AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 2, 1998
REGISTRATION NO. 333-____________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
LINENS 'N THINGS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 22-3463939
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
6 BRIGHTON ROAD
CLIFTON, NEW JERSEY 07015
(Address, including Zip Code, of Principal Executive Offices)
LINENS 'N THINGS, INC. DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
NORMAN AXELROD
CHAIRMAN, CHIEF EXECUTIVE OFFICER AND PRESIDENT
LINENS 'N THINGS, INC.
6 BRIGHTON ROAD
CLIFTON, NEW JERSEY 07015
(973)778-1300
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
----------------------
With a copy to:
WARREN J. CASEY, ESQ.
PITNEY, HARDIN, KIPP & SZUCH
P.O. BOX 1945
MORRISTOWN, NEW JERSEY 07962
(973) 966-6300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------- ----------------------- ----------------------- ------------------------ -----------------------
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered (1)(2) Per Share (3) Offering Price Fee
- ------------------------- ----------------------- ----------------------- ------------------------ -----------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.01 Par Value per 200,000 $29.19 $5,838,000 $1,722.21
share
</TABLE>
- ---------------------
(1) Estimated solely for the purpose of calculating the registration fee
based upon the Registrant's current estimate of shares of Common Stock
issuable pursuant to the Linens 'n Things, Inc. Deferred Compensation
Plan (the "Plan"). Also includes, pursuant to Rule 416(b) under the
Securities Act of 1933, as amended (the "Securities Act"), additional
shares of Common Stock that may be issuable pursuant to anti-dilution
provisions of the Plan.
(2) In addition, pursuant to Rule 416(c) under the Securities Act, this
registration statement also covers an indeterminate amount of interests
to be offered or sold pursuant to the Plan.
(3) Estimated solely for the purpose of calculating the registration fee.
Such estimate has been computed in accordance with Rule 457(c) and Rule
457(h) under the Securities Act based on the average high and low prices
of the Registrant's Common Stock as reported on the New York Stock
Exchange on May 27, 1998.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1) promulgated
under the Securities Act. Such documents need not be filed with the Securities
and Exchange Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424
under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following documents filed by Linens 'n Things, Inc. (the
"Registrant") with the Commission are incorporated by reference in this
Registration Statement:
1. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997.
2. The Registrant's Form 8-K, filed on April 15, 1998, reporting
the Registrant's approval of a two-for-one split of its Common
Stock, to be effected in the form of a stock dividend.
3. The Registrant's Quarterly Report on Form 10-Q, filed on May
12, 1998, for the quarter ended March 28, 1998.
4. The Registrant's Form 8-K, filed on May 12, 1998, reporting
the March 31, 1998 amendment to the Registrant's Credit
Agreement dated as of November 20, 1996.
5. The description of the Registrant's Common Stock contained in
the Registration Statement on Form S-1 (No. 333-27239).
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 or 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, hereby are incorporated herein by reference and shall be deemed a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. Description of Securities.
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
Not applicable.
ITEM 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Act permits the
Registrant to indemnify officers, directors or employees against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement in
connection with legal proceedings "if {as to any officer, director or employee}
he acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, with respect to any
criminal act or proceeding, had no reasonable cause to believe his conduct was
unlawful," provided that with respect to actions by, or in the right of, the
corporation against, such individuals, indemnification is not permitted as to
any matter as to which such person "shall have been adjudged to be liable to the
corporation, unless, and only to the extent that, the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper." Individuals who are successful in the defense of such action
are entitled to indemnity for such expenses reasonably incurred in connection
therewith.
Article Ninth of the Amended and Restated Certificate of Incorporation
of the Registrant requires the Registrant to indemnify directors and officers
against liabilities which they may incur under the circumstances set forth in
the preceding paragraph. The right of indemnification in Article Ninth also
includes the right to be paid by the Registrant the expenses incurred in
connection with a legal proceeding in advance of its final disposition to the
fullest extent authorized by Delaware law. The right to indemnification
conferred under Article Ninth is a contract right.
