<PAGE> 1
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AGRIBRANDS INTERNATIONAL, INC.
- --------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
Missouri 43-1794250
- ----------------------------------- --------------------------------------
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
9811 South Forty Drive, St. Louis, Missouri 63124
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Agribrands International, Inc. 1998 Incentive Stock Plan
- --------------------------------------------------------------------------------
(Full Title of the Plan)
DAVID R. WENZEL
Chief Financial Officer
Agribrands International, Inc.
9811 South Forty Drive, St. Louis, Missouri 63124
(314) 812-0500
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
MICHAEL J. COSTELLO, Esq.
General Counsel
Agribrands International , Inc.
9811 South Forty Drive
St. Louis, Missouri 63124
(314) 812-0500
<TABLE>
CALCULATION OF REGISTRATION FEE
===================================================================================================================
<CAPTION>
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Per Aggregate Offering Registration
to be Registered Registered<F1> Share<F2> Price<F2> Fee<F2>
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 2,750,000 $32.34 $88,935,000 $26,235.83
- -------------------------------------------------------------------------------------------------------------------
Common Share Purchase Rights <F3> <F4> <F4> <F4>
===================================================================================================================
<FN>
<F1> Pursuant to Rule 416, this Registration Statement shall also be
deemed to cover any additional securities to be offered or issued to prevent
dilution resulting from stock splits, stock dividends and similar
transactions.
<F2> The securities registered hereunder are to be offered pursuant to
the Agribrands International, Inc. 1998 Incentive Stock Plan. The amount set
forth herein is estimated solely for purposes of calculating the registration
fee in accordance with Rule 457(h)(1). Pursuant to Rule 457(c), the amount set
forth herein represents the average of the high and low prices for the
Registrant's common stock as of April 7, 1998, being within 5 business days
prior to the date of the filing of this Registration Statement.
<F3> Each share of Common Stock includes one common share purchase right.
<F4> Not applicable.
</TABLE>
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PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Information contained in the following documents of Agribrands
International, Inc. (the "Corporation") filed with the Securities and
Exchange Commission (the "Commission") is incorporated herein by reference:
(a) The Corporation's General Form for Registration of Securities on
Form 10, as filed with the Commission pursuant to Section 12(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
Registration No. 1-13479.
All reports and other documents subsequently filed by the Corporation
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of the filing of such reports and documents.
Item 4. Description of Securities.
This item is inapplicable as the securities to be offered are
registered under Section 12 of the Exchange Act.
Item 5. Interests of Counsel and Named Experts.
Certain legal matters in connection with this Registration Statement
have been passed upon by Lewis, Rice & Fingersh, L.C., St. Louis, Missouri.
Members of, and attorneys employed by, that firm owned directly or indirectly
as of April 1, 1998 3,218 shares of the Corporation's common stock.
Item 6. Indemnification Of Directors And Officers.
Under Section 351.355 of the Missouri General Business Corporation Law
(the "GBCL") and the Corporation's Articles of Incorporation, the Corporation
must indemnify any person (other than a party plaintiff suing on his or her
behalf or in the right of the Corporation) who is or was a director, officer
or employee of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, trade or industry association or other
enterprise, to the maximum extent permitted by law, against any and all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement, actually and reasonably incurred by such person in connection
with any civil, criminal, administrative or investigative action, proceeding
or claim (including an action by or in the right of the Corporation), by
reason of the fact that such person is or was serving in such capacity,
provided that such person's conduct is not finally adjudged to have been
knowingly fraudulent, deliberately dishonest or to constitute willful
misconduct.
The Corporation's directors and executive officers also have
indemnification contracts with the Corporation. Pursuant to those
agreements, the Corporation has agreed to indemnify the directors and
executive officers to the full extent authorized or permitted by the GBCL.
The agreements also provide for indemnification to the extent not covered by
the GBCL or insurance policies purchased and maintained by the Corporation
(e.g. if the GBCL is amended to change the scope of indemnification). Such
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indemnification would be coextensive with the indemnification currently
permitted by the GBCL, as described above, but no indemnity would be paid (i)
in respect to remuneration paid to the director, or executive officer or
employee if it shall be finally judicially adjudged that such remuneration is
in violation of law; (ii) on account of any suit for an accounting of profits
made from the purchase or sale by the director, executive officer or employee
of securities of the Corporation pursuant to the provisions of Section 16(b)
of the Exchange Act or similar provisions of any state or local statutory
law; (iii) on account of the directors, executive officer's or employee's
conduct which is finally judicially adjudged to have been knowingly
fraudulent, deliberately dishonest or to constitute willful misconduct; or
(iv) if a final decision by a Court having jurisdiction in the matter (all
appeals having been denied or none having been taken) shall determine that
such indemnification is not lawful. The agreements also provide for the
advancement of expenses of defending any civil or criminal action, claim,
suit or proceeding against the director, executive officer or employee and
for repayment of such expenses by the director, executive officer or employee
to the Corporation if it is ultimately judicially determined that the
director, executive officer or employee is not entitled to such
indemnification.
The Corporation has directors' and officers' insurance which protects
each director and officer from liability for actions taken in their capacity
as directors or officers. This insurance may provide broader coverage for
such individuals than may be required by the provisions of the Corporation's
Articles of Incorporation.
