As filed with the Securities and Exchange Commission on August 3, 1999
Registration Number 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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OMNICOM GROUP INC.
(Exact name of registrant as specified in its charter)
New York 13-1514814
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
437 Madison Avenue
New York, New York 10022
(Address of Principal Executive Offices) (Zip Code)
OMNICOM GROUP INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Barry J. Wagner, Esq.
Secretary and General Counsel
Omnicom Group Inc.
437 Madison Avenue
New York, New York 10022
(212) 415-3600
(Name, address and telephone number,
including area code, of agent for service)
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Copies to:
Linda E. Ransom, Esq.
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
(212) 259-6570
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================
Title of Proposed Maximum Proposed Maximum
Securities to Amount to be Offering Price Per Aggregate Offering Amount of
be Registered Registered (1) Share (2) Price (2) Registration Fee (2)
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock of
Omnicom Group Inc.,
par value $.50 per
share ................ 3,000,000 $71.25 $213,750,000 $59,422.50
===================================================================================================================
(1) This Registration Statement shall also cover any additional shares of
common stock of the registrant which become issuable under the Omnicom
Group Inc. Employee Stock Purchase Plan by reason of any merger,
consolidation, spin off, reorganization, recapitalization,
reclassification, stock dividend, stock split or similar transactions
of or by the registrant which results in an increase in the number of
the registrant's outstanding shares of common stock.
(2) Estimated for the sole purpose of computing the registration fee.
Pursuant to Securities Act Rules 457(c) and (h), the proposed maximum
offering price per share is calculated as the average of the high and
low prices, reported by the New York Stock Exchange, Inc., of the
common stock of the registrant as of July 29, 1999.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by Omnicom Group Inc. (the
"Company") (File No. 1-10551) with the Securities and Exchange Commission (the
"Commission") and are incorporated herein by reference:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1999; and
(c) the description of the Company's Common Stock contained in the
Registration Statement filed pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and any
amendment or report filed for purposes of updating that description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to 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 part hereof
from the date of filing of such documents. Any statement contained in any
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as modified or superseded, to constitute
a part of this Registration Statement.
The consolidated financial statements and financial statement schedules
of the Company and its subsidiaries included in the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1998 have been incorporated
herein by reference in reliance on the reports, also incorporated herein by
reference, of Arthur Andersen LLP, independent certified public accountants,
given on their authority as experts in auditing and accounting.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Certificate of Incorporation contains a provision
limiting the liability of directors (except for approving statutorily prohibited
dividends, share repurchases or redemptions, distributions of assets on
dissolution or loans to directors) to acts or omissions in bad faith, involving
intentional misconduct or a knowing violation of the law, or resulting in
personal gain to which the director was not legally entitled. The Company's
By-Laws provide that an officer or director will be indemnified against any
costs or liabilities, including attorneys fees and amounts paid in settlement
with the consent of the Company in connection with any claim, action or
proceeding to the fullest extent permitted by the New York Business Corporation
Law.
Section 722(a) of the New York Business Corporation Law provides that a
corporation may indemnify any officer or director made, or threatened to be
made, a party to an action other than one by or in the right of the corporation,
including an action by or in the right of any other corporation or other
enterprise which any director or officer of the corporation served in any
capacity at the request of the corporation, because he was a director or officer
of the corporation, or served such other corporation or other enterprise in any
capacity, against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorney's fees actually and necessarily incurred as a
result of such action, or any appeal therein, if such director or officer acted,
in good faith, for a purpose which he reasonably believed to be in, or in the
case of service for any other corporation or other enterprise, not opposed to,
the best interests of the corporation and, in criminal actions, in addition, had
no reasonable cause to believe that his conduct was unlawful.
