Current Report Filing (8-k)
July 08 2015 - 2:25PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The
Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): July 8, 2015
Lakeland Industries, Inc.
(Exact name of registrant as specified in
its charter)
Delaware |
0-15535 |
13-3115216 |
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
3555 Veterans
Memorial Hwy, Suite C, Ronkonkoma, New York 11779-7410
(Address of principal executive offices)
(Zip Code)
Registrant’s telephone number, including
area code: (631) 981-9700
Not Applicable
(Former Name or Former Address, if Changed
Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
¨ Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
| Item 5.02. | Departure of Directors or Certain Officers; Election
of Directors; Appointment of Certain Officers; Compensatory Arrangement of Certain Officers. |
On July 8, 2015, the stockholders of Lakeland
Industries, Inc. (the “Company”) approved the Lakeland Industries, Inc. 2015 Stock Plan (the “Stock Plan”)
at the Annual Meeting of Stockholders. The executive officers and all other employees and directors of the Company and its subsidiaries
are eligible to participate in the Stock Plan. The Stock Plan is administered by the Compensation Committee of the Company’s
Board of Directors or a subcommittee thereof formed by the Compensation Committee (the “Committee”), except that with
respect to all non-employee directors, the Committee shall be deemed to include the full Board. The Stock Plan provides for the
grant of equity-based compensation in the form of restricted stock, restricted stock units, performance shares, performance units
and other stock-based awards. The Stock Plan also permits the grant of awards that qualify for “performance-based compensation”
within the meaning of Section 162(m) of the U.S. Internal Revenue Code. The Committee has the authority to determine the type of
award, as well as the amount, terms and conditions of each award, under the Stock Plan, subject to the limitations and other provisions
of the Stock Plan. An aggregate of 100,000 shares of the Company’s common stock are authorized for issuance under the Stock
Plan, subject to adjustment as provided in the Stock Plan for stock splits, dividends, distributions, recapitalizations and other
similar transactions or events. If any shares subject to an award are forfeited, expire, lapse or otherwise terminate without issuance
of such shares, such shares shall, to the extent of such forfeiture, expiration, lapse or termination, again be available for issuance
under the Stock Plan. The foregoing summary of the Stock Plan is qualified in its entirety by reference to the full text of the
Stock Plan, filed as Exhibit 4.1 to this Form 8-K and incorporated herein by reference.
| Item 5.07. | Submission of Matters to a Vote of Security Holders. |
The Company held its 2015 Annual Meeting
of Stockholders on July 8, 2015. The final results of the voting for each matter submitted to a vote of stockholders at the Annual
Meeting are as follows:
Proposal 1: The Board of Directors’ nominee
for Class II director was elected to serve for three years expiring at the Company’s 2018 Annual Meeting of Stockholders
and until his successor is duly elected and qualified, by the votes set forth below:
Director |
For |
Withheld |
Broker Non-votes |
Stephen M. Bachelder |
1,575,381 |
1,155,845 |
2,806,708 |
Proposal 2: The Stockholders approved the Lakeland
Industries, Inc. 2015 Stock Plan, by the votes set forth below:
For |
Against |
Abstain |
Broker Non-votes |
2,163,265 |
554,277 |
13,684 |
2,806,708 |
Proposal 3: The Stockholders ratified the appointment
of WeiserMazars LLP, as the Company’s independent registered public accounting firm for the fiscal year ending January 31,
2016, by the votes set forth below:
For |
Against |
Abstain |
5,226,613 |
270,210 |
41,111 |
| Item 9.01. | Financial Statements and Exhibits. |
| 4.1 | Lakeland Industries, Inc. 2015 Stock Plan. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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LAKELAND INDUSTRIES, INC. |
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Date: July 8, 2015 |
By: |
/s/ Christopher J. Ryan |
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Name: Title: |
Christopher J. Ryan President & Chief Executive Officer |
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Exhibit 4.1
LAKELAND INDUSTRIES, INC.
