<PAGE> 1
As filed with the Securities and Exchange Commission on February 10, 1998.
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 Identification No.)
of incorporation or organization)
433 East Michigan Street 53202
Milwaukee, Wisconsin
- ---------------------------------- ------------------------------------
(Address of principal (Zip Code)
executive offices)
Universal Foods Corporation 1998 Stock Option Plan
- --------------------------------------------------------------------------------
(Full title of the plan)
John L. Hammond, Vice President, Secretary and General Counsel
Universal Foods Corporation
433 East Michigan Street
Milwaukee, Wisconsin 53202
(414) 271-6755
- --------------------------------------------------------------------------------
(Name, address and telephone number, including area code, of agent for service)
With a copy to:
Andrew J. Guzikowski
Whyte Hirschboeck Dudek S.C.
111 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
414-273-2100
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRIC FEE
------------------------------------ ------------ -------------- -------------- ------------
<S> <C> <C> <C> <C>
Common Stock, $.10 par value 1,200,000 shares $ 42.6875(1) $51,225,000(1) $ 15,111.38(1)
Common Stock Purchase Rights 1,200,000 rights (2) (2) (2)
</TABLE>
(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 February 4,
1998.
(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> 2
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, 1997, which includes certified financial
statements as of and for the year ended September 30, 1997.
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, 1997.
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
<PAGE> 3
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
- ----------- -------
5 Opinion of Whyte Hirschboeck Dudek S.C.
10(p) Universal Foods Corporation 1998 Stock Option Plan
23(a) Consent of Deloitte & Touche LLP
23(b) Consent of Whyte Hirschboeck Dudek S.C. (included as part of
Exhibit 5 hereto)
24 Power of Attorney relating to subsequent amendments (included
as part of the signature page to this Registration Statement)
3
<PAGE> 4
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.
4
<PAGE> 5
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 22nd
day of January, 1998.
UNIVERSAL FOODS CORPORATION
By: /s/ John L. Hammond
-----------------------
John L. Hammond,
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 January 22, 1998.
Each person whose signature appears below constitutes and appoints
Kenneth P. Manning and John L. Hammond, 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.
/s/ Kenneth P. Manning Chairman of the Board, Director, President
- --------------------------- and Chief Executive Officer
Kenneth P. Manning
/s/ Michael Fung
- ---------------------------
Michael Fung Vice President and Chief Financial Officer
/s/ Michael L. Hennen
- ---------------------------
Michael L. Hennen Corporate Controller
- ---------------------------
Michael E. Batten Director
/s/ John F. Bergstrom
- ---------------------------
John F. Bergstrom Director
5
<PAGE> 6
/s/ James A.D. Croft
- --------------------------------
James A.D. Croft Director
/s/ James L. Forbes
- --------------------------------
James L. Forbes Director
/s/ Dr. Carol I. Waslien Ghazaii
- --------------------------------
Dr. Carol I. Waslien Ghazaii Director
/s/ William V. Hickey
- --------------------------------
William V. Hickey Director
/s/ Leon T. Kendall
- --------------------------------
Leon T. Kendall Director
/s/ James H. Keyes
- --------------------------------
James H. Keyes Director
/s/ Guy A. Osborn
- --------------------------------
Guy A. Osborn Director
/s/ Essie Whitelaw
- --------------------------------
Essie Whitelaw Director
6
<PAGE> 7
]
EXHIBIT INDEX
UNIVERSAL FOODS CORPORATION FORM S-8
RELATING TO UNIVERSAL FOODS CORPORATION 1998 STOCK OPTION PLAN
<TABLE>
<CAPTION>
Incorporated Herein by Filed
Exhibit No. Description Reference From Herewith
----------- ----------- ---------------------- --------
<S> <C> <C> <C>
5 Opinion of Whyte Hirschboeck Dudek S.C. X
10(p) Universal Foods Corporation 1998 Stock X
Option Plan
23(a) Consent of Deloitte & Touche LLP X
23(b) Consent of Whyte Hirschboeck Dudek S.C. X*
24 Power of Attorney relating to subsequent X**
amendments
</TABLE>
- -------------------------------
* Included as part of Exhibit 5 hereto.
