<PAGE> 1
As filed with the Securities and Exchange Commission on September 9, 1997.
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------
CHEMFIRST INC.
(Exact Name of Registrant as specified in its Charter)
--------------------
Mississippi 64-0679456
(State of Incorporation) (I.R.S. Employer Identification No.)
700 North Street
Jackson, Mississippi 39202
(Address of Principal Executive Offices) (Zip Code)
CHEMFIRST INC.
1997 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
with copies to:
-------- --------------
James L. McArthur Mark D. Kaufman
Secretary Sutherland, Asbill & Brennan, LLP
ChemFirst Inc. 999 Peachtree Street, N.E.
700 North Street Atlanta, Georgia 30309-3996
Jackson, Mississippi 39202 (404) 853-8000
(Name and Address of Agent for Service)
601/948-7550
---------------
(Telephone Number, including Area Code, of Agent for Service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
========================================================================================================================
<S> <C> <C> <C> <C>
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered (1) per share (2) price registration fee
- ------------------------------------------------------------------------------------------------------------------------
Common Stock
$1.00 par value 250,000 shares $25.125 $6,281,250 $1,903.41
========================================================================================================================
</TABLE>
- ------------------------
(1) This represents the maximum number of shares of the Registrant's $1.00 par
value Common Stock that could be acquired upon exercise of options issuable
under the ChemFirst Inc. 1997 Employee Stock Purchase Plan covered by this
Registration Statement.
(2) The price is estimated in accordance with Rule 457(h) under the Securities
Act of 1933, solely for the purpose of calculating the registration fee, and
represents the average of the high and low sale prices of the Common Stock of
ChemFirst Inc. on the New York Stock Exchange on September 3, 1997.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10 PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act"), and
the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by ChemFirst Inc. (the "Company") with
the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated herein by reference as of their respective dates:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996;
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year covered by the
Company's annual report referred to in (a) above; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed on December 9, 1996 (which
is incorporated by reference into the Company's Registration Statement on Form
S-1, dated November 18, 1996).
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date hereof and 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 into this Registration
Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in any of such documents hereby incorporated by
reference will 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 will 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
Legal matters, other than those relating to tax consequences, in
connection with the securities covered by this Registration Statement have been
passed upon by J. Steve Chustz, General Counsel of the Company. Mr. Chustz also
serves as General Counsel for various subsidiaries of the Company. As of August
15, 1997, Mr. Chustz beneficially
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<PAGE> 3
owned 55,587 shares of the Company's Common Stock which includes 53,527 shares
of the Company's Common Stock which Mr. Chustz has the right to acquire through
the exercise of Non-Qualified Stock Options.
The consolidated financial statements of the Company and subsidiaries
as of December 31, 1996, June 30, 1996 and 1995 and for the six months ended
December 31, 1996, and each of the years in the three-year period ended June
30, 1996, which are incorporated herein by reference, have been incorporated
herein in reliance upon the report, also incorporated herein by reference, of
KPMG Peat Marwick LLP, independent certified public accountants, and upon the
authority of said firm as experts in accounting and auditing. To the extent
that KPMG Peat Marwick LLP audits and reports on financial statements of the
Company and subsidiaries issued at future dates, and consents to the use of its
reports thereon, such financial statements also will be incorporated herein by
reference in reliance upon its reports and said authority.
Item 6. Indemnification of Directors and Officers
Subarticle E of Article 8 of the Mississippi Business Corporation Act
("MBCA") empowers a Mississippi corporation to indemnify against liability an
individual who is made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
formal or informal (a "Proceeding"), because such person is or was a director.
To be eligible for indemnification, the director must have (i) conducted
himself in good faith and (ii) reasonably believed (A) in the case of conduct
in such director's official capacity, that his conduct was in the best
interests of the corporation and (B) in all other cases, that his conduct was
at least not opposed to the best interests of the corporation and (iii) with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. Liability indemnified against includes the
obligation to pay a judgment, settlement, penalty, fine or reasonable expenses
incurred with respect to a Proceeding. The MBCA precludes a corporation from
indemnifying a director in connection with a Proceeding by or in the right of
the corporation in which the director was adjudged liable to the corporation,
except for reasonable expenses incurred in connection with the Proceeding if it
is determined that the director met the relevant standards of conduct described
above, or in connection with any other Proceeding with respect to conduct for
which he was adjudged liable on the basis that he received a financial benefit
to which he was not entitled, whether or not involving action in the director's
official capacity.