2015 STOCK PLAN
| Section 1. | Purpose of the Plan. The purpose of the Lakeland
Industries, Inc. 2015 Stock Plan (the “Plan”) is to assist the Company and its Subsidiaries in attracting and retaining
valued Employees and Non-Employee Directors by offering them a greater stake in the Company’s success and a closer identity
with it, and to encourage ownership of the Company’s stock by such Employees and Non-Employee Directors. |
| Section 2. | Definitions. As used herein, the following definitions
shall apply: |
| 2.1. | “Affiliate” means, with respect to
any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct
or cause the direction of the management and policies of such Person, whether by contract or otherwise. |
| 2.2. | “Award” means the grant of Restricted
Stock, Restricted Stock Units, Performance Shares, Performance Units or other stock-based awards under the Plan. |
| 2.3. | “Award Agreement” means the written
agreement, instrument or document evidencing an Award. |
| 2.4. | “Board” means the Board of Directors
of the Company. |
| (a) | if the applicable Participant is party to an effective
employment, severance or similar agreement with the Company or a Subsidiary, and such term is defined therein, “Cause”
shall have the meaning provided in such agreement; |
| (b) | if the applicable Participant is not a party to an effective
employment, severance or similar agreement or if no definition of “Cause” is set forth in the applicable employment,
severance or similar agreement, “Cause” shall have the meaning provided in the applicable Award Agreement; or |
| (c) | if neither (a) nor (b) applies, then “Cause”
shall mean, as determined by the Committee in its sole discretion, (i) the Participant’s willful misconduct or negligence
in connection with the performance of the Participant’s duties for the Company or its Subsidiaries; (ii) the Participant’s
conviction of, or a plea of guilty or nolo contendere to, a felony or a crime; (iii) the Participant’s engaging in
any business that directly or indirectly competes with the Company or its Subsidiaries; or (iv) disclosure of trade secrets, customer
lists or confidential information of the Company or its Subsidiaries to a competitor or an unauthorized Person. |
| 2.6. | “Change in Control” means, unless otherwise
provided in an Award Agreement: |
| (a) | the acquisition in one or more transactions by any “person”
(as such term is used for purposes of Section 13(d) or Section 14(d) of the Exchange Act) but excluding, for this purpose, (i)
the Company or its Subsidiaries, and (ii) any employee benefit plan of the Company or its Subsidiaries, of “beneficial ownership”
(within the meaning of Rule 13d-3 under the Exchange Act) of more than fifty percent (50%) of the combined voting power of the
Company’s then outstanding voting securities (the “Voting Securities”); |
| (b) | the consummation of a merger or consolidation involving
the Company if the shareholders of the Company, immediately before such merger or consolidation, do not own, directly or indirectly,
immediately following such merger or consolidation, at least fifty percent (50%) of the combined voting power of the outstanding
voting securities of the corporation resulting from such merger or consolidation in the same proportions as owed immediately prior
to the merger or consolidation; |
| (c) | individuals who, as of the Effective Date, constitute
the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the Effective Date whose election, or nomination for election by
the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, as a member of the Incumbent
Board, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest
(as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation
of proxies or consents by or on behalf of any “person” (as such term is used for purposes of Section 13(d) or Section
14(d) of the Exchange Act) other than the Board; or |
| (d) | the acquisition by any “person” (as such
term is used for purposes of Section 13(d) or Section 14(d) of the Exchange Act) in a single transaction or in a series of related
transactions occurring during any period of 12 consecutive months, of assets from the Company that have a total gross fair market
value equal to or more than 51% of the total gross fair market value of all of the assets of the Company immediately prior to
such acquisition or acquisitions. |
| 2.7. | “Code” means the Internal Revenue Code
of 1986, as amended. |
| 2.8. | “Common Stock” means the common stock
of the Company, par value $0.01 per share. |
| 2.9. | “Company” means Lakeland Industries,
Inc., a Delaware corporation, or any successor corporation. |
| 2.10. | “Committee” means the Compensation
Committee of the Board, provided that the Committee shall at all times have at least two members, each of whom shall (i) be a
“non-employee director” as defined in Rule 16b-3 under the Exchange Act, (ii) be an “outside director”
as defined in Section 162(m) of the Code and the regulations issued thereunder and (iii) satisfy such other independence requirements
for members of a compensation committee as may be applicable under the rules of the securities exchange or association on which
the Common Stock is then traded or listed. |
| 2.11. | “Disability” means, unless otherwise
provided in an Award Agreement, that the Participant 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. |
| 2.12. | “Effective Date” means July 8, 2015,
the date that the Plan was approved by the shareholders of the Company. |
| 2.13. | “Employee” means an individual who
is an officer or employee of the Company or a Subsidiary, including a director who is such an employee and whose earnings are
reported on a Form W-2. |
| 2.14. | “Exchange Act” means the Securities
Exchange Act of 1934, as amended. |
| 2.15. | “Fair Market Value” means, on any given
date (i) if the shares of Common Stock are then listed on a national securities exchange, including the Nasdaq Global Market (“NASDAQ”),
the closing sales price per share of Common Stock on the exchange for such date, or if no sale was made on such date on the exchange,
on the last preceding day on which a sale occurred; (ii) if shares of Common Stock are not then listed on a national securities
exchange but are then quoted on another stock quotation system, the closing price for the shares of Common Stock as quoted on
such quotation system on such date, or if no sale was made on such date on such quotation system, on the last preceding day on
which a sale was made; or (iii) if (i) and (ii) do not apply, such value as the Committee in its discretion may in good faith
determine in accordance with Section 409A of the Code and the regulations thereunder. |
| 2.16. | “Non-Employee Director” means a member
of the Board who is not an Employee. |
| 2.17. | “Participant” means any Employee or
Non-Employee Director who receives an Award. |
| 2.18. | “Performance Cycle” means the period
of time of not fewer than one year or more than two years as specified by the Committee over which Performance Shares or Performance
Units are to be earned. |
| 2.19. | “Performance Goals” means any goals
established by the Committee in its sole discretion, the attainment of which is substantially uncertain at the time such goals
are established. Performance Goals may be described in terms of Company-wide objectives or objectives that are related to the
