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As filed with the Securities and Exchange Commission
on July 13, 1995
Registration Number 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CERIDIAN CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 52-0278528
(State of incorporation) (I.R.S. Employer Identification Number)
8100 34th Avenue South
Minneapolis, Minnesota 55425
(Address of principal executive offices)
CERIDIAN CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
John A. Haveman
Vice President and Secretary
Ceridian Corporation
8100 34th Avenue South
Minneapolis, Minnesota 55425
(612) 853-7425
(Name, address and telephone number of agent for service)
Calculation of Registration Fee
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
Securities to be price per offering Registration
to be registered registered (1) share(2) price (2) fee
Common Stock,
$.50 par value 500,000 shares $38.375 $19,187,500 $6,616.38
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933
(the "Act"), this Registration Statement also covers an indeterminate
number of additional shares as may be issuable as a result of the
anti-dilution provisions of the employee benefit plan which is the
subject of this Registration Statement.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and 457(h)(1) under the Act,
based on the average high and low sale prices reported for the
Registrant's Common Stock on the New York Stock Exchange on July 10,
1995.
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Part II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Ceridian Corporation (the "Company")
are incorporated in this Registration Statement by reference:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1994;
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995;
(3) The Company's Current Report on Form 8-K dated January 19,
1995;
(4) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934
("Exchange Act") since December 31, 1994; and
(5) The description of the Company's Common Stock, par value $.50
per share, contained in the Company's Registration Statement
on Form S-8, File No. 33-56351.
All documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this Registration Statement 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 in this Registration Statement and to be a part hereof
from the date of filing of such documents.
Item 4. Description of Securities
The Company's Common Stock is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel
John A. Haveman, Vice President, Secretary and Associate
General Counsel for the Company, has provided an opinion as to the
legality of the securities being registered hereby. Mr. Haveman
holds options granted under the Company's stock based compensation
plans to acquire 16,800 shares of the Company's Common Stock, holds
13,000 shares of the Company's Common Stock that are subject to
restrictions on transferability and possible forfeiture, and is
eligible to participate in the Company's Employee Stock Purchase
Plan.
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The consolidated financial statements and financial statement
schedules of the Company for each of the years in the three-year
period ended December 31, 1994 have been incorporated by reference
in this registration statement in reliance upon the reports of KPMG
Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing. To the extent that KPMG
Peat Marwick LLP examines and reports on financial statements of
the Company issued at future dates, and consents to the use of
their reports thereon, such financial statements also will be
incorporated by reference in this registration statement in
reliance upon their reports and said authority.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of
Delaware ("DGCL") grants each corporation organized thereunder,
such as the Company, the power to indemnify its directors and
officers against liability for certain of their acts. Section
102(b)(7) of the DGCL permits a provision in the certificate of
incorporation of each corporation organized thereunder eliminating
or limiting, with certain exceptions, the personal liability of a
director to the corporation or its stockholders for monetary
changes for breach of fiduciary duty as a director. The Company's
certificate of incorporation contains such a provision. The
foregoing statements are subject to the detailed provisions of
Sections 145 and 102(b)(7) of the DGCL.
Article VI of the Company's Bylaws provides that the Company
shall indemnify its officers, directors and employees to the
fullest extent permitted by the DGCL in connection with proceedings
with which any such person is involved by virtue of his or her
status as an officer, director or employee. The Company has also
by contract agreed to indemnify its directors against damages,
judgments, settlements and costs arising out of any actions against
the directors brought by reason of the fact that they are or were
directors. The Company maintains directors' and officers'
liability insurance, including a reimbursement policy in favor of
the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
The following is a complete list of Exhibits filed or
incorporated by reference as part of this registration statement:
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Exhibit Description
4.1 Restated Certificate of Incorporation of Ceridian
Corporation (incorporated by reference to Exhibit 4.01 to
the Company's Registration Statement on Form S-8 (File
No. 33-54379))
4.2 Bylaws of Ceridian Corporation, as amended (incorporated
on Form S-8 by reference to Exhibit 3.01 to the Company's
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1993 (File No. 1-1969))
5.1 Opinion and Consent of John A. Haveman
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of John A. Haveman (included in Exhibit 5.1)
24.1 Power of Attorney (included on page 5 of this
Registration Statement)
99.1 Ceridian Corporation Employee Stock Purchase Plan
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 or Form S-8 and
the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed 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.