Subarticle E further provides that if a director is wholly successful,
on the merits or otherwise, in the defense of any Proceeding to which he was a
party because he is or was a director, the corporation must indemnify him
against reasonable expenses incurred in connection with the Proceeding. Also, a
court may order a company to indemnify a director if it determines the director
is fairly and reasonably entitled to indemnification in view of all of the
relevant circumstances. Subarticle E also allows corporations to indemnify
officers, employees or agents to the same extent as directors and provides for
mandatory or court-ordered indemnification for these persons as described
above. Finally, the MBCA allows corporations to purchase and maintain insurance
on behalf of directors, officers, employees or agents against liability
asserted against or incurred by him in that capacity or arising from his status
as such, whether or not the corporation would have the power to indemnify or
advance expenses to such person against liability under Subarticle E.
The Company's Amended and Restated Articles of Incorporation and
Bylaws provide for indemnification of the Company's officers and directors to
the fullest extent allowed by Mississippi law and further permit such
indemnification with respect to other employees and agents. In addition, the
Company entered into indemnification agreements with certain of its officers
and its directors. The effect of these agreements is to add a contractual right
to such indemnification to the indemnification rights otherwise granted.
The Company will have directors' and officers' liability insurance
which protects each director or officer from certain claims and suits,
including shareholder derivative suits, even where the director may be
determined not to be entitled to indemnification under the MBCA and claims and
suits arising under the Securities Act. The policy may also afford coverage
under circumstances where the facts do not justify a finding that the director
or officer acted in good faith and in a manner that was in or not opposed to
the best interests of the Registrant.
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<PAGE> 4
The foregoing represents a summary of the general effect of the MBCA,
the Company's Amended and Restated Articles of Incorporation and Bylaws and
directors' and officers' liability insurance coverage for purposes of general
description only.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 Amended and Restated Articles of Incorporation of the
Company.*
4.2 Bylaws of the Company.*
4.3 ChemFirst Inc. 1997 Employee Stock Purchase Plan.
5 Opinion of J. Steve Chustz.
23.1 Consent of J. Steve Chustz is contained in Exhibit 5.
23.2 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney by each of the Directors of the Company
appointing J. Kelley Williams and R. Michael Summerford as
attorney-in-fact is located at page 6 of this Registration
Statement.
* Hereby incorporated by reference to the exhibit with the same
name to the Company's S-1 Registration Statement (file number
333-15789).
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) (ss.
230.424(b) of this chapter) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
Registration Statement;
(iii) 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;
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<PAGE> 5
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the Registration Statement shall
be deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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.
* * *
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<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing 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 Jackson, State of Mississippi, on September 9,
1997.
CHEMFIRST INC.
By: /s/ Thomas G. Tepas
------------------------------
Name: Thomas G. Tepas
Title: President and
Chief Operating Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints J. Kelley Williams and R. Michael
Summerford and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any or all amendments to
this Registration Statement and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents 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 do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
<S> <C> <C>
/s/ J. Kelley Williams Chairman of the Board of September 9, 1997
- -------------------------- Directors, Chief Executive Officer
J. Kelley Williams (Principal Executive Officer)
/s/ Thomas G. Tepas President and Chief Operating September 9, 1997
- -------------------------- Officer
Thomas G. Tepas
/s/ R. Michael Summerford Vice President and Chief Financial September 9, 1997
- -------------------------- Officer (Principal Financial
R. Michael Summerford Officer)
/s/ Troy B. Browning Controller (Principal Accounting September 9, 1997
- -------------------------- Officer)
Troy B. Browning
/s/ Richard P. Anderson Director September 9, 1997
- --------------------------
Richard P. Anderson
/s/ Paul A. Becker Director September 9, 1997
- --------------------------
Paul A. Becker
/s/ James W. Crook Director September 9, 1997
- --------------------------
James W. Crook
</TABLE>
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<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