performance of the individual Participant or a Subsidiary, division, department or function within the Company or Subsidiary in
which the Participant is employed. Performance Goals may be measured on an absolute or relative basis. Relative performance may
be measured by a group of peer companies or by a financial market index. Performance Goals may be based upon: specified levels
of or increases in the Company’s, a division’s or a Subsidiary’s return on capital, equity or assets; earnings
measures/ratios (on a gross, net, pre-tax or post-tax basis), including diluted earnings per share, total earnings, operating
earnings, earnings growth, earnings before interest and taxes (EBIT) and earnings before interest, taxes, depreciation and amortization
(EBITDA); net economic profit (which is operating earnings minus a charge to capital); net income; operating income; sales; sales
growth; gross margin; direct margin; operating profit; per period or cumulative cash flow (including but not limited to operating
cash flow and free cash flow) or cash flow return on investment (which equals net cash flow divided by total capital); inventory
turns; financial return ratios; market share; balance sheet measurements such as receivable turnover; improvement in or attainment
of expense levels; improvement in or attainment of working capital levels; debt reduction; strategic innovation, including but
not limited to entering into, substantially completing, or receiving payments under, relating to, or deriving from a joint development
agreement, licensing agreement, or similar agreement; customer or employee satisfaction; individual objectives; any financial
or other measurement deemed appropriate by the Committee as it relates to the results of operations or other measurable progress
of the Company and its Subsidiaries (or any business unit of the Company or any of its Subsidiaries); and any combination of any
of the foregoing criteria. If the Committee determines that a change in the business, operations, corporate structure or capital
structure of the Company, or the manner in which it conducts its business, or other events or circumstances render the Performance
Goals unsuitable, the Committee may modify such Performance Goals or the related minimum acceptable level of achievement, in whole
or in part, as the Committee deems appropriate and equitable. |
| 2.20. | “Performance Shares” or “Performance
Units” means an Award made pursuant to Section 6.3 of the Plan. |
| 2.21. | “Person” means an individual, corporation,
partnership, association, Limited Liability Company, estate or other entity. |
| 2.22. | “Restricted Stock” means Common Stock
awarded by the Committee under Section 6.1 of the Plan. |
| 2.23. | “Restricted Stock Unit” means the right
granted under Section 6.2 of the Plan to receive, on the date of settlement, an amount equal to the Fair Market Value of one share
of Common Stock. Restricted Stock Units may be settled in cash, shares of Common Stock or any combination of cash and shares of
Common Stock; provided, however, that unless otherwise provided in an Award Agreement, Restricted Stock Units shall be settled
in shares of Common Stock. |
| 2.24. | “Restriction Period” means the period
during which Restricted Stock and Restricted Stock Units are subject to forfeiture. |
| 2.25. | “Securities Act” means the Securities
Act of 1933, as amended. |
| 2.26. | “Subsidiary” means any corporation,
partnership, joint venture or other business entity of which 50% or more of the outstanding voting power is beneficially owned,
directly or indirectly, by the Company. |
| Section 3. | Eligibility. Any Employee or Non-Employee Director
who is selected by the Committee shall be eligible to receive an Award under the Plan. |
| Section 4. | Administration and Implementation of the Plan. |
| 4.1. | The Plan shall be administered by the Committee; provided,
however, that with respect to Non-Employee Directors (i) the Plan shall be administered by the full Board and (ii) all references
in the Plan to the Committee shall be deemed to refer to the Board. Any action of the Committee in administering the Plan shall
be final, conclusive and binding on all Persons, including the Company, its Subsidiaries, Participants, Persons claiming rights
from or through Participants and shareholders of the Company. |
| 4.2. | Notwithstanding Section 4.1, the Committee may delegate
to one or more officers or Board members the authority to grant Awards to eligible individuals who are not subject to the requirements
of Rule 16b-3 of the Exchange Act or “covered employees” within the meaning of Section 162(m) of the Code and the
regulations thereunder. |
| 4.3. | Subject to the provisions of the Plan, the Committee shall
have full and final authority in its discretion to (i) select the Employees and Non-Employee Directors who will receive Awards
pursuant to the Plan; (ii) determine the type or types of Awards to be granted to each Participant; (iii) determine the number
of shares of Common Stock to which an Award will relate, the terms and conditions of any Award granted under the Plan (including,
but not limited to, restrictions as to vesting, transferability or forfeiture, exercisability or settlement of an Award and waivers
or accelerations thereof, and waivers of or modifications to Performance Goals relating to an Award, based in each case on such
considerations as the Committee shall determine) and all other matters to be determined in connection with an Award; (iv) determine
the exercise price, base price or purchase price (if any) of an Award; (v) determine whether, to what extent, and under what circumstances
an Award may be cancelled, forfeited, or surrendered; (vi) determine whether, and to certify that, Performance Goals to which
an Award is subject are satisfied; (vii) correct any defect or supply any omission or reconcile any inconsistency in the Plan,
and adopt, amend and rescind such rules, regulations, guidelines, forms of agreements and instruments relating to the Plan as
it may deem necessary or advisable; (viii) construe and interpret the Plan; and (ix) make all other determinations as it may deem
necessary or advisable for the administration of the Plan; provided, however, that the Committee shall be prohibited from effecting
a repricing of any outstanding Award without shareholder approval. |
| Section 5. | Shares of Common Stock Subject to the Plan. |
| 5.1. | Subject to adjustment as provided in Section 9 hereof,
the total number of shares of Common Stock available for Awards under the Plan shall be 100,000. Notwithstanding the foregoing,
Awards covering no more than 20,000 shares of Common Stock may be awarded to any Participant in any one calendar year. Common
Stock awarded under the Plan may be reserved or made available from the Company’s authorized and unissued Common Stock or
from Common Stock reacquired (through open market transactions or otherwise) and held in the Company’s treasury. Any shares
of Common Stock issued by the Company through the assumption or substitution of outstanding grants from an acquired company shall
not reduce the shares of Common Stock available for Awards under the Plan. |
| 5.2. | If any shares subject to an Award under the Plan are forfeited
or such Award otherwise terminates or is settled for any reason whatsoever without an actual distribution of shares to the Participant,
