AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 9, 1997
Registration Statement No. 333-_____
__________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_________________________________
THE EARTHGRAINS COMPANY
(Exact name of registrant as specified in its charter)
Delaware 36-3201045
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
8400 Maryland Avenue
St. Louis, Missouri 63105-3668
(Address of principal executive offices)
__________________________
THE EARTHGRAINS COMPANY
1996 STOCK INCENTIVE PLAN
(Full title of the plan)
__________________________
Joseph M. Noelker Copies to:
Vice President and Secretary
The Earthgrains Company Carla E. Laszewski, Esq.
8400 Maryland Avenue The Stolar Partnership
St. Louis, Missouri 63105-3668 911 Washington Avenue, 8th Floor
(Name and address of agent for service) St. Louis, Missouri 63101
(314) 259-7166
(Telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Title of each Amount Proposed Proposed Amount of
class of securities to be maximum maximum registration
to be registered Registered offering aggregate fee
price offering
per share price
Common Stock,
$0.01 Par Value Per
Share, Including
Related Rights 600,000 Shares $45.78125* $27,468,750.00* $8,323.87
* Estimated solely for purposes of calculating the registration fee.
In accordance with Rule 457(h)(1), the proposed offering price of
shares was based on the average of the high and low prices reported
on the New York Stock Exchange for October 3, 1997.
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This Registration Statement on Form S-8 registers additional securities of
the Registrant of the same class as other securities for which a
Registration Statement on Form S-8 relating to an employee benefit plan of
the Registrant is effective. Pursuant to General Instruction E to Form S-8,
only the information required to register additional shares is provided in
this Registration Statement.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference
The following documents are incorporated in this registration
statement by reference:
(a) The Registrant's Registration Statement on Form S-8, relating to
The Earthgrains Company 1996 Stock Incentive Plan, Registration Statement
No. 333-2858.
(b) All documents subsequently filed by the Registrant or the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, as amended, prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of
the filing of such documents.
Item 8. Exhibits
Exhibit
No.
4.1 The Earthgrains Company 1996 Stock Incentive Plan (As
Amended April 11, 1996, March 21, 1997 and May 30, 1997).
5.1 Opinion and consent of Joseph M. Noelker, Esq., Vice President,
General Counsel and Secretary of the Registrant, concerning the
legality of the shares of common stock being registered
hereunder.
23.1 Consent of Price Waterhouse LLP, independent accountants.
24.1 Power of Attorney Executed by certain officers and directors of
the Registrant.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-8 and has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the County of St. Louis, State
of Missouri, on October 8, 1997.
THE EARTHGRAINS COMPANY
By: JOSEPH M. NOELKER
(Joseph M. Noelker,
Vice President, General Counsel
and Secretary)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in
the capacities and on the dates indicated:
Signature Title Date
Barry H. Beracha* Chairman of the Board October 8, 1997
(Barry H. Beracha) and Chief Executive
Officer (Principal
Executive Officer)
Mark H. Krieger* Vice President and October 8, 1997
(Mark H. Krieger) Chief Financial
Officer (Principal
Financial Officer)
Virgil Rehkemper* Vice President and October 8, 1997
(Virgil Rehkemper) Controller (Principal
Accounting Officer)
J. Joe Adorjan* Director October 8, 1997
(J. Joe Adorjan)
Peter F. Benoist* Director October 8, 1997
(Peter F. Benoist)
Maxine K. Clark* Director October 8, 1997
(Maxine K. Clark)
Jaime Iglesias* Director October 8, 1997
(Jaime Iglesias)
Jerry E. Ritter* Director October 8, 1997
(Jerry E. Ritter)
William E. Stevens* Director October 8, 1997
(William E. Stevens)
* By: JOSEPH M. NOELKER
Joseph M. Noelker
Attorney-in-Fact
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EXHIBIT INDEX
Exhibit Description
4.1 The Earthgrains Company 1996 Stock Incentive Plan (As
Amended April 11, 1996, March 21, 1997 and May 30, 1997).
5.1 Opinion and consent of Joseph M. Noelker, Esq., Vice President,
General Counsel and Secretary to the Registrant, concerning the
legality of the shares of common stock being registered
hereunder.
23.1 Consent of Price Waterhouse LLP, independent accountants.
24.1 Power of Attorney executed by certain officers and directors of
the Registrant.
All Exhibits are filed electronically with Form S-8.
THE EARTHGRAINS COMPANY
1996 STOCK INCENTIVE PLAN
(As Amended April 11, 1996, March 21, 1997, and May 30, 1997;
Restated to reflect a 2-for-1 Stock Split on July 28, 1997)
Section 1. Purpose.
The purpose of the Plan is to attract, retain, motivate and
reward employees of the Company and its Subsidiaries and
Affiliates with stock-related compensation arrangements.
Section 2. Maximum Number of Shares.