** Included as part of the signature page to this Registration Statement.
7
<PAGE> 1
February 9, 1998
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 1998 Stock Option Plan (the "Plan").
In such capacity, we have examined, among other documents, the Articles
of Incorporation of the Company, as amended, the Bylaws of the Company, as
amended, and the Registration Statement to be filed on or shortly after the date
of this letter covering the offering of the Company's Common Stock pursuant to
the Plan.
Based on the foregoing and such additional investigation as we have
deemed necessary, it is our opinion that the shares of Common Stock to be
offered under the Plan have been legally and validly authorized under the
Articles of Incorporation of the Company and the laws of the State of Wisconsin.
When issued and paid for in accordance with the description set forth in the
Registration Statement and the Plan, the Common Stock will be legally issued,
fully-paid and non assessable, except as set forth in Wisconsin Statutes Section
180.0622(2)(b) as interpreted. We are also of the opinion that the Rights, if
issued, 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,
WHYTE HIRSCHBOECK DUDEK S.C.
By: /s/ Andrew J. Guzikowski
---------------------------
Andrew J. Guzikowski
<PAGE> 1
UNIVERSAL FOODS CORPORATION
1998 STOCK OPTION 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 1998
STOCK OPTION PLAN" (the "Plan") for officers and key employees. This Plan
permits the grant of Stock Options and Restricted Stock.
1.2 Purpose. The purpose of this Plan is to advance the
interests of the Company by encouraging and providing for the acquisition of an
equity interest in the Company by officers and key employees, and by enabling
the Company to attract and retain the services of officers and key employees
upon whose judgment, interest and special effort the successful conduct of its
operations is largely dependent.
1.3 Effective Date. This Plan shall become effective on
the Effective Date.
SECTION 2. DEFINITIONS.
2.1 Definitions. Whenever used herein, the following
terms shall have the respective meanings set forth below:
(a) "Award" means any Option or Restricted Stock, or any
other benefit conferred under the terms hereof.
(b) "Board" means the Board of Directors of the
Company.
(c) "Code" means the Internal Revenue Code of
1986, as amended.
(d) "Committee" means the Compensation and
Development Committee of the Board.
(e) "Company" means Universal Foods Corporation, a
Wisconsin corporation, and its subsidiaries.
(f) "Effective Date" means January 22, 1998, or
such other date that this Plan is approved by the shareholders of the
Company at an annual or special meeting thereof by a simple majority
of the number of shares represented at such meeting in person or by
proxy.
(g) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(h) "Fair Market Value" means the closing price
of a share of Stock on the date of the Award on the New York Stock
Exchange as reported on the composite list used by the Wall Street
Journal for reporting stock prices, or if no such sale shall have been
made on that day, on the last preceding day on which there was such a
sale.
(i) "Option" means the right to purchase Stock at
a stated price for a specified period of time. For purposes of this
Plan an Option may be either: (i) an "incentive stock option" within
the meaning of Section 422(b) of the Code; or (ii) an option which is
not
<PAGE> 2
intended to qualify as an incentive stock option (a "nonstatutory
stock option").
(j) "Participant" means any individual designated by the
Committee to participate in this Plan.
(k) "Period of Restriction" means the period
during which the transfer of shares of Restricted Stock is restricted
pursuant to Section 8 hereof.
(l) "Restricted Stock" means Stock granted to a
Participant pursuant to Section 8 hereof.
(m) "Stock" means the common Stock of the Company, par
value of $0.10.
2.2 Gender and Number. Except when otherwise indicated
by the context, words in the masculine gender when used in this Plan shall
include the feminine gender, the singular shall include the plural and the
plural shall include the singular.
SECTION 3. ELIGIBILITY AND PARTICIPATION. Participants in this
Plan shall be selected by the Committee from among those officers and key
employees of the Company and its subsidiaries, including subsidiaries which
become such after adoption hereof, 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. The Committee's
designation of any person to receive an Award shall not require the Committee
to designate such person to receive an Award at any subsequent time.
SECTION 4. ADMINISTRATION.
4.1 Administration. This Plan shall be administered by
the Committee.
