As filed with the Securities and Exchange Commission on May 29, 1998
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WHITMAN CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 36-6076573
(State or other jurisdiction of (I.R.S.Employer
incorporation or organization) Identification No.)
3501 Algonquin Road, Rolling Meadows, Illinois 60008
(Address of Principal Executive Offices including Zip Code)
REVISED STOCK INCENTIVE PLAN
(Full title of the plan)
WILLIAM B. MOORE
Senior Vice President, Secretary and General Counsel
Whitman Corporation
3501 Algonquin Road
Rolling Meadows, Illinois 60008
(Name and address of agent for service)
(847) 818-5000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed
Proposed maximum
Amount maximum aggregate Amount of
Title of securities to be offering price offering registration
to be registered registered per share (1) price (1) fee
Common Stock 5,000,000 $22.1875 $110,937,500 $32,726.56
Without Par shares
Value (2)
(1) Based upon the average of the high and low sales prices for the
Common Stock, as reported for New York Stock Exchange Composite
Transactions on May 22, 1998, pursuant to Rule 457(c).
(2) This Registration Statement also pertains to Rights to
purchase shares of Junior Participating Second Preferred Stock
(Series 1) of the Registrant (the "Rights"). Included with
each share of Common Stock is one Preferred Share Purchase
Right. Until the occurrence of certain prescribed events the
Rights are not exercisable, are evidenced by the certificates
for the Common Stock and will be transferred along with and
only with such securities. Thereafter, separate Rights
certificates will be issued representing one Right for each
share of Common Stock held subject to adjustment pursuant to
anti-dilution provisions.
Pursuant to Rule 429, the prospectus for use in connection
with the securities covered by this Registration Statement
includes the information which currently would be required in
a prospectus relating to the securities covered by
Registration Statement No. 33-22680 of IC Industries, Inc. and
Registration Statement No. 33-65006 of Whitman Corporation.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are
incorporated by reference in this Registration Statement,
except to the extent that any statement or information
contained therein is modified, superseded or replaced by a
statement or information contained in any subsequently filed
document incorporated herein by reference.
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997.
(b) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (the "1934 Act") since December 31, 1997.
(c) The description of securities to be registered
contained in the Registration Statement filed pursuant
to Section 12 of the 1934 Act relating to the
Registrant's common stock, including any amendments or
reports filed for the purpose of updating such
description.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-
effective amendment to the Registration Statement which
indicates that all securities offered hereby have been sold or
which deregisters all such securities remaining unsold, shall
be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the
respective dates of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the securities offered hereby has been passed
upon for the Company by William B. Moore, Senior Vice
President, Secretary and General Counsel of the Company. Mr.
Moore owns, and has options to purchase, shares of the
Company's Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware permits indemnification of directors, officers,
employees and agents of corporations under certain conditions
and subject to certain limitations. Article V of the
Company's By-Laws provides for indemnification of any
director, officer, employee or agent of the Company, or any
person serving in the same capacity in any other enterprise at
the request of the Company, under certain circumstances.
Article NINTH of the Company's Certificate of Incorporation
eliminates the liability of directors of the Company under
certain circumstances for breaches of fiduciary duty to the
Company and its shareholders.
Directors and officers of the Company are insured, at the
expense of the Registrant, against certain liabilities which
might arise out of their employment and which might not be
subject to indemnification under the By-Laws.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the accompanying Exhibit Index for a list of Exhibits to
this Registration Statement.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement.
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (the "1933
Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that paragraphs (a)(i) and (a)(ii)
above do not apply if the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d)
of the 1934 Act that are incorporated by reference in
the Registration Statement.
(b) That, for the purpose of determining any liability
under the 1933 Act, each such post-effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) 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.
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each
filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the 1934 Act that is incorporated by
reference in the Registration Statement shall be deemed to be
a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the
1933 Act 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 Commission such
indemnification is against public policy as expressed in the
1933 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 1933 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the 1933 Act, 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 Rolling Meadows, and the State of Illinois, on this
29th day of May, 1998.
WHITMAN CORPORATION
By /s/ WILLIAM B. MOORE
William B. Moore
Senior Vice President,
Secretary and General Counsel
Pursuant to the requirements of the 1933 Act, this
Registration Statement has been signed by the following
persons in the capacities indicated on May 29, 1998.