(a) The maximum number of shares of Stock which may be
issued pursuant to Awards under the Plan, and the maximum number
of shares for which ISOs may be granted under the Plan, shall be
2,860,000 shares, subject to adjustment as provided in Section
11. For this purpose:
(i) The number of shares underlying an Award shall be
counted against the Plan maximum ("used") at the time of grant;
shares underlying alternative Awards shall be counted only once.
(ii) When an Award is payable in cash and the amount of
such cash is based on the value of a number of shares of Stock
which is determinable at the time of grant, that determinable
number of shares shall be deemed to underlie that Award for
purposes of the Plan. If the amount of such cash, including any
cash provided pursuant to Section 15 below, in effect is
calculated by applying a percentage to the Fair Market Value of a
certain number of shares of Stock, if such percentage is
determinable at the date of grant, and if such determinable
percentage in effect exceeds 100%, the Committee shall determine
at the time of grant the number of shares which is deemed to
underlie such Award.
(iii) If the number of shares underlying an Award is not
determinable at the time of grant, the Committee shall determine
at the time of grant a number of shares which is deemed to
underlie such Award; that number may be adjusted after grant as
the Committee deems appropriate.
(iv) Shares which underlie Awards that (in whole or part)
expire, terminate, are forfeited, or otherwise become non-
payable, or which are recaptured by the Company in connection
with a forfeiture event, may be re-used in new grants to the
extent of such expiration, termination, forfeiture, non-
payability, or recapture.
(b) Notwithstanding any other provisions of the Plan, the
maximum number of shares underlying Awards that may be granted to
any Eligible Employee during any calendar year shall be 650,000,
subject to adjustment as provided in Section 11.
(c) No more than 333,102 shares of Restricted Stock shall
be granted under the Plan (not counting, for this purpose,
Restricted Stock issuable upon exercise of Options or SARs),
subject to adjustment as provided in Section 11.
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(d) In its discretion, the Company may issue treasury
shares or authorized but previously unissued shares.
Section 3. Eligibility.
Officers and management employees of the Company,
Subsidiaries or Affiliates shall be eligible to receive Awards
under the Plan. A Director of the Company or a Subsidiary or an
Affiliate shall be eligible only if he or she also is an officer
or employee of the Company, a Subsidiary or an Affiliate.
Notwithstanding the foregoing, persons employed only by
Affiliates shall not be eligible to receive ISOs.
Section 4. General Provisions Relating to Awards.
(a) Subject to the limitations in the Plan, the Committee
may cause the Company to grant Awards to such Eligible Employees,
at such times, of such types, in such amounts, for such periods,
becoming exercisable at such times, with such features, with such
option prices, purchase prices or base prices, and subject to
such other terms, conditions, and restrictions as the Committee
deems appropriate. Each Award shall be evidenced by a written
Award Agreement between the Company and the Recipient. In
granting an Award, the Committee may take into account any factor
it deems appropriate and consistent with the purpose of the Plan.
(b) Except as otherwise provided in the Plan, one or more
Awards may be granted separately or as alternatives to each
other. If Awards are alternatives to each other:
(i) the exercise of all or part of one automatically shall
cause an immediate equal and corresponding termination of the
other; and
(ii) unless the Award Agreement or the Committee expressly
permit otherwise, alternative Awards which are transferable may
be transferred only as a unit, and alternative Awards which are
exercisable must be exercisable by the same person or persons.
(c) All or any portion of any payment to a Recipient,
whether in cash or shares of Stock, may be deferred to a later
date if and as provided in the Award Agreement. Deferrals may be
for such periods and upon such terms and conditions (including
the provision of interest, dividend equivalents, or other return
on such amounts) as the Committee may determine. The Committee
may structure Award Agreements so that the imposition of income
and other taxes on Recipients is deferred in whole or part.
(d) Award Agreements may contain any provision approved by
the Committee relating to the period for exercise or vesting
after termination of employment. Except to the extent otherwise
expressly provided in the Award Agreement, termination of
employment includes separation from the group of companies
comprised of the Company and its Subsidiaries and Affiliates for
any reason, including death, Disability, retirement, resignation,
dismissal, disposition of a Subsidiary or operation (whether by
stock or asset sale or otherwise), disposition of an interest in
an Affiliate, spin-off, shutdown, or any other event.
(e) Award Agreements may, in the discretion of the
Committee, contain a provision permitting a Recipient to
designate the person who may exercise or receive an Award upon
the Recipient's death, either by will or by appropriate notice to
the Company.
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(f) A Recipient shall have none of the rights of a
shareholder with respect to shares of Stock covered by his or her
Award until shares are issued in his or her name.
(g) The Committee may provide in Award Agreements that
Awards, except for ISOs and SARs which are alternatives to ISOs,
are transferable. Transferability may be subject to such
conditions and limitations as the Committee deems appropriate.
