Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
UNIVERSAL FOODS CORPORATION
(Exact name of registrant as specified in its charter)
Wisconsin 39-0561070
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
433 East Michigan Street
Milwaukee, Wisconsin 53202
(Address of principal executive offices) (Zip Code)
Universal Foods Corporation 1994 Employee Stock Plan
(Full title of the plan)
Terrence M. O'Reilly, Vice President, Copy to:
Secretary and General Counsel
Universal Foods Corporation Luke E. Sims
433 East Michigan Street Foley & Lardner
Milwaukee, Wisconsin 53202 777 East Wisconsin Avenue
(414) 271-6755 Milwaukee, Wisconsin 53202
(Name, address and telephone number, including area
code, of agent for service)
__________________________
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed
Securities to be Maximum Maximum Amount of
to be Registered Offering Aggregate Registration
Registered Price Offering Fee
Per Share Price
Common 1,200,000 $31.375(1) $37,650,000(1) $12,981.72
Stock, shares
$.10 par
value
Common 1,200,000 (2) (2) (2)
Stock, rights
Purchase
Rights
(1) Estimated pursuant to Rule 457(c) under the Securities Act of
1933 solely for the purpose of calculating the registration fee
based on the average of the high and low prices for Universal
Foods Corporation Common Stock as reported on the New York Stock
Exchange on September 7, 1994.
(2) The value attributable to the Common Stock Purchase Rights is
reflected in the market price of the Common Stock to which the
Rights are attached.
_________________________________
Page 1 of __ Pages
The Exhibit Index is on page __ of the sequentially numbered pages.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified
in Part I are not required to be filed with the Securities and Exchange
Commission (the "Commission") as part of this Form S-8 Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been previously filed by Universal
Foods Corporation (the "Company") with the Commission and are incorporated
herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended
September 30, 1993, which includes certified financial statements as of
and for the year ended September 30, 1993.
2. All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since September 30, 1993.
3. The description of the Company's Common Stock contained in
Item 1 of the Company's Registration Statement on Form 8-A, dated December
29, 1976, as amended by Form 8 dated July 16, 1986, and any other
amendments or reports filed for the purpose of updating such description.
4. The description of the Company's Common Stock Purchase
Rights contained in Item 1 of the Company's Registration Statement on Form
8-A, dated September 15, 1988, as amended by Form 8, dated December 22,
1988, and any other amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
filing of this Registration Statement and prior to such time as the
Company files a post-effective amendment to this Registration Statement
which indicates that all securities offered hereby 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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and the
Company's By-Laws, directors and officers of the Company are entitled to
mandatory indemnification from the Company against certain liabilities and
expenses (i) to the extent such officers or directors are successful in
the defense of a proceeding; and (ii) in proceedings in which the director
or officer is not successful in the defense thereof, unless (in the latter
case only) it is determined that the director or officer breached or
failed to perform his duties to the Company and such breach or failure
constituted: (a) a willful failure to deal fairly with the Company or its
shareholders in connection with a matter in which the director or officer
had a material conflict of interest; (b) a violation of the criminal law,
unless the director or officer had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe his or her
conduct was unlawful; (c) a transaction from which the director or officer
derived an improper personal profit; or (d) willful misconduct. It should
be noted that the Wisconsin Business Corporation Law specifically states
that it is the public policy of the State of Wisconsin to require or
permit indemnification in connection with a proceeding involving
securities regulation, as described therein, to the extent required or
permitted as described above. Additionally, under the Wisconsin Business
Corporation Law, directors of the Company are not subject to personal
liability to the Company, its shareholders or any person asserting rights
on behalf of the Company or its shareholders, for certain breaches or
failures to perform any duty resulting solely from their status as such
directors, except in circumstances paralleling those in subparagraphs (a)
through (d) outlined above.
Expenses for the defense of any action for which indemnification
may be available may be advanced by the Company under certain
circumstances.
The indemnification provided by the Wisconsin Business
Corporation Law and the Company's By-Laws is not exclusive of any other
rights to which a director or officer of the Company may be entitled.
The Company maintains a liability insurance policy for its
directors and officers as permitted by Wisconsin law, which may extend to,
among other things, liability arising under the Securities Act of 1933, as
amended.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit No. Exhibit
(4) Universal Foods Corporation 1994 Employee Stock
Plan
(5) Opinion of Foley & Lardner
(23.1) Consent of Deloitte & Touche LLP
(23.2) Consent of Foley & Lardner (contained in Exhibit 5
hereto)
(24) Power of Attorney relating to subsequent amendments
(included on the signature page to this
Registration Statement)
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 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.
