the Administrator. Except as otherwise provided in the applicable
Agreement, the Participant shall not have the rights of a shareholder with
respect to any shares of Stock represented by a phantom stock unit solely as a
result of the grant of a phantom stock unit to the Participant.
Performance Awards. The Administrator may, in its discretion, grant performance
Awards which become payable on account of attainment of one or more performance
goals established by the Administrator. Performance Awards may be paid by the
delivery of Common Stock or cash or any combination of Common Stock and cash, as
determined in the sole discretion of the Administrator. Performance goals
established by the Administrator may be based on the Company's or any Subsidiary
or Affiliate's operating income or one or more other business criteria selected
by the Administrator that apply to an individual or group of individuals, a
business unit, or the Company or any Subsidiary or Affiliate as a whole, over
such performance period as the Administrator may designate.
7. TRIGGERING EVENTS.
(a) Impact of Triggering Event. Notwithstanding any other provision of
this Plan to the contrary, in the event of a Triggering Event (as
defined in Section 7(b) below):
(i) Any Stock Options and Stock Appreciation Rights outstanding as
of the date such Triggering Event is determined to have
occurred and not then exercisable and vested shall become
fully exercisable and vested to the full extent of the
original grant;
(ii) The restrictions applicable to any outstanding Stock Award
shall lapse, and the Stock relating to such Award shall become
free of all restrictions and become fully vested and
transferable to the full extent of the original grant;
(iii) All outstanding repurchase rights of the Company with respect
to any outstanding Awards shall terminate; and,
10
(iv) Outstanding Awards shall be subject to any Agreement of merger
or reorganization entered into in connection with such
Triggering Event, which Agreement shall provide for:
(A) The continuation of the outstanding Awards by the
Company, if the Company is a surviving corporation;
(B) The assumption of the outstanding awards by the surviving
corporation or its parent or subsidiary;
(C) The substitution by the surviving corporation or its
parent or subsidiary of equivalent awards for the
outstanding Awards; or
(D) Settlement in cash of each share of Stock subject to an
outstanding Award for the Triggering Event Price (less,
to the extent applicable, the per share exercise price).
(v) In the absence of any Agreement of merger or reorganization
entered into in connection with such Triggering Event, each
share of Stock subject to an outstanding Award shall be
settled in cash for the Triggering Event Price (less, to the
extent applicable, the per share exercise price), or, if the
per share exercise price equals or exceeds the Triggering
Event Price, the outstanding Award shall terminate and be
canceled.
(b) Definition of Triggering Event. For purposes of this Plan, a "
Triggering Event" shall mean the happening of any of the following
with respect to the Company, which, for purposes of this Section
7(b), shall mean Foodarama Supermarkets, Inc. and all its
successors:
(i) An acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act)
(a "Person") of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 40% or more
of either (1) the then outstanding shares of common stock of
the Company (the "Outstanding Company Common Stock") or (2)
the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting
Securities"); excluding, however, the following: (1) any
acquisition directly from the Company, other than an
acquisition by virtue of the exercise of a conversion
privilege unless the security being so converted was itself
acquired directly from the Company, (2) any acquisition by the
Company; (3) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any
corporation controlled by the Company; or (4) any acquisition
by any Person pursuant to a transaction which complies with
clauses (1), (2) and (3) of subsection (ii) of this Section
7(b); or
11
(ii) The approval by the shareholders of the Company of a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the
Company ("Corporate Transaction"); excluding, however, such a
Corporate Transaction pursuant to which (1) all or
substantially all of the individuals and entities who are the
beneficial owners, respectively, of the outstanding Company
Common Stock and Outstanding Company Voting Securities
immediately prior to such Corporate Transaction will
beneficially own, directly or indirectly, more than 60% of,
respectively, the outstanding shares of Stock, and the
combined voting power of the then outstanding voting
securities entitled to vote generally in the election of
directors, as the case may be, of he corporation resulting
from such Corporate Transaction (including, without
limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of
the Company's assets, either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Corporate Transaction, of
the outstanding Company Common Stock and Outstanding Company
Voting Securities, as the case may be, (2) no Person (other
than the Company; any employee benefit plan (or related trust)
sponsored or maintained by the Company, by any corporation
controlled by the Company, or by such corporation resulting
from such Corporate Transaction) will beneficially own,
directly or indirectly, more than 25% of, respectively, the
outstanding shares of common stock of the corporation
resulting from such Corporate Transaction or the combined
voting power of the outstanding voting securities of such
corporation entitled to vote generally in the election of
directors, except to the extent that such ownership existed
with respect to the Company prior to the Corporate
Transaction, and (3) individuals who were members of the Board
immediately prior to the approval by the shareholders of the
Company of such Corporate Transaction will constitute at least
a majority of the members of the board of directors of the
corporation resulting from such Corporate Transaction; or
(iii) The approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company, other than to a
corporation pursuant to a transaction which would comply with
clauses (1), (2) and (3) of subsection (ii) of this Section
7(b), assuming for this purpose that such transaction were a
Corporate Transaction.