4.2 Powers and Authority of the Committee. The
Committee, by majority action thereof, shall have complete and sole authority
to:
(a) designate officers and key employees to receive
Awards;
(b) determine the type of Awards to be granted to
Participants;
(c) determine the number of shares of Stock to be covered
by Awards granted to Participants;
(d) determine the terms and conditions of any Award
granted to any Participant (which may, in the discretion of the
Committee, differ from Participant to Participant), including, without
limitation, provisions relating to the vesting of Options or
Restricted Stock rights over a period of time, upon the attainment of
specified performance goals, or otherwise;
(e) interpret this Plan and apply its provisions, and
prescribe, amend and rescind rules, regulations, procedures, and forms
relating to this Plan;
(f) authorize any person to execute, on behalf of the
Company, any instrument required to carry out the purposes of this
Plan;
(g) amend any outstanding agreement relating to any
Award, subject to applicable legal restrictions and to the consent of
the Participant who entered into such agreement;
<PAGE> 3
(h) prescribe the consideration for the grant of each
Award hereunder and determine the sufficiency of such consideration;
and
(i) make all other determinations and take all other
actions deemed necessary or advisable for the administration hereof
and provide for conditions and assurances deemed necessary or
advisable to protect the interests of the Company in connection
herewith;
but only to the extent that any of the foregoing are not contrary to
the express provisions hereof. Determinations, interpretations or other actions
made or taken by the Committee pursuant to the provisions hereof shall be
final, binding and conclusive for all purposes and upon all persons. The
Committee's decisions need not be uniform and may be made selectively among
Participants, whether or not they are similarly situated.
4.3 Composition of the Committee. The Committee shall
consist of not less than two directors. Each member of the Committee shall be
both a "nonemployee director" (within the meaning of Rule 16b-3 under the
Exchange Act) and an "outside director" (within the meaning of Section
162(m)(4)(C) of the Code); provided, however, that in the event any Committee
member does not satisfy both conditions of the first clause of this sentence,
then the Committee shall, with respect to any Award to be made to any
Participant who is subject to Section 16 of the Exchange Act ("Section 16
Participant") or who is subject to the provisions of Section 162(m) of the
Code, delegate its functions with respect to such Award to a subcommittee (of
not less than two directors) which consists exclusively of members who meet
both conditions of the first clause of this sentence. Further, the Committee
may delegate to one or more senior officers of the Company any or all of the
authority and responsibility of the Committee with respect to this Plan, other
than with respect to Section 16 Participants or Participants who are subject to
Section 162(m) of the Code. A majority of the members of the Committee (or
subcommittee, as the case may be) shall constitute a quorum and all
determinations of the Committee shall be made by a majority of its members. Any
determination of the Committee may be made without notice or meeting of the
Committee by a writing signed by a majority of the Committee members.
SECTION 5. STOCK SUBJECT TO PLAN.
5.1 Number. The total number of shares of Stock reserved
and available for issuance under this Plan shall initially be 1,200,000. The
number of shares of Stock reserved and available for issuance hereunder shall
be subject to adjustment upon occurrence of any of the events indicated in
Subsection 5.3 hereof. Of this total number, not more than 300,000 shares may
at any time consist of Restricted Stock. The shares to be issued under this
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 Award cease to be subject to such Award (whether due to
expiration, cancellation, termination, forfeiture, or otherwise) without such
shares of Stock being issued or cash being paid to the Participant, then the
shares of Stock subject to such Award shall again become available for future
Awards hereunder.
5.3 Adjustment in Capitalization. In the event of any
change in the outstanding shares of Stock that occurs, whether prior to or
after the Effective Date, 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 hereunder as well as Stock subject to
each outstanding Award, and its stated Option or other price (as applicable),
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 the
discretion to make appropriate adjustments in the number of shares of Stock
authorized for issuance hereunder.
<PAGE> 4
SECTION 6. DURATION OF PLAN. This Plan shall remain in effect,
subject to the Board's right to earlier terminate this Plan pursuant to Section
12 hereof, until all shares of Stock subject to it shall have been purchased or
acquired pursuant to the provisions hereof. Notwithstanding the foregoing, no
Award may be granted hereunder on or after the tenth (10th) anniversary of the
Effective Date.