The foregoing represents a summary of the general effect of the
indemnification provisions of GBCL and the Corporation's Articles of
Incorporation and such agreements and insurance. Additional information
regarding indemnification of directors and officers can be found in Section
351.355 of the GBCL, the Corporation's Articles of Incorporation and its
pertinent agreements, copies of which were filed as exhibits to the
Corporation's Registration Statement on Form 10, which is incorporated herein
by reference.
Item 7. Exemption from Registration Claimed.
This item is inapplicable.
Item 8. Exhibits.
The following exhibits are submitted herewith or incorporated by
reference herein:
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
------ -------
<C> <S>
4(a) Articles of Incorporation of Agribrands International, Inc.
(incorporated herein by reference to Agribrands
International, Inc. Form 10, Registration No. 1-13479)
4(b) Bylaws of Agribrands International, Inc. (incorporated
herein by reference to Agribrands International, Inc. Form
10, Registration No. 1-13479)
5(a) Opinion of Lewis, Rice & Fingersh, L.C.
10(a) Agribrands International, Inc. 1998 Incentive Stock Plan
23(a) Consent of Lewis, Rice & Fingersh, L.C. (included as part
of Exhibit 5(a))
II-2
<PAGE> 4
23(b) Consent of Price Waterhouse LLP
24 Powers of Attorney (included in signature page of
Registration Statement)
</TABLE>
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;
(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;
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 section 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 Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than
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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 Securities Act of 1933 and will be governed
by the final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, as amended, 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 County of St. Louis, State of
Missouri, as of April 1, 1998.
AGRIBRANDS INTERNATIONAL, INC.
By /s/ David R. Wenzel
--------------------------------------------
David R. Wenzel
Chief Financial Officer
[Signatures continued on next page]
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[Signatures (cont.)]
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints David R.
Wenzel and Michael J. Costello, and each of them, severally, his true and
lawful attorneys and agents to execute in his name, place and stead
(individually and in any capacity stated below) any and all amendments to
this Registration Statement and all instruments necessary or advisable in
connection therewith and to file the same with the Securities and Exchange
Commission, each of said attorneys and agents to have power to act with or
without the others and to have full power and authority to do and to perform
in the name and on behalf of each of the undersigned every act whatsoever
necessary or advisable to be done in the premises as fully and to all intents
and purposes as any of he undersigned might or could do in person.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in their
respective capacities as of April 1, 1998.
<TABLE>
<CAPTION>
Name Title
- ---- -----
<C> <S>
/s/ William P. Stiritz Chairman, Chief Executive Officer and President
- ------------------------- (principal executive officer)
William P. Stiritz
/s/ David R. Wenzel Chief Financial Officer
- ------------------------- (principal financial and accounting officer)
David R. Wenzel
/s/ David R. Banks Director
- -------------------------
David R. Banks
/s/ Jay W. Brown Director
- -------------------------
Jay W. Brown
/s/ M. Darrel Ingram Director
- -------------------------
M. Darrell Ingram
/s/ H. Davis McCarty Director
- -------------------------
H. Davis McCarty
/s/ Joe R. Micheletto Director
- -------------------------
Joe R. Micheletto
/s/ Martin K. Sneider Director
- -------------------------
Martin K. Sneider
</TABLE>
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<PAGE> 8
AGRIBRANDS INTERNATIONAL, INC.
FORM S-8 REGISTRATION STATEMENT
<TABLE>
Exhibit Index
<CAPTION>
Reg. S-K
Item 601
Exhibit No. Exhibit
- ----------- -------
<C> <S>
4(a) Articles of Incorporation of Agribrands International, Inc.
(incorporated herein by reference to Agribrands
International, Inc. Form 10, Registration No. 1-13479)
4(b) Bylaws of Agribrands International, Inc. (incorporated
herein by reference to Agribrands International, Inc. Form
10, Registration No. 1-13479)
5(a) Opinion of Lewis, Rice & Fingersh, L.C.
10(a) Agribrands International, Inc. 1998 Incentive Stock Plan
23(a) Consent of Lewis, Rice & Fingersh, L.C. (included as part
of Exhibit 5(a))
23(b) Consent of Price Waterhouse LLP
24 Powers of Attorney (included in signature page of
Registration Statement)
</TABLE>
<PAGE> 1
Exhibit 5(a)
------------
<PAGE> 2
[Lewis, Rice & Fingersh, L.C. letterhead]
April 1, 1998
Agribrands International, Inc.
9811 South Forty Drive
St. Louis, Missouri 63124
Re: Registration on Form S-8 of 2,750,000 Shares of Common
Stock for Issuance Pursuant to the Agribrands
International, Inc. 1998 Incentive Stock Plan
Gentlemen:
In connection with the registration with the Securities and Exchange
Commission of 2,750,000 shares of common stock, $0.01 par value per share
(the "Securities"), of Agribrands International, Inc. (the "Company"), you
have requested that we furnish you with our opinion as to the legality of the
issuance of the Securities in connection with the Agribrands International,
Inc. 1998 Incentive Stock Plan.
As counsel to the Company, we have participated in the preparation of
the Registration Statement on Form S-8 under the Securities Act of 1933, as
amended (the "Registration Statement") with respect to the Securities. We
have examined and are familiar with the Company's Articles of Incorporation,
Bylaws, records of corporate proceedings, the Registration Statement, the
Plan and such other documents and records as we have deemed necessary for
purposes of this opinion.