(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 herein, 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.
<PAGE>
SIGNATURES
The Registrant. 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 Milwaukee, and
State of Wisconsin, on this 8th day of September, 1994.
UNIVERSAL FOODS CORPORATION
By: /s/ Terrence M. O'Reilly
Terrence M. O'Reilly, Vice
President, Secretary and
General Counsel
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities indicated as of September 8, 1994.
Each person whose signature appears below constitutes and
appoints Guy A. Osborn, Kenneth P. Manning and Terrence M. O'Reilly, and
each of them individually, his/her true and lawful attorney-in-fact and
agent, with full power of substitution and revocation, for him/her and in
his/her name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith, as fully
to all intents and purposes as he/she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
<PAGE>
/s/ Guy A. Osborn _______________________________________
Guy A. Osborn Leon T. Kendall
Chairman, Chief Executive Officer Director
and Director
(Principal Executive Officer)
/s/ John E. Heinrich /s/ James H. Keyes
John E. Heinrich James H. Keyes
Vice President and Chief Financial Director
Officer (Chief Financial Officer
and Principal Accounting Officer)
/s/ Michael E. Batten /s/ Kenneth P. Manning
Michael E. Batten Kenneth P. Manning
Director President, Chief Operating Officer
and Director
/s/ John F. Bergstrom /s/ Charles S. McNeer
John F. Bergstrom Charles S. McNeer
Director Director
/s/ James L. Forbes /s/ John L. Murray
James L. Forbes John L. Murray
Director Director
/s/ Dr. Olan D. Forker /s/ William U. Parfet
Dr. Olan D. Forker William U. Parfet
Director Director
/s/ Dr. Carol I. Waslien Ghazaii /s/ Essie Whitelaw
Dr. Carol I. Waslien Ghazaii Essie Whitelaw
Director Director
<PAGE>
EXHIBIT INDEX
UNIVERSAL FOODS CORPORATION
1994 EMPLOYEE STOCK PLAN
Page Number in
Sequentially
Numbered
Registration
Exhibit Exhibit Statement
No.
(4) Universal Foods Corporation 1994
Employee Stock Plan
(5) Opinion of Foley & Lardner
(23.1) Consent of Deloitte & Touche LLP
(23.2) Consent of Foley & Lardner __
(contained in Exhibit 5 hereto)
(24) Power of Attorney relating to __
subsequent amendments (included on
the signature page to this
Registration Statement)
EXHIBIT 4
UNIVERSAL FOODS CORPORATION
1994 EMPLOYEE STOCK PLAN
Section 1. Establishment, Purpose and Effective Date of Plan.
1.1 Establishment. Universal Foods Corporation, a Wisconsin
corporation, hereby establishes the "UNIVERSAL FOODS CORPORATION 1994
EMPLOYEE STOCK PLAN" (the "Plan") for key employees. The Plan permits the
grant of Stock Options, Stock Appreciation Rights and Restricted Stock.
1.2 Purpose. The purpose of the Plan is to advance the
interests of the Company, by encouraging and providing for the acquisition
of an equity interest in the success of the Company by key employees, and
by enabling the Company to attract and retain the services of key
employees upon whose judgment, interest and special effort the successful
conduct of its operations is largely dependent.
1.3 Effective Date. The Plan shall become effective January
27, 1994, subject to ratification by the shareholders of the Company.
Section 2. Definitions.
2.1 Definitions. Whenever used herein, the following terms
shall have their respective meanings set forth below:
(a) "Award" means any Options, Stock Appreciation Rights,
Restricted Stock or any other award made under the terms of the
Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
(d) "Committee" means the Compensation and Development
Committee of the Board, which shall consist of not less than two
directors, each of whom is a "disinterested person" within the
meaning of Rule 16b-3 under the Securities Exchange Act of 1934,
as amended, or any successor provision thereto.
(e) "Company" means Universal Foods Corporation, a
Wisconsin corporation.
(f) "Fair Market Value" means the closing price of the
Stock as reported by the New York Stock Exchange on a particular
date.
(g) "Option" means the right to purchase Stock at a stated
price for a specified period of time. For purposes of the Plan
an Option may be either (i) an "incentive stock option" within
the meaning of Section 422 of the Code; or (ii) a "nonstatutory
stock option."