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(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 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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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 Minneapolis, State of Minnesota,
on July 13, 1995.
CERIDIAN CORPORATION
By: /s/John R. Eickhoff
John R. Eickhoff
Executive Vice President
and Chief Financial Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Ceridian Corporation,
hereby severally constitute John R. Eickhoff and John A. Haveman, and
either of them singly, our true and lawful attorneys with full power to
them, and each of them singly, to sign for us and in our name in the
capacities indicated below any and all amendments to this Registration
Statement on Form S-8 filed by Ceridian Corporation with the Securities and
Exchange Commission, and generally to do all such things in our name and
behalf in such capacities as may be necessary to enable Ceridian
Corporation to comply with the provisions of the Securities Act of 1933, as
amended, and all requirements of the Securities and Exchange Commission,
and we hereby ratify and confirm our signatures as they may be signed by
our said attorneys, or either of them, to any and all such amendments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed as of July 13, 1995 by the following
persons in the capacities indicated.
/s/Lawrence Perlman /s/Ruth M. Davis
Lawrence Perlman Ruth M. Davis, Director
Chairman, President and
Chief Executive Officer /s/Allen W. Dawson
(Principal Executive Allen W. Dawson, Director
Officer and Director)
/s/Ronald James
Ronald James, Director
/s/John R. Eickhoff
John R. Eickhoff /s/Richard G. Lareau
Executive Vice President Richard G. Lareau, Director
and Chief Financial
Officer (Principal /s/George R. Lewis
Financial Officer) George R. Lewis, Director
/s/Charles Marshall
/s/Loren D. Gross Charles Marshall, Director
Loren D. Gross
Vice President and Corporate /s/Carole J. Uhrich
Controller (Principal Carole J. Uhrich, Director
Accounting Officer)
/s/Richard W. Vieser
Richard W. Vieser, Director
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/s/Paul S. Walsh
Paul S. Walsh, Director
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EXHIBIT INDEX
Exhibit Description Code
4.1 Restated Certificate of Incorporation of IBR
Ceridian Corporation (incorporated by reference
to Exhibit 4.01 to the Company's Registration
Statement on Form S-8 (File No. 33-54379))
4.2 Bylaws of Ceridian Corporation, as amended IBR
(incorporated on Form S-8 by reference to
Exhibit 3.01 to the Company's Quarterly
Report on Form 10-Q for the quarter ended
September 30, 1993 (File No. 1-1969))
5.1 Opinion and Consent of John A. Haveman E
23.1 Consent of KPMG Peat Marwick LLP E
23.2 Consent of John A. Haveman (included in
Exhibit 5.1)
24.1 Power of Attorney (included on page 5 of this
Registration Statement)
99.1 Ceridian Corporation Employee Stock E
Purchase Plan
Legend: E Electronic Filing
IBR Incorporated by Reference
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Exhibit 5.1
Minneapolis, Minnesota
July 13, 1995
Ceridian Corporation
8100 34th Avenue South
Minneapolis, MN 55425
Re: Ceridian Corporation
Registration Statement on Form S-8
Gentlemen:
I have acted as counsel to Ceridian Corporation, a Delaware
corporation (the "Company"), in connection with the registration
by the Company of 500,000 shares of the Company's Common Stock,
$.50 par value (the "Shares"), pursuant to the Company's
registration statement on Form S-8 which refers to the Company's
Employee Stock Purchase Plan and which is to be filed with the
Securities and Exchange Commission on July 13, 1995 (the
"Registration Statement").