Based on the foregoing, we are of the opinion that the Securities have
been duly and validly authorized and will, when issued as contemplated in the
Plan, be legally issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Sincerely,
LEWIS, RICE & FINGERSH, L.C.
/s/ LEWIS, RICE & FINGERSH, L.C
<PAGE> 1
Exhibit 10(a)
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<PAGE> 2
AGRIBRANDS INTERNATIONAL, INC.
1998 INCENTIVE STOCK PLAN
Section I. General Provisions
A. Purpose of Plan
The purpose of the Agribrands International, Inc. 1998 Incentive Stock
Plan (the "Plan") is to enhance the profitability and value of the Company
for the benefit of its shareholders by (i) providing for stock options and
other stock awards to attract, retain and motivate officers and other key
employees who make important contributions to the success of the Company, and
(ii) providing stock options and other stock awards to encourage stock
ownership by the non-employee members of the Board of Directors of the
Company.
B. Definitions
Unless otherwise defined herein, all capitalized terms have the same
meaning as in the Rights Agreement between Agribrands, International, Inc.
and Continental Stock Transfer & Trust Company.
1. "Acquiring Person" shall mean any Person who or which, together
with all Affiliates and Associates of such Person, shall become, at any time
after the date of the Rights Agreement (whether or not such status continues
for any period), the Beneficial Owner of Common Stock representing 20% or
more of the Common Stock then outstanding, other than as a result of a
Permitted Offer. Notwithstanding the foregoing, (A) the term "Acquiring
Person" shall not include (i) the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or any Subsidiary of the Company, or any
entity holding Common Stock for or pursuant to the terms of any such plan, or
(ii) any Person, who or which together with all Affiliates and Associates of
such Person becomes the Beneficial Owner of 20% or more of the then
outstanding Common Stock as a result of the acquisition of Common Stock
directly from the Company (provided, however, that if, after such
acquisition, such Person, or an Affiliate or Associate of such Person,
becomes the Beneficial Owner of any additional Common Stock in an acquisition
not made directly from the Company, then such Person shall be deemed an
Acquiring Person), or (iii) a Grandfathered Person, and (B) no Person shall
be deemed to be an "Acquiring Person" (X) as a result of the acquisition of
Common Stock by the Company which, by reducing the number of Common Stock
outstanding, increases the proportional number of shares beneficially owned
by such Person together with all Affiliates and Associates of such Person;
except that if (i) a Person would become an Acquiring Person (but for the
operation of this subclause (X)) as a result of the acquisition of Common
Stock by the Company, and (ii) after such share acquisition by the Company,
such Person, or an Affiliate or Associate of such Person, becomes the
Beneficial Owner of any additional Common Stock, then such Person shall be
deemed an Acquiring Person, (Y) if such Person, or an Affiliate or Associate
of such Person, inadvertently becomes the Beneficial Owner of 20% or more of
the outstanding Common Stock, or (Z) if a Person, or an Affiliate or
Associate of such Person, is the involuntary transferee of Common Stock from
a Grandfathered Person (including, but not limited to, when such
<PAGE> 3
involuntary transfer is as a result of the death of a Grandfathered Person),
provided that, in the case of any situation referred to in subclause (Y) or
(Z) above (1) within 8 days thereafter such Person notifies the Board of
Directors that such Person acquired the Common Stock in question
inadvertently or involuntarily, respectively, and (2) within 2 days after
such notification, such Person is the Beneficial Owner of less than 20% of
the outstanding Common Stock. Notwithstanding anything to the contrary in
this Agreement, any Common Stock owned by a Grandfathered Person shall not be
taken into account when computing the number of Common Stock beneficially
owned by an Affiliate or Associate of a Grandfathered Person, provided that
such Affiliate or Associate (i) does not constitute a member of a group (as
defined for purposes of Section 13(d) of the Exchange act) including such
Grandfathered Person, or (ii) is not otherwise acting in concert with such
Grandfathered Person, each with respect to the Company.
2. "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Exchange Act.
3. "Beneficial Owner" means a Person who is deemed to have acquired
beneficial ownership of any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly, as determined
pursuant to Rule 13d-3 of the General Rules and Regulations under the
Exchange Act as in effect on the date hereof;
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members
with respect to a bona fide public offering of securities), or upon
the exercise of conversion rights, exchange rights, rights (other than
the Rights), warrants or options, or otherwise; provided, however,
that a Person shall not be deemed the Beneficial Owner of, or to
beneficially own, securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of such Person's
Affiliates or Associates until such tendered securities are accepted
for purchase or exchange; or (B) the right to vote pursuant to any
agreement, arrangement or understanding; provided, however, that a
Person shall be deemed the Beneficial Owner of, or to beneficially
own, any security if the agreement, arrangement or understanding to
vote such security (1) arises solely from a revocable proxy or consent
given to such Person in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the applicable
rules and regulations promulgated under the Exchange Act and (2) is
not also then reportable on Schedule 13D under the Exchange Act (or
any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide
public offering of securities) for the purpose of acquiring, holding,
voting (except to the extent contemplated by the proviso to paragraph
(ii)) above or disposing of any securities of the
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Company. Notwithstanding anything in this definition of "Beneficial
Owner" to the contrary, the phrase "then outstanding", when used with
reference to a Person's beneficial ownership of securities of the
Company, shall mean the number of such securities then issued and
outstanding together with the number of such securities not then
actually issued and outstanding which such Person would be deemed to
own beneficially hereunder.