Section 722(c) of the New York Business Corporation Law provides that a
corporation may indemnify any officer or director made, or threatened to be
made, a party to an action by or in the right of the corporation by reason of
the fact that he is or was an officer or director of the corporation, or is or
was serving at the request of the corporation as a director or officer of any
other corporation, or other enterprise, against amounts paid in settlement and
reasonable expenses, including attorneys' fees, actually and necessarily
incurred by him in connection with the defense or settlement of such action, or
in connection with an appeal therein, if such director or officer acted, in good
faith, for a purpose which he reasonably believed to be in, or, in the case of
service for another corporation or other enterprise, not opposed to, the best
interests of the corporation. The corporation may not, however, indemnify any
officer or director pursuant to Section 722(c) in respect of (1) a threatened
action, or a pending action which is settled or otherwise disposed of, or (2)
any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation, unless and only to the extent that the court in
which the action was brought or, if no action was brought, any court of
competent jurisdiction, determines in its discretion, that the person is fairly
and
II-2
<PAGE>
reasonably entitled to indemnity for such portion of the settlement and expenses
as the court deems proper.
Section 723 of the New York Business Corporation Law provides that an
officer or director who has been successful on the merits or otherwise in the
defense of a civil or criminal action of the character set forth in Section 722
is entitled to indemnification as permitted in such section. Section 724 of the
New York Business Corporation Law permits a court to award the indemnification
required by Section 722.
The Company has entered into agreements with its directors to indemnify
them for liabilities or costs arising out of any alleged or actual breach of
duty, neglect, errors or omissions while serving as a director. The Company also
maintains and pays premiums for directors' and officers' liability insurance
policies.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description
-------------- -----------
5 Opinion and Consent of Dewey Ballantine LLP.
23.1 Consent of Dewey Ballantine LLP (included in Exhibit 5 hereto).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney (included on Signature Page).
99 Omnicom Group Inc. 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; and
II-3
<PAGE>
(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
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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
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 City of New York, State of New York, on August 3, 1999.
OMNICOM GROUP INC.
By: /s/ John Wren
---------------------------------------
John Wren
President, Chief Executive Officer and
Director
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated. Each person whose signature appears below
does hereby constitute and appoint John Wren and Barry J. Wagner, and each of
them, with full powers of substitution, his or her true and lawful
attorneys-in-fact and agents to do any and all acts and things and to execute
any and all instruments which said attorneys-in-fact and agents may deem
necessary or advisable to enable the registrant to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission in respect thereof, in connection with the
registration under said Act of shares of Common Stock registered pursuant
hereto, including specifically, but without limitation thereof, power and
authority to sign his or her name, in any and all capacities set forth beneath
his name, to any amendment to this Registration Statement in respect of said
shares and to any documents filed as part of or in connection with said
Registration Statement or amendments; and the undersigned does hereby ratify and
confirm all that said attorneys-in-fact and agents shall do or cause to be done
by virtue hereof.
Date: August 3, 1999 By: /s/ John Wren
--------------------------------------
John Wren
President, Chief Executive Officer and
Director
(Principal Executive Officer)
Date: August 3, 1999 By: /s/ Randall Weisenburger
--------------------------------------
Randall Weisenburger
Chief Financial Officer
(Principal Financial Officer)
<PAGE>
Date: August 3, 1999 By: /s/ Philip J. Angelastro
--------------------------------------
Philip J. Angelastro
Controller
(Principal Accounting Officer)
Date: August 3, 1999 By: /s/ Bernard Brochand
--------------------------------------
Bernard Brochand
Director
Date: August 3, 1999 By: /s/ Robert J. Callander
--------------------------------------
Robert J. Callander
Director
Date: August 3, 1999 By: /s/ James A. Cannon
--------------------------------------
James A. Cannon
Director
Date: August 3, 1999 By: /s/ Leonard S. Coleman, Jr.
--------------------------------------
Leonard S. Coleman, Jr.
Director
Date: August 3, 1999 By: /s/ Bruce Crawford
--------------------------------------
Bruce Crawford
Director
Date: August 3, 1999 By: /s/ Susan S. Denison
--------------------------------------
Susan S. Denison
Director
Date: August 3, 1999 By: /s/ Peter Foy
--------------------------------------
Peter Foy
Director
Date: August 3, 1999 By: /s/ Thomas L. Harrison
--------------------------------------
Thomas L. Harrison
Director
<PAGE>
Date: August 3, 1999 By: /s/ John R. Murphy
--------------------------------------
John R. Murphy
Director
Date: August 3, 1999 By: /s/ John R. Purcell
--------------------------------------
John R. Purcell
Director
Date: August 3, 1999 By: /s/ Keith L. Reinhard
--------------------------------------
Keith L. Reinhard
Director
Date: August 3, 1999 By: /s/ Allen Rosenshine
--------------------------------------
Allen Rosenshine
Director
Date: August 3, 1999 By: /s/ Gary L. Roubos
--------------------------------------
Gary L. Roubos
Director
Date: August 3, 1999 By: /s/ Quentin I. Smith, Jr.