The Registrant maintains standard policies of insurance under which
coverage is provided (a) to its directors and officers against loss arising from
claims made by reason of breach of duty or other wrongful act, and (b) to the
Registrant with respect to payments which may be made by the Registrant to such
officers and directors pursuant to the above indemnification provision or
otherwise as a matter of law.
The underwriting agreement filed as Exhibit 1 to the Registrant's
Registration Statement on Form S-1 (No. 333-12267) provides for indemnification
of directors and officers of the Registrant by the underwriters of the
Registrant's initial public offering against certain liabilities.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
5 Opinion of Pitney, Hardin, Kipp & Szuch, as to the legality of
the securities being registered.
23(a) Consent of KPMG Peat Marwick LLP.
23(b) Consent of Pitney, Hardin, Kipp & Szuch (included in Exhibit 5
hereto).
24 Power of Attorney (included on signature page hereto).
99 Linens 'n Things, Inc. Deferred Compensation Plan.
ITEM 9. Undertakings.
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement to include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
(b) That, for purposes of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
2. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 City of Clifton, State of New Jersey, on this 2nd day of
June, 1998.
Linens 'n Things, Inc.
(Registrant)
NORMAN AXELROD
By: _________________________
Norman Axelrod
Chairman, Chief Executive Officer
and President
(Principal Executive Officer)
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned officers
and directors of the Registrant hereby severally constitutes and appoints Norman
Axelrod, William T. Giles and Brian D. Silva, and each of them, their true and
lawful attorney-in-fact for the undersigned, in any and all capacities, with
full power of substitution, to sign any and all amendments to this Registration
Statement (including post-effective amendments), and to file the same with
exhibits thereto and other documents in connection therewith, with the
Commission, granting unto said attorney-in-fact full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could in person, hereby ratifying and confirming all that said attorney-in-fact
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
NORMAN AXELROD
_____________________ June 2, 1998
Norman Axelrod Chairman, Chief Executive
Officer and President
(Principal Executive Officer)
PHILIP E. BEEKMAN
______________________ June 2, 1998
Philip E. Beekman Director
HAROLD F. COMPTON
______________________ June 2, 1998
Harold F. Compton Director
CHARLES C. CONAWAY
_____________________ June 2, 1998
Charles C. Conaway Director
STANLEY P. GOLDSTEIN
______________________ June 2, 1998
Stanley P. Goldstein Director
WILLIAM T. GILES
______________________ June 2, 1998
William T. Giles Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
</TABLE>
<PAGE>
Pursuant to the requirements of the Securities Act, the administrative
committee of the Plan has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Clifton, State of New Jersey, on this 2nd day of June, 1998.
LINENS 'N THINGS, INC. DEFERRED
COMPENSATION PLAN
(Plan)
STANLEY P. GOLDSTEIN
By: _________________________
Stanley P. Goldstein
Chairman of the Compensation
Committee
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description
----------- -----------
5 Opinion of Pitney, Hardin, Kipp & Szuch.
23(a) Consent of KPMG Peat Marwick LLP.
23(b) Consent of Pitney, Hardin, Kipp & Szuch (included in Exhibit 5
hereto).
24 Power of Attorney (included on signature page hereto).
99 Linens 'n Things, Inc. Deferred Compensation Plan.
Exhibit 5
Opinion of Pitney, Hardin, Kipp & Szuch
PITNEY, HARDIN, KIPP & SZUCH
(MAIL TO)
P.O. BOX 1945
MORRISTOWN, NEW JERSEY 07962-1945
------
June 1, 1998
Linens 'n Things, Inc.
6 Brighton Road
Clifton, New Jersey 07015
Re: Registration Statement on Form S-8
Deferred Compensation Plan
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by Linens 'n Things, Inc. (the "Company")
with the Securities and Exchange Commission in connection with the registration
under the Securities Act of 1933, as amended (the "Act"), of 200,000 shares of
common stock of the Company, $0.01 par value per share (the "Shares") issuable
pursuant to the Linens 'n Things, Inc. Deferred Compensation Plan (the "Plan")
and of the interests in the Plan.
We have also examined originals, or copies certified or otherwise
identified to our satisfaction, of the Plan, the Certificate of Incorporation
and By-laws of the Company, as currently in effect, and relevant resolutions of
the Board of Directors of the Company; and we have examined such other documents
as we deemed necessary in order to express the opinion hereinafter set forth.