4. "Board" means the Board of Directors of the Company.
5. "Business Day" means any day other than a Saturday, a Sunday, or
a day on which banking institutions in St. Louis, Missouri are authorized or
obligated by law or executive order to close.
6. "Change in Control" means the earlier of:
(i) the close of business on the tenth Business Day after the
Shares Acquisition Date; or
(ii) the close of business on the tenth Business Day (or such
later date as may be determined by action of the Board of Directors of
the Company prior to such time as any Person becomes an Acquiring
Person, as defined in the Rights Agreement) after the date that a
tender or exchange offer by any Person (other than the Company, any
Subsidiary of the Company, or any employee benefit plan of the Company
or of any Subsidiary of the Company or any entity holding Common Stock
for or pursuant to the terms of any such plan) is first published or
sent or given within the meaning of Rule 14d-2 of the General Rules
and Regulations under the Exchange Act, if upon consummation thereof,
such Person would be the Beneficial Owner of 20% or more of the shares
of Common Stock then outstanding; or
(iii) the Company shall consolidate with, or merge with and into
any other Person; or
(iv) the Company shall consolidate with, or merge with, any
other Person, and the Company shall be the continuing or surviving
corporation of such consolidation or merger (other than, in a case of
any transaction described in (iii) or (iv), a merger or consolidation
which would result in all of the securities generally entitled to vote
in the election of directors ("voting securities") of the Company
outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into securities of the
surviving entity) all of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation and the holders of such securities not having changed as
a result of such merger or consolidation); or
(v) the Company shall sell or otherwise transfer (or one or
more of its Subsidiaries shall sell or otherwise transfer), in one or
a series of related transactions, assets or earning power aggregating
more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person (other than the
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Company or any Subsidiary of the Company in one or more transactions
each of which does not violate Section 11(n) of the Rights Agreement.
7. "Committee" means the Nominating and Compensation Committee of
the Board of Directors of the Company or any successor committee the Board
may designate to administer the Plan. The Committee shall be comprised of at
least three non-Employee members of the Board.
8. "Common Stock" means Agribrands International, Inc. $.01 par
value Common Stock.
9. "Company" means Agribrands International, Inc.
10. "Corporate Officer" means the President, Chief Executive Officer,
Chief Financial Officer, Chief Operating Officer, Secretary and Treasurer of
the Company.
11. "Director" or "Directors" means a non-Employee member or members
of the Board of Directors of the Company.
12. "Employee" means any person who is employed by the Company or an
Affiliate.
13. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
14. "Fair Market Value" of any class or series of Stock means the
fair and reasonable value thereof as determined by the Committee according to
prices in trades as reported on the New York Stock Exchange Composite
Transactions. If there are no prices so reported or if, in the opinion of
the Committee, such reported prices do not represent the fair and reasonable
value of the Stock, then the Committee shall determine Fair Market Value by
any means it deems reasonable under the circumstances.
15. "Grandfathered Person" shall mean any of the members of the
Company's Board of Directors as of the date of the Rights Agreement, who are
David R. Banks, Jay W. Brown, M. Darrell Ingram, H. Davis McCarty, Joe R.
Micheletto, Martin K. Sneider and William P. Stiritz, together with his
immediate family and any other Grandfathered Person; provided, however, that
a Grandfathered Person shall cease to be a Grandfathered Person at the time
that (i) such Person is no longer a member of the Company's Board of
Directors, and (ii) thereafter such Person becomes the Beneficial Owner of
any Common Stock of the Company, other than as a result of (A) a dividend or
distribution on the Common Stock, payable in Common Stock or securities
convertible into Common Stock, which such dividend or distribution is payable
to all holders of Common Stock, (B) a subdivision, combination,
recapitalization or reclassification of the Common Stock, or (C) an
acquisition of Common Stock as a result of exercise of Rights.
16. "Incentive Stock Option" means an option to purchase Stock which
satisfies the requirements set forth in Section 422 of the Internal Revenue
Code of 1986, as amended.
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17. "Non-Qualified Stock Option" means an option to purchase Stock
which does not satisfy the requirements set forth in Section 422 of the
Internal Revenue Code of 1986, as amended.
18. "Permitted Offer" means a tender or exchange offer which is for
all outstanding Common Stock at a price and on terms determined, prior to the
purchase of shares under such tender or exchange offer, by at least a
majority of the members of the Board of Directors who are not officers of the
Company and who are not (or would not be, if the offer were consummated)
Acquiring Persons or Affiliates, Associates, nominees or representatives of
an Acquiring Person, to be adequate or otherwise in the best interests of the
Company and its stockholders (other than the Person or any Affiliate or
Associate thereof on whose basis the offer is being made). In determining
whether an offer is adequate or in the best interests of the Company and its
shareholders, the Board may take into account all factors that it deems
relevant including, without limitation,
(i) the consideration being offered in the proposal in relation
to the Board's estimate of: (1) the current value of the Company in a
freely negotiated sale of either the Company by merger, consolidation
or otherwise, or all or substantially all of the Company's assets, (2)
the current value of the Company if orderly liquidated, and (3) the
future value of the Company over a period of years as an independent
entity discounted to current value;
(ii) then existing political, economic and other factors bearing
on security prices generally or the current market value of the
Company's securities in particular;
(iii) whether the proposal might violate federal, state or local
laws;
(iv) social, legal and economic effects on employees, suppliers,
customers and others having similar relationships with the Company,
and the communities in which the Company conducts its businesses;
(v) the financial condition and earnings prospects of the
person making the proposal including the person's ability to service
its debt and other existing or likely financial obligations; and
(vi) the competence, experience and integrity of the person
making the acquisition proposal.