--------------------------------------
Quentin I. Smith, Jr.
Director
Date: August 3, 1999 By: /s/ Egon P.S. Zehnder
--------------------------------------
Egon P.S. Zehnder
Director
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description
- -------------- -----------
5 Opinion and Consent of Dewey Ballantine LLP.
23.1 Consent of Dewey Ballantine LLP (included in Exhibit 5 hereto).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney (included on Signature Page).
99 Omnicom Group Inc. Employee Stock Purchase Plan.
Exhibit 5
DEWEY BALLANTINE LLP
1301 AVENUE OF THE AMERICAS
NEW YORK 10019-6092
TEL 212 259-8000 FAX 212 259-6333
August 3, 1999
Omnicom Group Inc.
437 Madison Avenue
New York, New York 10022
Re: Registration Statement on Form S-8 Filed with the Securities
and Exchange Commission on August 3, 1999
Gentlemen:
We are acting as counsel for Omnicom Group Inc., a New York corporation
("Omnicom"), in connection with the registration by Omnicom under the Securities
Act of 1933, as amended (the "Act"), of 3,000,000 shares of common stock, par
value $.50 per share (the "Shares"), to be offered pursuant to the Omnicom Group
Inc. Employee Stock Purchase Plan (the "Plan") under the Registration Statement
on Form S-8 filed with the Securities and Exchange Commission on August 3, 1999
(the "Registration Statement").
We are familiar with the proceedings of Omnicom relating to the
authorization and issuance of the Shares. In addition, we have made such further
examinations of law and fact as we have deemed appropriate in connection with
the opinion hereinafter set forth. We express no opinion as to the law of any
jurisdiction other than the laws of the State of New York.
Based upon the foregoing, we are of the opinion that the Shares offered
pursuant to the Plan have been duly authorized and, when issued in accordance
with the resolutions of the Board of Directors of Omnicom authorizing such
issuance, will be validly issued, fully paid and nonassessable.
<PAGE>
Omnicom Group Inc.
August 3, 1999
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Act, or under the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ Dewey Ballantine LLP
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 16, 1999
included in Omnicom Group Inc.'s Form 10-K for the year ended December 31, 1998
and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
New York, New York
August 2, 1999
Exhibit 99
OMNICOM GROUP INC.
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
PURPOSE AND COMMENCEMENT
1.01 Purpose. The purpose of the Plan is to provide the employees of
Omnicom Group Inc., a New York corporation (the "Company"), and its Subsidiaries
with a vehicle for investing in the growth potential of the Company, to allow
the Company to be competitive in attracting new employees, and to promote
positive parent company recognition and visibility. The Plan is intended to
qualify as an employee stock purchase plan under Section 423 of the Code and
shall be interpreted and construed in accordance with such purpose.
1.02 Commencement. The Plan shall become effective on September 1, 1999
(the "Effective Date"). The Plan was adopted by the Board of Directors on
February 1, 1999 and was approved by the Company's shareholders on May 17, 1999.
The Plan, as set forth herein, reflects amendments to the Plan through July 27,
1999.
ARTICLE II
DEFINITIONS
2.01 Definitions. As used in the Plan, the following terms and phrases
shall have the following meanings:
(a) "Board of Directors" shall mean the Board of Directors of the
Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Commencement Date" shall mean the first day of a Plan Quarter.
(d) "Committee" shall mean the Compensation Committee of the Board of
Directors, or such other committee of the Board of Directors designated by it
for purposes of administering the Plan.
(e) "Common Stock" means the common stock of the Company.
(f) "Company" shall mean Omnicom Group Inc., a New York corporation.
(g) "Contribution Account" shall mean the bookkeeping account
<PAGE>
established on behalf of a Participant pursuant to Article IV hereof to which
shall be credited his or her Participant Contributions.