any shares counted against the number of shares available for issuance pursuant to the Plan with respect to such Award shall,
to the extent of any such forfeiture, settlement, or termination, again be available for Awards under the Plan; provided, however,
that the Committee may adopt procedures for the counting of shares relating to any Award to ensure appropriate counting, avoid
double counting, provide for adjustments in any case in which the number of shares actually distributed differs from the number
of shares previously counted in connection with such Award, and if necessary, to comply with applicable law or regulations. |
| Section 6. | Awards. Awards may be granted on the terms and conditions
set forth in this Section 6. In addition, the Committee may impose on any Award or the settlement or exercise thereof, at the
date of grant or thereafter, such additional terms and conditions, not inconsistent with the provisions of the Plan, as the Committee
shall determine, including without limitation terms requiring forfeiture of Awards in the event of the termination of a Participant’s
employment or other relationship with the Company or any Subsidiary; provided, however, that the Committee shall retain full power
to accelerate or waive any such additional term or condition as it may have previously imposed (provided that, in any case, any
such action is permitted under Code Section 409A and, with respect to an Award intended to satisfy the “qualified performance-based
compensation” exception under Code Section 162(m), does not cause such Award to fail to satisfy such exception). The right
of a Participant to exercise or receive a grant or settlement of any Award, and the timing thereof, may be subject to such Performance
Goals as may be determined by the Committee. Each Award, and the terms and conditions applicable thereto, shall be evidenced by
an Award Agreement. |
| 6.1. | Restricted Stock. An Award of Restricted Stock
is a grant by the Company of a specified number of shares of Common Stock to the Participant, which shares are subject to forfeiture
upon the happening of specified events during the Restriction Period. An Award of Restricted Stock shall be subject to the following
terms and conditions: |
| (a) | General. Each Award Agreement with respect to
Restricted Stock shall specify the duration of the Restriction Period, if any, and/or each installment thereof, the conditions
under which the Restricted Stock may be forfeited to the Company, and the amount, if any, the Participant must pay to receive
the Restricted Stock. Such restrictions may include a vesting schedule based upon the passage of time, the attainment of Performance
Goals or a combination thereof. |
| (b) | Transferability. During the Restriction Period,
if any, the transferability of Restricted Stock shall be prohibited or restricted in the manner and to the extent prescribed in
the applicable Award Agreement. Such restrictions may include, without limitation, rights of repurchase or first refusal in the
Company or provisions subjecting the Restricted Stock to a continuing substantial risk of forfeiture in the hands of any transferee. |
| (c) | Shareholder Rights. Unless otherwise provided
in the applicable Award Agreement, during the Restriction Period the Participant shall have all the rights of a shareholder with
respect to Restricted Stock, including, without limitation, the right to receive dividends thereon (whether in cash or shares
of Common Stock) and to vote such shares of Restricted Stock. Dividends shall be subject to the same restrictions as the underlying
Restricted Stock unless otherwise provided by the Committee (and the Committee may, in its sole discretion, withhold any cash
dividends paid on Restricted Stock until the restrictions applicable to such Restricted Stock have lapsed). |
| (d) | Termination of Employment. Unless otherwise
provided in an Award Agreement or as may be determined by the Committee: |
| (i) | Due to Death or Disability. Upon a Participant’s
termination of employment with the Company and its Subsidiaries before the end of a Restriction Period by reason of his or her
death or permanent Disability, the Restriction Period for such Participant for the purpose of determining the amount of the Award
payable, if any, shall end at the end of the calendar quarter immediately preceding the date of which said Participant ceased
to be employed by the Company or its Subsidiaries. The amount of an Award payable to a Participant (or the beneficiary of a deceased
Participant) to whom the preceding sentence is applicable shall be paid at the end of the Restriction Period, provided all other
restrictions on the Restricted Stock have been satisfied, and shall be that fraction of the Award computed pursuant to the preceding
sentence the numerator of which is the number of full calendar quarters during the Restriction Period during all of which said
Participant was an employee of the Company or its Subsidiaries and the denominator of which is the number of full calendar quarters
in the Restriction Period. |
| (ii) | Due to Reasons Other Than Death or Disability. Upon any
other termination of employment of a Participant with the Company and its Subsidiaries for any reason, the unvested portion of
each Award of Restricted Stock held by such Participant shall be forfeited with no further compensation due the Participant. |
| 6.2. | Restricted Stock Units. Restricted Stock Units
are solely a device for the measurement and determination of the amounts to be paid to a Participant under the Plan. Restricted
Stock Units do not constitute Common Stock and shall not be treated as (or as giving rise to) property or as a trust fund of any
kind. The right of any Participant in respect of an Award of Restricted Stock Units shall be no greater than the right of any
unsecured general creditor of the Company. The grant of Restricted Stock Units shall be subject to the following terms and conditions: |
| (a) | Restriction Period. Each Award Agreement with
respect to Restricted Stock Units shall specify the duration of the Restriction Period, if any, and/or each installment thereof
and the conditions under which such Award may be forfeited to the Company. Such restrictions may include a vesting schedule based
upon the passage of time, the attainment of Performance Goals or a combination thereof. |
| (b) | Termination of Employment. Unless otherwise provided
in an Award Agreement or as may be determined by the Committee: |
| (i) | Due to Death or Disability. Upon a Participant’s
termination of employment with the Company and its Subsidiaries before the end of a Restriction Period by reason of his or her
death or permanent Disability, the Restriction Period for such Participant for the purpose of determining the amount of the Award
payable, if any, shall end at the end of the calendar quarter immediately preceding the date of which said Participant ceased
to be employed by the Company or its Subsidiaries. The amount of an Award payable to a Participant (or the beneficiary of a deceased
Participant) to whom the preceding sentence is applicable shall be paid at the end of the Restriction Period, provided all other
restrictions on the Restricted Stock Units have been satisfied, and shall be that fraction of the Award computed pursuant to the
preceding sentence the numerator of which is the number of full calendar quarters during the Restriction Period during all of