Signature Title
BRUCE S. CHELBERG* Chairman and Chief Executive
Bruce S. Chelberg Officer (principal executive
officer) and Director
FRANK T. WESTOVER* Executive Vice President
Frank T. Westover (principal financial officer
and principal accounting
officer)
HERBERT M. BAUM* Director
Herbert M. Baum
RICHARD G. CLINE* Director
Richard G. Cline
PIERRE S. DU PONT* Director
Pierre S. du Pont
ARCHIE R. DYKES* Director
Archie R. Dykes
CHARLES W. GAILLARD* Director
Charles W. Gaillard
JAROBIN GILBERT, JR.* Director
Jarobin Gilbert, Jr.
VICTORIA J. GREGORICUS* Director
Victoria J. Gregoricus
CHARLES S. LOCKE* Director
Charles S. Locke
*By /s/ WILLIAM B. MOORE
William B. Moore
Attorney-in-fact
EXHIBIT INDEX
Exhibit No. Description of Exhibit
4(a) Certificate of Incorporation of the
Registrant, as restated April 30, 1987,
and subsequently amended through June 24,
1992 (incorporated herein by reference to
Exhibit (3)a of the Registrant's Annual
Report on Form 10-K for the fiscal year
ended December 31, 1997).
4(b) By-Laws of the Registrant, as amended
September 20, 1996 (incorporated herein
by reference to Exhibit (3)b to the
Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31,
1997).
4(c) Rights Agreement dated as of January 20,
1989, between the Registrant and the
Rights Agent (incorporated herein by
reference to Exhibit 1 to the
Registrant's Registration Statement on
Form 8-A filed on January 27, 1989).
4(d) Amendment dated as of June 19, 1992,
between the Registrant and the Rights
Agent, to the Rights Agreement dated as
of January 20, 1989 (incorporated herein
by reference to Exhibit 1 to Amendment
No. 1 (Form 8) to the aforesaid
Registration Statement on Form 8-A, filed
on June 23, 1992).
4(e) Revised Stock Incentive Plan, as Amended
and Restated April 30, 1998.
4(f) Form of Nonqualified Stock Option
Agreement.
5 Opinion of Counsel re Legality.
23(a) Consent of Independent Public
Accountants.
23(b) Consent of Counsel (included in Exhibit
5).
24 Powers of Attorney.
EXHIBIT 4(e)
WHITMAN CORPORATION
REVISED STOCK INCENTIVE PLAN
(As Amended and Restated April 30, 1998)
1. Definitions
The following definitions shall be applicable throughout this
Plan:
(a) "Code" shall mean the Internal Revenue Code of 1986, as
the same may be amended from time to time. Reference in the
Plan to any section of the Code shall be deemed to include any
amendments or successor provision to such section and any
regulations under such section.
(b) "Committee" shall mean the Committee selected by the Board
of Directors as provided in Paragraph 4, consisting of two or
more members of the Board of Directors, each of whom shall be
(i) a "Non-Employee Director" within the meaning of Rule 16b-3
under the Exchange Act, and (ii) an "outside director" within
the meaning of Section 162(m) of the Code.
(c) "Common Stock" shall mean common stock of the Corporation,
without par value.
(d) "Corporation" shall mean Whitman Corporation, a Delaware
corporation.
(e) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(f) "Holder" shall mean an individual who has been granted an
Option, Restricted Stock Award or Performance Award.
(g) "Option" shall mean any option granted under the Plan for
the purchase of Common Stock.
(h) "Performance Award" shall mean an award granted under the
Performance Award provisions of the Plan.
(i) "Plan" shall mean the Corporation's Revised Stock
Incentive Plan, as amended from time to time.
(j) "Restricted Stock Award" shall mean an award of Common
Stock granted under the Restricted Stock Award provisions of
the Plan.
(k) "Retirement" shall mean cessation of active employment or
service with the Corporation or a subsidiary pursuant to the
Corporation's retirement policies and programs.