Except to the extent otherwise expressly set forth in the Award
Agreement, Awards shall not be transferable other than by will or
the laws of descent and distribution, and (if exercise is
required) shall be exercisable during the Recipient's lifetime
only by the Recipient or his or her guardian or legal
representative. This paragraph shall not apply to Restricted
Stock after it vests.
Section 5. Options and SARs.
(a) Except as provided in Section 11(b), the option price
per share of Options or the base price of SARs shall not be less
than Fair Market Value per share of Stock on the Options' or the
SARs' grant date, nor less than the par value of a share of
Stock, except that SARs which are alternatives to Options but
which are granted at a later time may have a base price equal to
the option price even though the base price is less than Fair
Market Value on the date the SARs are granted.
(b) The grant of Options and their related Option
Agreement must clearly identify the Options as either ISOs or as
NQSOs.
(c) If Options, SARs, and/or Limited Rights are granted as
alternatives to each other: (i) the option prices and the base
prices (as applicable) shall be equal, (ii) SARs and/or Limited
Rights which are alternatives to ISOs may be granted only at the
same time the ISOs are granted, and (iii) SARs which are
alternatives to Options, and Limited Rights which are
alternatives to Options or SARs, shall expire or terminate at the
same time as the Options or SARs to which they are alternatives.
(d) In the case of SARs, the Award Agreement may specify
the form of payment or may provide that the form is to be
determined at a later date, and may require the satisfaction of
any rules or conditions in connection with receiving payment in
any particular form. If the Recipient is a Reporting Person at
the time of grant or during the SARs' term and is given an
election to receive cash in full or partial settlement of SARs,
the Committee shall have sole discretion to approve or disapprove
such election at any time after it is made.
(e) Notwithstanding any other provision of the Plan, no
Options or SARs shall contain a so-called "reload" feature under
which Options or SARs are automatically granted to Recipients
upon exercise of Options or SARs.
Section 6. Limited Rights.
(a) The Committee shall have authority to grant limited
stock appreciation rights ("Limited Rights") to any Recipient of
any Options or SARs granted under the Plan (the "Related Award")
with respect to all or some of the shares of Stock which underlie
such Related Award. Limited Rights shall not be granted
separately, but shall be granted only as alternatives to their
Related Award. Limited Rights may be granted either at the time
of grant of the Related Award or (except in the case of ISOs) at
any time thereafter during its term. Limited Rights shall be
exercisable or payable at such times, payable in such amounts,
and subject to such other terms, conditions, and restrictions as
the Committee deems appropriate.
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(b) The Committee shall place on any Limited Rights
granted to a Reporting Person such restrictions as may be
required by Rule 16b-3 at the time of grant, and shall amend the
Plan accordingly to the extent required by Rule 16b-3. The
Committee shall place on any Limited Rights for which the Related
Award is ISOs such restrictions as may be required by the Code at
the time of grant, and shall amend the Plan accordingly to the
extent required by the Code.
Section 7. Restricted Stock.
(a) "Restricted Stock" means Stock issued to a Recipient
which is subject to transfer restrictions prior to vesting and is
subject to forfeiture upon the happening of such events or such
conditions or upon the failure to satisfy such rules,
requirements and conditions as the Committee specifies in the
Award Agreement. Stock issued in connection with an Award
Agreement is not Restricted Stock unless so designated in the
Award Agreement or in a rule or resolution of the Committee.
When Restricted Stock vests, it ceases to be Restricted Stock for
purposes of the Plan.
(b) The certificate representing the shares of Restricted
Stock issued in the name of the Recipient may be held by the
Company and/or may have a legend placed upon it to the effect
that the shares represented by it are subject to, and may not be
transferred except in accordance with the Plan and the Award
Agreement relating to such shares. Dividends relating to shares
of Restricted Stock may be paid to the Recipient or held by the
Company for the Recipient's benefit, as the Committee may provide
in the Award Agreement; if held by the Company, the Committee may
require that the Company pay interest or other return to the
Recipient on any cash dividends at such rate(s) and time(s) as
the Committee provides in the Award Agreement.
(c) If the Recipient of Restricted Stock is a Reporting
Person on the grant date, at least one of the following
requirements shall be satisfied:
(i) the Award is a stock bonus granted for no
consideration (other than services rendered or to be rendered);
(ii) the Award is a stock bonus granted for the minimum
amount of consideration (other then services) required by
applicable corporate law, which amount in no event exceeds 10% of
the Fair Market Value of a share of Stock on the payment date,
and which amount is paid to the Company within 60 days after the
grant date:
(iii) the Award consists of Options which are payable in
Restricted Stock; or
(iv) the Award is an Other Stock Interest which is payable
in Restricted Stock and which either is granted in conformity
with (i) or (ii) above, or constitutes an option or similar right
(including a stock appreciation right) or any other type of
derivative security for the purposes of Rule 16b-3.
This paragraph (c) shall apply to a grant only when required by
Rule 16b-3 at the time and under the circumstances of the grant.