<S> <C> <C>
/s/ Michael J. Ferris Director September 9, 1997
- ---------------------------
Michael J. Ferris
/s/ James E. Fligg Director September 9, 1997
- ---------------------------
James E. Fligg
/s/ Robert P. Guyton Director September 9, 1997
- ---------------------------
Robert P. Guyton
/s/ Charles P. Moreton Director September 9, 1997
- ---------------------------
Charles P. Moreton
/s/ Paul W. Murrill Director September 9, 1997
- ---------------------------
Paul W. Murrill
/s/ William A. Percy, II Director September 9, 1997
- ---------------------------
William A. Percy, II
/s/ Dan F. Smith Director September 9, 1997
- ---------------------------
Dan F. Smith
/s/ Leland R. Speed Director September 9, 1997
- ---------------------------
Leland R. Speed
/s/ R. Gerald Turner Director September 9, 1997
- ---------------------------
R. Gerald Turner
</TABLE>
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<PAGE> 8
INDEX TO EXHIBITS
-----------------
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
- ------ -------
<S> <C>
4.1 Amended and Restated Articles of Incorporation of the Company.*
4.2 Bylaws of the Company.*
4.3 ChemFirst Inc. 1997 Employee Stock Purchase Plan.
5 Opinion of J. Steve Chustz.
23.1 Consent of J. Steve Chustz is contained in Exhibit 5.
23.2 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney by each of the Directors of the Company
appointing J. Kelley Williams and R. Michael Summerford as
attorney-in-fact is located at page 6 of this Registration
Statement.
</TABLE>
* Hereby incorporated by reference to the exhibit with
the same name to the Company's S-1 Registration
Statement (file number 333-15789).
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<PAGE> 1
EXHIBIT 4.3
CHEMFIRST INC.
1997 EMPLOYEE STOCK PURCHASE PLAN
ChemFirst Inc., a Mississippi corporation (hereinafter referred to as
the "Sponsoring Employer" or as an "Employer"), has adopted the following
Employee Stock Purchase Plan for the benefit of its eligible employees.
The number of shares of the Sponsoring Employer's $1.00 par value
common stock (the "Common Stock") presently reserved for issuance under the
plan is 250,000 shares.
The purpose of this plan is to provide an opportunity for eligible
employees of an Employer to share in the growth and prosperity of the
Sponsoring Employer through the acquisition of shares of the Common
Stock.
The Sponsoring Employer intends that options issued under this plan
(hereinafter "Options") shall constitute options issued pursuant to an
"employee stock purchase plan" within the meaning of Section 423 of the
Internal Revenue Code of 1986, as amended (the "Code").
ARTICLE 1: TITLE
1.1 This plan shall be known as the ChemFirst Inc. 1997 Employee Stock Purchase
Plan (hereinafter referred to as the "Plan").
ARTICLE 2: DEFINITIONS
As used herein, the following words and phrases shall have the
meanings specified below, unless a different meaning is plainly required by the
context, viz.:
2.1 The term "Board of Directors" shall mean the Board of Directors of
the Sponsoring Employer.
2.2 The term "Compensation Committee" shall mean the Compensation
Committee of the Board of Directors or any individual or committee designated
by the Compensation Committee to carry out its obligations hereunder.
2.3 The term "Contribution Account" shall mean the account established
on behalf of a Member to which shall be credited the amount of the Member's
contribution, pursuant to Article 4.
<PAGE> 2
2.4 The term "Employee" shall mean each current or future employee of
an Employer, whose customary employment is at least twenty (20) hours a week
and is or will be more than five (5) months in a calendar year, except those
employees of the Employer who are deemed to be "highly compensated employees"
within the meaning of Section 423 of the Code and who are also either (i)
"officers" of the Sponsoring Employer for purposes of Section 16 of the
Securities Exchange Act of 1934 or (ii) officers of an Employer who are
eligible for conversion awards under Section 7 of the Sponsoring Employer's
1995 Long Term Incentive Plan or any Sponsoring Employer Long Term Incentive
Plan which becomes effective subsequent to the date this Plan is adopted by the
Board of Directors.
2.5 The term "Employer" shall mean any corporation designated by the
Board of Directors of the Sponsoring Employer as an Employer under this Plan
and which is either the Sponsoring Employer or a Subsidiary of the Sponsoring
Employer.
2.6 The term "Exercise Date" shall mean the last trading date on the
New York Stock Exchange (hereinafter referred to as "NYSE") of the Offering
Period.