(h) "Contribution Rate" shall be a percentage of a Participant's
Covered Compensation during each payroll period designated by each Participant
to be contributed by regular payroll deductions to his or her Contribution
Account as set forth in Section 3.03 hereof.
(i) "Covered Compensation" shall mean the base salary or hourly wages
received by an Employee from any Participating Employer, or commissions received
from any Participating Employer (in the case of an Employee who is primarily
compensated on a commission-basis), before tax withholdings and other payroll
deductions (such as deductions under Section 401(k) or 125 of the Code), and
excluding any overtime, cash bonus compensation, fringe benefits and other
irregular or special forms of compensation.
(j) "Effective Date" shall have the meaning set forth in Section 1.02
hereof.
(k) "Election Date" shall mean the number of days prior to the
Commencement Date of each Plan Quarter selected by each Participating Employer
and approved by the Committee as the date by which its Employees must elect to
participate in the Plan pursuant to Section 3.03(a) hereof.
(l) "Election Form" shall mean such form as shall be approved by the
Committee for Employees to elect participation in the Plan.
(m) "Employee" shall mean each employee of a Participating Employer
other than an Excluded Employee. For purposes of the Plan, the terms "employee",
"employment" and similar terms shall be determined in accordance with the
provisions of Section 1.421-7(h) of the Treasury Regulations (or any successor
regulations).
(n) "Excluded Employee" means any employee of a Participating Employer
whose customary employment is 20 hours per week or less or whose customary
employment is for not more than 5 months in any calendar year.
(o) "Fair Market Value" shall mean the average of the high and low
price reported by the applicable composite transactions report on the date of
any determination hereunder or, if the Common Stock is not traded on such date,
the average of the high and low price so reported on the immediately preceding
date on which the Common Stock was traded on such exchange.
(p) "Participant" shall mean any Employee of a Participating Employer
who has met the conditions and provisions for becoming a Participant set forth
in Article III hereof.
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(q) "Participant Contributions" shall be the aggregate dollars actually
contributed by each Participant to his or her Contribution Account for a Plan
Quarter.
(r) "Participating Employers" shall mean the Company and each
Subsidiary that (i) has been designated by the Committee as a Participating
Employer under the Plan, and (ii) has adopted the Plan for its Employees by
action of its Board of Directors. A Subsidiary shall become a Participating
Employer effective only upon a Commencement Date.
(s) "Plan" shall mean the Omnicom Group Inc. Employee Stock Purchase
Plan as set forth herein, as it may be amended from time to time.
(t) "Plan Quarter" shall mean each quarter during the term of the Plan
defined for purposes hereof as September 1 through November 30, December 1
through February 28, March 1 through May 31 and June 1 through August 31. The
first Plan Quarter shall be the Plan Quarter commencing on the Effective Date
and ending on November 30, 1999.
(u) "Purchase Date" shall mean the last business day of a Plan Quarter
on which the Common Stock publicly trades.
(v) "Purchase Price" shall mean the purchase price for a share of
Common Stock to be paid by a Participant on a Purchase Date, as determined under
Section 4.02 hereof.
(w) "Subsidiary" shall mean a subsidiary of the Company which is
treated as a subsidiary corporation under Section 424(f) of the Code.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.01 Eligibility.
(a) Each Employee shall become eligible to be a Participant of the Plan
and may participate therein as of the Commencement Date coincident with or next
following the date he or she has completed six consecutive months of continuous
employment with the Participating Employer.
(b) In the event any person becomes an Employee on account of a stock
purchase, asset purchase or similar acquisition by the Company, such Employee
shall have any continuous period of employment with the predecessor company
applied towards the satisfaction of the six-month waiting period set forth in
paragraph (a) above, and such Employee shall be eligible to participate in the
Plan on the Commencement
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<PAGE>
Date coincident with or next following the date he has satisfied such six-month
period.
(c) In the event that an Excluded Employee becomes an Employee of a
Participating Employer due to a change in his customary employment with a
Participating Employer (as described in Section 2.01(n)), such Employee shall
have his continuous period of employment with the Participating Employer (as an
Excluded Employee) applied toward satisfaction of the six-month waiting period
set forth in paragraph (a) above, and such Employee shall be eligible to
participate in the Plan on the Commencement Date coincident with or next
following the date he has satisfied such six-month period; provided, however,
that any such Employee who has more than two years of continuous employment with
a Participating Employer shall be eligible to participate in the Plan on the
Purchase Date coincident with or next following the date he is an Employee and
has satisfied such two-year period (and may elect to make payroll deductions
under Section 3.03(d) for payroll periods ending on and after such date).