Section 8. Other Stock Interests.
"Other Stock Interest" means any compensatory arrangement
not inconsistent with the Plan which is established by the
Committee and which might (a) involve the issuance of Stock to an
Eligible Employee or (b) involve or be treated as involving the
acquisition or disposition of an equity security of the Company
for purposes of Section 16 of the Act. Other Stock Interests are
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not limited to any specific form or structure. Without limiting
the above, Other Stock Interests may include stock bonuses,
deferred stock, variable priced stock options, performance
shares, phantom stock, and convertible securities, and may be
granted in connection with or apart from other compensation
programs or plans or other types of Awards under the Plan. In
connection with the grant of Other Stock Interests, the Committee
may provide for payment to the Recipient of amounts equal to
dividends which would have been paid had Stock actually been
issued to the Recipient. In addition, Other Stock Interests may
provide for payment of cash or other property in lieu of Stock or
other securities of the Company. The Committee shall place on
any Other Stock Interest granted to a Reporting Person such
restrictions as may be required by Rule 16b-3 at the time of
grant, and shall amend the Plan accordingly to the extent
required by Rule 16b-3.
Section 9. Stock Issuance, Payment, and Withholding.
(a) If an Award contemplates the payment of a purchase
price (including the option price of Options), the Recipient may
pay the purchase price in cash, Stock (including shares of
previously-owned Stock, or Stock issuable in connection with the
Award), or other property, to the extent permitted or required by
the Award Agreement or the Committee from time to time. The
Committee may permit deemed or constructive transfers of shares
in lieu of actual transfer and physical delivery of certificates.
Except to the extent prohibited by applicable law, the Committee
or its delegate may take any necessary or appropriate steps in
order to facilitate the payment of any such purchase price.
Without limiting the foregoing, the Committee may allow the
Recipient to defer payment of such purchase price, or may cause
the Company to loan the purchase price to the Recipient or to
guaranty that any shares to be issued will be delivered to a
broker or lender in order to allow the Recipient to borrow the
purchase price. The Committee may require satisfaction of any
rules or conditions in connection with paying the purchase price
at any particular time, in any particular form, or with the
Company's assistance.
(b) If shares used to pay any such purchase price are
subject to any prior restrictions imposed in connection with any
plan of the Company (including the Plan), an equal number of the
shares of Stock purchased shall be made subject to such prior
restrictions in addition to any further restrictions imposed on
such purchased shares by the terms of the Award Agreement or
Plan.
(c) When the obligation arises to collect and pay Required
Withholding Taxes, the Recipient shall promptly reimburse the
Company or Employer (as required by the Committee or Company) for
the amount of such Required Withholding Taxes in cash, unless the
Award Agreement or the Committee permits or requires payment in
another form. In the discretion of the Committee or its delegate
and at the Recipient's request, the Committee or its delegate may
cause the Company or Employer to pay to the appropriate taxing
authority Withholding Taxes in excess of Required Withholding
Taxes on behalf of a Recipient, which shall be reimbursed by the
Recipient. In the Award Agreement or otherwise, the Committee
may allow a Recipient to reimburse the Company or Employer for
payment of Withholding Taxes with shares of Stock or other
property. The Committee may require the satisfaction of any
rules or conditions in connection with any non-cash payment of
Withholding Taxes. If a Recipient is a Reporting Person at the
time of grant or during the Award's term and is given an election
to pay any Withholding Taxes with Stock, the Committee shall have
sole discretion to approve or disapprove such election at any
time after the election is made.
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(d) If provided in the Award Agreement relating to an ISO,
the Committee may prohibit the transfer by a Recipient of shares
of Stock issued to him or her upon exercise of an ISO into the
name of a nominee, and the Committee may require the placement of
a legend on certificates for such shares reflecting such
prohibition.
Section 10. Forfeitures.
(a) The Committee may include in any Award Agreement any
provisions relating to forfeitures of Awards that it deems
appropriate. Such forfeiture provisions may include, among
others, prohibitions on competing with the Company and its
Subsidiaries and Affiliates and other detrimental conduct.
Forfeiture provisions for one Award type may differ from those
for another type, and also may differ among Awards of the same
type. As used in the Plan, a "forfeiture" of an Award includes
the recapture of economic benefits derived from an Award, as well
as the forfeiture of an Award itself; however, the Committee may
define the term more narrowly in specific Award Agreements or
contexts.
(b) Award Agreements may provide for any forfeiture
provision to terminate or be waived upon an Acceleration Date.
In its discretion, the Committee may provide in any Award
Agreement for the termination of any forfeiture provision upon
the happening of any specified event, and may terminate or waive
any forfeiture provision by action taken after grant.
Section 11. Adjustments and Acquisitions.