In this connection, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of such
corporate records, certificates, and written and oral statements
of officers and accountants of the Company and of public
officials, and other documents that I have considered necessary
and appropriate for this opinion and, based thereon, I advise you
that, in my opinion:
1. The Company has been duly incorporated and is validly
existing under the laws of the State of Delaware.
2. The Company has corporate authority to issue the Shares
in the manner and under the terms set forth in the Registration
Statement.
3. The Shares have been duly authorized and, when issued
in accordance with the Plan referred to in the Registration
Statement, will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as Exhibit
5.1 to the Registration Statement and to its use as part of the
Registration Statement.
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Very truly yours,
/s/John A. Haveman
John A. Haveman
Associate General Counsel
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Ceridian Corporation:
We consent to the use of our reports incorporated herein by
reference and to the reference to our firm in Part II, Item 5
hereof.
KPM Peat Marwick LLP
Minneapolis, Minnesota
July 11, 1995
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EXHIBIT 99.1
CERIDIAN CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
1. Purpose. The purpose of the Ceridian Corporation Employee
Stock Purchase Plan (the "Plan") is to advance the interests of
Ceridian Corporation (the "Company") and its shareholders by
providing employees of the Company and certain of its
subsidiaries with an opportunity to acquire an ownership interest
in the Company through the purchase of common stock of the
Company on favorable terms through payroll deductions. It is the
intention of the Company that the Plan qualify as an employee
''stock purchase plan'' under Section 423 of the Internal Revenue
Code of 1986, as amended (the ''Code"), and provisions of the
Plan shall be construed consistent with such intention.
2. Definitions.
(a) "Agent" means the party or parties designated by the
Company to provide Share Accounts and certain
administrative services in connection with the Plan.
(b) "Board" means the Board of Directors of the Company
or any committee thereof to which the Board of Directors
has delegated authority with respect to the Plan.
(c) "Common Stock" means the common stock, par value $.50
per share, of the Company, or the number and kind of shares
of stock or other securities into which such common stock
may be changed in accordance with Section 11 of the Plan.
(d) "Committee" means the Compensation and Human
Resources Committee of the Board, or such successor
committee that meets the criteria specified in Section 3.
(e) "Contribution Account" means an account established
for each Participant to which payroll deductions under the
Plan are credited in accordance with Section 7.
(f) "Designated Subsidiary'' means a Subsidiary that has
been designated by the Board from time to time as eligible
to participate in the Plan.
(g) "Employee" means any person, including an officer,
who is employed on a full-time or part-time basis by a
Participating Employer.
(h) "Ending Date'' means the last day of each Offering
Period.
(i) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
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(j) "Fair Market Value'' means, with respect to the Common
Stock, as of any date:
(1) if the Common Stock is listed on the New York
Stock Exchange, the closing price per share of the
Common Stock as reported on the New York Stock Exchange
Composite Tape on that date (or, if no shares were
traded on such day, as of the first day prior thereto
on which there was such a trade); or
(2) if the Common Stock is not so listed, such price
as is determined in the manner specified by the
Committee in its sole discretion, such manner to be
acceptable under Section 423 of the Code.
(k) "Grant Date'' means the first day of each Offering
Period.
(l) "Insider'' means any Employee who is subject to
Section 16 of the Exchange Act.
(m) "Offering Period'' means each three-month period beginning
on March 16 and ending on June 15, or beginning on June
16 and ending on September 15, or beginning on September 16
and ending on December 15, or beginning on December 16 and
ending on March 15.
(n) "Participant'' means an eligible Employee who elects
to participate in the Plan in accordance with Section 6.
(o) "Participating Employer'' means the Company and any
Designated Subsidiary that has elected to participate in
the Plan.
(p) "Share Account'' means the brokerage account
established by the Agent for each Participant to which
shares of Common Stock purchased under the Plan are
credited in accordance with Section 9. The Share Account
will be established pursuant to a separate agreement
between each Participant and the Agent.