In our examination of such documents and records, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, and conformity with the originals of all documents submitted
to us as copies.
Based on the foregoing, we are of the opinion that, when the
Registration Statement has become effective under the Act, and the Shares shall
have been duly issued in the manner contemplated by the Registration Statement
and the Plan, the Shares will be legally issued, fully paid and non-assessable.
The foregoing opinion is limited to the federal laws of the United
States and the laws of the State of Delaware, and we are expressing no opinion
as to the effect of the laws of any other jurisdiction.
We hereby consent to use of this opinion as an Exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Act, or the Rules and Regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
PITNEY, HARDIN, KIPP & SZUCH
Exhibit 23(a)
Consent of Independent Auditors
The Board of Directors
Linens 'n Things, Inc.
We consent to the use of our audit report dated February 4, 1998 on the
consolidated balance sheets of Linens 'n Things, Inc. and subsidiaries as of
December 31, 1997 and 1996 and the related consolidated statements of
operations, shareholders' equity, and cash flows for each of the years in the
three-year period ended December 31, 1997 incorporated herein by reference in
the Registration Statement on Form S-8 of the Linens 'n Things, Inc. Deferred
Compensation Plan.
Our audit report refers to Linens 'n Things, Inc.'s adoption of the Financial
Accounting Standards Board's Statement of Financial Accounting Standards No.
121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to Be Disposed Of" effective October 1, 1995 and a change in its policy
for accounting for the costs of internally developed software effective January
1, 1995.
KPMG PEAT MARWICK LLP
New York, New York
May 29, 1998
Exhibit 99
Linens 'n Things, Inc. Deferred Compensation Plan
Page
1. Purposes............................................................ 1
2. Definitions......................................................... 1
3. Administration...................................................... 2
4. Participation....................................................... 3
5. Deferrals........................................................... 3
6. Deferral Accounts................................................... 4
7. Deferral of Certain Stock-Denominated Awards........................ 5
8. Settlement of Deferral Accounts..................................... 6
9. Provisions Relating to Section 16 of the Exchange Act
and Section 162(m) of the Code...................................... 6
10. Statements.......................................................... 7
11. Sources of Stock: Limitation on Amount of
Stock-Denominated Deferrals......................................... 7
12. Amendment/Termination............................................... 7
13. General Provisions.................................................. 7
14. Effective Date...................................................... 9
<PAGE>
LINENS 'N THINGS, INC.
Deferred Compensation Plan
1. Purposes. The purposes of this Deferred Compensation Plan (the
"Plan") are to provide certain highly compensated employees of Linens'n Things,
Inc. (the "Company") and its subsidiaries with the opportunity to elect to defer
receipt of specified portions of compensation and to have such deferred amounts
treated as if invested in specified investment vehicles.
2. Definitions. In addition to the terms defined in Section 1 above,
the following terms used in the Plan shall have the meanings set forth below:
(a) "Administrator" shall mean the Deferred Compensation
Committee set forth in Section 3(b) to whom the Committee has delegated the
authority to take action under the Plan, except as may be otherwise required
under Section 9.
(b) "Beneficiary" shall mean any person (which may include
trusts and is not limited to one person) who has been designated by the
Participant in his or her most recent written beneficiary designation filed with
the Company to receive the benefits specified under the Plan in the event of the
Participant's death. If no beneficiary has been designated who survives the
Participant's death, then Beneficiary means any person(s) entitled by will or,
in the absence thereof, the laws of descent and distribution to receive such
benefits.
(c) "Change in Control" shall have the meaning given to such
term in the Linens'n Things, Inc. 1996 Incentive Compensation Plan.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended. References to any provision of the Code or regulation (including a
proposed regulation) thereunder shall include any successor provisions or
regulations.
(e) "Committee" shall mean the Compensation Committee of the
Board of Directors of the Company or any other directors of the Company
designated as the Committee. Except as may be otherwise required under Section 9
or by applicable law, any function of the Committee may be delegated to the
Administrator.