19. "Person" shall mean any individual, firm, partnership,
corporation, trust, association, joint venture or other entity, and shall
include any successor (by merger or otherwise) of such entity.
20. "Plan" means the Agribrands International, Inc. 1998 Incentive
Stock Plan.
21. "Plan Administrator" means the Company or its delegate.
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22. "Restricted Stock Award" means an award of restricted stock
granted under paragraph 1 of Section III of the Plan.
23. "Rights Agreement" means the Rights Agreement between Agribrands
International, Inc. and Continental Stock Transfer & Trust Company.
24. "Shares Acquisition Date" shall mean the first date of a public
announcement (which, for purposes of this definition, shall include, without
limitation, a report filed pursuant to Section 13(d) under the Exchange Act)
by the Company or an Acquiring Person that an Acquiring Person has become
such; provided, that, if such Person is determined not to have become an
Acquiring Person pursuant to Section 1(a) hereof, then no Shares Acquisition
Date shall be deemed to have occurred.
25. "Stock" means the Common Stock or any other authorized class or
series of common stock or any such other security outstanding upon the
reclassification of any of such classes or series of common stock, including,
without limitation, any stock split-up, stock dividend, creation of targeted
stock, or other distributions of stock in respect of stock, or any reverse
stock split-up, or recapitalization of the Company or any merger or
consolidation of the Company with any Affiliate.
26. "Stock Award" means a Stock Option granted under Section II of
the Plan or a Stock Award granted under Section III of the Plan.
27. "Stock Option" means an option to purchase Stock granted under
Section II of the Plan.
28. "Subsidiary" means a "subsidiary corporation" of the Company as
defined in Section 424(f) (or any successor provision) of the Code.
C. Scope of Plan and Eligibility
1. Any Employee or Director selected by the Committee shall be
eligible for the Stock Awards granted under Sections II and III of the Plan;
provided, however, that only Employees of the Company or a Subsidiary are
eligible to receive Incentive Stock Options; and, provided, further that
Stock Awards for members of the Committee shall be approved by the Board.
D. Authorization and Reservation
1. There shall be established a reserve of 2,750,000 authorized
shares of Common Stock, which shall be the total number of shares of Stock
that may be issued pursuant to Stock Awards. The maximum aggregate number of
shares of Stock with respect to which Incentive Stock Options may be granted
under this Plan shall be 2,750,000 shares. Notwithstanding the foregoing, no
shares will be issued in violation of the Agreement and Plan of
Reorganization between Ralston Purina Company and Agribrands International,
Inc. The following principles will apply in determining the number of shares
of Stock issued pursuant to Stock Awards:
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(i) The number of shares underlying a Stock Award shall be
counted against the Plan reserve at the time of grant.
(ii) When a Stock Award is payable in cash and the amount of
such cash is based on the value of a number of shares of Stock which
is determinable at the time of grant, that determinable number of
shares shall be deemed to underlie that Stock Award for purposes of
the Plan. If the amount of such cash, in effect, is calculated by
applying a percentage to the Fair Market Value of a certain number of
shares of Stock, if such percentage is determinable at the date of
grant, and if such determinable percentage, in effect, exceeds 100%,
the Committee shall determine at the time of grant the number of
shares which is deemed to underlie such Stock Award.
(iii) If the number of shares underlying a Stock Award is not
determinable at the time of grant, the Committee shall determine at
the time of grant a number of shares which is deemed to underlie such
Stock Award; that number may be adjusted after grant as the Committee
deems appropriate.
(iv) Shares which underlie Stock Awards that (in whole or part)
expire, terminate, are forfeited, or otherwise become non-payable, or
which are recaptured by the Company in connection with a forfeiture
event, may be re-used in new grants to the extent of such expiration,
termination, forfeiture, non-payability, or recapture.
2. The reserves may consist of authorized but unissued shares of
Stock or of reacquired shares, or both.
3. The maximum aggregate number of shares of Stock with respect to
which Stock Options or Stock equivalents may be granted pursuant to any Stock
Award in any one fiscal year to any single Employee shall be 2,750,000
shares.
E. Grant of Stock Awards and Administration of the Plan
1. The Committee shall determine those Employees and Directors
eligible to receive Stock Awards and the amount, type and terms of each Stock
Award, subject to the provisions of the Plan, and it shall have the power to
delegate responsibility to others to assist it in making such determinations
with respect to Employees other than Corporate Officers of the Company.