(q) "Subsidiary'' means any subsidiary corporation of the
Company within the meaning of Section 424(f) of the Code.
3. Administration. The Plan shall be administered by the
Committee (or any successor thereto appointed by the Board
consisting of not less than three members, all of whom must be
members of the Board who are ''disinterested persons" as defined
in Rule 16b-3 under the Exchange Act). Members of the Committee
shall be appointed from time to time by the Board, shall serve at
the pleasure of the Board, and may resign at any time upon
written notice to the Board. A majority of the members of the
Committee shall constitute a quorum. The Committee shall act by
majority approval of the members, but action may be taken by the
Committee without a meeting if unanimous written consent is
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given. In accordance with and subject to the provisions of the
Plan, the Committee shall have authority to interpret the Plan,
to make, amend and rescind rules and regulations regarding the
Plan (including rules and regulations intended to insure that
operation of the Plan complies with Section 16 of the Exchange
Act), and to make all other determinations necessary or advisable
in administering the Plan, all of which determinations shall be
final and binding upon all persons. No member of the Committee
shall be liable for any action or determination made in good
faith with respect to the Plan or any option granted under it.
To the extent consistent with corporate law, the Committee may
delegate to any directors or officers of the Company the duties,
power and authority of the Committee under the Plan pursuant to
such conditions or limitations as the Committee may establish;
provided, however, that only the Committee may exercise such
duties, power and authority with respect to Insiders. The
Committee may request advice or assistance or retain the services
of such other persons as are necessary for the proper
administration of the Plan.
4. Eligibility. Any person who is (i) an Employee on the last
day of the calendar month immediately preceding a Grant Date,
(ii) is not on long-term disability or unpaid leave status at
that time, and (iii) has reached the age of majority in the state
or province in which he or she resides shall be eligible to
participate in the Plan for the Offering Period beginning on such
Grant Date, subject to the limitations imposed by Section 423(b)
of the Code. Notwithstanding the foregoing, no Insider shall be
eligible to participate in the Plan for any Offering Period whose
Ending Date occurs prior to the annual meeting of the Company's
stockholders on May 8, 1996.
5. Offering Periods. Options to purchase shares of Common
Stock shall be granted to Participants under the Plan through a
series of consecutive Offering Periods. The first Offering
Period under the Plan shall have a Grant Date of September 16,
1995 and an Ending Date of December 15, 1995. Offering Periods
under the Plan shall continue until either (a) the Committee
decides, in its sole discretion, to cancel future Offering
Periods because the Common Stock remaining available under the
Plan is insufficient to grant options to all eligible Employees,
or (b) the Plan is terminated in accordance with its provisions.
6. Participation. Participation in the Plan is voluntary. An
eligible Employee may become a Participant in the Plan by
completing an enrollment form provided by the Company authorizing
payroll deductions and the establishment of a Share Account, and
filing the enrollment form with the Company's Human Resources
Department not later than the last business day of the month
immediately preceding the Grant Date of the first Offering Period
in which the Participant wishes to participate.
7. Payroll Deductions.
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(a) Each Employee electing to participate in the Plan shall
designate on the enrollment form the amount of money which he or
she wishes to have deducted from his or her paycheck each pay day
to purchase Common Stock pursuant to the Plan. The aggregate
amount of such payroll deductions shall not be less than $25.00
per month, and shall not be more than $5,312.50 (85% of $6,250)
per Offering Period, pro-rated equally over the number of pay
days applicable to a Participant during each such Offering
Period. Deductions for Plan purposes will not be withheld from
compensation amounts, such as annual bonus or gain sharing
payments, that are not part of a Participant's normal and
recurring compensation each pay day.