(1) "SAR" shall mean a stock appreciation right which is
issued in tandem with, or by reference to, an Option, which
entitles the Holder thereof to receive, upon exercise of such
SAR and surrender for cancellation of all or a portion of such
Option, shares of Common Stock, cash or a combination thereof
with an aggregate value equal to the excess of the fair market
value of one share of Common Stock on the date of exercise
over the purchase price specified in such Option, multiplied
by the number of shares of Common Stock subject to such
Option, or portion thereof, which is surrendered.
2. Purpose
It is the purpose of the Plan to provide a means through
which the Corporation may attract able persons to enter its
employ and the employ of its subsidiaries, to serve as
directors and to provide a means whereby those persons upon
whom the responsibilities of the successful administration
and management of the Corporation or its subsidiaries rest,
and whose present and potential contributions to the welfare
of the Corporation or its subsidiaries are of importance, can
acquire and maintain stock ownership. Such persons should
thus have a greater than ordinary concern for the welfare of
the Corporation and/or its subsidiaries and would be expected
to strengthen and maintain a desire to remain in the employ
or service of the Corporation or its subsidiaries. It is a
further purpose of the Plan to provide such persons with
additional incentive and reward opportunities designed to
enhance the profitable growth of the Corporation. So that
the maximum incentive can be provided each participant in the
Plan by granting such participant an Option or award best
suited to such participant's circumstances, the Plan provides
for granting "incentive stock options" (as defined in Section
422 of the Code) and nonqualified stock options (with or
without SARS), Restricted Stock Awards and Performance
Awards, or any combination of the foregoing.
3. Effective Date and Duration of the Plan
The Plan shall become effective upon adoption by the Board of
Directors of the Corporation. The Plan shall remain in effect
until all Options granted under the Plan have been exercised,
all restrictions imposed upon Restricted Stock Awards have been
eliminated and all Performance Awards have been satisfied.
4. Administration
The members of the Committee shall be selected by the Board of
Directors to administer the Plan. A majority of the Committee
shall constitute a quorum. Subject to the express provisions of
the Plan, the Committee shall have authority, in its discretion,
to determine the individuals or classes of individuals to
receive Options (with or without SARS), Restricted Stock Awards
and Performance Awards, the time or times when they shall
receive them, whether an "incentive stock option" under Section
422 of the Code or nonqualified option shall be granted, the
number of shares to be subject to each Option and Restricted
Stock Award and the value of each Performance Award. In making
such determinations the Committee shall take into account the
nature of the services rendered by such individuals, their
present and potential contribution to the Corporation's success,
and such other factors as the Committee shall deem relevant.
The Committee shall have such additional powers as are delegated
to it by the other provisions of the Plan and, subject to the
express provisions of the Plan, to construe the respective
Option, Restricted Stock Award and Performance Award agreements
and the Plan, to prescribe, amend and rescind rules and
regulations relating to the Plan and to determine the terms,
restrictions and provisions of the Option, Restricted Stock
Award and Performance Award agreements (which need not be
identical) including such terms, restrictions and provisions as
shall be requisite in the judgment of the Committee to cause
certain Options to qualify as "incentive stock options" under
Section 422 of the Code, and to make all other determinations
necessary or advisable for administering the Plan. The
Committee may, in its sole discretion and for any reason at any
time, subject to the requirements imposed under Section 162(m)
of the Code and regulations promulgated thereunder in the case
of an award intended to be qualified performance-based
compensation, take action such that (i) any or all outstanding
Options shall become exercisable in part or in full, (ii) all or
some of the restrictions applicable to any outstanding
Restricted Stock Award shall lapse and (iii) all or a portion of
any outstanding Performance Award shall be satisfied. The
Committee may correct any defect or supply any omission or
reconcile any inconsistency in the Plan or in any Option,
Restricted Stock Award or Performance Award agreement in the
manner and to the extent it shall deem expedient to carry it
into effect, and it shall be the sole and final judge of such
expediency. The determinations of the Committee on matters
referred to in this Paragraph 4 shall be conclusive.
The Committee shall act by majority action at a meeting, except
that action permitted to be taken at a meeting may be taken
without a meeting if written consent thereto is given by all
members of the Committee.
5. Grants of Options, Restricted Stock Awards and Performance
Awards; Shares Subject to the Plan
The Committee may from time to time grant both "incentive stock
options" under Section 422 of the Code and nonqualified options
to purchase shares of Common Stock (with or without SARS),
Restricted Stock Awards and Performance Awards to one or more
officers, key employees or directors determined by it to be
eligible for participation in accordance with the provisions of
Paragraph 6 and providing for the issuance of such number of
shares and, in the case of Performance Awards, having such value
as in the discretion of the Committee may be fitting and proper.