Except to the extent prohibited by Rule 16b-3, the Committee may accelerate
the date on which any Stock Award or Stock or property issued pursuant to a
Stock Award shall vest and may remove any restrictions on such Stock Award at
any time after grant and for any reason the Committee deems appropriate. The
Committee shall be comprised of (i) "outside directors" within the meaning of
Section 162(m) of the Code, subject to any transitional rules applicable to
the definition of outside director, and (ii) at least three "non-employee
directors" within the meaning of Rule 16b-3 under the Exchange Act, or
otherwise qualified to administer this Plan as contemplated by that Rule or
any successor Rule under the Exchange Act; provided, however, that no
Director shall participate in any Committee decisions regarding his Stock
Awards under Articles II or III hereof. In making any determinations under
the Plan, the Committee shall be
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entitled to rely on reports, opinions or statements of officers or employees
of the Company, as well as those of counsel, public accountants and other
professional or expert persons. All determinations, interpretations and
other decisions under or with respect to the Plan or any Stock Award by the
Committee shall be final, conclusive and binding upon all parties, including
without limitation, the Company, any Employee or Director, and any other
person with rights to any Stock Award under the Plan, and no member of the
Committee shall be subject to individual liability with respect to the Plan.
2. The Plan Administrator shall administer the Plan and, in
connection therewith, it shall have full power to construe and interpret the
Plan, establish rules and regulations and perform all other acts it believes
reasonable and proper, including the power to delegate responsibility to
others to assist it in administering the Plan.
Section II. Stock Options
A. Description
The Committee may grant options with respect to any class or series of
Stock that qualify as Incentive Stock Options and it may grant Non-Qualified
Stock Options.
B. Terms and Conditions
1. Each Stock Option shall be set forth in a written agreement
containing such terms and conditions as the Committee may determine, subject
to the provisions of the Plan.
2. Except as otherwise provided herein, the purchase price of any
shares exercised under any Stock Option must be paid in full upon such
exercise. The payment shall be made in such form, which may be cash, Stock
(through delivery of Stock or by attestation or other deemed or constructive
delivery) or any other property, as the Committee may determine. The
Committee may permit a Participant to elect to pay the exercise price upon
the exercise of a Stock Option by authorizing a third party to sell shares of
Stock (or a sufficient portion of the shares) acquired upon exercise of the
Stock Option and remit to the Company a sufficient portion of the sale
proceeds to pay the entire exercise price and any withholding tax resulting
from such exercise. The Committee may also permit other forms of cashless
exercise. The Committee, in its discretion may impose such conditions,
restrictions and contingencies with respect to shares of Stock acquired
pursuant to the exercise of an Option as the Committee determines to be
desirable.
3. No Incentive Stock Option may be exercised after the expiration
of ten (10) years from the date such option is granted.
4. The option price of shares subject to any Stock Option shall not
be less than the Fair Market Value of the appropriate class or series of
Stock at the time the option is granted.
5. In the case of an Incentive Stock Option, the aggregate Fair
Market Value (determined as of the time the option is granted) of the Stock
with respect to which options are
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exercisable for the first time by any Employee during any calendar year
(under all such plans of his employer corporation and its parent and
subsidiary corporations) shall not exceed $100,000. To the extent the
$100,000 limitation is exceeded, the Stock Options will be treated as
Non-Qualified Stock Options.
6. All options will become immediately exercisable in the event of a
Change in Control.
C. Period of Exercise
Unless otherwise provided herein, a Stock Option shall be exercisable
in accordance with such terms and conditions and during such periods as may
be established by the Committee.
Section III. Other Stock Awards
In addition to Stock Options, the Committee may grant other Stock
Awards payable in any class or series of Stock upon such terms and conditions
as the Committee may determine, subject to the provisions of the Plan. These
terms and conditions may include continuous service and/or the achievement of
performance measures. The performance measures that may be used by the
Committee for such Stock Awards may include stock price, market share, sales,
earnings per share, return on equity or costs. The Committee may designate a
single goal criterion or multiple goal criteria for performance measurement
purpose. Other Stock Awards may include, but are not limited to, the
following:
1. Restricted Stock Awards. The Committee may grant Restricted
Stock Awards, each of which consists of a grant of shares of any class or
series of Stock subject to terms and conditions determined by the Committee
in its discretion, subject to the provisions of the Plan. Such terms and
conditions shall be set forth in written agreements. The shares of Stock
granted will be restricted and may not be sold, pledged, transferred or
otherwise disposed of until the lapse or release of restrictions in
accordance with the terms of the agreement and the Plan. Prior to the lapse
or release of restrictions, all shares of Stock are subject to forfeiture in
accordance with Section IV of the Plan. Shares of Stock issued pursuant to a
Restricted Stock Award may be issued for no monetary consideration.
2. Stock Appreciation Right. A right to receive in cash the excess
of the Fair Market Value of a share of Stock on the date the stock
appreciation right is exercised over the Fair Market Value of a share of
Stock on the date the stock appreciation right was granted.
3. Restricted and Performance Share Unit. A fixed or variable share
or dollar denominated unit subject to such conditions of vesting, performance
and time of payment as the Committee may determine, which unit may be paid in
Stock, cash or a combination of both.
4. Limited Rights. The Committee shall have authority to grant
limited stock appreciation rights ("Limited Rights") to any Recipient of any
Options or stock appreciation rights granted under the Plan (the "Related
Award") with respect to all or some of the shares of Stock which underlie
such Related Award. Limited Rights shall not be granted separately, but
shall be
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granted only as alternative to their Related Award. Limited Rights may be
granted either at the time of grant of the Related Award or (except in the
case of Incentive Stock Options) at any time thereafter during its term.