SECTION 7. STOCK OPTIONS.
7.1 Grant of Options. Subject to the provisions of
Sections 5 and 6 hereof, 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(b) of the Code or a
nonstatutory stock option.
7.2 Incentive Stock Options. Incentive stock options
shall be subject to the limitation that the Fair Market Value (determined on
the date of grant) of all shares 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. This limitation shall not apply to
nonstatutory stock options.
7.3 Option Agreement. Each Option shall be evidenced by
a written agreement ("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. No Participant shall have any rights hereunder until an
Option Agreement has been executed.
7.4 Option Price. No Option granted pursuant hereto
shall have an Option price that is less than the Fair Market Value of the Stock
on the date the Option is granted.
7.5 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.
7.6 Exercise of Options. Options granted hereunder 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 a Section 16 Participant may not be
exercised until at least six (6) months following the date of its grant.
7.7 Payment. The Option price of any Option shall be
payable to the Company in full upon exercise:
(a) in cash or its equivalent, including, in the
discretion of the Committee, a promissory note issued to the Company
by the Participant (which note shall (i) be secured by the Stock
issued; (ii) be for a term of not more than ten (10) years; (iii) bear
interest at a rate of not less than the prime rate (as determined by
the Committee) in effect on the date such promissory note is issued;
(iv) require at least annual payments of principal and interest; and
(v) contain such other terms and conditions as the Committee
determines);
(b) by tendering shares of Stock having a Fair
Market Value at the time of exercise equal to the total Option price;
(c) by a combination of cash or its equivalent
(as defined in clause (a) above) and shares of Stock; or
(d) by electing to have the Company withhold from
the shares of Stock
<PAGE> 5
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 a Section 16 Participant must be made during the
ten-day period beginning on the third business day following the release of
the Company's quarterly or annual consolidated financial statements.
The proceeds from such a payment shall be added to the general funds of the
Company and shall be used for general corporate purposes.
7.8 Restrictions on Stock Transferability. The Committee
shall impose such restrictions on any shares of Stock acquired pursuant to the
exercise of an Option as it may deem advisable, including, without limitation,
restrictions under applicable Federal securities laws, 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.
7.9 Transferability of Options. The Committee may, in
its discretion, and only by expressly so providing in the Option Agreement
covering any Options (which Option Agreement must be approved by the
Committee), permit all or a portion of Options to be granted to a Participant
to be transferable by the Participant: (a) to the Participant's spouse, or
natural or adoptive children or grandchildren ("Immediate Family Members"); (b)
to a trust or trusts for the exclusive benefit of one or more Immediate Family
Members; or (c) to a partnership in which all partners are Immediate Family
Members; provided that there may be no consideration for any such transfer and
the transferee shall be expressly prohibited from any further transfer of such
Options other than by will or pursuant to the laws of descent and distribution.
Following such transfer, any Options so transferred shall be subject to the
same terms and conditions as were applicable immediately prior to such
transfer, provided that for purposes of this Plan, the term "Participant" shall
be deemed to include such transferee. The circumstances under which any
transferred Option may be terminated, canceled, or forfeited (whether such
circumstances are set forth in this Plan or in the Option Agreement covering
such Options) shall be applied with respect to the transferor Participant to
which the Option was originally granted. Unless expressly so provided in the
Option Agreement covering an Option, no Option granted hereunder may be sold,
transferred, pledged, assigned or otherwise alienated or hypothecated, other
than by will or pursuant to the laws of descent and distribution, and all
Options granted to a Participant hereunder shall be exercisable during his
lifetime only by such Participant.