(c) Triggering Event Price. For purposes of this Plan, "Triggering
Event Price" means the higher of (i) the highest reported sales
price, regular way, of a share of Stock in any transaction reported
on the American Stock Exchange Composite Tape or other national
securities exchange on which such shares are listed or on Nasdaq, as
applicable, during the 60-day period prior to and including the date
12
of a Triggering Event , and (ii) if the Triggering Event is the
result of a tender or exchange offer or a Corporate Transaction, the
highest price per share of Stock paid in such tender or exchange
offer or Corporate Transaction. To the extent that the consideration
paid in any such transaction described above consists all or in part
of securities or other non-cash consideration, the value of such
securities or other non-cash consideration shall be determined in
the sole discretion of the Board.
8. MISCELLANEOUS.
(a) Amendment. The Board may amend, alter, or discontinue this Plan,
but no amendment, alteration or discontinuation shall be made which
would adversely affect the rights of a Participant under an Award
theretofore granted without the Participant's consent, except such
an amendment (i) made to avoid an expense charge to the Company or
any Subsidiary or Affiliate , or (ii) made to permit the Company or
any Subsidiary or Affiliate a deduction under the Code. No such
amendment shall be made without the approval of the Company's
shareholders to the extent such approval is required by law,
Agreement or the rules of any stock exchange or market on which the
Stock is listed.
The Administrator may amend the terms of any Stock Option or other
Award theretofore granted, prospectively or retroactively, but no
such amendment shall adversely affect the rights of the holder
thereof without the holder's consent.
Notwithstanding anything in this Plan to the contrary, if any right
under this Plan would cause a transaction to be ineligible for
pooling of interests accounting that would, but for the right
hereunder, be eligible for such accounting treatment, the
Administrator may modify or adjust the right so that pooling of
interests accounting shall be available, including the substitution
of Stock having a Fair Market Value equal to the cash otherwise
payable hereunder for the right which caused the transaction to be
ineligible for pooling of interests accounting.
(b) Unfunded Status of Plan. It is intended that this Plan be an
"unfunded" plan for incentive and deferred compensation. The
Administrator may authorize the creation of trusts or other
arrangements to meet the obligations created under the Plan to
deliver Stock or make payments, provided that, unless the
Administrator otherwise determines, the existence of such trusts or
other arrangements is consistent with the "unfunded" status of this
Plan.
(c) General Provisions.
(i) The Administrator may require each person purchasing or
receiving shares pursuant to an Award to represent to and
agree with the Company in writing that such person is
acquiring the shares without a view to the distribution
thereof. The certificates for such shares may include any
legend which the Administrator deems appropriate to reflect
any restrictions on transfer.
All certificates for shares of Stock or other securities
delivered under this Plan shall be subject to such stock
transfer orders and other restrictions as the Administrator
13
may deem advisable under the rules, regulations and other
requirements of the Commission, any stock exchange or market
on which the Stock is then listed and any applicable federal
or state securities law, and the Administrator may cause a
legend or legends to be put on any such certificates to make
appropriate reference to such restrictions.
(ii) Nothing contained in this Plan shall prevent the Company or
any Subsidiary or Affiliate from adopting other or additional
compensation arrangements for its employees.
(iii) The adoption of this Plan shall not confer upon any employee,
director, consultant or advisor any right to continued
employment, directorship or service, nor shall it interfere in
any way with the right of the Company or any Subsidiary or
Affiliate to terminate the employment or service of any
employee, consultant or advisor at any time.
(iv) No later than the date as of which an amount first becomes
includible in the gross income of the Participant for federal
income tax purposes with respect to any Award under this Plan,
the Participant shall pay to the Company, or make arrangements
satisfactory to the Company regarding the payment of, any
federal, state, local or foreign taxes of any kind required by
law to be withheld with respect to such amount. Unless
otherwise determined by the Administrator, withholding
obligations may be settled with Stock, including Stock that is
part of the Award that gives rise to the withholding
requirement. The obligations of the Company under this Plan
shall be conditional on such payment or arrangements, and the
Company, or any of its Subsidiaries or its Affiliates shall,
to the extent permitted by law, have the right to deduct any
such taxes from any payment otherwise due to the Participant.