2.7 The term "Fair Market Value" shall mean the average of the high
and low sales price of the Common Stock as reported by NYSE as of the
applicable date; provided that, if there shall be any material alteration in
the present system of reporting prices of such stock, or if such stock shall no
longer be reported on the NYSE, the Fair Market Value of the stock as of a
particular date shall be determined by such method as shall be specified by the
Compensation Committee.
2.8 The term "Grant Date" shall mean the first NYSE trading date of
the Offering Period.
2.9 The "Issue Price" shall mean the price of the stock to be charged
to participating Members at the Exercise Date as provided in Article 4.
2.10 The term "Member" shall mean any Employee of an Employer who has
met the conditions and provisions for becoming a Member as provided in Article
3.
2.11 The term "Member's Contribution Rate" shall be that whole
percentage of a Member's Normal Monthly Pay a Member elects to contribute by
regular payroll deductions to his Contribution Account as provided by Section
4.2.
2.12 The term "Normal Monthly Pay" shall be computed for hourly
Employees by annualizing the Employee's hourly base pay and his regular
scheduled hours of work as in effect from time to time during the Offering
Period in question and in each case dividing by twelve, and the term "Normal
Monthly Pay" for salaried Employees shall mean the Employee's regular monthly
base pay in effect from time to time during the Offering Period in question.
2
<PAGE> 3
2.13 The term "Plan Agent" shall mean that individual or entity to
which the Sponsoring Employer has delegated authority to administer this Plan
and keep records of individual Member benefits.
2.14 Except for the initial Offering Period, which shall be from
October 1, 1997 through June 30, 1998, the term "Offering Period" shall mean a
period of three (3) calendar months, commencing on the first day of January,
April, July and October and ending, respectively, on the last day of each
March, June, September and December. The Board of Directors or the Compensation
Committee shall have the power to change the commencement date and duration of
future Offering Periods if such change is announced at least seven (7) days
prior to the scheduled beginning of the first Offering Period to be affected.
2.15 The term "Sponsoring Employer Stock" shall mean those shares of
the Common Stock which pursuant to Section 4.1 are reserved for issuance upon
the exercise of the Options granted under this Plan.
2.16 The term "Subsidiary" shall mean any corporation having a
relationship to the Sponsoring Employer described in Section 424(f) of the
Code.
2.17 Any words herein used in the masculine shall be read and
construed in the feminine where they would so apply. Words in the singular
shall be read and construed as though in the plural in all cases where they
would so apply.
ARTICLE 3: MEMBERSHIP IN PLAN
3.1 Each Employee will be eligible to become a Member in the Plan for
any Offering Period if he is an Employee on the first day of the Offering
Period.
3.2 Upon becoming a Member, said Member shall be bound by the terms of
this Plan, including any amendments hereto.
3.3 Each Employee who becomes eligible to become a Member shall be
furnished a summary of the Plan and an enrollment form. If such Employee elects
to participate hereunder for an Offering Period, he shall complete such form
and file it with his Employer prior to the first day of the Offering Period. An
Employee may only become a Member in the Plan at the beginning of an Offering
Period. The completed enrollment form shall indicate the Member's Contribution
Rate authorized by the Member for such Offering Period, and shall authorize the
Plan Agent to retain shares of Common Stock credited to such Member's account
pursuant to Section 4.7, to use cash dividends attributable to Common Stock in
such Member's account pursuant to Section 5.16 to purchase additional shares of
Common Stock and to retain in such account stock dividends attributable to
Common Stock in such account.
3
<PAGE> 4
ARTICLE 4: ISSUANCE OF STOCK OPTIONS
4.1 The Sponsoring Employer shall reserve 250,000 shares of Common
Stock for issuance upon the exercise of the Options granted hereunder. These
shares may be either authorized and unissued shares, issued shares held in or
acquired for the treasury of the Sponsoring Employer, or shares of stock
reacquired by the Sponsoring Employer upon purchase in the open market or
otherwise.
4.2 (a) In order to participate in the Plan for an Offering Period and
be granted an Option hereunder, an Employee must authorize his Employer to
deduct through payroll deduction each pay period a whole percentage of Normal
Monthly Pay, but not less than $10.00 per month ("Member's Contribution Rate").