Limited Rights shall be exercisable or payable at such times, payable in such
amounts, and subject to such other terms, conditions, and restrictions as the
Committee deems appropriate.
5. Stock Related Deferred Compensation. The Committee may, in its
discretion, and subject to compliance with applicable federal and state
securities laws, permit the deferral of payment of all or a portion of an
Employee's or Director's cash bonus or other cash compensation in the form of
either cash or any class or series of Stock (or Stock equivalents, each
corresponding to a share of such Stock) under such terms and conditions as
the Committee may prescribe. Payment of such compensation may be deferred
for such period or until the occurrence of such event as the Committee may
determine. Such terms and conditions shall be set forth in written
agreements. The Committee may, in its discretion, determine whether any
deferral, whether made in cash or such class or series of Stock (or Stock
equivalents) shall be paid on distribution in cash or in Stock. If a
deferral is permitted in the form of Stock or Stock equivalents, the number
of shares of Stock or number of Stock equivalents deferred will be determined
by dividing the amount of the Employee's or Director's bonus or other cash
compensation being deferred by the average of the closing prices of the
appropriate class or series of Stock, as reported by the New York Stock
Exchange Composite Transactions, during the ten trading days preceding the
effective date of the Committee's decision to defer. In addition, the
Committee may, in any fiscal year, provide for an additional matching
deferral to be credited to an Employee's or Director's account. If the
Committee directs the payments in any class or series of Stock of any portion
of amounts deferred in cash, the number of shares of such Stock paid will be
determined based on the average of the closing prices of such Stock, as
reported by the New York Stock Exchange Composite Transactions, during the
ten trading days before the payment is due. The Committee, in its
discretion, may permit the conversion of deferrals in any class or series of
Stock or Stock equivalents into deferrals in cash, or the conversion of
deferrals in cash into deferrals in any class or series of Stock or Stock
equivalents. In the event such conversion is permitted, the conversion price
of the appropriate class or series of Stock shall be based on the Fair Market
Value of such Stock. Additional rights or restrictions may apply in the
event of a Change in Control of the Company to the extent such additional
rights or restrictions are set forth in the written agreement setting for the
terms of such deferred compensation.
6. Other Stock Awards. Other Stock Awards which are related to or
serve a similar function to the Stock Awards set forth in this Section III.
7. Change in Control. All Stock Awards described in this Section
III will vest and/or become immediately exercisable in the event of a Change
in Control.
Section IV. Forfeiture of Stock Awards
The Committee may include in any Stock Award agreement any provision
relating to forfeitures of Stock Awards that it deems appropriate. Such
forfeiture provisions may include, among others, prohibitions on competing
with the Company and its Subsidiaries and Affiliates and other detrimental
conduct. Forfeiture provisions for one Stock Award type may differ from
those
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for another type, and also may differ among Stock Awards of the same type.
As used in the Plan, a "forfeiture" of a Stock Award includes the recapture
of economic benefits derived from a Stock Award, as well as the forfeiture of
a Stock Award itself; however, the Committee may define the term more
narrowly in specific Stock Award agreements or contexts.
Stock Award agreements may provide for any forfeiture provision to
terminate or be waived upon a Change in Control. In its discretion, the
Committee may provide in any Stock Award agreement for the termination of any
forfeiture provision upon the happening of any specified event, and may
terminate or waive any forfeiture provision by action taken after grant.
Section V. Death of Stock Award Recipient
The Committee, in its discretion, may determine the disposition of
Stock Awards in the event of the death of an Employee or a Director.
To the extent permitted by the Committee in its sole discretion, a
Stock Award recipient may file with the Committee a written designation of a
beneficiary or beneficiaries (subject to such limitations as to the classes
and number of beneficiaries and contingent beneficiaries as the Committee may
from time to time prescribe) to exercise, in the event of the death of the
recipient, a Stock Option, or to receive, in such event, any other Stock
Awards. The Committee reserves the right to review and approve beneficiary
designations. A recipient may from time to time revoke or change any such
designation or beneficiary and any designation of beneficiary under the Plan
shall be controlling over any other disposition, testamentary or otherwise;
provided, however, that if the Committee shall be in doubt as to the right of
any such beneficiary to exercise any Stock Option or to receive any Other
Stock Award, the Committee may determine to recognize only an exercise by the
legal representative of the recipient, in which case the Company, the
Committee and the members thereof shall not be under any further liability to
anyone.
Section VI. Other Governing Provisions
A. Transferability
Except as otherwise noted herein, no Stock Award shall be transferable
other than by beneficiary designation, will or the laws of descent and
distribution, and any right granted under a Stock Award may be exercised
during the lifetime of the holder thereof only by him or by his guardian or
legal representative; provided, however, that the Committee may grant
Non-Qualified Stock Options that are transferable, without payment of
consideration, to (i) revocable trusts for the benefit of immediate family
members which qualify as grantor trusts for Federal income tax purposes, (ii)
to immediate family members, and (iii) to partnerships whose only partners
are immediate family members. The transferee of a transferable Non-Qualified
Stock Option is subject to all conditions applicable to the transferable
Non-Qualified Stock Option prior to its transfer except that the transferee may
not avail himself of the limited transferability proviso of this Section VI.A.