(b) Payroll deductions for a Participant shall commence on
the first pay day on or after the Grant Date of the applicable
Offering Period and shall continue until the termination date of
the Plan, unless participation in the Plan is sooner terminated
as provided in Section 10, the deduction amount is increased or
decreased by the Participant as provided in Section 7(d), or
deductions are suspended as provided in Section 7(d). Except for
a Participant's rights to change the amount of, suspend or
discontinue deductions pursuant to Sections 7(d) and 10, the same
deduction amount shall be utilized for each pay day during
subsequent Offering Periods, whether or not the Participant's
compensation level increases or decreases. If the pay period of
any Participant changes, such as from weekly to semi-monthly, an
appropriate adjustment shall be made to the deduction amount for
each pay day corresponding to the new pay period, if necessary,
so as to ensure the deduction of the proper amount as specified
by the Participant in his or her enrollment form for that
Offering Period.
(c) All payroll deductions authorized by a Participant
shall be credited to the Participant's Contribution Account. A
Participant may not make any separate cash payment or
contribution to such Contribution Account. Contribution Accounts
shall be solely for bookkeeping purposes, and no separate fund or
trust shall be established for payroll deductions. Until utilized
to purchase shares of Common Stock, funds from payroll deductions
shall be held as part of the Participating Employers' general
assets, and the Participating Employers shall not be obligated to
segregate such funds. No interest shall accrue on a
Participant's payroll deductions under the Plan.
(d) No increases or decreases in the amount of payroll
deductions for a Participant may be made during an Offering
Period. A Participant may increase or decrease the amount of his
or her payroll deductions under the Plan, or may suspend such
payroll deductions, for subsequent Offering Periods by completing
a change form and filing it with the Company's Human Resources
Department not later than the last business day of the month
immediately preceding the Grant Date for the Offering Period as
of which such increase, decrease or suspension is to be
effective.
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(e) Payroll deductions which are authorized by Participants
who are paid other than in U.S. currency shall be withheld in
Contribution Accounts in the country in which such Participant is
employed until exercise of an option granted hereunder. Upon
exercise of the option granted to such Participant, the amount so
withheld shall be converted into U.S. dollars on the basis of the
rate of exchange published in the Wall Street Journal for such
currency into U.S. dollars as of the business day immediately
preceding the Ending Date for such Offering Period. The purchase
price shall thereupon be paid to the Company in U.S. dollars
following such conversion, the extent to which the Participant
may exercise an option therefore being dependent, in part, upon
the applicable rate of currency exchange. If, as a result of
fluctuations in the exchange rate between the U.S. dollar and a
foreign currency during an Offering Period, a Participant who is
paid in such foreign currency has less than the minimum permitted
amount deducted during an Offering Period, the amount deducted
will, nevertheless, be used to purchase Common Stock in
accordance with the Plan.
8. Grant of Option.
(a) Subject to Section 8(b), on each Grant Date, each
eligible Employee who is then a Participant shall be granted (by
operation of the Plan) an option to purchase the number of whole
and fractional shares (computed to the fourth decimal place) of
Common Stock equal to the lesser of (i) the amount determined by
dividing the amount of payroll deductions credited to his or her
Contribution Account during the Offering Period beginning on such
Grant Date by the Purchase Price specified in the following
sentence, or (ii) the amount determined by dividing $6,250.00 by
the Fair Market Value of one share of Common Stock on the
applicable Grant Date. The purchase price per share of such
shares (the "Purchase Price'') shall be the lesser of (i) 85% of
the Fair Market Value of one share of Common Stock on the
applicable Grant Date, or (ii) 85% of the Fair Market Value of
one share of Common Stock on the applicable Ending Date.