(f) "Deferral Account" shall mean the account or subaccount
established and maintained by the Company for specified deferrals by a
Participant, as described in Sections 6 and 7. Deferral Accounts will be
maintained solely as bookkeeping entries by the Company to evidence unfunded
obligations of the Company.
(g) "Disability" shall have the meaning given to such term in
the Company's Long-Term Disability Plan.
(h) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended. References to any provision of the Exchange Act or rule
thereunder shall include any successor provisions or rules.
(i) "Participant" shall mean any employee of the Company or
any subsidiary who is designated by the Committee as an eligible Participant in
the Plan and who participates or makes an election to participate in the Plan.
(j) "Retirement" shall mean a Participant's voluntary
termination of employment (i) at or after attaining age 60 or (ii) at or after
attaining age 55, but prior to attaining age 60, if such termination is approved
in advance by the Committee.
(k) "Stock" shall mean Linens'n Things, Inc. Common Stock, or
any other equity securities of the Company designated by the Committee.
(l) "Trust" shall mean any trust or trusts established by the
Company as part of the Plan; provided, however, that the assets of such trusts
shall remain subject to the claims of the general creditors of the Company.
(m) "Trustee" shall mean the trustee of a Trust.
(n) "Trust Agreement" shall mean the agreement entered into
between the Company and the Trustee to carry out the purposes of the Plan, as
amended or restated from time to time.
(o) "Valuation Date" shall mean the close of business on the
last business day of each calendar quarter, provided, however, that in the case
of termination of employment for reasons other than Retirement, death, or
Disability, the Valuation Date shall mean the close of business on the last
business day of the month in which employment terminates, and in the case of a
Change in Control of the Company, the Valuation Date shall be the date of such
Change in Control.
3. Administration
(a) Authority. Both the Committee and the Administrator
(subject to the ability of the Committee to restrict the Administrator) shall
administer the Plan in accordance with its terms, and shall have all powers
necessary to accomplish such purpose, including the power and authority to
construe and interpret the Plan, to define the terms used herein, to prescribe,
amend and rescind rules and regulations, agreements, forms, and notices relating
to the administration of the Plan, and to make all other determinations
necessary or advisable for the administration of the Plan. Any actions of the
Committee or the Administrator with respect to the Plan shall be conclusive and
binding upon all persons interested in the Plan, except that any action of the
Administrator will not be binding on the Committee. The Committee and
Administrator may each appoint agents and delegate thereto powers and duties
under the Plan, except as otherwise limited by the Plan.
(b) Administrator. The Deferred Compensation Committee shall
consist of such number of members as shall be determined by the Committee, each
of whom shall be appointed by, shall remain in office at the will of, and may be
removed, with or without cause, by the Committee. Any member of the Deferred
Compensation Committee may resign at any time. No member of the Deferred
Compensation Committee shall be entitled to act on or decide any matter relating
solely to himself or herself or any of his or her rights or benefits under the
Plan. The members of the Deferred Compensation Committee shall not receive any
special compensation for serving in their capacities as members of the Deferred
Compensation Committee but shall be reimbursed for any reasonable expenses
incurred in connection therewith. No bond or other security need be required of
the Deferred Compensation Committee or any member thereof in any jurisdiction.
(c) Limitation of Liability. Each member of the Committee and
the Administrator shall be entitled to, in good faith, rely or act upon any
report or other information furnished to him or her by any officer or other
employee of the Company or any subsidiary, the Company's independent certified
public accountants, or any executive compensation consultant, legal counsel, or
other professional retained by the Company to assist in the administration of
the Plan. To the maximum extent permitted by law, no member of the Committee or
the Administrator, nor any person to whom ministerial duties have been
delegated, shall be liable to any person for any action taken or omitted in
connection with the interpretation and administration of the Plan.
4. Participation. The Administrator will notify each person of his or
her participation or eligibility to participate in the Plan not later than 15
days (or such lesser period as may be practicable in the circumstances) prior to
any deadline for filing an election form.