(h) "Participant" means any individual designated by the
Committee to participate in the Plan.
(i) "Period of Restriction" means the period during which
the transfer of shares of Restricted Stock is restricted
pursuant to Section 10 of the Plan.
(j) "Restricted Stock" means Stock granted to a
Participant pursuant to Section 10 of the Plan.
(k) "Stock" means the Common Stock of the Company, par
value of $0.10.
(l) "Stock Appreciation Right" means the right to receive
a cash payment from the Company equal to the excess of the Fair
Market Value of a share of Stock at the date of exercise over
the Option exercise price fixed by the Committee, which shall
not be less than 100% of the Fair Market Value of the Stock on
the date of grant.
2.2 Gender and Number. Except when otherwise indicated by the
context, words in the masculine gender when used in the Plan shall include
the feminine gender, the singular shall include the plural and the plural
shall include the singular.
Section 3. Eligibility and Participation.
3.1 Eligibility and Participation. Participants in the Plan
shall be selected by the Committee from among those key employees of the
Company and its subsidiaries, including subsidiaries which become such
after adoption of the Plan, who are recommended for participation by the
Chief Executive Officer and who, in the opinion of the Committee, are in a
position to contribute materially to the Company's continued growth and
development and to its long-term financial success.
Section 4. Administration.
4.1 Administration. The Plan shall be administered by the
Committee. The Committee, by majority action thereof, shall have complete
and sole authority to designate key employees to be Participants;
determine the type of Awards to be granted to Participants; determine the
number of shares of Stock to be covered by Awards granted to Participants;
determine the terms and conditions of any Award granted to Participants;
interpret the Plan; prescribe, amend and rescind rules and regulations
relating to the Plan; provide for conditions and assurances deemed
necessary or advisable to protect the interests of the Company; and make
all other determinations necessary or advisable for the administration of
the Plan, but only to the extent not contrary to the express provisions of
the Plan. Determinations, interpretations or other actions made or taken
by the Committee pursuant to the provisions of the Plan shall be final and
binding and conclusive for all purposes and upon all persons whomsoever.
Section 5. Stock Subject to Plan.
5.1 Number. The total number of shares of Stock subject to
issuance under the Plan may not exceed 1,200,000, subject to adjustment
upon occurrence of any of the events indicated in Subsection 5.3. Of this
total number, up to 250,000 shares of Stock may be granted in Restricted
Stock to Participants under the Plan. No participant shall be granted
Options, Stock Appreciation Rights or Restricted Stock that could result
in such participant receiving more than 150,000 shares of Stock under the
Plan. The shares to be issued under the Plan may consist, in whole or in
part, of authorized but unissued Stock or treasury Stock, not reserved for
any other purpose.
5.2 Unused Stock. In the event any shares of Stock that are
subject to an Option which, for any reason, expires, is cancelled or is
terminated unexercised as to such shares, such shares again shall become
available for issuance under the Plan.
5.3 Adjustment in Capitalization. In the event of any change
in the outstanding shares of Stock that occurs after ratification of the
Plan by the shareholders of the Company by reason of a Stock dividend or
split, recapitalization, merger, consolidation, combination, spin-off,
split-up, exchange of shares or other similar corporate change, the
aggregate number of shares of Stock authorized for issuance under the Plan
as well as Stock subject to each outstanding Option, and its stated Option
price, shall be appropriately adjusted by the Committee, whose
determination shall be conclusive; provided, however, that fractional
shares shall be rounded to the nearest whole share. In such event, the
Committee shall also have discretion to make appropriate adjustments in
the number of shares authorized for issuance under the Plan as well as
shares subject to Restricted Stock grants then outstanding under the Plan
pursuant to the terms of such grants or otherwise.
Section 6. Stock Appreciation Rights Subject to Plan.
6.1 Plan Limitation. The number of Stock Appreciation Rights
which may be granted pursuant to the Plan may not exceed 400,000.
6.2 Unexercised Rights. In the event any Stock Appreciation
Rights expire, terminate or are cancelled unexercised, such Stock
Appreciation Rights again shall become available for issuance under the
Plan.
6.3 Adjustment in Capitalization. In the event of any change
in the outstanding shares of Stock that occurs after ratification of the
Plan by the shareholders of the Company by reason of a Stock dividend or
split, recapitalization, merger, consolidation, combination, spin-off,
split-up, exchange of shares or other similar corporate change, the
Committee shall make appropriate adjustments in the number of outstanding
Stock Appreciation Rights and the related grant values, whose
determination shall be conclusive.