The Administrator may establish such procedures as it deems
appropriate for the settlement of withholding obligations with
Stock.
(v) The Administrator shall establish such procedures as it deems
appropriate for a Participant to designate a beneficiary to
whom any amounts payable in the event of the Participant's
death are to be paid.
(vi) Any amounts owed to the Company or any Subsidiary or Affiliate
by the Participant of whatever nature may be offset by the
Company from the value of any shares of Stock, cash or other
thing of value under this Plan or an Agreement to be
transferred to the Participant, and no shares of Stock, cash
or other thing of value under this Plan or an Agreement shall
be transferred unless and until all disputes between the
Company and the Participant have been fully and finally
resolved and the Participant has waived all claims to such
against the Company and any Subsidiary or Affiliate.
(vii) The grant of an Award shall in no way affect the right of the
Company to adjust, reclassify, reorganize or otherwise change
14
its capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its
business or assets.
(viii)If any payment or right accruing to a Participant under this
Plan (without the application of this Section (8)(c)(viii)),
either alone or together with other payments or rights
accruing to the Participant from the Company or any Subsidiary
or Affiliate ("Total Payments") would constitute a "parachute
payment" (as defined in Section 280G of the Code and
regulations thereunder), such payment or right shall be
reduced to the largest amount or greatest right that will
result in no portion of the amount payable or right accruing
under this Plan being subject to an excise tax under Section
4999 of the Code or being disallowed as a deduction under
Section 280G of the Code; provided, however, that the
foregoing shall not apply to the extent provided otherwise in
an Award or in the event the Participant is party to an
Agreement with the Company or any Subsidiary or Affiliate that
explicitly provides for an alternate treatment of payments or
rights that would constitute "parachute payments." The
determination of whether any reduction in the rights or
payments under this Plan is to apply shall be made by the
Administrator in good faith after consultation with the
Participant, and such determination shall be conclusive and
binding on the Participant. The Participant shall cooperate
in good faith with the Administrator in making such
determination and providing the necessary information for
this purpose. The foregoing provisions of this Section 8(c)
(viii) shall apply with respect to any person only if, after
reduction for any applicable federal excise tax imposed by
Section 4999 of the Code and federal income tax imposed by the
Code, the Total Payments accruing to such person would be less
than the amount of the Total Payments as reduced, if
applicable, under the foregoing provisions of the Plan and
after reduction for only federal income taxes.
(ix) The headings contained in this Plan are for reference purposes
only and shall not affect the meaning or interpretation of
this Plan.
(x) If any provision of this Plan shall for any reason be held to
be invalid or unenforceable, such invalidity or
unenforceability shall not effect any other provision hereby,
and this Plan shall be construed as if such invalid or
unenforceable provision were omitted.
(xi) This Plan shall inure to the benefit of and be binding upon
each successor and assign of the Company. All obligations
imposed upon a Participant, and all rights granted to the
Company hereunder, shall be binding upon the Participant's
heirs, legal representatives, successors and permitted
assignees.
15
(xii) This Plan and each Agreement granting an Award constitute the
entire Agreement with respect to the subject matter hereof and
thereof, provided that in the event of any inconsistency
between this Plan and such Agreement, the terms and conditions
of this Plan shall control.
(xiii)In the event there is an effective registration statement
under the Securities Act pursuant to which shares of Stock
shall be offered for sale in an underwritten offering, a
Participant shall not, during the period requested by the
underwriters managing the registered public offering, effect
any public sale or distribution of shares of Stock received,
directly or indirectly, as an Award or pursuant to the
exercise or settlement of an Award.
(xiv) This Plan, and all Awards, Agreements and actions hereunder,
shall be governed by, and construed in accordance with, the
laws of the State of New Jersey (other than its law respecting
choice of law).
(d) Declining Market Price. In the event the fair market value of the
Stock declines below the exercise price set forth in any Option, the
Committee may, subject to the approval of the Board, at any time,
adjust, reduce, cancel and re-grant any unexercised Option or take
any similar action it deems to be for the benefit of the Participant
in light of the declining fair market value of the Stock.