7.10 Substitute Options. If the Company at any time
should succeed to the business of another corporation through merger or
consolidation, or through the acquisition of stock or assets of such
corporation, Options may be granted under this Plan ("Substitute Options") in
substitution of options previously granted by such corporation and which are
outstanding at the date of the succession ("Surrendered Options"). The
Committee shall have discretion to determine the extent to which such
Substitute Options shall be granted, the persons to receive such Substitute
Options, the number of Shares to be subject to such Substitute Options, and the
terms and conditions of such Substitute Options (which terms and conditions
shall, to the extent permissible within the terms and conditions of this Plan,
be equivalent to the terms and conditions of the Surrendered Options). The
Exercise Price of the Substitute Option may be determined without regard to
Section 7.4 hereof; provided however, that the Exercise Price of each
Substitute Option shall be an amount such that, in the sole and absolute
judgment of the Committee (and if the Substitute Options are to be incentive
stock options, in compliance with Section 424(a) of the Code), the economic
benefit provided by such Substitute Option is not greater than the economic
benefit represented by the Surrendered Option as of the date of the succession.
7.11. Forfeiture. Except as otherwise determined by the
Committee and set forth in the Option Agreement, upon termination of employment
of a Participant due to death, disability, or for
<PAGE> 6
any other reason, all Options not exercisable in accordance with the Option
Agreement immediately prior to such termination shall be immediately and
automatically forfeited to the Company.
SECTION 8. RESTRICTED STOCK.
8.1 Grant of Restricted Stock. Subject to the provisions
of Sections 5 and 6 hereof, the Committee, at any time and from time to time,
may grant shares of Restricted Stock hereunder to such Participants and in such
amounts as it shall determine. Each grant of Restricted Stock shall be
evidenced by a written agreement ("Restricted Stock Agreement).
8.2 Other Restrictions. The Committee shall, in the
terms and conditions of the Restricted Stock Agreement, impose such
restrictions on any shares of Restricted Stock granted pursuant to this 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 a Section 16 Participant may not be sold for at
least six (6) months after the date it is granted.
8.3 Registration. Any Restricted Stock granted hereunder
to a Participant may be evidenced in such manner as the Committee may deem
appropriate, including, without limitation, book-entry registration or issuance
of a stock certificate or certificates. In the event any stock certificate is
issued in respect of shares of Restricted Stock granted hereunder to a
Participant, such certificate shall be registered in the name of the
Participant and shall bear an appropriate legend (as determined by the
Committee) referring to the terms, conditions and restrictions applicable to
such Restricted Stock. In the event such Restricted Stock is issued in
book-entry form, the depository and the Company's Transfer Agent shall be
provided with notice referring to the terms, conditions and restrictions
applicable to such Restricted Stock, together with such stop-transfer
instructions as the Committee deems appropriate.
8.4 Forfeiture. Except as otherwise determined by the
Committee, upon termination of employment of a Participant due to death,
disability, or for any other reason, during the applicable period of
restriction, all shares of Restricted Stock still subject to restriction under
the terms of the Restricted Stock Agreement shall be immediately and
automatically forfeited to the Company.
8.5 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.
8.6 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.
8.7 Nontransferability of Restricted Stock. Except as
provided in Section 8.8 hereof, no shares of Restricted Stock granted hereunder
may be sold, transferred, pledged, assigned or otherwise alienated or
hypothecated, other 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 hereunder shall be
exercisable during his lifetime only by such Participant.
8.8 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 this Plan and upon which any restrictions set forth in the
Restricted Stock Agreement have lapsed. To the extent permitted by law, the
Company shall purchase
<PAGE> 7
all such shares of Restricted Stock. Each such sale must occur within sixty
(60) days after the last day of the Period of Restriction for such shares of
Restricted Stock 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 of Restricted Stock in installments are agreed to by the Committee
and the Participant (or his beneficiary or estate).
SECTION 9. BENEFICIARY DESIGNATION. Each Participant may, from
time to time, name any beneficiary or beneficiaries (who may be named
contingently or successively) to whom any benefit hereunder 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 10. RIGHTS OF EMPLOYEES. Nothing in this 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 employment of the Company.
SECTION 11. CHANGE OF CONTROL.