Section 7. Duration of Plan.
7.1 Duration of Plan. The Plan shall remain in effect, subject
to the Board's right to earlier terminate the Plan pursuant to Section 14
hereof, until all Stock subject to it shall have been purchased or
acquired pursuant to the provisions hereof. Notwithstanding the
foregoing, no Option, Stock Appreciation Right or Restricted Stock may be
granted under the Plan on or after the tenth (10th) anniversary of the
Plan's effective date.
Section 8. Stock Options.
8.1 Grant of Options. Subject to the provisions of Sections 5
and 7, Options may be granted to Participants at any time and from time to
time as shall be determined by the Committee. The Committee shall have
complete discretion in determining the number of Options granted to each
Participant. The Committee also shall determine whether an Option is to
be an incentive stock option within the meaning of Section 422 of the Code
or a nonstatutory stock option. Incentive stock options shall be subject
to the following limitations:
(a) The Fair Market Value (determined at the date of
grant) of Stock with respect to which incentive stock options
are exercisable for the first time by a Participant during any
calendar year shall not exceed $100,000.
(b) No incentive stock option may be granted to any person
who owns, directly or indirectly, stock possessing more than 10%
of the total combined voting power of all classes of stock of
the Company.
Nothing in this Section 8 of the Plan shall be deemed to prevent the grant
of nonstatutory stock options in excess of the maximum established by
Section 422 of the Code.
8.2 Option Agreement. Each Option shall be evidenced by an
Option agreement that shall specify the type of Option granted, the Option
price, the duration of the Option, the number of shares of Stock to which
the Option pertains and such other provisions as the Committee shall
determine.
8.3 Option Price. No Option granted pursuant to the Plan shall
have an Option price that is less than the Fair Market Value of the Stock
on the date the Option is granted.
8.4 Duration of Options. Each Option shall expire at such time
as the Committee shall determine; provided, however, that no incentive
stock option shall be exercisable later than the tenth (10th) anniversary
date of its grant.
8.5 Exercise of Options. Options granted under the Plan shall
be exercisable at such times and be subject to such restrictions and
conditions as the Committee shall in each instance approve, which need not
be the same for all Participants. Any Option granted to an elected
officer, director or more than 10% shareholder may not be exercised until
at least six months following the grant date.
8.6 Payment. The Option price of any Option shall be payable
to the Company in full upon exercise (i) in cash or its equivalent; (ii)
by tendering shares of Stock having a Fair Market Value at the time of
exercise equal to the total Option price; (iii) by a combination of cash
and shares of Stock; or (iv) by electing to have the Company withhold from
the shares of Stock otherwise issuable upon exercise of the Option that
number of shares of Stock having a Fair Market Value at the time of
exercise plus cash for any fractional share amounts, equal to the total
Option price; provided that any such election by an elected officer,
director or more than 10% shareholder of the Company must be made during
the ten-day period beginning on the third business day following the
release of the Company's quarterly or annual summary statement of sales
and earnings. The proceeds from such a payment shall be added to the
general funds of the Company and shall be used for general corporate
purposes.
8.7 Restrictions on Stock Transferability. The Committee shall
impose such restrictions on any shares of Stock acquired pursuant to the
exercise of an Option under the Plan as it may deem advisable, including,
without limitation, restrictions under applicable Federal securities law,
under the requirements of any stock exchange upon which such shares of
Stock are then listed and under any blue sky or state securities laws
applicable to such shares.
8.8 Nontransferability of Options. No Option granted under the
Plan may be sold, transferred, pledged, assigned or otherwise alienated or
hypothecated, otherwise than by will or by the laws of descent and
distribution. Further, all Options granted to a Participant under the
Plan shall be exercisable during his lifetime only by such Participant.
Section 9. Stock Appreciation Rights.
9.1 Grant of Stock Appreciation Rights. Subject to the
provisions of Sections 6 and 7, Stock Appreciation Rights may be granted
to Participants. A Stock Appreciation Right shall relate only to a
specific Option granted under the Plan and may relate to all or part of
the Option shares covered by the related Option.