which said Participant was an employee of the Company or its Subsidiaries and the denominator of which is the number of full calendar
quarters in the Restriction Period. |
| (ii) | Due to Reasons Other Than Death or Disability. Upon any
other termination of employment of a Participant prior to the lapse of restrictions, participation in the Plan shall cease and
the unvested portion of any outstanding Awards of Restricted Stock Units to such Participant shall be forfeited with no compensation
due the Participant. |
| (c) | Settlement. Unless otherwise provided in an Award
Agreement, subject to the Participant’s continued employment with the Company or a Subsidiary from the date of grant through
the expiration of the Restriction Period (or applicable portion thereof), the vested portion of an Award of Restricted Stock Units
shall be settled within 30 days after the expiration of the Restriction Period (or applicable portion thereof). |
| (d) | Shareholder Rights. Nothing contained in the
Plan shall be construed to give any Participant rights as a shareholder with respect to an Award of Restricted Stock Units (including,
without limitation, any voting, dividend or derivative or other similar rights). Notwithstanding the foregoing, the Committee
may provide in an Award Agreement that amounts equal to any dividends declared during the Restriction Period on the shares of
Common Stock represented by an Award of Restricted Stock Units will be credited to the Participant’s account and deemed
to be reinvested in additional Restricted Stock Units, such additional Restricted Stock Units to be subject to the same forfeiture
restrictions as the Restricted Stock Units to which they relate. |
| 6.3. | Performance Shares and Performance Units. An Award
of Performance Shares or Performance Units under the Plan shall entitle the Participant to future cash payments or shares of Common
Stock or a combination thereof based upon the level of achievement of pre-established Performance Goals during a Performance Cycle. |
| (a) | Amount of Award. The Committee shall establish
a baseline and maximum amount of a Participant’s Award, which amount shall be denominated in shares of Common Stock. |
| (b) | Communication of Award. Each Award Agreement
evidencing an Award of Performance Shares or Performance Units shall contain provisions regarding (i) the target and maximum amount
payable to the Participant pursuant to the Award, (ii) the Performance Goals and level of achievement versus these goals that
shall determine the amount of such payment, (iii) the Performance Cycle as to which performance shall be measured for determining
the amount of any payment, (iv) the timing of any payment earned by virtue of performance, (v) restrictions on the alienation
or transfer of the Award prior to actual payment, (vi) forfeiture provisions, and (vii) such further terms and conditions in each
case not inconsistent with the Plan, as may be determined from time to time by the Committee. |
| (c) | Performance Criteria. The Performance Goals established
by the Committee for any portion of an Award of Performance Shares or Performance Units that are intended by the Committee to
satisfy the requirements for “performance-based compensation” under Section 162(m) of the Code shall be selected by
the Committee and specified at the time the Award is granted. Multiple Performance Goals may be used and the components of multiple
Performance Goals may be given the same or different weighting in determining the amount of an Award earned, and may relate to
absolute performance or relative performance measured against other groups, units, individuals or entities. |
| (d) | Discretionary Adjustments. Notwithstanding satisfaction
of any Performance Goals, the amount paid under an Award of Performance Shares or Performance Units on account of either financial
performance or personal performance evaluations may be reduced by the Committee on the basis of further considerations as the
Committee shall determine. |
| (e) | Payment of Awards. Following the conclusion of
each Performance Cycle, the Committee shall determine the extent to which Performance Goals have been attained, and the satisfaction
of any other terms and conditions with respect to an Award relating to such Performance Cycle. The Committee shall determine what,
if any, payment is due with respect to any Award and whether such payment shall be made in cash, Common Stock or a combination
therof. Payment shall be made in a lump sum or installments, as determined by the Committee at the time the Award is granted,
commencing as promptly as practicable following the end of the applicable Performance Cycle, subject to such terms and conditions
and in such form as may be prescribed by the Committee. Payment in Common Stock may be in Restricted Stock at the discretion of
the Committee at the time the Award is granted. |
| (f) | Termination of Employment. Unless otherwise provided
in an Award Agreement or as may be determined by the Committee: |
| (i) | Due to Death or Disability. Upon a Participant’s
termination of employment with the Company and its Subsidiaries before the end of a Performance Cycle by reason of his or her
death or permanent Disability, the Performance Cycle for such Participant for the purpose of determining the amount of the Award
payable, if any, shall end at the end of the calendar quarter immediately preceding the date of which said Participant ceased
to be employed by the Company or its Subsidiaries. The amount of an Award payable to a Participant (or the beneficiary of a deceased
Participant) to whom the preceding sentence is applicable shall be paid at the end of the Performance Cycle, provided the related
Performance Goals have been satisfied, and shall be that fraction of the Award computed pursuant to the preceding sentence the
numerator of which is the number of full calendar quarters during the Performance Cycle during all of which said Participant was
an employee of the Company or its Subsidiaries and the denominator of which is the number of full calendar quarters in the Performance
Cycle. |
| (ii) | Due to Reasons Other Than Death or Disability. Upon any
other termination of employment of a Participant during a Performance Cycle, participation in the Plan shall cease and the unvested
portion of any outstanding Awards of Performance Shares or Performance Units to such Participant shall be forfeited with no compensation
due the Participant. |
| 6.4. | Other Share-Based Awards. The Committee is authorized,
subject to limitations under applicable law, to grant to Participants any type of Award (in addition to those Awards provided
in Sections 6.1, 6.2 and 6.3 hereof) that is payable in, or valued in whole or in part by reference to, shares of Common Stock,
and that is deemed by the Committee to be consistent with the purposes of the Plan. |
Other Share-Based Awards may
include, without limitation, an award of an unspecified number of shares, entitled “Restricted Shares,” which is not
tied to a formula or comparable company target ranges, but rather is determined at the end of a three-year performance period or
such other vesting period established at the discretion of the Committee. The number of Restricted Shares awarded will be at either
baseline (target), maximum or zero amounts as determined by the Committee in its discretion, at the time of vest.