The maximum Member's Contribution Rate shall be fifteen percent (15%) of his
Normal Monthly Pay from his Employer. Such authorization shall be in writing
and on such forms as shall be provided by the Sponsoring Employer. Such
deductions shall begin as of the first pay period beginning on or after the
first day of the Offering Period. For all purposes of this Plan, such
contributions shall be deemed a part of the Member's Contribution Account.
Member contributions will not be permitted to begin at any time other than the
beginning of the Offering Period. Except for withheld amounts that are refunded
to Members in the event the shareholders of the Sponsoring Employer do not
approve this Plan in accordance with Section 5.13, no interest shall accrue on
any amounts withheld under this Plan. If the shareholders of the Sponsoring
Employer do not approve this Plan in accordance with Section 5.13, all withheld
amounts shall be refunded promptly after such shareholder vote, with interest
accrued thereon at six percent (6%) per annum.
(b) Subject to this Section 4.2, a Member may increase or decrease
his Member's Contribution Rate by filing a properly completed change form, or
such other authorization as the Sponsoring Employer shall require, with the
party and by the date designated by the Sponsoring Employer. Such change shall
be made in whole percentages of Normal Monthly Pay, and shall be effective
beginning on the first day of the Offering Period next succeeding the receipt
of the timely filed change form by the designated party.
(c) Subject to the provisions of Section 4.5, a Member may at
any time withdraw from participation in the Plan by filing a properly completed
withdrawal form, or such other authorization as the Sponsoring Employer shall
require, with the party and by the date designated by the Sponsoring Employer.
Provided the Sponsoring Employer or the party so designated has received the
withdrawal form fifteen (15) days prior to the Exercise Date, as soon as
practicable after receipt of the timely filed withdrawal form by the designated
party, (i) all payroll deductions then credited to the Member's Contribution
Account shall be paid to the Member, and (ii) no further payroll deductions
shall be made from the Member's compensation and no options shall be granted to
the Member during any Offering Period commencing thereafter, unless the Member
elects again to participate in the Plan pursuant to this Section 4.2. Partial
withdrawal from participation in the Plan shall not be permitted. Moreover, if
contributions are withdrawn during an Offering Period, no further contributions
will be permitted during that Offering Period. No interest shall accrue on
contributions which are withdrawn pursuant to this paragraph.
4
<PAGE> 5
(d) The fact that an Employee elects to participate for an
Offering Period, or fails so to elect, shall not affect his right to
participate, or not to participate, for any other Offering Period.
4.3 If the total number of shares to be purchased under Options by all
Members for any Offering Period exceeds the number of shares remaining
authorized under this Plan, a pro rata allocation of the available shares will
be made among all Members authorizing such payroll deductions based on the
amount of the respective aggregate payroll deductions up to the Exercise Date.
4.4 The Issue Price of the Common Stock under this Plan will be the
lesser of (a) eighty-five percent (85%) of the Fair Market Value on the last
trading date of the Offering Period (being the Exercise Date for the Offering
Period) or (b) eighty-five percent (85%) of the Fair Market Value on the first
trading date of the Offering Period (being the Grant Date for the Offering
Period).
4.5 On the Exercise Date a Member's Contribution Account shall be used
to purchase the maximum number of full and fractional shares of Common Stock
(rounded down to the nearest ten thousandth of a share) determined by dividing
the Issue Price defined in Section 4.4 into the Member's Contribution Account,
unless the Member has notified the Sponsoring Employer in writing at least
fifteen (15) days prior to the Exercise Date that the Member does not want to
exercise any Options. Any money remaining in a Member's Contribution Account
that is not used to purchase Common Stock shall be returned to the Member.
Options granted under this Plan shall be subject to such amendment or
modification as the Sponsoring Employer shall deem necessary to comply with any
applicable law or regulation and shall contain such other provisions as the
Sponsoring Employer shall from time to time approve and deem necessary.
4.6 In no event may a Member (a) receive an option that permits his
rights to purchase stock under all employee stock purchase plans of the
Sponsoring Employer and its parent and subsidiary corporations to accrue at a
rate which exceeds $25,000 of fair market value of such stock (determined at
the time such option is granted) for each calendar year in which such option is
outstanding at any time, or (b) receive an Option if he owns (within the
meaning of Section 423(b)(3) of the Code), immediately after the Option is
granted, stock possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Sponsoring Employer or its
parent or subsidiary corporation, or (c) transfer or otherwise alienate any
Option granted to him under this Plan, other than by will or the laws of
descent and distribution.