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B. Rights as a Shareholder
A recipient of a Stock Award shall, unless the terms of the Stock Award
provide otherwise, have no rights as a shareholder, with respect to any Stock
Options or shares which may be issued in connection with the Stock Award
until the issuance of a Stock certificate for such shares, and no adjustment
other than as stated herein shall be made for dividends or other rights for
which the record date is prior to the issuance of such Stock certificate. In
addition, with respect to Restricted Stock Awards, recipients shall have only
such rights as a shareholder as may be set forth on the certificate or in the
terms of the Stock Award. In lieu of actual issuance of stock certificates,
the company may elect to maintain bookkeeping records of stock ownership
until such time as an Employee or Director requests stock certificates.
C. General Conditions of Stock Awards
No Employee, Director or other person shall have any right with respect
to this Plan, the shares reserved or in any Stock Award, contingent or
otherwise, until written evidence of the Stock Award shall have been
delivered to the recipient and all the terms, conditions and provisions of
the Plan applicable to such recipient have been met.
D. Reservation of Rights of Company
The selection of an Employee for any Stock Award shall not give such
person any right to continue as an Employee and the right to discharge with
or without cause any Employee is specifically reserved.
E. Acceleration
The Committee may, in its sole discretion, accelerate the date of
exercise of any Stock Award.
F. Effect of Certain Changes
In the event of any extraordinary dividend, stock split-up, stock
dividend, issuance of any targeted stock, recapitalization, warrant or rights
issuance or combination, exchange or reclassification with respect to any
outstanding class or series of Stock, or consolidation, merger or sale of all
or substantially all of the assets of the Company, the Committee or its
delegee shall cause such equitable adjustments as it deems appropriate to be
made to the shares reserved and the other share limitations under Section
I.D. of the Plan and the terms of outstanding Stock Awards to reflect such
event and preserve the value of such Stock Awards. In the event the
Committee determines that any such event has a minimal effect on the value of
Stock Awards, it may elect not to cause any such adjustments to be made. In
all events, the determination of the Committee or its delegee shall be
conclusive. If any such adjustment would result in a fractional security
being issuable or awarded under this Plan, such fractional security shall be
disregarded.
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G. Stock Awards for Employees Employed Outside the United States
Without amending the Plan, Stock Awards may be granted to Employees who
are foreign nationals or who are employed outside the United States or both,
on such terms and conditions different from those specified in the Plan as
may, in the judgment of the Committee, be necessary or desirable to further
the purposes of the Plan. Such different terms and conditions may be
reflected in Addenda to the Plan. However, in the case of Incentive Stock
Options, no such different terms or conditions shall be employed if such term
or condition constitutes, or in effect results in, an increase in the
aggregate number of shares which may be issued under the Plan or a change in
the definition of Employee.
H. Withholding of Taxes
The Company shall deduct from any payment, or otherwise collect from
the recipient, any taxes required to be withheld by federal, state or local
governments in connection with any Stock Award. The recipient may elect,
subject to approval by the Committee, to have shares of Stock withheld by the
Company in satisfaction of such taxes, or to deliver other shares of Stock
owned by the recipient in satisfaction of such taxes. With respect to
Corporate Officers or other recipients subject to Section 16(b) of the
Exchange Act, the Committee may impose such other conditions on the
recipient's election as it deems necessary or appropriate in order to exempt
such withholding from the penalties set forth in said Section 16(b). The
number of shares to be withheld or delivered shall be calculated by reference
to the Fair Market Value of the appropriate class or series of Stock on the
date that such taxes are determined.
I. No Warranty of Tax Effect
Except as may be contained in the terms of any Stock Award, no opinion
is expressed nor warranties made as to the effect for federal, state or local
tax purposes of any Stock Award.
J. Amendment of Plan
The Board may, from time to time, amend, suspend or terminate the Plan
in whole or in part, and if terminated may reinstate any or all of the
provisions of the Plan, except that no amendment, suspension or termination
may apply to the terms of any Stock Award (contingent or otherwise) granted
prior to the effective date of such amendment, suspension or termination
without the recipient's consent. Any such action of the Board may be taken
without the approval of the Company's shareholders, but only to the extent
that such shareholder approval is not required by applicable law or
regulation, including specifically the Internal Revenue Code of 1986, as
amended, or Rule 16b-3 promulgated under the Securities Exchange Act.
K. Construction of Plan
The place of administration of the Plan shall be in the State of
Missouri, and the validity, construction, interpretation, administration and
effect of the Plan and of its rules and regulations, and rights relating to
the Plan, shall be determined solely in accordance with the laws, but not the
laws pertaining to choice of laws, of the State of Missouri.
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Section VII. Effective Date and Term
This Plan shall be effective April 1, 1998 and shall continue in effect
until December 31, 2007, when it shall terminate. Upon termination, any
balances in the Stock reserve established in Section I.D. shall be canceled,
and no Stock Awards shall be granted under the Plan thereafter. The Plan
shall continue in effect, however, insofar as is necessary to complete all of
the Company's obligations under outstanding Stock Awards and to conclude the
administration of the Plan.
AGRIBRANDS INTERNATIONAL, INC.
By: /s/ David R. Wenzel
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Exhibit 23(b)
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Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report, dated January 23, 1998 for the year
ended August 31, 1997 which appears on page F-2 of Amendment No. 3 to
Agribrands International, Inc.'s General Form for Registration of Securities
on Form 10.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
St. Louis, Missouri
April 3, 1998