(a) In the event of (i) any change in the outstanding
shares of Stock by reason of any stock split, combination of
shares, stock dividend, reorganization, merger, consolidation, or
other corporate change having a similar effect, (ii) any
separation of the Company including a spin-off or other
distribution of stock or property by the Company, or (iii) any
distribution to shareholders generally other than a normal
dividend, the Committee shall make such equitable adjustments to
the Plan and to outstanding Awards as it shall deem appropriate
in order to prevent the dilution or enlargement of (A) the Awards
which may be granted, the shares of Stock which may be issued, or
the shares for which ISOs may be granted under the Plan, (B) the
economic value of outstanding Awards or (C) the limitations
imposed by Section 2(b) of the Plan, provided, however, that the
Committee shall not make any adjustment which would constitute or
result in an increase in the aggregate number of Shares available
under the Plan, or the annual limit on the number of Awards which
may be granted to an Eligible Employee under Section 2(b) of the
Plan, requiring shareholder approval under Section 422 or Section
162(m) of the Code. Any such determination by the Committee
shall be conclusive and binding on all concerned.
(b) In the event the Company or a Subsidiary enters into a
transaction described in Section 424(a) of the Code with any
other corporation, the Committee may grant Options, SARs or
Limited Rights to employees or former employees of such
corporation in substitution of stock awards, stock appreciation
rights or limited stock appreciation rights (respectively)
previously granted to them by such corporation upon such terms
and conditions as shall be necessary to qualify such grant as a
substitution described in Section 424(a) of the Code.
Section 12. Acceleration.
(a) An "Acceleration Date" occurs when any of the
following events occur:
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(i) any Person (as defined herein) becomes the beneficial
owner directly or indirectly (within the meaning of Rule 13d-3
under the Act) of more than 30% of the Company's then outstanding
voting securities (measured on the basis of voting power),
provided, however, that shares issued or distributed by the
Company in connection with the acquisition of another company or
business from such Person shall be counted as being outstanding,
but otherwise shall be ignored in determining the percentage
beneficially owned by such Person;
(ii) the shareholders of the Company approve a definitive
agreement of merger or consolidation with any other corporation
or business entity, other than (x) a merger or consolidation
which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into
voting securities of the surviving entity), in combination with
the ownership of any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, at
least 50% of the combined voting power of the voting securities
of the Company or such surviving entity outstanding immediately
after such merger or consolidation, or (y) a merger or
consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no Person acquires more
than 50% of the combined voting power of the Company's then
outstanding securities;
(iii) a change occurs in the composition of the Board of
Directors during any period of twenty-four consecutive months
such that individuals who at the beginning of such period were
members of the Board of Directors cease for any reason to
constitute at least a majority thereof, unless the election, or
the nomination for election by the Company's shareholders, of
each new director was approved by a vote of at least two-thirds
of the directors still in office who either were directors at the
beginning of the period or whose election or nomination for
election was previously so approved; or
(iv) the shareholders of the Company approve a plan of
complete liquidation or dissolution of the Company or an
agreement for the sale or disposition by the Company of all or
substantially all the Company's assets.
For purposes of this paragraph, "Person" shall have the meaning
given in Section 3(a)(9) of the Exchange Act, as modified and
used in Sections 13(d) and 14(d) thereof; however, a Person shall
not include (aa) the Company or any of its subsidiaries, (bb) a
trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its subsidiaries, (cc) an
underwriter temporarily holding securities pursuant to an
offering of such securities, or (dd) a corporation owned,
directly or indirectly, by the shareholders of the Company in
substantially the same proportions as their ownership of Stock.
(b) If an Acceleration Date occurs while Awards remain
outstanding under the Plan, then all Awards shall "vest," which
means:
(i) all Options and SARs shall become fully exercisable;
and
(ii) all shares of Restricted Stock shall become
nonforfeitable and freely transferable (except for such
restrictions as may be imposed by the Securities Act of 1933, as
amended, or applicable state securities laws), and all conditions
to unrestricted
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ownership provided in their Award Agreements which have not
previously been satisfied shall lapse.
In the case of Other Stock Interests, the term "vest" shall have
that meaning given it by the Committee at the time of grant.
(c) Except to the extent prohibited by Rule 16b-3 in the
case of Reporting Persons, the Committee may accelerate the date
on which any Award or Stock or property issued pursuant to an
Award shall vest and may remove any restrictions on such Award at
any time after grant and for any reason the Committee deems
appropriate.
(d) All Awards, and all shares of Stock or property issued
pursuant to an Award, shall automatically vest upon a termination
of employment caused by the death, Disability, or (except for
Restricted Stock and Other Stock Interests) retirement of the
Recipient. The Committee may determine the circumstances under
which a Recipient is deemed to have retired.
Section 13. Administration.
(a) The Plan shall be administered by the Compensation and
Human Resources Committee of the Board, or another committee
appointed by the Board from time to time, consisting of three or
more persons, each of whom at all times shall be a member of the
Board and none of whom shall be an officer or employee of the
Company or any of its subsidiaries at the time of service.