4.7 (a) Until the Member has satisfied the tax holding periods under
Section 423 of the Code, he will not receive a stock certificate for the shares
purchased by him pursuant to this Plan, his shares shall be held for his
account by the Plan Agent, and he may sell his Common Stock issued pursuant to
this Plan only through the brokerage facilities provided by the Plan Agent. The
Plan Agent will hold the shares of Common Stock of all Members together in its
name or the name of its nominee. The Plan Agent will forward as soon as
practicable any proxy solicitation materials to the Members. The Plan Agent
will vote the full and fractional shares credited to a Member's account in
<PAGE> 6
accordance with the Member's directions. The Plan Agent will vote only such
shares as to which it receives signed proxies.
(b) After the Member has satisfied the Section 423 holding
periods, he may request a certificate for any whole number of such shares no
longer subject to such holding periods.
(c) Each Member may also make a gift of the shares in his
account with the Plan Agent to another person before he has satisfied the
Section 423 holding periods. To do so, the Member shall file a written request
for a stock certificate with the Sponsoring Employer.
(d) After the purchase of shares of Common Stock pursuant to
Section 4.5, regardless of whether a certificate has been issued to the Member
or such shares are held for the Member's account by the Plan Agent, the Member
will have all ownership rights with respect to such shares, including, without
limitation, the right to vote such shares, to receive all reports and other
shareholder material, and to receive any dividends or distributions which might
be declared on such shares by the Board of Directors in the future.
4.8 (a) If a Member's employment with an Employer is terminated for
any reason (including death or disability) on or before the fifteenth (15th)
day of the last month of an Offering Period, the Member's right to purchase
Common Stock under the Plan will terminate immediately, and the Member's
payroll deductions not theretofore applied to the purchase of Common Stock will
be returned to the Member (or the Member's Executor or Administrator in the
case of death), without interest, as soon as practicable. If the termination of
employment occurs subsequent to the date referred to in the preceding sentence,
Common Stock will be purchased for the Member on the last day of the Offering
Period.
(b) In addition, the Member (or his Executor or Administrator
in the case of death) will be requested to complete a termination form by which
the Member notifies the Plan Agent whether the Member wishes (i) to receive,
subject to Section 4.7, a certificate for the number of shares held in his
account and cash representing any fractional share or (ii) to sell such shares
and any fraction thereof through the Plan Agent. If the Member fails to
complete and return the form within sixty (60) days after termination of the
Member's employment, the Member will be deemed to have elected to receive,
subject to Section 4.7, a certificate for the Member's shares and cash for any
fractional share interest.
4.9 If a Member or former Member disposes of a share of Sponsoring
Employer Stock obtained under this Plan (a) prior to two (2) years after the
Grant Date of such share, or (b) prior to one (1) year after the Exercise Date,
then that Member or former Member must notify the Sponsoring Employer
immediately of such disposition in writing.
4.10 (a) If a Member goes on a leave of absence, he will continue to
participate in the Plan for the Offering Period in which his leave began. If a
Member's leave of absence is ninety (90) days or less, his payroll deductions
will resume at the same rate when he returns to active service
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(unless he was on leave of absence at the beginning of the Offering Period in
which he returns). If his leave is longer than ninety (90) days, he may
participate in the Plan only for a subsequent Offering Period by submitting a
complete enrollment form at least fifteen (15) calendar days prior to the start
of the Offering Period. If his leave of absence is longer than ninety (90)
days, for purposes of the Plan he will be treated as having terminated
employment on the ninety-first (91st) day of his leave of absence.
(b) If a Member is on a leave of absence at the beginning of
an Offering Period, that Member may not participate in the Plan for that
Offering Period.
(c) If the Member has requested and received a certificate
representing his shares, he may sell the shares through any broker he selects.
If the Member's balance in his account with the Plan Agent contains less than a
full share and the Member is not then a participant in the Plan, the Plan Agent
will cause such fractional share to be sold and the proceeds of the sale to be
paid to such Member.
(d) In the event of any issuance of a stock certificate
pursuant to this Plan, the Member will be responsible for ordinary charges in
connection with the issuance of such certificate, and, in the event of any sale
of shares issued pursuant to this Plan, the Member will be responsible for
brokerage and other costs of the sale.