(a) In the event of a "Change of Control" (as hereinafter
defined):
(i) each holder of an Option (A) shall have the
right at any time thereafter to exercise the Option in full whether or
not the Option was previously exercisable; and (B) shall have the
right, exercisable by written notice to the Company within sixty (60)
days after the Change of Control, to receive, in exchange for the
surrender of an Option or any portion thereof to the extent the Option
is then exercisable in accordance with clause (A), the highest of (1)
an amount of cash equal to the difference between the Fair Market
Value of the Stock covered by the Option or portion thereof that is so
surrendered on the date of the Change of Control and the purchase
price of such Stock under the Option; (2) an amount of cash equal to
the difference between the highest price per share of Stock paid in
the transaction giving rise to the Change of Control and the Option
price multiplied by the number of shares of Stock covered by the
Option; or (3) an amount of cash equal to the difference between the
Fair Market Value of the Stock covered by the Option or portion
thereof that is so surrendered, calculated on the date of surrender,
and the purchase price of such Stock under the Option; provided that
the right described in this clause (B) shall be exercisable only if a
positive amount would be payable to the holder pursuant to the formula
specified in this clause (B);
(ii) Restricted Stock that is not then vested
shall vest upon the date of the Change of Control and each holder of
such Restricted Stock shall have the right, exercisable by written
notice to the Company within sixty (60) days after the Change of
Control, to receive, in exchange for the surrender of such Restricted
Stock, an amount of cash equal to the highest of (A) the Fair Market
Value of such Restricted Stock on the date of surrender; (B) the
highest price per share of Stock paid in the transaction giving rise
to the Change of Control multiplied by the number of shares of
Restricted Stock surrendered; or (C) the Fair Market Value of such
Restricted Stock on the effective date of the Change of Control.
(b) A "Change of Control" of the Company shall be deemed
to have occurred for purposes of this Plan if the event set forth in
any one of the following paragraphs shall have occurred:
<PAGE> 8
(i) any "Person" (as such term is defined in
Section 3(a)(9) of the Exchange Act, as modified and used in Sections
13(d) and 14(d) thereof, including a "group" as defined in Section
13(d) of the Exchange Act; except that for purposes of this Section
13, the term "Person" shall not include (A) the Company or any of its
subsidiaries, (B) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any of its
subsidiaries, (C) an underwriter temporarily holding securities
Pursuant to an offering of such securities, or (D) a corporation
owned, directly or indirectly, by the shareholders of the Company in
substantially the same proportions as their ownership of stock in the
Company) is or becomes the "Beneficial Owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities
of the Company (not including in the securities beneficially owned by
such Person any securities acquired directly from the Company or its
affiliates) representing 50% or more of either the then outstanding
shares of Stock of the Company or the combined voting power of the
Company's then outstanding voting securities; or
(ii) the following individuals cease, for any
reason other than death or resignation, to constitute a majority of
the number of directors then serving: individuals who, on the
Effective Date, constitute the Board and any new director (other than
a director whose initial assumption of office is in connection with an
actual or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of the
Company, as such terms are used in Rule 14a-11 of Regulation 14A under
the Exchange Act) whose appointment or election by the Board or
nomination for election by the Company's stockholders was approved by
a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors on the Effective Date, or whose
appointment, election or nomination for election was previously so
approved; or
(iii) the shareholders of the Company approve a
merger or consolidation of the Company with any other corporation or
approve the issuance of voting securities of the Company in connection
with a merger or consolidation of the Company (or any direct or
indirect subsidiary of the Company) pursuant to applicable stock
exchange requirements, other than (A) a merger or consolidation which
would result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity or any parent thereof) at
least 50% of the combined voting power of the voting securities of the
Company or such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, or (B) a merger or
consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no Person is or becomes the
Beneficial Owner, directly or indirectly, of securities of the Company
(not including in the securities beneficially owned by such Person any
securities acquired directly from the Company or its Affiliates)
representing 50% or more of either the then outstanding shares of
common stock of the Company or the combined voting power of the
Company's then outstanding voting securities; or
(iv) the shareholders of the Company approve a
plan of liquidation or dissolution of the Company or an agreement for
the sale or disposition by the Company of all or substantially all of
the Company's assets (in one transaction or a series of related
transactions within any period of twenty-four (24) consecutive
months), other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity in which at
least 75% of the combined voting power of the voting securities of
which entity are owned by Persons in substantially the same
proportions as their ownership of Stock of the Company immediately
prior to such sale or disposition.