Committee members shall not be eligible for selection to receive
Awards under the Plan.
(b) During any time when one or more Committee members may
not be qualified to serve under Rule 16b-3 or Section 162(m) of
the Code, the Committee may form a sub-Committee from among its
qualifying members to act, in lieu of the full Committee, with
respect to all or any specified category of Awards granted to all
or any specified group of Recipients, and may take other actions
deemed appropriate and convenient to prevent, control, minimize,
or eliminate any adverse effects of such potential
disqualification. At the Committee's request or on its own
motion, the Board may ratify or approve grants, or any terms of
any grants, made by the Committee or a sub-Committee during any
time that any member of the Committee may not be qualified to
approve such grants or terms under Rule 16b-3.
(c) A majority of the members of the Committee shall
constitute a quorum. The acts of a majority of the members
present at any meeting at which a quorum is present, or acts
approved in writing by a majority of the members of the
Committee, shall be the acts of the Committee. The Committee may
meet in person, by telephone or television conference, or in any
other manner permitted by applicable law. From time to time the
Committee may adopt, amend, and rescind such rules and
regulations for carrying out the Plan and implementing Award
Agreements, and the Committee may take such action in the
administration of the Plan, as it deems proper. The
interpretation of any provisions of the Plan by the Committee
shall be final and conclusive unless otherwise determined by the
Board.
Section 14. Amendment, Termination, Shareholder Approval.
(a) The Board may amend or terminate the Plan at any time,
except that without the approval of the Company's shareholders,
no amendment shall (i) increase the maximum number of shares
issuable, or the maximum number of shares for which ISOs may be
granted, under the Plan, (ii) change the class of persons
eligible to be Recipients, (iii) change the annual limit on
Awards which may be granted to an Eligible Employee provided in
Section 2(b), (iv) withdraw
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the authority of the Committee to administer the Plan, or (v)
change the provisions of this Section 14(a).
(b) The Committee may amend the Plan from time to time to
the extent necessary to (i) comply with Rule 16b-3 and, to the
extent it deems appropriate, (ii) prevent benefits under the Plan
from constituting "applicable employee remuneration" within the
meaning of Section 162(m) of the Code.
(c) No Awards may be granted under the Plan after February
21, 2006.
(d) The approval by shareholders described in this Section
shall consist of the approving vote of the holders of a majority
of the outstanding shares of Stock present (in person or by
proxy) at a meeting of the shareholders at which a quorum is
present, unless a greater vote is required by the Company's
charter or by-laws, by the Board, by the Company's principal
stock exchange, or by applicable law (including Rule 16b-3 or
Section 162(m) of the Code).
Section 15. Additional Payments.
The Committee may grant a Recipient the right to receive
additional compensation in cash or other property (in addition to
any cash or other property payable under the terms of the Award
itself) upon the exercise of Options, SARs, or exercisable Other
Stock Interests, or the vesting of Restricted Stock or non-
exercisable Other Stock Interests, provided that (i) in the case
of ISOs such compensation is includible in income under
Sections 61 and 83 of the Code at the time of such exercise or
vesting and (ii) no such right may be granted in connection with
any SARs or Limited Rights which are alternatives to ISOs.
Section 16. Definitions.
(a) "Acceleration Date" has the meaning given in Section
12(a).
(b) "Act" means the Securities Exchange Act of 1934, as
amended from time to time.
(c) "Affiliate" means any entity in which the Company has
a substantial direct or indirect equity interest (other than a
Subsidiary), as determined by the Committee.
(d) "Award" means a grant of ISOs, NQSOs, SARs, Limited
Rights, Restricted Stock or Other Stock Interests.
(e) "Award Agreement" means the written agreement referred
to in Section 4(a) between the Company and the Recipient
evidencing an Award.
(f) "Board" means the Board of Directors of the Company.
(g) Options "cease to qualify as ISOs" when they fail or
cease to qualify for the exclusion from income provided in
Section 421 (or any successor provision) of the Code.
(h) "Code" means the U.S. Internal Revenue Code as in
effect from time to time.
(i) "Committee" means the Compensation and Human Resources
Committee described in Section 13 hereof.
(j) "Company" means The Earthgrains Company and its
successors.
(k) "Disability" means the condition of being "disabled"
within the meaning of Section 422(c)(6) of the Code or any
successor provision.
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<PAGE>
(l) "Eligible Employee" means a person who is eligible to
receive an Award under Section 3 of the Plan.
(m) "Employer" means the Company, the Subsidiary, or the
Affiliate which employs the Recipient.