3.02 Limitations. Notwithstanding anything to the contrary contained in
the Plan, no Employee shall acquire the right to purchase shares of Common Stock
(i) if immediately after the Purchase Date, such Employee would own 5% or more
of the total combined voting power or value of all classes of stock of the
Company or any Subsidiary, taking into account in determining stock ownership
any stock attributable to such Employee under Section 424(d) of the Code or (ii)
which would permit such Employee's right to purchase stock under all employee
stock purchase plans (to which Section 423 of the Code applies) of the Company
and its Subsidiaries, to accrue at a rate which exceeds $25,000 of the Fair
Market Value of such stock (as determined as of each Purchase Date) for each
calendar year, all as specified in the manner provided by Section 423(b)(8) of
the Code.
3.03 Participation.
(a) Each Employee eligible to be a Participant in the Plan shall be
furnished a summary of the Plan and an Election Form by such Employee's
Participating Employer. If an Employee elects to participate hereunder, such
Employee shall complete such form and file it with his or her Participating
Employer not later than the Election Date for the next Plan Quarter. The
completed Election Form shall indicate the Contribution Rate authorized by the
Participant. If any Employee does not elect to participate in the Plan during
any given Plan Quarter, such Employee may elect to participate on any future
Commencement Date so long as he or she continues to be an eligible Employee.
(b) On his or her Election Form, an Employee must authorize his or her
Participating Employer to deduct through a payroll deduction the amount of such
Employee's Participant Contribution. The payroll deduction specified in an
Election Form for each payroll period shall be at a Contribution Rate in whole
percentages of not less than 1% and not more than 10% of such Employee's Covered
Compensation during such payroll period paid to him or her by his or her
Participating Employer. Such deductions shall begin as of the first pay period
occurring on or after the Commencement Date of a Plan Quarter. No interest shall
accrue to Participants on any amounts withheld
4
<PAGE>
under the Plan.
(c) The Participant's Contribution Rate, once established, shall remain
in effect for all Plan Quarters unless changed by the Participant on a new
Election Form filed with his or her Participating Employer not later than the
Election Date of the next Plan Quarter. A Participant's Contribution Rate for a
Plan Quarter may not be increased, decreased or otherwise modified at any time
during the period between the Election Date and the Commencement Date of such
Plan Quarter.
(d) A Participant may notify his or her Participating Employer of such
Participant's desire to discontinue his or her Participant Contributions by
delivering to his or her Participating Employer written notice on such forms as
may be provided by the Company or such Participant's Participating Employer at
least 15 days prior to the Purchase Date of the relevant Plan Quarter. Upon such
request, there shall be refunded to such Participant as soon as practicable the
entire cash balance in his or her Contribution Account. If a Participant
determines to discontinue his or her Participant Contributions pursuant to this
paragraph, (i) such Participant shall be terminated from the Plan effective upon
the date of receipt of such Participant's notice to his or her Participating
Employer and (ii) such Participant shall not be permitted to be a Participant in
the Plan until the Participant completes and files a new Election Form with his
or her Participating Employer no later than the Election Date of the Plan
Quarter the Participant wishes to again participate in the Plan. In the event
that a Participant's payroll deductions are prevented by legal process, the
Participant will be deemed to have terminated from the Plan.
(e) By enrolling in the Plan, each Participant will be deemed to have
authorized the establishment of a brokerage account in his or her name at a
securities brokerage firm or other financial institution, if approved by the
Committee in its discretion.
3.04 Termination of Employment; Re-employment
(a) Any Participant (i) whose employment by a Participating Employer is
terminated for any reason or (ii) who shall otherwise cease to be an Employee
for purposes of the Plan, shall cease being a Participant as of the date of such
event. Upon such termination of employment, there shall be refunded to such
Participant as soon as practicable the entire cash balance in such Participant's
Contribution Account. Section 4.03(b) hereof shall apply to the issuance of
certificates to a Participant following termination of employment.