9. DEFERRAL OF AWARDS.
The Administrator (in its sole discretion) may permit a Participant to:
(a) have cash that otherwise would be paid to such Participant as a
result of the exercise of a Stock Appreciation Right or the
settlement of a Stock Award credited to a deferred compensation
account established for such Participant by the Administrator as an
entry on the Company's books;
(b) have Stock that otherwise would be delivered to such Participant as
a result of the exercise of a Stock Option or a Stock Appreciation
Right converted into an equal number of Stock units; or
(c) have Stock that otherwise would be delivered to such Participant as
a result of the exercise of a Stock Option or Stock Appreciation
Right or the settlement of a Stock Award converted into amounts
credited to a deferred compensation account established for such
Participant by the Administrator as an entry on the Company's books.
Such amounts shall be determined by reference to the Fair Market
Value of the Stock as of the date on which they otherwise would have
been delivered to such Participant.
A deferred compensation account established under this Section 9 may be credited
with interest or other forms of investment return, as determined by the
Administrator. A Participant for whom such an account is established shall have
no rights other than those of a general creditor of the Company. Such an account
shall represent an unfunded and unsecured obligation of the Company and shall be
16
subject to the terms and conditions of the applicable Agreement between such
Participant and the Company. If the deferral or conversion of awards is
permitted or required, the Administrator (in its sole discretion) may establish
rules, procedures and forms pertaining to such awards, including (without
limitation) the settlement of deferred compensation accounts established under
this Section 9.
10. DEFINITIONS.
For purposes of this Plan, the following terms are defined as set forth below:
(a) "Affiliate" means a corporation or other entity controlled by the
Company and designated by the Administrator as such.
(b) "Agreement" means a written document memorializing the terms and
conditions of an Award granted pursuant to the Plan and shall
incorporate the terms of the Plan.
(c) "Award" means Stock Option, Stock Appreciation Right, Restricted or
Non-Restricted Stock Award, Phantom Stock or Performance Award.
(d) "Board" means the Board of Directors of the Company.
(e) "Cause" means (i) the conviction of the Participant for committing a
felony under federal law or the law of the state in which such
action occurred, (ii) dishonesty in the course of fulfilling the
Participant's duties as an employee or director of, or consultant or
advisor to, the Company or (iii) willful and deliberate failure on
the part of the Participant to perform such duties in any material
respect. Notwithstanding the foregoing, if the Participant and the
Company have entered into an employment or services agreement which
defines the term "Cause" (or a similar term), such definition shall
govern for purposes of determining whether such Participant has been
terminated for Cause for purposes of this Plan. The determination
of Cause shall be made by the Administrator, in its sole discretion.
(f) "Code" means the Internal Revenue Code of 1986, as amended from time
to time, and any successor thereto.
(g) "Commission" means the Securities and Exchange Commission or any
successor agency.
(h) "Committee" means a committee of Directors appointed by the Board to
administer this Plan. With respect to Awards granted at any time the
Company is publicly held, insofar as the Committee is responsible
for granting Awards to Participants hereunder, it shall consist
solely of two or more Directors, each of whom is a "Non-Employee
Director" within the meaning of Rule 16b-3 of the Exchange Act and
each of whom is also an "outside director" under Section 162(m) of
the Code.
The Committee shall be appointed annually by the Board, which may at
any time and from time to time remove any members of the Committee,
with or without cause, appoint additional members to the Committee
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and fill vacancies, however caused, in the Committee. A majority of
the members of the Committee shall constitute a quorum. All
determinations of the Committee shall be made by a majority of its
members present at a meeting duly called and held. Any decision or
determination of the committee reduced to writing and signed by all
of the members of the Committee shall be fully as effective as if it
had been made at a meeting duly called and held.
(i) "Company" means Foodarama Supermarkets, Inc., a New Jersey
corporation and its present and future subsidiary corporations, as
defined in Section 424(f) of the Internal Revenue Code of 1986, as
amended.
(j) "Director" means a member of the Company's Board of Directors.
(k) "Disability" as defined in Section 22(e)(3) of the Code, means an
individual is permanently and totally disabled if he is unable to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months. An
individual shall not be considered to be permanently and totally
disabled unless he furnishes proof of the existence thereof in such
form and manner, and at such times, as the Company may require.
(l) "Effective Date" means February 14, 2001.
(m) "Eligible Individual" means any officer, employee or Director
(employee or non-employee) of the Company or a Subsidiary or
Affiliate, or any consultant or advisor providing services to the
Company or a Subsidiary or Affiliate.