(n) "Fair Market Value" of Stock on a given date means (i)
the average of the highest and lowest selling prices per share of
Stock reported on the New York Stock Exchange Composite Tape or
similar quotation service for such date, (ii) if Stock is not
listed on the New York Stock Exchange, the average of the highest
and lowest selling prices per share of Stock as reported for such
date on the principal stock exchange or quotation system in the
U.S. on which Stock is listed or quoted (as determined by the
Committee), or (iii) if neither of the preceding clauses is
applicable, the value per share determined by the Committee in a
manner consistent with the Treasury Regulations under Section
2031 of the Internal Revenue Code. If no sale of Stock occurs on
such date, but there were sales reported within a reasonable
period both before and after such date, the weighted average of
the means between the highest and lowest selling prices on the
nearest date before and the nearest date after such date shall be
used, with the average to be weighted inversely by the respective
numbers of trading days between the selling dates and such date.
"Fair Market Value" of Restricted Stock is the same as the Fair
Market Value of any other Stock.
(o) "Forfeiture" has the meaning given in Section 10(a).
(p) "ISO" or "Incentive Stock Option" means an option to
purchase one share of Stock for a specified option price which is
designated by the Committee as an "Incentive Stock Option" and
which qualifies as an "incentive stock option" under Section 422
(or any successor provision) of the Code.
(q) "Limited Right" has the meaning given in Section 6.
(r) "NQSO" or "Non-Qualified Stock Option" means an option
to purchase one share of Stock for a specified option price which
is designated by the Committee as a "Non-Qualified Stock Option,"
or which is designated by the Committee as an ISO but which
ceases to qualify as an ISO.
(s) "Option" means an ISO or an NQSO.
(t) "Option Agreement" means an Award Agreement which
evidences a grant of Options.
(u) "Optionee" means a person to whom Options are granted
pursuant to the Plan.
(v) "Other Stock Interest" has the meaning given in
Section 8.
(w) "Plan" means The Earthgrains Company 1996 Stock
Incentive Plan, as amended from time to time.
(x) "Recipient" means an Eligible Employee to whom an
Award is granted pursuant to the Plan.
(y) "Reporting Person," as of a given date, means a
Recipient who would be required to report a purchase or sale of
Stock occurring on such date to the Securities and Exchange
Commission pursuant to Section 16(a) of the Act and the rules and
regulations thereunder.
(z) "Restricted Stock" has the meaning given in Section 7.
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<PAGE>
(aa) "Rule 16b-3" means Rule 16b-3 (as amended from time to
time) promulgated by the Securities and Exchange Commission under
the Act, and any successor thereto.
(bb) "SAR" means a stock appreciation right, which is a
right to receive cash, Stock, or other property having a value on
the date the SAR is exercised equal to (i) the excess of the Fair
Market Value of one share of Stock on the exercise date over (ii)
the base price of the SAR. The term "SAR" does not include a
Limited Right.
(cc) "Stock" means shares of the common stock of the
Company, par value $0.01 per share, or such other class or kind
of shares or other securities as may be applicable under
Section 11. The term "Stock" shall include shares of Restricted
Stock unless expressly provided otherwise in the Plan or an Award
Agreement.
(dd) "Subsidiary" means a "subsidiary corporation" of the
Company as defined in Section 424(f) (or any successor provision)
of the Code.
(ee) "Vest" has the meaning given in Section 12(b).
(ff) "Withholding Taxes" means, in connection with an
Award, (i) the total amount of Federal and state income taxes,
social security taxes, and other taxes which the Employer of the
Recipient is required to withhold ("Required Withholding Taxes")
plus (ii) any other such taxes which the Employer, in its sole
discretion, withholds at the request of the Recipient.
Section 17. Miscellaneous.
(a) Each provision of the Plan and Option Agreement
relating to ISOs shall be construed so that all ISOs shall be
"incentive stock options" as defined in Section 422 of the Code
or any statutory provision that may replace Section 422, and any
provisions thereof which cannot be so construed shall be
disregarded. Except as provided in Section 10, no discretion
granted or allowed to the Committee under the Plan shall apply to
ISOs after their grant except to the extent the related Option
Agreement shall so provide. Notwithstanding the foregoing,
nothing shall prohibit an amendment to or action regarding
outstanding ISOs which would cause them to cease to qualify as
ISOs, so long as the Company and the Optionee shall consent to
such amendment or action.
(b) Without amending the Plan, Awards may be granted to
Eligible Employees who are foreign nationals or who are employed
outside the United States or both, on such terms and conditions
different from those specified in the Plan as may, in the
judgment of the Committee, be necessary or desirable to further
the purposes of the Plan. Such different terms and conditions
may be reflected in Addenda to the Plan. However, in the case of
ISOs, no such different terms or conditions shall be employed if
such term or condition constitutes, or in effect results in, an
increase in the aggregate number of shares which may be issued
under the Plan or a change in the definition of Eligible
Employee.
(c) Notwithstanding any other provision in the Plan, the
Committee shall not act with respect to any Reporting Person in a
manner which would contravene any requirement of Rule 16b-3 as in
effect at the time of such action, without the knowing consent of
such Reporting Person.