(b) Despite any provisions of the Plan that may provide or
suggest otherwise, no Employee shall be granted an option under
the Plan to the extent that:
(i) immediately after the grant, such Employee (or any
other person whose stock ownership would be attributed
to such Employee pursuant to Section 424(d) of the
Code) would own shares of Common Stock and/or hold
outstanding options to purchase shares of Common Stock
that would in the aggregate represent 5% or more of the
total combined voting power or value of all classes of
shares of the Company or of any Subsidiary; or
(ii) the Employee's rights to purchase shares of Common
Stock under all "employee stock purchase plans''
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(within the meaning of Section 423 of the Code) of the
Company and its Subsidiaries would accrue (i.e., become
exercisable) at a rate that exceeds $25,000 of Fair
Market Value of such shares of Common Stock (determined
at the time such option is granted, which is the Grant
Date) for each calendar year in which such option is
outstanding at any time.
9. Exercise of Option.
(a) Unless a Participant withdraws from the Plan pursuant
to Section 10, his or her option for the purchase of shares of
Common Stock granted for an Offering Period will be exercised
automatically and in full at the applicable Purchase Price as
soon as practicable following the Ending Date of such Offering
Period. If the full amount credited to a Participant's
Contribution Account during an Offering Period is not required to
exercise such Participant's option for that Offering Period in
full (due to the applicability of clause (ii) of Section 8(a)
and/or fluctuations in the exchange rate between the U.S. dollar
and the foreign currency in which such Participant is paid), the
amount not required to exercise such option shall promptly be
refunded to the Participant following the Ending Date of such
Offering Period.
(b) No Participant (or any person claiming through such
Participant) shall have any interest in any Common Stock subject
to an option under the Plan until such option has been exercised
and the shares of Common Stock purchased, at which point such
Participant shall have all of the rights and privileges of a
stockholder of the Company with respect to shares purchased under
the Plan. During his or her lifetime, a Participant's option to
purchase shares of Common Stock under the Plan is exercisable
only by the Participant.
(c) Shares of Common Stock purchased pursuant to the
exercise of options hereunder shall be held in Share Accounts
maintained for and in the name of each Participant by the Agent,
such Agent or its nominee to be the record holder of such shares
for the benefit of the Participant. The Agent shall provide each
Participant with a quarterly statement of his or her Share
Account.
(d) Dividends paid with respect to shares credited to each
Share Account will be themselves credited to such Account and
automatically reinvested in whole and fractional shares of Common
Stock.
(e) A Participant may request that the Agent cause a stock
certificate representing some or all of the number of whole
shares of Common Stock credited to the Participant's Share
Account be issued in the name of the Participant. The Agent
shall cause such certificate to be issued as soon as practicable
after its receipt of such request and the payment by the
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Participant of any applicable issuance fees. From and after the
date of the issuance of any such certificate, the number of
shares credited to the Participant's Share Account shall be
reduced by the number of shares represented by such certificate,
and the Participant shall thereafter be the record holder of the
shares represented by such certificate.
10. Withdrawal; Termination of Employment.
(a) A Participant may terminate his or her participation in
the Plan and withdraw all, but not less than all, the payroll
deductions credited to his Contribution Account under the Plan at
any time on or before the last business day of an Offering Period
by giving written notice to the Company. Such notice shall (i)
state that the Participant wishes to terminate participation in
the Plan, (ii) specify the withdrawal date, and (iii) request the
withdrawal of all of the Participant's payroll deductions held
under the Plan. All of the Participant's payroll deductions
credited to his or her Contribution Account will be paid to the
Participant as soon as practicable after the withdrawal date
specified in the notice of withdrawal (or, if no such date is
specified, as soon as practicable after receipt of the notice of
withdrawal), the Participant's option for such Offering Period
will be automatically canceled, and no further payroll deductions
for the purchase of shares of Common Stock will be made for such
Offering Period or for any subsequent Offering Period, except
pursuant to a re-enrollment in the Plan as provided in Section
10(d).
(b) If a Participant's suspension of payroll deductions
under the Plan pursuant to Section 7(d) continues for four
consecutive Offering Periods, such suspension shall be deemed an
election by the Participant to terminate his or her participation
in the Plan, and such termination shall be effective as of the
Ending Date of the fourth consecutive Offering Period during
which no payroll deductions occurred. If, for any reason, a
Participant's net pay after withholding taxes and other
applicable deductions not related to the Plan (such as for health
and welfare benefits) each pay day becomes less than the amount
the Participant has designated be deducted each pay day for
contribution to the Plan, such occurrence shall be deemed an
election by the Participant to terminate his or her participation
in the Plan, and such termination shall be effective immediately.