(n) "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor thereto.
(o) "Fair Market Value" means, as of any given date, the fair market
value of the Stock as determined by the Administrator or under
procedures established by the Administrator. Unless otherwise
determined by the Administrator, the Fair Market Value per share
shall be the closing sales price per share of the Stock on the
American Stock Exchange (or the principal stock exchange or market
on which the Stock is then traded) on the date as of which such
value is being determined or the last previous day on which a sale
was reported.
(p) "Family Member" means any child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, former spouse, sibling, niece,
nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law or sister-in-law of a Participant (including adoptive
relationships); any person sharing the Participant's household
(other than a tenant or employee); any trust in which the
Participant and any of these persons have substantially all of the
beneficial interest; any foundation in which the Participant and any
of these persons control the management of the assets; any
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corporation, partnership, limited liability company or other entity
in which the Participant and any of these other persons are the
direct and beneficial owners of substantially all of the equity
interests (provided the Participant and these other persons agree
in writing to remain the direct and beneficial owners of all such
equity interests); and any personal representative of the
Participant upon the Participant's death for purposes of
administration of the Participant's estate or upon the Participant's
incompetency for purposes of the protection and management of the
assets of the Participant.
(q) "Incentive Stock Option" means any Stock Option intended to be and
designated as an "incentive stock option" within the meaning of
Section 422 of the Code.
(r) "Nasdaq" means The Nasdaq Stock Market, including the Nasdaq
National Market and the Nasdaq SmallCap Market.
(s) "Non-Employee Director" means a Director who is not an officer or
employee of the Company.
(t) "Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
(u) "Optionee" means a person who holds a Stock Option.
(v) "Participant" means an Eligible Individual granted an Award.
(w) "Plan" means the Foodarama Supermarkets, Inc. 2001 Stock Incentive
Plan.
(x) "Representative" means (i) the person or entity acting as the
executor or administrator of a Participant's estate pursuant to the
last will and testament of a Participant or pursuant to the laws of
the jurisdiction in which the Participant had his or her primary
residence at the date of the Participant's death; (ii) the person or
entity acting as the guardian or temporary guardian of a
Participant; (iii) the person or entity which is the beneficiary of
the Participant upon or following the Participant's death; or (iv)
any person to whom an Option has been transferred with the
permission of the Administrator or by operation of law; provided
that only one of the foregoing shall be the Representative at any
point in time as determined under applicable law and recognized by
the Administrator.
(y) "Retirement" means termination of employment with the Company or any
Subsidiary or Affiliate at or after age 65, or provision of services
at or after age 65, under circumstances which the Administrator, in
its sole discretion, deems equivalent to termination of employment
with the Company or any Subsidiary or Affiliate
(z) "Stock" means Common Stock, par value $1.00 per share, of the
Company.
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(aa) "Stock Appreciation Right" means a right granted under Section 5.
(bb) "Stock Award" means an Award, other than a Stock Option or Stock
Appreciation Right, made in restricted or non-restricted Stock or
denominated in restricted or non-restricted shares of Stock.
(cc) "Stock Option" means an option granted under Section 4.
(dd) "Subsidiary" means any company during any period in which it is a
"subsidiary corporation" (as such term is defined in Section 424(f)
of the Code) with respect to the Company.
(ee) "Ten Percent Holder" means an individual who owns, or is deemed to
own, stock possessing more than 10% of the total combined voting
power of all classes of stock of the Company or of any parent or
subsidiary corporation of the Company, determined pursuant to the
rules applicable to Section 422(b)(6) of the Code.
In addition, certain other terms used herein have the definitions given to
them in the first places in which they are used.
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EXHIBIT 23.01
CONSENT OF INDEPENDENT AUDITORS'
We consent to the incorporation by reference in the Registration Statement
on Form S-8 (File No.333-65328) of Foodarama Supermarkets, Inc., of our report
dated January 21, 2003 with respect to the consolidated financial statements and
schedules of Foodarama Supermarkets, Inc. as of November 2, 2002 and November 3,
2001 and for each of the three years in the period ended November 2, 2002, which
report is included in Foodarama's Annual Report on Form 10-K for the year ended
November 2, 2002, filed with the Securities and Exchange Commission. We also
consent to the reference to our firm under the heading "Experts" in the
prospectus included in the above-referenced Registration Statement.
/s/ AMPER, POLITZINER & MATTIA, P.C.
Edison, New Jersey
September 4, 2003