(d) Nothing in the Plan or any Award Agreement shall
confer on any person or expectation to continue in the employ of
his or her Employer, or shall interfere in any manner with the
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<PAGE>
absolute right of the Employer to change or terminate such
person's employment at any time for any reason or for no reason.
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<PAGE>
Exhibit 5.1
October 2, 1997
The Earthgrains Company
8400 Maryland Avenue
St. Louis, Missouri 63105
Re: Registration Statement on Form S-8 Relating to 600,000
Additional Shares of Common Stock, Par Value $0.01 Per
Share, To Be Issued Pursuant to The Earthgrains Company
1996 Stock Incentive Plan
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Ladies and Gentlemen:
I am the Vice President, General Counsel, and Secretary of
The Earthgrains Company (the "Company"). The Company proposes to
file with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, a Registration Statement on
Form S-8 relating to 600,000 additional shares of common stock,
par value $0.01 per share (the "Shares"), which are proposed to
be granted or sold to certain officers and employees of the
Company pursuant to The Earthgrains Company 1996 Stock Incentive
Plan (the "Plan"). The Shares will be offered pursuant to the
Section 10(a) Prospectus used in conjunction with the
Registration Statement No. 333-2858, the Registration Statement
for the initial shares of common stock registered under the Plan.
The Power of Attorney, executed as of June 13, 1997 and
filed as Exhibit 24.1 to this Registration Statement, provides
the authority to register 300,000 additional shares of the
Company's common stock to be issued under The Earthgrains Company
1996 Stock Incentive Plan. The Company's Shareholders approved
this pre-split increase of 300,000 shares at the Annual Meeting
of Shareholders on July 25, 1997. On July 28, 1997 the Company
effectuated a two-for-one stock split, thus increasing the number
of additional shares to be registered pursuant to this
Registration Statement to 600,000.
In connection with the proposed registration, I have
examined corporate records of the Company and such other
documents and materials as I have considered relevant to the
matters set forth below, and I have made such investigation of
matters of law and fact as we have considered appropriate. Based
on the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, and has the authority to issue the Shares pursuant to
the Plan.
2. The Shares, when issued pursuant to the provisions,
terms, and conditions of the plan, will be legally issued, fully
paid, and non-assessable shares of common stock of the Company.
I consent to the filing of this opinion as an exhibit to the
proposed Registration Statement, and I consent to the use of my
name in such Registration Statement.
Sincerely yours,
JOSEPH M. NOELKER
Joseph M. Noelker
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated May 2,
1997, which appears on page 38 of the 1997 Annual Report to Shareholders
of The Earthgrains Company, which is incorporated by reference
in The Earthgrains Company's Annual Report on Form 10-K for the fiscal year
ended March 26, 1997.
PRICE WATERHOUSE, LLP
Price Waterhouse, LLP
St. Louis, Missouri
THE EARTHGRAINS COMPANY EXHIBIT 24.1
POWER OF ATTORNEY
(For Employee Stock Plan Registrations)
Each of the undersigned directors and officers of The
Earthgrains Company, a Delaware corporation (the "Company"),
hereby appoints Barry H. Beracha, Mark H. Krieger, Joseph M.
Noelker, Edward J. Wizeman, and each of them, acting singly, the
true and lawful agents and attorneys of the undersigned, with
full power of substitution, to do all things and to execute all
instruments which any of them may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the
Securities and Exchange Commission in respect thereof, in
connection with the registration under said Act pursuant to a
proposed new Registration Statement on Form S-8 of the 300,000
additional shares of common stock authorized to be issued under
The Earthgrains Company 1996 Stock Incentive Plan, and pursuant
to previously-filed Registration Statements on Form S-8 in
connection with said Stock Incentive Plan (No. 333-2858) and in
connection with The Earthgrains Company Employee Stock Ownership
Plan (No. 333-2636); this authorization to include the authority
to sign the name of each of the undersigned in the capacities
indicated below to the said proposed new Registration Statement,
and to any amendments to said proposed Registration Statement or
said previously-filed Registration Statements, after this date.
IN WITNESS WHEREOF, each of the undersigned has executed a
counterpart of this Power of Attorney as of June 13, 1997.
BARRY H. BERACHA MARK H. KRIEGER
Barry H. Beracha Mark H. Krieger
Chairman of the Board and Vice President and
Chief Executive Officer Chief Financial
(Principal Executive Officer) Officer (Principal
Financial Officer)
VIRGIL H. REHKEMPER J. JOE ADORJAN
Virgil H. Rehkemper J. Joe Adorjan
Vice President and Controller Director
(Principal Accounting Officer)
PETER F. BENOIST MAXINE K. CLARK
Peter F. Benoist Maxine K. Clark
Director Director
JAIME IGLESIAS JERRY E. RITTER
Jaime Iglesias Jerry E. Ritter
Director Director
WILLIAM E. STEVENS
William E. Stevens
Director