| Section 7. | Qualifying Retirement and Disqualifying Activity. |
| 7.1. | Qualifying Retirement. Notwithstanding the provisions
of Sections 6.1(d), 6.2(b) and 6.3(f)(ii) hereof, if a Participant’s employment with the Company or its Subsidiaries terminates
for any reason other than death, permanent Disability or the Participant’s involuntary termination for Cause, and if immediately
prior to the date of such termination of employment (i) the Participant is 55 years of age or older, and (ii) the sum of the Participant’s
age and completed years of employment as an Employee of the Company or its Subsidiaries (disregarding fractions in both cases)
totals 70 years or more (a “qualifying retirement”), the following provisions will apply: |
| (a) | All shares of Restricted Stock, Restricted Stock Units,
Performance Shares or Performance Units awarded to the Participant which have vested as of the date of the qualifying retirement
will be free of restrictions. |
| (b) | With respect to any time-based Award of Restricted Stock
or Restricted Stock Units which has not vested, effective as of the Participant’s retirement date: (a) the Award will remain
in effect with respect to fifty percent (50%) of the shares or units covered thereby, and such Award will vest on the Participant’s
retirement date and such shares or units will be free of restrictions as of the vesting date; and (b) the Award will be terminated
with respect to the remaining fifty percent (50%) of the shares or units covered thereby. |
| (c) | With respect to any performance-based Award of Restricted
Stock, Restricted Stock Units, Performance Shares or Performance Units which has not vested, effective as of the Participant’s
retirement date: (a) the Award will remain in effect with respect to fifty percent (50%) of the shares or units covered thereby
and will vest upon the achievement of the related Performance Goals (unless an Award expires according to its terms prior to the
satisfaction of the Performance Goals, in which event the Award will terminate and applicable shares of Restricted Stock, Restricted
Stock Units, Performance Shares or Performance Units will be forfeited); and (b) the Award will terminate as to the remaining
fifty percent (50%) of the shares or units covered thereby. However, if the Participant is the Chief Executive Officer of the
Company or a member of his or her direct reporting group, and such person has given the Company written notice at least one (1)
full year prior to his or her qualifying retirement, no unvested performance-based Award of Restricted Stock, Restricted Stock
Units, Performance Shares or Performance Units will terminate upon such retirement, and one hundred percent (100%) of the shares
or units covered by such Award will remain in effect and will vest upon the achievement of the related Performance Goals (unless
an Award expires according to its terms prior to the satisfaction of the Performance Goals, in which event the Award will terminate
and applicable shares of Restricted Stock, Restricted Stock Units, Performance Shares or Performance Units will be forfeited). |
| 7.2. | Disqualifying Activity. Notwithstanding the provisions
of Section 7.1 hereof, if the Committee determines that the Participant is or has engaged in any disqualifying activity (as defined
below), then (1) to the extent that any Award held by such Participant has vested as of the disqualification date (as defined
below), the Participant will have the right to receive all shares or units which are vested as of such date, and (2) to the extent
that any Award held by such Participant has not vested as of the disqualification date, the Award will terminate, and all related
shares or units will be forfeited, as of such date. Any determination by the Committee, which may act upon the recommendation
of the Chief Executive Officer or other senior officer of the Company, that the Participant is or has engaged in any disqualifying
activity, and as to the disqualification date, will be final and conclusive. |
| (a) | For purposes of this provision, the term “disqualifying
activity” is defined in the Plan to include, among other activities: (i) directly or indirectly being an owner, officer,
employee, advisor or consultant to a company that competes with the Company or its Subsidiaries or Affiliates to an extent deemed
material by the Committee, or (ii) disclosure to third parties or misuse of any confidential information or trade secrets of the
Company, its Subsidiaries or Affiliates, or (iii) any material violation of the Company’s Code of Business Conduct and Ethics
or any other agreement between the Company and the Participant, or (iv) failing in any material respect to perform his or her
assigned responsibilities as an Employee of the Company or its Subsidiaries, as determined by the Committee, in its sole judgment,
after consulting with the Chief Executive Officer of the Company. |
| (b) | The ownership of less than 2% of the outstanding voting
securities of a publicly traded corporation which competes with the Company or any of its Subsidiaries or Affiliates will not
constitute a disqualifying activity. |
| (c) | The term “disqualifying date” is defined
in the Plan as the earliest date as of which the Participant engaged in any disqualifying activity, as determined by the Committee. |
| Section 8. | Change in Control. Notwithstanding any provision
in the Plan to the contrary or unless otherwise provided in a Participant’s employment agreement with the Company, upon
the occurrence of a Change in Control, the Board, in its sole discretion, may take one or more of the following actions with respect
to any Awards that are outstanding immediately prior to such Change in Control: (a) accelerate the vesting of all outstanding
Awards such that all outstanding Awards are fully vested (effective immediately prior to such Change in Control); (b) require
the successor corporation (or its parent), following a Change in Control, to assume outstanding Awards and/or to substitute such
Awards with awards involving the common stock of such successor corporation (or its parent) on terms and conditions necessary
to preserve the rights of Participants with respect to such Awards; or (c) take such other actions as the Board deems appropriate
to preserve the rights of Participants with respect to their Awards. The judgment of the Board with respect to any matter referred
to in this Section shall be conclusive and binding upon each Participant without the need for any amendment to the Plan. |
| Section 9. | Adjustments upon Changes in Capitalization. |
| 9.1. | In the event that the Committee shall determine that any
stock dividend, recapitalization, forward split or reverse split, reorganization, merger, consolidation, spin-off, combination,
repurchase or share exchange, extraordinary or unusual cash distribution or other similar corporate transaction or event, affects