Subject to Paragraph 10, not more than 5,000,000 shares of
Common Stock may be issued upon exercise of Options or SARs or
pursuant to Restricted Stock Awards or Performance Awards
granted under the Plan, plus the number of shares of Common
Stock remaining available for grant under the Corporation's
former Stock Incentive Plan as of November 21, 1997.
Performance Awards which may be exercised or paid only in cash
shall not affect the number of shares of Common Stock available
for issuance under the Plan.
The Common Stock to be offered under the Plan pursuant to
Options, SARS, Restricted Stock Awards and Performance Awards
may be authorized but unissued Common Stock or Common Stock
previously issued and outstanding and reacquired by the
Corporation.
The number of shares of Common Stock available for issuance
under the Plan shall be reduced by the sum of the aggregate
number of shares of Common Stock then subject to outstanding
Options, Restricted Stock Awards and outstanding Performance
Awards which may be paid solely in shares of Common Stock or in
either shares of Common Stock or cash. To the extent (i) that
an outstanding Option expires or terminates unexercised or is
canceled or forfeited (other than in connection with the
exercise of an SAR for Common Stock as set forth in the
immediately following sentence) or (ii) that an outstanding
Restricted Stock Award or outstanding Performance Award which
may be paid solely in shares of Common Stock or in either shares
of Common Stock or cash expires or terminates without vesting or
is canceled or forfeited or (iii) shares of Common Stock are
withheld or delivered pursuant to the provisions on Share
Withholding set forth in Paragraph 11(A), then the shares of
Common Stock subject to such expired, terminated, unexercised,
canceled or forfeited portion of such Option, Restricted Stock
Award or Performance Award, or the shares of Common Stock so
withheld or delivered, shall again be available for issuance
under the Plan. In the event all or a portion of an SAR is
exercised, the number of shares of Common Stock subject to the
related Option (or portion thereof) shall again be available for
issuance under the Plan, except to the extent that shares of
Common Stock were actually issued upon exercise of the SAR.
To the extent necessary for an award hereunder to be qualified
performance-based compensation under Section 162(m) of the Code
and the rules and regulations thereunder, the maximum number of
shares of Common Stock with respect to which Options, SARs or
Restricted Stock Awards or a combination thereof may be granted
during any calendar year to any person shall be 500,000, subject
to adjustment as provided in Paragraph 10. Grants of Options,
Restricted Stock Awards or Performance Awards that are canceled
shall count toward the maximum stated in the preceding sentence.
6. Eligibility
Options, Restricted Stock Awards and Performance Awards may be
granted only to persons who, at the time of the grant or award,
are officers, other key employees or directors of the
Corporation or any of its present and future subsidiaries within
the meaning of Section 424(f) of the Code (herein called
subsidiaries). Options, Restricted Stock Awards or Performance
Awards, or any combination thereof, may be granted on more than
one occasion to the same person. A person who has received or
is eligible to receive options to purchase stock of any subsid-
iary of the Corporation or incentive awards from any subsidiary
of the Corporation will not, by reason thereof, be ineligible to
receive Options, Restricted Stock Awards or Performance Awards
under the Plan unless prohibited by the plan of such subsidiary.
Nothing in the Plan or any Option, Restricted Stock Award or
Performance Award agreement shall be construed to constitute or
be evidence of an agreement or understanding, expressed or
implied, on the part of the Corporation or its subsidiaries to
employ any person for any specific period of time.
7. Options and SARs
(A) Number of Shares. The Committee may, in its discretion,
grant Options to such eligible persons as may be selected by the
Committee. With respect to each Option, the Committee shall
determine the number of shares subject to the Option and the
manner and the time of exercise of such Option. The Committee
shall make such other determinations which in its discretion
appear to be fitting and proper.