(e) Whenever a Member's or former Member's account is to be
closed, the Plan Agent shall arrange for a sale of any fractional shares
credited to such account within a reasonable period after the event resulting
in the closure of such account.
ARTICLE 5: MISCELLANEOUS
5.1 The Sponsoring Employer or the Plan Agent shall administer the
Plan and keep records of individual Member benefits. The Compensation Committee
of the Board shall interpret the terms and intent of the Plan and shall
determine all questions arising in the administration, interpretation and
application of the Plan, and all such determinations by the Compensation
Committee shall be conclusive and binding on all persons.
5.2 Each Member, former Member, or any other person who shall claim
any right or benefit under this Plan, shall be entitled only to look to the
Employer for such benefit.
5.3 The Compensation Committee of the Board may, at any time or from
time to time, amend the Plan in any respect, except that approval of the
stockholders of the Sponsoring Employer will be required for any amendment for
which stockholder approval is required under Section 423 of the Code or any
other applicable law. The Compensation Committee may at any time terminate the
Plan effective as of the last day of any Offering Period or may terminate the
right of Members to make contributions or further contributions under the Plan
during any Offering Period.
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5.4 The Employer will pay all expenses of administering this Plan that
may arise in connection with this Plan other than the charges incurred in
connection with the sale of a Member's shares through the Plan Agent or the
issuance of a Member's stock certificate.
5.5 Any rules, regulations, or procedures that may be necessary for
the proper administration or functioning of this Plan that are not covered in
this Plan shall be promulgated and adopted by the Compensation Committee or the
Board.
5.6 Any headings or subheadings in this Plan are inserted for
convenience of reference only and are to be ignored in the construction of any
provisions hereof.
5.7 This Plan shall be construed in accordance with the laws of the
State of Mississippi.
5.8 A misstatement of fact as to an Employee's date of employment or
any such other matter shall be corrected when it becomes known that any such
misstatement of fact has occurred.
5.9 The Options granted hereunder are not transferable by the Member
otherwise than by will or the laws of descent and distribution, and are
exercisable during the Member's lifetime only by him. If a Member attempts such
assignment, transfer or alienation, the Employer shall disregard that action.
5.10 This Plan is intended to be an "employee stock purchase plan"
qualified under Section 423 of the Code, and it shall be interpreted in such a
manner as to insure that the Members receive the benefits provided by such a
plan.
5.11 This Plan shall not be deemed to constitute a contract between an
Employer and any Member or to be a consideration or an inducement for the
employment of any Member or Employee. Nothing contained in this Plan shall be
deemed to give any Member or Employee the right to be retained in the service
of an Employer or to interfere with the right of an Employer to discharge any
Member or Employee at any time regardless of the effect which such discharge
shall have upon him as a Member of the Plan.
5.12 No liability whatever shall attach to or be incurred by any past,
present or future shareholders, officers or directors, as such, of any
Employer, under or by reason of any of the terms, conditions or agreements
contained in this Plan or implied therefrom, and any and all liabilities of,
and any and all rights and claims against, any Employer, or any shareholder,
officer or director as such, whether arising at common law or in equity or
created by statute or constitution or otherwise, pertaining to this Plan, are
hereby expressly waived and released by every Member, as a part of the
consideration for any benefits provided by each Employer under this Plan.
5.13 Notwithstanding any other provision of this Plan, in order for
this Plan to continue as effective, it must be approved by the shareholders of
the Sponsoring Employer during the period
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commencing twelve (12) months prior to and ending twelve (12) months after it
is adopted by the Board of Directors.
5.14 In the event of any change in the number of outstanding shares of
Common Stock by reason of a recapitalization, merger, consolidation,
reorganization, separation, liquidation, stock split, stock dividend,
combination of shares, or any other change in the corporate structure or shares
of stock of the Sponsoring Employer, the Board of Directors will make an
appropriate adjustment, in accordance with applicable provisions of the Code
and rulings and regulations thereunder, in the number and kind of shares which
may be offered under the Plan, both in the aggregate and as to each Member, the
number of shares then subject to offerings theretofore made, and the price of
shares offered under the Plan. In the event of a dissolution or liquidation of
the Sponsoring Employer or a merger or consolidation in which the Sponsoring
Employer is not the surviving corporation or survives only as a subsidiary of
another corporation, each outstanding Option granted under this Plan shall
terminate except to the extent that another corporation assumes such Option or
substitutes another option therefor.