Following such termination, all of the Participant's payroll
deductions credited to his or her Contribution Account will be
paid to the Participant as soon as practicable, the Participant's
option for such Offering Period will be automatically canceled,
and no further payroll deductions for the purchase of shares of
Common Stock will be made for such Offering Period or for any
subsequent Offering Period, except pursuant to a re-enrollment in
the Plan as provided in Section 10(d).
(c) Upon termination of a Participant's employment with all
Participating Employers for any reason, including retirement or
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death, his or her participation in the Plan will automatically
cease and the payroll deductions accumulated in his or her
Contribution Account will be returned to the Participant as soon
as practicable after such employment termination or, in the case
of death, to the person or persons entitled thereto under Section
12 below, and the Participant's option for the current Offering
Period will be automatically canceled. For purposes of the Plan,
the termination date of employment shall be the Participant's
last date of actual employment and shall not include any period
during which such Participant receives any severance payments. A
transfer of employment between the Company and a Designated
Subsidiary or between one Designated Subsidiary and another
Designated Subsidiary, or leave of absence approved by the
Participating Employer, shall not be deemed a termination of
employment under this Section 10(c).
(d) A Participant's termination of participation in the
Plan pursuant to Section 10(a) or 10(b) will not have any effect
upon his or her eligibility to participate in a subsequent
Offering Period by completing and filing a new enrollment form in
accordance with Section 6 or in any similar plan that may
hereafter be adopted by the Company.
11. Stock Subject to the Plan.
(a) The maximum number of shares of Common Stock that shall
be reserved for sale under the Plan shall be 500,000 shares,
subject to adjustment as provided in Sections 11(b) and 11(c).
The shares to be sold to Participants under the Plan may be, at
the election of the Company, either treasury shares or shares
authorized but unissued. If the total number of shares of Common
Stock that would otherwise be subject to options granted pursuant
to Section 8 on any Ending Date exceeds the number of shares then
available under the Plan (after deduction of all shares for which
options have been exercised or are then outstanding), the
Committee shall make a pro rata allocation of the shares of
Common Stock remaining available for issuance in as uniform and
equitable a manner as is practicable. In such event, the Company
shall give written notice of such reduction of the number of
shares subject to the option to each Participant affected thereby
and shall return any excess funds accumulated in each
Participant's Contribution Account as soon as practicable after
the Ending Date of such Offering Period.
(b) If there is (i) an increase or decrease in the number
of issued and outstanding shares of Common Stock resulting from a
subdivision or consolidation of shares or other capital
adjustment, or (ii) the payment of a stock dividend (utilizing
either Common Stock or the stock of a Subsidiary), in either case
effected without receipt of consideration by the Company, the
number of shares of Common Stock subject to each outstanding
option under the Plan and the Purchase Price thereof and the
number of such shares remaining reserved for grant under the Plan
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shall be equitably adjusted by the Committee to reflect such
change.