(B) Stock Option Agreement. Each Option shall be evidenced
by a stock option agreement in such form containing such
provisions not inconsistent with the provisions of the Plan
as the Committee from time to time shall approve, including,
without limitation, provisions to qualify certain Options as
"incentive stock options" under Section 422 of the Code. An
incentive stock option may not be granted to any person who is
not an employee of the Corporation or any parent or subsidiary
(as defined in Section 424 of the Code). Each incentive stock
option shall be granted within ten years of the earlier of the
date the Plan is adopted by the Corporation's Board of Directors
and the date the Plan is approved by Whitman as the sole
shareholder of the Corporation. To the extent that the
aggregate fair market value (determined as of the date of grant)
of shares of Common Stock with respect to which Options
designated as incentive stock options are exercisable for the
first time by a person during any calendar year exceeds the
amount (currently $100,000) established by the Code, such
Options shall be deemed to be non-qualified stock options.
(C) Option Price and Term of Option. The purchase price per
share of the Common Stock under each Option shall be determined
by the Committee; provided, however, that the purchase price per
share of Common Stock purchasable upon exercise of an incentive
stock option shall not be less than 100% of the fair market
value of the Common Stock at the date such Option is granted;
provided, further, that if an incentive stock option shall be
granted to any person who, at the time such Option is granted,
owns capital stock of the Corporation possessing more than ten
percent of the total combined voting power of all classes of
capital stock of the Corporation (or of any parent or subsidiary
of the Corporation) (a "Ten Percent Holder"), such purchase
price shall be the price (currently 110% of fair market value)
required by the Code in order to constitute an incentive stock
option.
The period during which an Option may be exercised shall be
determined by the Committee; provided, however, that no
incentive stock option shall be exercised later than ten
years after its date of grant; provided further, that if an
incentive stock option shall be granted to a Ten Percent
Holder, such option shall not be exercised later than five
years after its date of grant. The Committee shall determine
whether an Option shall become exercisable in cumulative or
non-cumulative installments and in part or in full at any
time. An exercisable Option, or portion thereof, may be
exercised only with respect to whole shares of Common Stock.
(D) Payment. An Option may be exercised by giving written
notice to the Corporation specifying the number of shares of
Common Stock to be purchased and accompanied by payment of the
purchase price in full (or arrangement made for such payment to
the Corporation's satisfaction). As determined by the Committee
at the time of grant of an Option and set forth in the agreement
evidencing the Option, the purchase price may be paid (a) in
cash or (b) by delivery (either actual delivery or by
attestation procedures established by the Corporation) of
previously-owned whole shares of Common Stock (for which the
holder has good title, free and clear of all liens and
encumbrances and which such holder either (i) has held for at
least six months or (ii) has purchased on the open market)
valued at their fair market value on the date of exercise. If
applicable, a person exercising an Option shall surrender to the
Corporation any SARs which are canceled by reason of the
exercise of such Option.
(E) Termination of Employment or Service or Death of Holder. In
the event of any termination of the employment or service of a
Holder with the Corporation or one of its subsidiaries, other
than by reason of death or, in the case of a Holder of a
nonqualified option, Retirement, the Holder may (unless
otherwise provided in the Option agreement) exercise each Option
held by such Holder at any time within three months (or one year
if the Holder is permanently and totally disabled within the
meaning of Section 22(e)(3) of the Code) after such termination
of employment or service, but only if and to the extent such
Option is exercisable at the date of such termination of
employment or service, and in no event after the date on which
such Option would otherwise terminate; provided, however, that
if such termination of employment or service is for cause or
voluntary on the part of the Holder without the written consent
of the Corporation, any Option held by such Holder under the
Plan shall terminate unless otherwise provided in the Option
agreement.
In the event of the termination of employment or service of a
Holder of a nonqualified option by reason of Retirement, then
each nonqualified option held by the Holder shall be fully
exercisable, and, subject to the following paragraph, such
nonqualified option shall be exercisable by the Holder at any
time up to and including (but not after) the date on which the
nonqualified option would otherwise terminate (unless otherwise
provided in the Option Agreement).