the Common Stock such that an adjustment is appropriate in order to prevent dilution or enlargement of the rights of Participants
under the Plan, then the Committee shall proportionately and equitably adjust any or all of (i) the number and kind of shares
of Common Stock which may thereafter be issued in connection with Awards, (ii) the number and kind of shares of Common Stock issuable
in respect of outstanding Awards, (iii) the aggregate number and kind of shares of Common Stock available under the Plan, (iv)
the limits described in Section 5 of the Plan and (v) the grant price relating to any Award or, if deemed appropriate, make provision
for a cash payment with respect to any outstanding Award; provided, however, in each case, that each adjustment shall be made
in a manner that does not violate Code Section 409A and the regulations thereunder to the extent applicable. |
| 9.2. | In addition, the Committee is authorized to make adjustments
in the terms and conditions of, and the criteria included in, Awards, including any Performance Goals, in recognition of unusual
or nonrecurring events (including, without limitation, events described in Section 9.1) affecting the Company or any Subsidiary,
or in response to changes in applicable laws, regulations, or accounting principles. Notwithstanding the foregoing, all adjustments
shall be made in a manner that does not violate Code Section 409A and the regulations thereunder to the extent applicable. |
| Section 10. | Termination and Amendment. |
| 10.1. | Changes to the Plan and Awards. The Board may amend,
alter, suspend, discontinue, or terminate the Plan without the consent of the Company’s shareholders or Participants, except
that any such amendment, alteration, suspension, discontinuation, or termination shall be subject to the approval of the Company’s
shareholders if (i) such action would increase the number of shares subject to the Plan, (ii) such action would decrease the price
at which Awards may be granted, or (iii) such shareholder approval is required by any applicable federal, state or foreign law
or regulation or the rules of any stock exchange or automated quotation system on which the Common Stock may then be listed or
quoted, and the Board may otherwise, in its discretion, determine to submit such other changes to the Plan to the Company’s
shareholders for approval; provided, however, that without the consent of an affected Participant, no amendment, alteration, suspension,
discontinuation, or termination of the Plan may materially and adversely affect the rights of such Participant under any outstanding
Award unless such modification is necessary to ensure a deduction under Section 162(m) of the Code or to avoid the additional
tax described in Section 409A of the Code. |
| 10.2. | The Committee may waive any conditions or rights under,
or amend, alter, suspend, discontinue, or terminate, any Award theretofore granted and any Award Agreement relating thereto; provided,
however, that without the consent of an affected Participant, no such amendment, alteration, suspension, discontinuation, or termination
of any Award may materially and adversely affect the rights of such Participant under such Award. |
| 10.3. | Notwithstanding anything in this Section to the contrary,
any Performance Goal applicable to an Award shall not be deemed a fixed contractual term, but shall remain subject to adjustment
by the Committee, in its discretion at any time in view of the Committee’s assessment of the Company’s strategy, performance
of comparable companies, and other circumstances, except to the extent that any such adjustment to a performance condition would
adversely affect the status of an Award intended to satisfy the “qualified performance-based compensation” exception
under Section 162(m) of the Code and the regulations thereunder. |
| 10.4. | Notwithstanding anything in the Plan or an Award Agreement
to the contrary, no Award may be repriced, replaced or regranted through cancellation without the approval of the shareholders
of the Company, provided that nothing herein shall prevent the Committee from taking any action provided for in Section 9. |
| Section 11. | No Right to Award or Employment. No Employee or Non-Employee
Director shall have any claim to be granted any Award under the Plan, and there is no obligation that the terms of Awards be uniform
or consistent among Participants. Neither the Plan nor any action taken hereunder shall be construed as giving any Participant
any right to be retained in the employ of the Company or any Subsidiary. For purposes of this Plan, a transfer of employment between
the Company and its Subsidiaries shall not be deemed a termination of employment; provided, however, that individuals employed
by an entity that ceases to be a Subsidiary shall be deemed to have incurred a termination of employment as of the date such entity
ceases to be a Subsidiary unless such individual becomes an employee of the Company or another Subsidiary as of the date of such
cessation. |
| Section 12. | Taxes. Each Participant must make appropriate arrangement
for the payment of any taxes relating to an Award granted hereunder. The Company or any Subsidiary is authorized to withhold from
any payment relating to an Award under the Plan, including from a distribution of Common Stock or any payroll or other payment
to a Participant, amounts of withholding and other taxes due in connection with any transaction involving an Award, and to take
such other action as the Committee may deem advisable to enable the Company and Participants to satisfy obligations for the payment
of withholding taxes and other tax obligations relating to any Award. This authority shall include the ability to withhold or
receive Common Stock or other property and to make cash payments in respect thereof in satisfaction of a Participant’s tax
obligations. Participants who are subject to the reporting requirements of Section 16 of the Exchange Act may elect to direct
the Company to withhold shares of Common Stock that would otherwise be received upon the vesting, settlement or exercise of an
Award to satisfy the withholding taxes applicable to such Award. Withholding of taxes in the form of shares of Common Stock with
respect to an Award shall not occur at a rate that exceeds the minimum required statutory federal and state withholding rates. |
| Section 13. | Limits on Transferability; Beneficiaries. No Award
or other right or interest of a Participant under the Plan shall be pledged, encumbered, or hypothecated to, or in favor of, or
subject to any lien, obligation, or liability of such Participant to, any party, other than the Company or any Subsidiary, or
assigned or transferred by such Participant otherwise than by will or the laws of descent and distribution, and such Awards and
rights shall be exercisable during the lifetime of the Participant only by the Participant or his or her guardian or legal representative.