5. Deferrals. To the extent authorized by the Committee, a Participant
may elect to defer compensation or awards which may be in the form of cash,
Stock, Stock-denominated awards or other property to be received from the
Company or a subsidiary, including salary, annual incentive award, long term
award, shares issuable on stock option exercise and compensation payable under
other plans and programs, employment agreements or other arrangements, or
otherwise, as may be provided under the terms of such plans, programs and
arrangements or as designated by the Committee; provided, however, that a
Participant who is an employee of the Company or a subsidiary may defer, with
respect to a given year, receipt of only that portion of the Participant's
salary, annual incentive award, long term award, shares issuable on stock option
exercise and compensation payable under other plans and programs, employment
agreements or other arrangements that exceeds the FICA maximum taxable wage base
plus the amount necessary to satisfy Medicare and all other payroll taxes (other
than Federal, state or local income tax withholding) imposed on the wages of
such Participant from the Company and its subsidiaries. In addition to such
limitation, and any terms and conditions of deferral set forth under plans,
programs or arrangements from which receipt of compensation or awards is
deferred, the Committee may impose limitations on the amounts permitted to be
deferred and other terms and conditions on deferrals under the Plan. Any such
limitations, and other terms and conditions of deferral, shall be set forth in
the rules relating to the Plan or election forms, other forms, or instructions
published by the Committee and/or the Administrator.
(a) Elections. Once an election form, properly completed, is
received by the Company, the elections of the Participant shall be irrevocable;
provided, however, that the Committee and/or the Administrator may, in its
discretion, permit a Participant to elect a further deferral of amounts credited
to a Deferral Account by filing a later election form; provided, further, that,
unless otherwise approved by the Committee, any election to further defer
amounts credited to a Deferral Account must be made at least one (1) year prior
to the date such amounts would otherwise be payable.
(b) Date of Election. An election to defer compensation or
awards hereunder must be received by the Administrator prior to the date
specified by the Administrator. Under no circumstances may a Participant defer
compensation or awards to which the Participant has attained, at the time of
deferral, a legally enforceable right to current receipt of such compensation or
awards.
6. Deferral Accounts. The following provisions will apply to Deferral
Accounts other than those established under Section 7.
(a) Establishment; Crediting of Amounts Deferred. One or more
Deferral Accounts will be established for each Participant, as determined by the
Administrator. The amount of compensation or awards deferred with respect to
each Deferral Account will be credited to such Account as of the date on which
such amounts would have been paid to the Participant but for the Participant's
election to defer receipt hereunder. The amounts of hypothetical income and
appreciation and depreciation in value of such account will be credited and
debited to, or otherwise reflected in, such Account from time to time. Unless
otherwise determined by the Administrator, amounts credited to a Deferral
Account shall be deemed invested in a hypothetical investment as of the date of
deferral.
(b) Hypothetical Investment Vehicles. Subject to the
provisions of Section 6(c) and 9, amounts credited to a Deferral Account shall
be deemed to be invested, at the Participant's direction, in one or more
investment vehicles as may be specified from time to time by the Administrator.
The Administrator may change or discontinue any hypothetical investment vehicle
available under the Plan in its discretion; provided, however, that, subject to
the authority of the Administrator to disregard the directions of any
Participant, each affected Participant is given the opportunity, without
limiting or otherwise impairing any other right of such Participant regarding
changes in investment directions, to redirect the allocation of his or her
Deferral Account deemed invested in the discontinued investment vehicle among
the other hypothetical investment vehicles, including any replacement vehicle.
(c) Allocation and Reallocation of Hypothetical Investments. A
Participant may allocate amounts credited to his or her Deferral Account to one
or more of the hypothetical investment vehicles authorized under the Plan.
Subject to the rules established by the Administrator, a Participant may
reallocate amounts credited to his or her Deferral Account as of the Valuation
Date following the Participant's election to one or more of such hypothetical
investment vehicles, by filing with the Administrator a notice, in such form as
may be specified by the Administrator, not later than the 15th of the month
preceding such Valuation Date. The Committee or Administrator may, in its
discretion, restrict allocation into or reallocation by specified Participants
into or out of specified investment vehicles or specify minimum amounts that may
be allocated or reallocated by Participants.