9.2 Exercise of Stock Appreciation Rights. Stock Appreciation
Rights shall be exercisable at such time or times, on the conditions and
to the extent and in the proportion, that the related Option is
exercisable and may be exercised for all or part of the shares of Stock
subject to the related Option. Any Stock Appreciation Right granted to an
elected officer, director or more than 10% shareholder of the Company may
not be exercised until at least six months after the grant date and shall
only be exercisable during the ten-day period beginning on the third
business day following the release of the Company's quarterly or annual
summary statement of sales and earnings.
9.3 Effect of Exercise. Upon exercise of any number of Stock
Appreciation Rights, the number of Option shares subject to the related
Option shall be reduced accordingly and such Option shares may not again
be subjected to an Option under the Plan. The exercise of any number of
Options shall result in an equivalent reduction in the number of Option
shares covered by the related Stock Appreciation Right and such shares may
not again be subject to a Stock Appreciation Right under this Plan;
provided, however, that if a Stock Appreciation Right was granted for less
than all of the Option shares covered by the related Option, no such
reduction shall be made until such time as the number of shares exercised
under the related Option exceeds the number of Option shares not covered
by the Stock Appreciation Right.
9.4 Payment of Stock Appreciation Right Amount. Upon exercise
of a Stock Appreciation Right, the holder shall be entitled to receive
payment in cash of an amount determined by multiplying:
(a) The difference between the Fair Market Value of a
share of Stock at the date of exercise over the price fixed by
the Committee at the date of grant by
(b) The number of shares with respect to which the Stock
Appreciation Right is exercised.
In the case of a Stock Appreciation Right which is granted in conjunction
with an incentive stock option, the amount determined under (a) above
shall be determined by using a price fixed by the Committee at the date of
grant which does not exceed the Option price of the related incentive
stock option.
9.5 Limit on Appreciation. The Committee may, in its sole
discretion, establish (at the time of grant) a maximum amount per share
which will be payable upon exercise of a Stock Appreciation Right.
9.6 Rule 16b-3 Requirements. Notwithstanding any other
provision of the Plan, the Committee may impose such conditions on
exercise of a Stock Appreciation Right (including, without limitation, the
right of the Committee to limit the time of exercise to specified periods)
as may be required to satisfy the requirements of Rule 16b-3 (or any
successor rule) under the Securities Exchange Act of 1934.
Section 10. Restricted Stock.
10.1 Grant of Restricted Stock. Subject to the provisions of
Sections 5 and 7, the Committee, at any time and from time to time, may
grant shares of Restricted Stock under the Plan to such Participants and
in such amounts as it shall determine. Each grant of Restricted Stock
shall be in writing.
10.2 Transferability. Except as provided in Section 10 hereof,
the shares of Restricted Stock granted hereunder may not be sold,
transferred, pledged, assigned or otherwise alienated or hypothecated for
such period of time as shall be determined by the Committee and shall be
specified in the Restricted Stock grant, or upon earlier satisfaction of
other conditions as specified by the Committee in its sole discretion and
set forth in the Restricted Stock grant.
10.3 Other Restrictions. The Committee shall impose such other
restrictions on any shares of Restricted Stock granted pursuant to the
Plan as it may deem advisable including, without limitation, restrictions
under applicable Federal or state securities laws, and may legend the
certificates representing Restricted Stock to give appropriate notice of
such restrictions. Any Restricted Stock granted to an elected officer,
director or more than 10% shareholder may not be sold for at least six
months after the date it is granted.
10.4 Certificate Legend. In addition to any legends placed on
certificates pursuant to Subsection 10.3 hereof, each certificate
representing shares of Restricted Stock granted pursuant to the Plan shall
bear the following legend:
"The sale or other transfer of the shares of stock
represented by this certificate, whether voluntary, involuntary
or by operation of law, is subject to certain restrictions on
transfer set forth in the Universal Foods Corporation 1994
Employee Stock Plan, rules of administration adopted pursuant to
such Plan and a Restricted Stock grant dated ____________, 19__.
A copy of the Plan, such rules and such Restricted Stock grant
may be obtained from the Secretary of Universal Foods
Corporation."
10.5 Removal of Restrictions. Except as otherwise provided in
Section 10 hereof, shares of Restricted Stock covered by each Restricted
Stock grant made under the Plan shall become freely transferable by the
Participant after the last day of the Period of Restriction. Once the
shares are released from the restrictions, the Participant shall be
entitled to have the legend required by Subsection 10.4 removed from his
Stock certificates.
10.6 Voting Rights. During the Period of Restriction,
Participants holding shares of Restricted Stock granted hereunder may
exercise full voting rights with respect to those shares.