Notwithstanding the foregoing, no "Change of Control" shall be deemed
to have occurred if
<PAGE> 9
there is consummated any transaction or series of integrated
transactions immediately following which the record holders of the
Stock of the Company immediately prior to such transactions or series
of transactions continue to have substantially the same proportionate
ownership in an entity which owns all or substantially all of the
assets of the Company immediately following such transaction or series
of transactions.
(c) The Committee may, in its sole and absolute
discretion, amend, modify or rescind the provisions of this Section 11
if it determines that the operation of this Section 11 may prevent a
transaction in which the Company is a party from being accounted for
on a pooling-of-interests basis.
SECTION 12. AMENDMENT, MODIFICATION AND TERMINATION OF PLAN.
12.1 Amendments and Termination. The Board may at any
time amend, alter, suspend, discontinue or terminate this Plan; provided,
however, that stockholder approval of any amendment of this Plan shall be
obtained if otherwise required by (a) the Code or any rules promulgated
thereunder (in order to allow for incentive stock options to be granted
hereunder or to enable the Company to comply with the provisions of Section
162(m) of the Code so that the Company can deduct compensation in excess of the
limitation set forth therein), or (b) the listing requirements of the principal
securities exchange or market on which the Stock is then traded (in order to
maintain the listing or quotation of the Stock thereon). Termination of this
Plan shall not affect the rights of Participants with respect to Awards
previously granted to them, and all unexpired Awards shall continue in force
and effect after termination of this Plan except as they may lapse or be
terminated by their own terms and conditions.
12.2 Waiver of Conditions. The Committee may, in whole or
in part, waive any conditions or other restrictions with respect to any Award
granted hereunder.
SECTION 13. TAXES. The Company shall be entitled to withhold the
amount of any tax attributable to any amount payable or shares of Stock
deliverable under this Plan after giving the person entitled to receive such
amount or shares of Stock notice as far in advance as practicable, and the
Company may defer making any such payment or delivery if any such tax may be
pending unless and until indemnified to its satisfaction. A Participant may
elect to pay all or a portion of the federal, state and local withholding taxes
arising in connection with (a) the exercise of a nonstatutory stock option; (b)
a disqualifying disposition of Stock received upon the exercise of an incentive
stock option; (c) the lapse of restrictions on Restricted Stock, by electing to
(i) have the Company withhold shares of Stock, (ii) tender back shares of Stock
received in connection with such benefit, or (iii) deliver other previously
owned shares of Stock, having a Fair Market Value equal to the amount to be
withheld; provided, however, that the amount to be withheld shall not exceed
the Participant's estimated total federal, state and local tax obligations
associated with the transaction. The written election must be made on or
before the date as of which the amount of tax to be withheld is determined.
The Fair Market Value of fractional shares of Stock remaining after payment of
the withholding taxes shall be paid to the Participant in cash.
The Committee may, in its discretion, grant a cash bonus to a
Participant who holds Restricted Stock to enable the Participant to pay all or
a portion of the federal, state or local tax liability incurred by the
Participant upon the vesting of Restricted Stock. The Company shall deduct
from any cash bonus such amount as may be required for the purpose of
satisfying the Company's obligation to withhold federal, state or local taxes.
SECTION 14. 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
<PAGE> 10
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 this 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 15. MISCELLANEOUS. Any Award may also be subject to
other provisions (whether or not applicable to any Award made to any other
Participant) as the Committee determines appropriate, including, without
limitation, provisions for: (a) restrictions on resale or other disposition of
financed shares; and (b) compliance with federal or state securities laws and
stock exchange or market requirements.
SECTION 16. REQUIREMENTS OF LAW.
16.1 Requirements of Law. The granting of Awards and the
issuance of shares of Stock upon the exercise of any 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.
16.2 Governing Law. This Plan, and all agreements
hereunder, shall be construed in accordance with and governed by the internal
laws of the State of Wisconsin.
<PAGE> 1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Universal Foods Corporation on Form S-8 of our reports dated November 13, 1997,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
Universal Foods Corporation for the year ended September 30, 1997.
Deloitte & Touche LLP
Deloitte & Touche LLP
Milwaukee, Wisconsin
January 26, 1998