(d) Trusts. The Committee may, in its discretion, establish
one or more Trusts (including sub-accounts under such Trusts), and deposit
therein amounts of cash, Stock, or other property not exceeding the amount of
the Company's obligations with respect to a Participant's Deferral Account
established under this Section 6. In such case, the amounts of hypothetical
income and appreciation and depreciation of in value of such Deferral Account
shall be equal to the actual income on, and appreciation and depreciation of,
the assets in such Trusts. Other provisions of this Section 6 notwithstanding,
the timing of allocations and reallocations of assets in such a Deferral
Account, and the investment vehicles available with respect to such Deferral
Account, may be varied to reflect the timing of actual investments of the assets
of such Trust and the actual investments available to such Trust.
7. Deferral of Certain Stock-Denominated Awards.
(a) Establishment. Subject to any terms and conditions imposed
by the Committee, Participants may elect to defer, under the Plan, awards
denominated in Stock specified by the Committee or Administrator. In connection
with such deferral of a Stock denominated award, a Deferral Account shall be
established for such Participant and a Trust (including sub-accounts under such
Trust) may also be established, on terms determined by the Committee, into which
the Company may deposit a number of whole shares of Stock equal to the number of
shares subject to such deferred award. With respect to any fractional shares of
Stock or Stock-denominated awards, the Administrator, in its sole discretion,
shall pay such fractional shares to the Participant in cash or credit the
Deferral Account with cash in lieu of depositing fractional shares into the
Deferral Account. In such case, the amounts of hypothetical income and
appreciation and depreciation in value of such Deferral Account shall be equal
to the actual income on, and appreciation and depreciation of, the assets in the
Trust.
(b) Investment of Trust Assets. The Trustee of each Trust,
which shall be a party not under the control of the Company, shall be
authorized, upon written instructions received from the Administrator or
investment manager appointed by the Administrator, to invest and reinvest the
assets of the Trust in accordance with the applicable Trust Agreement, including
the disposition of such Stock and reinvestment of the proceeds in one or more
investment vehicles designated by the Administrator; provided that, except as
may be permitted under Section 7(c), no such disposition shall be made until the
date that the shares of Stock subject to the deferred award are no longer
subject to a risk of forfeiture by the Participant.
(c) Cashless Exercise. If and to the extent permitted by the
Committee, and subject to such terms and conditions as may be established by the
Committee from time to time, a Participant may submit a request to the
Administrator to surrender (or constructively surrender) Stock allocated to his
or her Deferral Account to pay the purchase price of any stock options of the
Company granted to the Participant under another plan, program or arrangement.
8. Settlement of Deferral Accounts.
(a) Form of Payment. The Company shall settle a Participant's
Deferral Account, and discharge all of its obligations to pay deferred
compensation under the Plan with respect to such Deferral Account, by payment of
cash or, in the discretion of the Committee, by delivery of other assets
(including Stock) having a fair market value equal to the amount credited to the
Deferral Account.
(b) Forfeited Shares. To the extent that Stock (i) is
deposited in a Trust pursuant to Section 7 in connection with a deferral of
Stock or a Stock-denominated award under another plan, program, employment
agreement or other arrangement and (ii) is forfeited pursuant to the terms of
such plan, program, agreement or arrangement, the Participant shall not be
entitled to the value of such Stock and other property related thereto
(including without limitation, dividends and distributions thereon). Any Stock
or Stock-denominated awards and other property forfeited shall be returned to
the Company.
(c) Timing of Payments. Payments in settlement of a Deferral
Account shall be made as soon as practicable after the date or dates (including
upon the occurrence of specified events), and in such number of installments, as
may be directed by the Participant in his or her election relating to such
Deferral Account, or earlier in the following circumstances:
(i) In the event of termination of employment for reasons
other than Retirement or Disability, a single lump sum payment in
settlement of any Deferral Account (including a Deferral Account with
respect to which one or more installment payments have previously been
made) shall be made as promptly as practicable following the next
Valuation Date, unless otherwise determined by the Administrator; or
(ii) In the event of a Change in Control, payments in
settlement of any Deferral Account (including a Deferral Account with
respect to which one or more installment payments have previously been
made) shall be made within fifteen (15) business days following such
Change in Control.