5.15 The Sponsoring Employer's obligation to sell and deliver stock
under the Plan is at all times subject to all approvals of any governmental
authorities required in connection with the authorization, issuance, sale or
delivery of such stock.
5.16 If the Sponsoring Employer pays a cash dividend on shares of
Common Stock and a Member is entitled to receive such dividend on such shares
that have been purchased under the Plan and which are then held for the
Member's account by the Plan Agent, such dividend shall not be paid in cash,
but shall be paid in the form of additional shares of Common Stock ("Reinvested
Shares"), upon such terms and conditions as the Sponsoring Employer shall
determine, subject to this Section 5.16. Reinvested Shares may be purchased
directly from the Sponsoring Employer, from its treasury or authorized and
unissued shares of Common Stock, or purchased on the open market. Reinvested
Shares shall be purchased at one hundred percent (100%) of market value and not
at the Issue Price set forth in Section 4.4. A Member's account with the Plan
Agent shall be credited with the number of whole or fractional shares equal to
the amount of the dividend paid on a Member's shares of Common Stock acquired
under the Plan divided by the purchase price of the Reinvested Shares.
5.17 Any notice that the Sponsoring Employer or Member may be required
or permitted to give to each other shall be in writing, or by such other means
of communication as the Sponsoring Employer may designate in writing from time
to time, and may be delivered personally or by mail, postage prepaid, addressed
as follows: if to the Sponsoring Employer to J. Steven Chustz, General Counsel,
ChemFirst Inc., 700 North Street, Jackson, Mississippi 39202, or at such other
address as the Sponsoring Employer, by notice to the Members, may designate in
writing from time to time, with a copy of such notice forwarded to Bank of New
York, Employee Stock Purchase Plan Administration, Attn: Collen Steffens, 101
Barclay Street - 12W, New York, New York 10286, or to such other entity or
person and at such other address as the Sponsoring Employer, by notice to the
Members, may designate in writing from time to time; if to any other Employer,
to the address
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designated by such Employer in a written notice to the Members; and if to the
Member, at the address shown on the records of the Sponsoring Employer, or at
such other address as the Member, by notice to the Sponsoring Employer, may
designate in writing from time to time.
* * * * *
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EXHIBIT 5
September 1, 1997
Board of Directors
ChemFirst Inc.
700 North Street
Jackson, MS 39202-3095
Gentlemen:
This opinion is given in connection with a Registration Statement on Form S-8
(the "Registration Statement") which CHEMFIRST INC. (the "Company") is filing
with the Securities and Exchange Commission to register 250,000 shares of its
Common Stock (the "Common Stock"), for sale to certain Company employees
pursuant to the ChemFirst Inc. 1997 Employee Stock Purchase Plan (the "Plan").
As General Counsel of the Company, I am familiar with the Company's Articles of
Incorporation and Bylaws; the Plan; the Registration Statement; the actions
taken and resolutions passed by the Company's Board of Directors to authorize
the Plan and the Common Stock issuable pursuant to the Plan; and such other
matters and documents deemed necessary for the purpose of rendering this
opinion.
On the basis of the foregoing, I am of the opinion that all shares of the
Common Stock issuable pursuant to the Plan will, when issued in accordance with
the Plan, be legally issued, fully paid and non-assessable.
The opinion herein is limited solely to the laws of the State of Mississippi
and the laws of the United States, and I express no opinion herein concerning
the laws of any other jurisdiction.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me and to my opinion in the
Registration Statement.
Very truly yours,
CHEMFIRST INC.
/s/ J. Steve Chustz
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J. Steve Chustz
General Counsel
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITOR'S CONSENT
The Board of Directors
ChemFirst, Inc.:
We consent to the use of our report dated February 21, 1997, on the
consolidated financial statements of ChemFirst Inc. and subsidiaries as of
December 31, 1996, June 30, 1996 and 1995, and for the six months ended
December 31, 1996, and each of the years in the three-year period ended June
30, 1996, incorporated herein by reference and to the reference to our firm
under the heading "Interests of Named Experts and Counsel" in the Prospectus.
/s/ KPMG Peat Marwick LLP
- -------------------------
KPMG Peat Marwick LLP
Jackson, Mississippi
September 8, 1997