Notwithstanding the foregoing, the Committee may, in its discretion, provide that Awards or other rights or interests of a Participant
granted pursuant to the Plan be transferable, without consideration, to immediate family members (i.e., children, grandchildren
or spouse), to trusts for the benefit of such immediate family members and to partnerships in which such family members are the
only partners. The Committee may attach to such transferability feature such terms and conditions as it deems advisable. In addition,
a Participant may, in the manner established by the Committee, designate a beneficiary (which may be a natural person or a trust)
to exercise the rights of the Participant, and to receive any distribution, with respect to any Award upon the death of the Participant.
A beneficiary, guardian, legal representative or other Person claiming any rights under the Plan from or through any Participant
shall be subject to all terms and conditions of the Plan and any Award Agreement applicable to such Participant, except as otherwise
determined by the Committee, and to any additional restrictions deemed necessary or appropriate by the Committee. |
| Section 14. | Securities Law Requirements. |
| 14.1. | No shares of Common Stock may be issued hereunder if the
Company shall at any time determine that to do so would (i) violate the listing requirements of an applicable securities exchange,
or adversely affect the registration or qualification of the Company’s Common Stock under any state or federal law, or (ii)
require the consent or approval of any regulatory body or the satisfaction of withholding tax or other withholding liabilities.
In any of the events referred to in clause (i) or clause (ii) above, the issuance of such shares shall be suspended and shall
not be effective unless and until such withholding, listing, registration, qualifications or approval shall have been effected
or obtained free of any conditions not acceptable to the Company in its sole discretion, notwithstanding any termination of any
Award or any portion of any Award during the period when issuance has been suspended. |
| 14.2. | The Committee may require, as a condition to the issuance
of shares hereunder, representations, warranties and agreements to the effect that such shares are being purchased or acquired
by the Participant for investment only and without any present intention to sell or otherwise distribute such shares and that
the Participant will not dispose of such shares in transactions which, in the opinion of counsel to the Company, would violate
the registration provisions of the Securities Act, and the rules and regulations thereunder. |
| Section 15. | Code Section 409A. The Plan and all Awards are intended
to comply with, or be exempt from, Code Section 409A and all regulations, guidance, compliance programs and other interpretative
authority thereunder, and shall be interpreted in a manner consistent therewith. Notwithstanding anything contained herein to
the contrary, in the event any Award is subject to Code Section 409A, the Committee may, in its sole discretion and without
a Participant’s prior consent, amend the Plan and/or Awards, adopt policies and procedures, or take any other actions as
deemed appropriate by the Committee to (i) exempt the Plan and/or any Award from the application of Code Section 409A,
(ii) preserve the intended tax treatment of any such Award or (iii) comply with the requirements of Code Section 409A.
In the event that a Participant is a “specified employee” within the meaning of Code Section 409A, and a payment or
benefit provided for under the Plan would be subject to additional tax under Code Section 409A if such payment or benefit is paid
within six (6) months after such Participant’s separation from service (within the meaning of Code Section 409A), then such
payment or benefit shall not be paid (or commence) during the six (6) month period immediately following such Participant’s
separation from service except as provided in the immediately following sentence. In such an event, any payments or benefits that
would otherwise have been made or provided during such six (6) month period and which would have incurred such additional tax
under Code Section 409A shall instead be paid to the Participant in a lump-sum cash payment, without interest, on the earlier
of (i) the first business day of the seventh month following such Participant’s separation from service or (ii) the tenth
business day following such Participant’s death. |
| Section 16. | Termination. Unless earlier terminated, the Plan
shall terminate on the second anniversary of its approval by the Board, and no Awards under the Plan shall thereafter be granted. |
| Section 17. | Fractional Shares. The Company will not be required
to issue any fractional shares of Common Stock pursuant to the Plan. The Committee may provide for the elimination of fractions
and settlement of such fractional shares of Common Stock in cash. |
| Section 18. | Discretion. In exercising, or declining to exercise,
any grant of authority or discretion hereunder, the Committee may consider or ignore such factors or circumstances and may accord
such weight to such factors and circumstances as the Committee alone and in its sole judgment deems appropriate and without regard
to the effect such exercise, or declining to exercise such grant of authority or discretion, would have upon the affected Participant,
any other Participant, any Employee or Non-Employee Director, the Company, any Subsidiary, any Affiliate of the Company, any shareholder
or any other Person. |
| Section 19. | Governing Law. The validity and construction of the
Plan and any Award Agreements entered into thereunder shall be construed and enforced in accordance with the laws of the State
of Delaware, but without giving effect to the conflict of laws principles thereof. |
| Section 20. | Effective Date. The Plan shall become effective upon
the Effective Date, and no Award shall become exercisable, realizable or vested prior to the Effective Date. |
* * * * *
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