(b) Any Employee whose employment by a Participating Employer is
terminated after such Employee has completed six consecutive months of
continuous employment with a Participating Employer and who is re-employed by a
Participating Employer within one year of his or her date of termination shall
be eligible to participate in the Plan on the Commencement Date coincident with
or next following the date of re-employment. Any employee whose employment is
terminated and who is re-employed under circumstances other than as set forth in
the foregoing sentence shall be eligible to
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participate in the plan upon satisfaction of the requirement of Section 3.01(a)
following the date of re-employment.
ARTICLE IV
COMMON STOCK
4.01 Purchase of Common Stock.
(a) On each Purchase Date, each Participant's Contribution Account
shall be used to purchase the maximum number of whole and fractional shares of
Common Stock determined by dividing (i) the Participant's Contribution Account
as of such Purchase Date by (ii) the Purchase Price in respect of such Plan
Quarter.
(b) If, in any Plan Quarter, the total number of shares of Common Stock
to be purchased pursuant to the Plan by all Participants exceeds the number of
shares authorized under the Plan, then each Participant shall purchase his or
her pro rata portion of the shares of Common Stock remaining available under the
Plan based on the balances in each Participant's Contribution Account as of the
Purchase Date in respect of such Plan Quarter.
(c) Any cash dividends paid with respect to shares of Common Stock held
for the account of a Participant shall be, as determined by the Participant, (i)
distributed to the Participant, or (ii) used to purchase additional shares of
Common Stock on the open market, provided that the Participant has made a prior
arrangement with the securities brokerage firm described in Section 3.03(e)
hereof to apply any cash dividends to make such purchases.
4.02 Purchase Price. For each Plan Quarter, the Purchase Price per
share of Common Stock purchased pursuant to the Plan shall be 85% of the Fair
Market Value on the Purchase Date of such Plan Quarter.
4.03 Stock Certificates, Voting Rights.
(a) Evidence of shares of Common Stock purchased under the Plan shall
be maintained under the Plan for the account of each Participant and registered
in the manner determined by the Committee. Certificates for the number of whole
shares credited to a Participant's account under the Plan will be issued to a
Participant at any time promptly upon written request to the Company or its
designated agent; provided, however, that the Company may, at its election,
issue such certificates at such time or times as the Committee deems
appropriate, including, without limitation, following an Employee's termination
of employment with a Participating Employer.
(b) Whole shares of Common Stock held under the Plan for the
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account of each Participant or former Participant shall be voted by the holder
of record of such shares in accordance with the Participant's instructions.
4.04 Notification of Disposition of Stock. If a Participant or former
Participant disposes of a share of Common Stock purchased under the Plan prior
to two (2) years after the Purchase Date of the Plan Quarter during which such
share was purchased, then such Participant or former Participant shall notify
his or her Participating Employer immediately of such disposition in writing.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.01 Shares Subject to Plan; Adjustments.
(a) The maximum number of shares of Common Stock which may be purchased
under the Plan is 3,000,000 subject, however, to adjustment as hereinafter set
forth. The shares of Common Stock to be purchased under the Plan will be made
available, at the discretion of the Board of Directors or the Committee, either
from authorized but unissued shares of Common Stock or from previously issued
shares of Common Stock reacquired by the Company, including shares purchased on
the open market.
(b) If the outstanding shares of Common Stock of the Company are
increased, decreased, or exchanged for a different number or kind of shares or
other securities, or if additional shares or new or different shares or other
securities are distributed with respect to such shares of Common Stock or other
securities, through merger, consolidation, spin off, sale of all or
substantially all the property of the Company, reorganization, recapitalization,
reclassification, stock dividend, stock split, reverse stock split or other
distribution with respect to such shares of Common Stock, or other securities,
an appropriate and proportionate adjustment may be made in the maximum number
and kind of shares provided in Sections 3.02 and 5.01(a) hereof, subject in the
case of certain corporate reorganizations to the requirements of Section 424(a)
of the Code.