(c) Subject to the following provisions of this Section
11(c), if the Company is the surviving corporation in any
reorganization, merger or consolidation with or involving one or
more other corporations, each outstanding option under the Plan
shall apply to the amount and kind of securities to which a
holder of the number of shares of Common Stock subject to such
option would have been entitled immediately following such
reorganization, merger or consolidation, with a corresponding
proportionate adjustment of the Purchase Price. If there is a
(i) dissolution or liquidation of the Company, (ii) merger,
consolidation or reorganization of the Company with one or more
other corporations in which the Company is not the surviving
corporation, (iii) sale of all or substantially all of the assets
of the Company to another person or entity, (iv) transaction
(including a merger or reorganization in which the Company is the
surviving corporation) approved by the Board that results in any
person or entity owning more than 50% of the combined voting
power of all classes of stock of the Company, then the Plan and
all options outstanding thereunder shall terminate, except as
provided in the following sentence. If provision is made in
writing in connection with such transaction for the continuation
of the Plan and either the assumption of the options theretofore
granted or the substitution for such options of new options
covering the stock of a successor corporation (or a parent or
subsidiary thereof), in either case with appropriate adjustments
as to the number and kinds of shares and exercise prices, then
the Plan shall continue in the manner and under the terms
provided. If the Plan is terminated as provided in this Section
11(c), the current Offering Period shall be deemed to have ended
on the last trading day prior to such termination, and the
options of each Participant then outstanding shall be deemed to
have been automatically exercised in accordance with Section 9(a)
on such last trading day. The Committee shall cause written
notice to be sent of an event that will result in such a
termination to all Participants not later than the time the
Company gives notice thereof to its shareholders. Adjustments
under this Section 11(c) shall be made by the Committee, whose
determination in that respect shall be final, binding and
conclusive.
12. Designation of Beneficiary.
(a) A Participant may file a written designation of a
beneficiary who is to receive a cash refund of the amount, if
any, from the Participant's Contribution Account under the Plan
in the event of such Participant's death at a time when cash is
held for his or her account. Disposition of shares of Common
Stock in a Participant's Share Account upon the Participant's
death shall be in accordance with the agreement governing the
Share Account.
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(b) A designation of beneficiary pursuant to Section 12(a)
may be changed by the Participant at any time by written notice.
In the event of the death of a Participant in the absence of a
valid designation of a beneficiary who is living at the time of
such Participant's death, the Company shall deliver such cash to
the executor or administrator of the estate of the Participant;
or, if no such executor or administrator has been appointed (to
the knowledge of the Company), the Company in its discretion, may
deliver such cash to the spouse or to any one or more dependents
or relatives of the Participant; or, if no spouse, dependent or
relative is known to the Company, then to such other person as
the Company may designate.
13. Transferability. Neither payroll deductions credited to a
Participant's Contribution Account nor any rights with regard to
the exercise of an option or to receive shares of Common Stock
under the Plan may be assigned, transferred, pledged or otherwise
disposed of in any way (other than by will or the laws of descent
and distribution) by the Participant. Any such attempt at
assignment, transfer, pledge or other disposition shall be
without effect
14. Amendment or Termination. The Plan may be amended by the
Board from time to time to the extent that the Board deems
necessary or appropriate in light of, and consistent with,
Section 423 of the Code; provided, however, that no such
amendment shall be effective without approval of the shareholders
of the Company, if shareholder approval of the amendment is then
required pursuant to Rule 16b-3 under the Exchange Act or any
successor rule or Section 423 of the Code. The Board also may
terminate the Plan or the granting of options pursuant to the
Plan at any time; provided, however, that the Board shall not
have the right to modify, cancel, or amend any outstanding option
granted pursuant to the Plan before such termination unless each
Participant consents in writing to such modification, amendment
or cancellation.
15. Notices. All notices or other communications by a
Participant to the Company in connection with the Plan shall be
deemed to have been duly given when received by the Vice
President, Human Resource Services of the Company or by any other
person designated by the Company for the receipt of such notices
or other communications, in the form and at the location
specified by the Company.
16. Effective Date of Plan. The Plan shall be effective as of
June 29, 1995, the date it was adopted by the Board. The Plan
has been adopted subject to shareholder approval, and prior to
shareholder approval shares of Common Stock may be issued under
the Plan subject to such approval.
17. Miscellaneous. The headings to sections of the Plan have
been included for convenience of reference only. The Plan shall
be interpreted and construed in accordance with the laws of the
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State of Minnesota. References in the Plan to "$" or
"dollars" shall be deemed to refer to United States dollars
unless the context clearly indicates otherwise.
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