(d) Financial Emergency and Other Payments. Other provisions
of the Plan (except Section 9) notwithstanding, if, upon the written application
of a Participant, the Committee determines that the Participant has a financial
emergency of such a substantial nature and beyond the individual's control that
payment of amounts previously deferred under the Plan is warranted, the
Committee may direct the payment to the Participant of all or a portion of the
balance of a Deferral Account and the time and manner of such payment.
9. Provisions Relating to Section 16 of the Exchange Act and Section
162(m) of the Code.
(a) Compliance with Section 16. With respect to a Participant
who is then subject to the reporting requirements of Section 16(a) of the
Exchange Act, the Committee and Administrator shall implement transactions under
the Plan and administer the Plan in a manner that will ensure that each
transaction by such a Participant is exempt from or otherwise not subject to
liability under Rule 16b-3, except that such a Participant may be permitted to
engage in a non-exempt transaction under the Plan if written notice is given to
the Participant regarding the non-exempt nature of such transaction.
(b) Compliance with Code Section 162(m). It is the intent of
the Company that any compensation (including any award) deferred under the Plan
by a person who is, with respect to the year of payout, deemed by the Committee
to be a "covered employee" within the meaning of Code Section 162(m) and
regulations thereunder, which compensation constitutes "qualified
performance-based compensation" within the meaning of Code Section 162(m) and
regulations thereunder, shall not, as a result of deferral hereunder, become
compensation with respect to which the Company in fact would not be entitled to
a tax deduction under Code Section 162(m). Accordingly, unless otherwise
determined by the Committee, if any compensation would become so disqualified
under Section 162(m) as a result of deferral hereunder, the terms of such
deferral shall be automatically modified to the extent necessary to ensure that
the compensation would not, at the time of payout, be so disqualified.
10. Statements. The Administrator will furnish statements to each
Participant reflecting the amount credited to a Participant's Deferral Accounts
and transactions therein not less frequently than once each calendar year.
11. Sources of Stock: Limitation on Amount of Stock-Denominated
Deferrals. If Stock is deposited under the Plan in a Trust pursuant to Section 7
in connection with a deferral of a Stock-denominated award under another plan,
program, employment agreement or other arrangement that provides for the
issuance of shares, the shares so deposited shall be deemed to have originated,
and shall be counted against the number of shares reserved, under such other
plan, program or arrangement. Stock actually delivered in settlement of Deferral
Accounts shall be originally issued shares or treasury shares, in the discretion
of the Committee.
12. Amendment/Termination. The Committee may, with prospective or
retroactive effect, amend, alter, suspend, discontinue, or terminate the Plan at
any time without the consent of Participants, stockholders, or any other person;
provided, however, that, without the consent of a Participant, no such action
shall materially and adversely affect the rights of such Participant with
respect to any rights to payment of amounts credited to such Participant's
Deferral Account. Notwithstanding the foregoing, the Committee may, in its sole
discretion, terminate the Plan (in whole or in part) and distribute to
Participants (in whole or in part) the amounts credited to their Deferral
Accounts.
13. General Provisions.
(a) Limits on Transfer of Awards. Other than by will or the
laws of descent and distribution, no right, title or interest of any kind in the
Plan shall be transferable or assignable by a Participant or his or her
Beneficiary or be subject to alienation, anticipation, encumbrance, garnishment,
attachment, levy, execution or other legal or equitable process, nor subject to
the debts, contracts, liabilities or engagements, or torts of any Participant or
his or her Beneficiary. Any attempt to alienate, sell, transfer, assign, pledge,
garnish, attach or take any other action subject to legal or equitable process
or encumber or dispose of any interest in the Plan shall be void.
(b) Receipt and Release. Payments (in any form) to any
Participant or Beneficiary in accordance with the provisions of the Plan shall,
to the extent thereof, be in full satisfaction of all claims for the
compensation or awards deferred and relating to the Deferral Account to which
the payments relate against the Company or any subsidiary thereof, the
Committee, or the Administrator, and the Administrator may require such
Participant or Beneficiary, as a condition to such payments, to execute a
receipt and release to such effect. In the case of any payment under the Plan of
less than all amounts then credited to an account in the form of Stock, the
amounts paid shall be deemed to relate to the Stock credited to the account at
the earliest time.