5.02 Administration of the Plan.
(a) Pursuant to the direction of the Board of Directors, the Committee
shall be responsible for the administration of the Plan. The Committee shall
have the discretionary authority to interpret the Plan and determine all
questions arising in the administration, application and operation of the Plan,
including all questions of fact and all questions of interpretation of the
provisions of the Plan. All such determinations by the Committee shall be
conclusive and binding on all persons. The Committee, from time to time, may
adopt, amend and rescind rules and regulations not inconsistent with
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the Plan for carrying out the Plan, and may approve the forms of any documents
or writings provided for in the Plan. The Committee shall have full
discretionary authority to delegate ministerial functions of the Plan to
employees of the Company and its Subsidiaries. No member of the Board of
Directors or the Committee shall be liable for any action, determination or
omission taken or made in good faith with respect to the Plan or any right
granted hereunder.
(b) The Committee may in its discretion engage a bank trust department,
securities brokerage firm or other financial institution as agent to perform
custodial and record-keeping functions for the Plan, such as holding record
title to the Participants' stock certificates, maintaining an individual
investment account for each Participant and providing periodic account status
reports to Participants.
(c) The Committee shall have the authority to adopt and enforce such
special rules and restrictions under the Plan to be applicable to Participants
who are subject to Section 16 of the Securities Exchange Act of 1934, as
amended, as the Committee shall deem are necessary or appropriate to comply with
the requirements of such Section 16.
(d) The Company shall bear the cost of administering the Plan,
including any fees, costs and expenses relating to the purchase of shares of
Common Stock under the Plan. Notwithstanding the foregoing, Participants will be
responsible for all fees, costs and expenses incurred in connection with (i) the
issuance of stock certificates to a Participant in accordance with Section
5.01(a) or (ii) the disposition of shares of Common Stock purchased under the
Plan.
5.03 Termination and Amendment of the Plan.
(a) The Company may, by action of the Board of Directors, terminate the
Plan at any time and for any reason. The Plan shall automatically terminate upon
the purchase by Participants of all shares of Common Stock subject to the Plan
under Section 5.01 hereof, unless such number of shares shall be increased by
the Board of Directors and such increase shall be approved by the shareholders
of the Company. Upon termination of the Plan, as soon as practicable, there
shall be refunded to each Participant the entire cash balance in his or her
Contribution Account, and there shall be forwarded to each Participant
certificates for all whole shares of Common Stock held under the Plan for the
account of such Participant.
(b) The Board of Directors reserves the right to modify, alter or amend
the Plan at any time and from time to time to any extent that it may deem
advisable, subject to shareholder approval to the extent deemed necessary by the
Board of Directors for compliance with Section 423 of the Code. Notwithstanding
the foregoing, no amendment of the Plan shall operate to reduce any amounts
previously allocated to a Participant's Contribution Account nor to reduce a
Participant's rights with respect to shares of Common Stock previously purchased
and held on his or her behalf under the Plan. The Board of Directors may suspend
operation of the Plan for any period as it may deem advisable.
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5.04 Governing Law; Compliance With Law. The Plan shall be construed in
accordance with the laws of the State of New York. The Company's obligation to
sell and deliver shares of Common Stock hereunder shall be subject to all
applicable federal and state laws, rules and regulations and to such approvals
by any regulatory or governmental agency as may, in the opinion of counsel for
the Company, be required. The Company may make such provisions as it may deem
appropriate for the withholding of any taxes or payment of any taxes which it
determines it may be required to withhold or pay in connection with a
Participant's participation in the Plan.
5.05 No Assignment. The purchase rights granted hereunder are not
assignable or transferable by the Participants, other than by will or the laws
of descent and distribution, and are exercisable during the Participant's
lifetime only by the Participant. Any attempted assignment, transfer or
alienation not in compliance with the terms of the Plan shall be null and void
for all purposes and respects.
5.06 No Contract of Employment. The Plan will not be deemed to
constitute a contract between a Participating Employer and any Participant or to
be a consideration or an inducement for the employment of any Participant or
Employee. Nothing contained in the Plan shall be deemed to give any Participant
or Employee the right to be retained in the service of a Participating Employer
or to interfere with the right of a Participating Employer to discharge any
Participant or Employee at any time regardless of the effect which such
discharge shall have upon him or her as a Participant of the Plan.
5.07 No Rights as Shareholder. No eligible Employee or Participant
shall by reason of participation in the Plan have any rights of a shareholder of
the Company until he or she acquires shares of Common Stock as herein provided.
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