10.7 Dividends and Other Distributions. During the Period of
Restriction, Participants holding shares of Restricted Stock granted
hereunder shall be entitled to receive all dividends and other
distributions paid with respect to those shares while they are so held.
If any such dividends or distributions are paid in shares of Stock, the
shares shall be subject to the same restrictions on transferability as the
shares of Restricted Stock with respect to which they were paid.
10.8 Nontransferability of Restricted Stock. No shares of
Restricted Stock granted under the Plan may be sold, transferred, pledged,
assigned or otherwise alienated or hypothecated, otherwise than by will or
by the laws of descent and distribution until the termination of the
applicable Period of Restriction. All rights with respect to the
Restricted Stock granted to a Participant under the Plan shall be
exercisable during his lifetime only by such Participant.
10.9 Election to Sell Shares to the Company. A Participant, or
in the case of his death his beneficiary or estate, may elect to sell to
the Company up to one-half of the shares of Restricted Stock issued to him
pursuant to the Plan and upon which the restrictions set forth in
Subsections 10.2 and 10.3 lapsed. To the extent permitted by law, the
Company shall purchase all such shares. Each such sale must occur within
sixty (60) days after the last day of the Period of Restriction for such
shares and shall be for a price equal to the Fair Market Value determined
as of the last business day of the Period of Restriction of the shares of
Restricted Stock to be sold. Such price shall be payable in cash or by
check in one lump sum payment, unless provisions relating to payment for
such shares in installments are agreed to by the Company and the
Participant (or his beneficiary or estate).
Section 11. Beneficiary Designation.
11.1 Beneficiary Designation. Each Participant under the Plan
may, from time to time, name any beneficiary or beneficiaries (who may be
named contingently or successively) to whom any benefit under the Plan is
to be paid in case of his death before he receives any or all of such
benefit. Each designation will revoke all prior designations by the same
Participant, shall be in a form prescribed by the Committee and will be
effective only when filed by the Participant in writing with the Committee
during his lifetime. In the absence of any such designation, benefits
remaining unpaid at the Participant's death shall be paid to his estate.
Section 12. Rights of Employees.
12.1 Employment. Nothing in the Plan shall interfere with or
limit in any way the right of the Company to terminate any Participant's
employment at any time nor confer upon any Participant any right to
continue in the employ of the Company.
12.2 Participation. No employee shall have a right to be
selected as a Participant or, having been so selected, to be selected
again as a Participant.
Section 13. Merger or Consolidation.
13.1 Treatment of Options and Stock Appreciation Rights. In the
event of a dissolution or a liquidation of the Company or a merger or
consolidation in which the Company is not the surviving corporation, a
Participant shall have the right, except as limited by Subsection 13.3
hereof, to exercise any unexercised Options, whether or not then
exercisable, subject to the provisions of the Plan, upon consummation of
such dissolution, liquidation, merger or consolidation.
13.2 Treatment of Restricted Stock. Upon the consummation of a
merger or consolidation such that the Company is not the surviving
corporation, all restrictions shall lapse, except as limited by Subsection
13.3 hereof, on the shares of Restricted Stock granted under the Plan and
thereafter such shares shall be freely transferable by the Participant,
subject to applicable Federal or state securities laws.
13.3 Limitation on Payments. If the receipt of any payment
under this Section by any Participant shall, in the opinion of independent
tax counsel of recognized standing selected by the Company, result in the
payment by such Participant of any excise tax provided for in Section 280G
and Section 4999 of the Code, then the amount of such payment shall be
reduced to the extent required, in the opinion of independent tax counsel
selected as aforesaid, to prevent the imposition of such excise tax.
Section 14. Amendment, Modification and Termination of Plan.
14.1 Amendment, Modification and Termination of Plan. The Board
may at any time terminate, and from time to time may amend or modify the
Plan, provided, however, that no such action of the Board, without
approval of the shareholders, may:
(a) Increase the total amount of Stock which may be issued
under the Plan, except as provided in Subsections 5.1 and 5.3 of
the Plan.
(b) Materially modify the eligibility requirements as
provided in Section 3.
(c) Materially increase the benefits accruing to
Participants under the Plan.
No amendment, modification or termination of the Plan shall in any manner
adversely affect any Options, Stock Appreciation Rights or Restricted
Stock theretofore granted under the Plan, without the consent of the
Participant.