(c) Unfunded Status of Awards: Creation of Trusts. The Plan is
intended to constitute an "unfunded" plan for deferred compensation and
Participants shall rely solely on the unsecured promise of the Company for
payment hereunder. With respect to any payment not yet made to a Participant
under the Plan, nothing contained in the Plan shall give a Participant any
rights that are greater than those of a general unsecured creditor of the
Company; provided, however, that the Committee may authorize the creation of
Trusts, including but not limited to the Trusts referred to in Sections 6 and 7
hereof, or make other arrangements to meet the Company's obligations under the
Plan, which Trusts or other arrangements shall be consistent with the "unfunded"
status of the Plan unless the Committee otherwise determines with the consent of
each affected Participant.
(d) Compliance. A Participant in the Plan shall have no right
to receive payment (in any form) with respect to his or her Deferral Account
until legal and contractual obligations of the Company relating to establishment
of the Plan and the making of such payments shall have been complied with in
full. In addition, the Company shall impose such restrictions on Stock delivered
to a Participant hereunder and any other interest constituting a security as it
may deem advisable in order to comply with the Securities Act of 1933, as
amended, the requirements of the New York Stock Exchange or any other stock
exchange or automated quotation system upon which the Stock is then listed or
quoted, any state securities laws applicable to such a transfer, any provision
of the Company's Certificate of Incorporation or Bylaws, or any other law,
regulation, or binding contract to which the Company is a party.
(e) Other Participant Rights. No Participant shall have any of
the rights or privileges of a stockholder of the Company under the Plan,
including as a result of the crediting of Stock equivalents or other amounts to
a Deferral Account, or the creation of any Trust and deposit of such Stock
therein, except at such time as Stock may be actually delivered in settlement of
a Deferral Account. No provision of the Plan or transaction hereunder shall
confer upon any Participant any right to be employed by the Company or a
subsidiary thereof, or to interfere in any way with the right of the Company or
a subsidiary to increase or decrease the amount of any compensation payable to
such Participant. Subject to the limitations set forth in Section 13(a) hereof,
the Plan shall inure to the benefit of, and be binding upon, the parties hereto
and their successors and assigns.
(f) Tax Withholding. The Company and any subsidiary shall have
the right to deduct from amounts otherwise payable in settlement of a Deferral
Account any sums that federal, state, local or foreign tax law requires to be
withheld with respect to such payment. Shares may be withheld to satisfy such
obligations in any case where taxation would be imposed upon the delivery of
shares, except that shares issued or delivered under any plan, program,
employment agreement or other arrangement may be withheld only in accordance
with the terms of such plan, program, employment agreement or other arrangement
and any applicable rules, regulations, or resolutions thereunder.
(g) Governing Law. The validity, construction, and effect of
the Plan and any rules and regulations relating to the Plan shall be determined
in accordance with the laws of the State of Delaware, without giving effect to
principles of conflicts of laws, and applicable provisions of federal law.
(h) Limitation. A Participant and his or her Beneficiary shall
assume all risk in connection with any decrease in value of the Deferral Account
and neither the Company, the Committee nor the Administrator shall be liable or
responsible therefor.
(i) Construction. The captions and numbers preceding the
sections of the Plan are included solely as a matter of convenience of reference
and are not to be taken as limiting or extending the meaning of any of the terms
and provisions of the Plan. Whenever appropriate, words used in the singular
shall include the plural or the plural may be read as the singular.
(j) Severability. In the event that any provision of the Plan
shall be declared illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining provisions of the Plan but shall be
fully severable, and the Plan shall be construed and enforced as if said illegal
or invalid provision had never been inserted herein.
(k) Status. The establishment and maintenance of, or
allocations and credits to, the Deferral Account of any Participant shall not
vest in any Participant any right, title or interest in and to any Plan assets
or benefits except at the time or times and upon the terms and conditions and to
the extent expressly set forth in the Plan and in accordance with the terms of
the Trust.
14. Effective Date. The Plan shall be effective as of December 30,
1996.