Unless otherwise provided in the Option Agreement, in the event
of the death of a Holder (i) while employed by or providing
service to the Corporation or one of its subsidiaries or after
Retirement, (ii) within three months after termination of the
Holder's employment or service, other than a termination by
reason of permanent and total disability within the meaning of
Section 22(e)(3) of the Code, or (iii) within one year after
termination of the Holder's employment or service by reason of
such disability, then each Option held by such Holder may be
exercised by the legatees of the Holder under his last will, or
by his personal representatives or distributees, at any time
within a period of nine months after the Holder's death, but
only if and to the extent such Option is exercisable at the date
of death (unless death occurs while the Holder is employed by or
providing service to the Corporation or one of its subsidiaries,
in which case each Option held by the Holder shall be fully
exercisable), and in no event after the date on which such
Option would otherwise terminate.
(F) Privileges of the Holder as Shareholder. The Holder shall
be entitled to all the privileges and rights of a shareholder
with respect only to such shares of Common Stock as have been
actually purchased under the Option and registered in
the Holder's name.
(G) SARS. The Committee may, in its sole discretion, grant an
SAR (concurrently with the grant of the Option or, in the case
of a nonqualified option which is not intended to be qualified
performance-based compensation under Section 162(m) of the Code
and the rules and regulations thereunder, subsequent to such
grant) to any Holder of any Option granted under the Plan (or
such Holder's legatees, personal representatives or distributees
then entitled to exercise such Option). An SAR may be exercised
(i) by giving written notice to the Corporation specifying the
number of SARs which are being exercised and (ii) by
surrendering to the Corporation any Options which are canceled
by reason of the exercise of the SAR. An SAR shall be
exercisable upon such additional terms and conditions as may
from time to time be prescribed by the Committee. No fractional
share shall be issued upon the exercise of any SAR.
(H) Non-Transferability. Unless otherwise specified in the
agreement evidencing an Option or SAR, no Option or SAR
hereunder shall be transferable other than by will or the laws
of descent and distribution or pursuant to beneficiary
designation procedures approved by the Corporation. Except to
the extent permitted by the foregoing sentence, each Option or
SAR may be exercised during the Holder's lifetime only by the
Holder or the Holder's legal representative or similar person.
Except as permitted by the second preceding sentence, no Option
or SAR hereunder shall be sold, transferred, assigned, pledged,
hypothecated, encumbered or otherwise disposed of (whether by
operation of law or otherwise) or be subject to execution,
attachment or similar process. Upon any attempt to so sell,
transfer, assign, pledge, hypothecate, encumber or otherwise
dispose of any Option or SAR hereunder, such Option or SAR and
all rights thereunder shall immediately become null and void.
8. Restricted Stock Awards
(A) Restriction Period to Be Established by the Committee. At
the time of the making of a Restricted Stock Award, the
Committee shall establish a period of time (the "Restriction
Period") applicable to such award. The Committee may establish
different Restriction Periods from time to time and each
Restricted Stock Award may have a different Restriction Period,
in the discretion of the Committee.
(B) Other Terms and Conditions. Common Stock, when awarded
pursuant to a Restricted Stock Award, shall be represented by a
stock certificate or book-entry credits registered in the name
of the Holder who receives the Restricted Stock Award or a
nominee for the benefit of the Holder. The Holder shall have
the right to receive dividends (or the cash equivalent thereof)
during the Restriction Period and shall also have the right to
vote such Common Stock and all other shareholder's rights (in
each case unless otherwise provided in the agreement evidencing
the Restricted Stock Award), with the exception that (i) the
Holder shall not be entitled to delivery of the stock certif-
icate (or the removal of restrictions in the Corporation's books
and records) until the Restriction Period established by the
Committee pursuant to Paragraph 8(A) shall have expired, (ii)
the Corporation shall retain custody of the stock certificate
during the Restriction Period, (iii) the Holder may not sell,
transfer, pledge, exchange, hypothecate or dispose of such
Common Stock during the Restriction Period, and (iv) a breach of
restriction or breach of terms and conditions established by the
Committee pursuant to the Restricted Stock Award shall cause a
forfeiture of the Restricted Stock Award. If requested by the
Corporation, a Holder of a Restricted Stock Award shall deposit
with the Corporation stock powers or other instruments of
assignment (including a power of attorney), each endorsed in
blank with a guarantee of signature if deemed necessary or
appropriate by the Corporation, which would permit transfer to
the Corporation of all or a portion of the shares of Common
Stock subject to the Restricted Stock Award in the event such
award is forfeited in whole or in part. A distribution with
respect to shares of Common Stock, other than a distribution in
cash, shall be subject to the same restrictions as the shares of
Common Stock with respect to which such distribution was made,
unless otherwise determined by the Committee. The Committee
may, in addition, prescribe additional restrictions, terms or
conditions upon or to the Restricted Stock Award in the manner
prescribed by Paragraph 4. The Committee may, in its sole
discretion, also establish rules pertaining to the Restricted
Stock Award in the event of termination of employment or service
(by Retirement, disability, death or otherwise) of a Holder of
such award prior to the expiration of the Restriction Period.