Section 15. Tax Withholding.
15.1 Tax Withholding. Whenever shares of Stock are to be issued
under the Plan, the Company shall have the power to withhold from any cash
otherwise payable to the Participant or to require the recipient of the
Stock to remit to the Company an amount sufficient to satisfy Federal,
state and local withholding tax requirements. A Participant who is an
elected officer of the Company may remit cash, already owned Company stock
or request the Company to satisfy withholding requirements from the
exercised Option stock or Restricted Stock. The Committee may establish
such procedures as it deems appropriate for the settling of withholding
obligations with Stock, including, without limitation, the establishment
of such procedures as may be necessary to satisfy the requirements of Rule
16b-3 under the Securities Exchange Act of 1934 or any successor
provisions thereto.
Section 16. Indemnification.
16.1 Indemnification. Each person who is or shall have been a
member of the Committee or of the Board shall be indemnified and held
harmless by the Company against and from any loss, cost, liability or
expense that may be imposed upon or reasonably incurred by him in
connection with or resulting from any claim, action, suit or proceeding to
which he may be a party or in which he may be involved by reason of any
action taken or failure to act under the Plan and against and from any and
all amounts paid by him in settlement thereof, with the Company's
approval, or paid by him in satisfaction of any judgment in any such
action, suit or proceeding against him, provided he shall give the Company
an opportunity, at its own expense, to handle and defend the same before
he undertakes to handle and defend it on his own behalf. The foregoing
right of indemnification shall not be exclusive of any other rights of
indemnification to which such persons may be entitled under the Company's
Articles of Incorporation or bylaws, as a matter of law, or otherwise, or
any power that the Company may have to indemnify them or hold them
harmless.
Section 17. Requirements of Law.
17.1 Requirements of Law. The granting of Options, Stock
Appreciation Rights or Restricted Stock and the issuance of shares of
Stock upon the exercise of an option shall be subject to all applicable
laws, rules and regulations, and to such approvals by any governmental
agencies or national securities exchanges as may be required.
17.2 Governing Law. The Plan, and all agreements hereunder,
shall be construed in accordance with and governed by the laws of the
State of Wisconsin.
EXHIBIT 5
September 12, 1994
Universal Foods Corporation
433 East Michigan Street
Milwaukee, Wisconsin 53202
Ladies and Gentlemen:
We have acted as counsel for Universal Foods Corporation, a
Wisconsin corporation (the "Company"), in connection with the preparation
of a Form S-8 Registration Statement (the "Registration Statement") to be
filed by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to
1,200,000 shares of the Company's Common Stock, $.10 par value per share
(the "Common Stock"), and rights to purchase shares of Common Stock
associated with each share of Common Stock ("Rights") that may be issued
or acquired pursuant to the Universal Foods Corporation 1994 Employee
Stock Plan (the "Plan"). The terms of the Rights are as set forth in that
certain Rights Agreement, dated as of September 8, 1988, as amended, by
and between the Company and Firstar Trust Company (the "Rights
Agreement").
In this regard, we have examined: (a) the Plan; (b) signed
copies of the Registration Statement; (c) the Company's Articles of
Incorporation and Bylaws, as amended to date; (d) resolutions of the
Company's Board of Directors relating to the Plan; (e) the Rights
Agreement; and (f) such other documents and records as we have deemed
necessary to enable us to render this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the
laws of the State of Wisconsin.
2. The shares of Common Stock, when issued by the Company in
the manner contemplated in the Plan, will be validly issued, fully paid
and nonassessable, except as otherwise provided by Section 180.0622(2)(b)
of the Wisconsin Statutes.
3. The Rights when issued pursuant to the terms of the Rights
Agreement will be validly issued.
We consent to the use of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we
are "experts" within the meaning of Section 11 of the Securities Act or
within the category of persons whose consent is required by Section 7 of
said Act.
Very truly yours,
FOLEY & LARDNER
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement
of Universal Foods Corporation on Form S-8 of our reports dated
November 11, 1993, which expressed unqualified opinions and included an
explanatory paragraph relating to the change in method of accounting for
postretirement benefits other than pensions and postemployment benefits to
conform with Statements of Financial Accounting Standards No. 106 and
No. 112, respectively, appearing in the Annual Report on Form 10-K of
Universal Foods Corporation for the year ended September 30, 1993.
Deloitte & Touche LLP
Milwaukee, Wisconsin
September 9, 1994