(C) Restricted Stock Award Agreement. Each Restricted Stock
Award shall be evidenced by an agreement in such form and
containing such provisions not inconsistent with the provisions
of the Plan as the Committee from time to time shall approve.
(D) Payment for Restricted Stock. Restricted Stock Awards may
be made by the Committee whereby the Holder receives Common
Stock subject to those terms, conditions and restrictions
established by the Committee but is not required to make any
payment for said Common Stock. The Committee may also establish
terms as to each Holder whereby such Holder, as a condition to
the Restricted Stock Award, is required to pay, in cash or other
consideration, all (or any lesser amount than all) of the fair
market value of the Common Stock, determined as of the date the
Restricted Stock Award is made.
(E) Termination of Employment or Service or Death of Holder. A
Restricted Stock Award shall terminate for all purposes if the
Holder does not remain continuously in the employ or service of
the Corporation or a subsidiary at all times during the
applicable Restriction Period, except as may otherwise be
determined by the Committee.
9. Performance Awards
(A) Performance Period. The Committee shall establish with
respect to each Performance Award a performance period over
which performance shall be measured. The performance period
shall be established at the time of such award.
(B) Performance Awards. Each Performance Award shall have a
maximum value established by the Committee at the time of such
award.
(C) Performance Measures. Performance Awards shall be awarded
to an eligible person contingent upon future performance of the
Corporation and/or a designated subsidiary, division or depart-
ment of the Corporation over the performance period. The
Committee shall establish the performance measures applicable to
such performance. The performance measures determined by the
Committee shall be established prior to the beginning of each
performance period but, except as necessary to qualify a
Performance Award as "performance-based compensation" under
Section 162(m) of the Code and the rules and regulations
thereunder, may be subject to such later revisions to reflect
significant, unforeseen events or changes, as the Committee
shall deem appropriate.
(D) Award Criteria. In determining the value of Performance
Awards, the Committee shall take into account an eligible
person's responsibility level, performance, potential, cash
compensation level, unexercised stock options, other incentive
awards and such other considerations as it deems appropriate.
Notwithstanding the preceding sentence, to the extent necessary
for a Performance Award to be qualified performance-based
compensation under Section 162(m) of the Code and the rules and
regulations thereunder, the performance period shall be not less
than three years and, if a Performance Award is payable in
shares of Common Stock, the maximum number of shares that may be
paid under the Performance Award during such performance period
shall be 500,000 and, if a Performance Award is payable in cash,
the maximum amount that may be paid under the Performance Award
during such performance period shall be $10,000,000.
(E) Payment. Following the end of each performance period, the
Holder of each Performance Award shall be entitled to receive
payment of an amount, not exceeding the maximum value of the
Performance Award, based on the achievement of the performance
measures for such performance period, as determined by the
Committee. Payment of Performance Awards may be made wholly in
cash, wholly in shares of Common Stock or a combination
thereof, all at the discretion of the Committee. Payment shall
be made in a lump sum or in installments, and shall be subject
to such vesting and other terms and conditions as may be
prescribed by the Committee for such purpose. Notwithstanding
anything contained herein to the contrary, in the case of a
Performance Award intended to be qualified performance-based
compensation under Section 162(m) and the rules and regulations
thereunder, no payment shall be made under any such Performance
Award until the Committee certifies in writing that the
performance measures for the performance period have in fact
been achieved.
(F) Termination of Employment or Service or Death of Holder. A
Performance Award shall terminate for all purposes if the Holder
does not remain continuously in the employ or service of the
Corporation or a subsidiary at all times during the applicable
performance period, except as may otherwise be determined by the
Committee.
In the event that a Holder of a Performance Award ceases to be
an employee or director of the Corporation or a subsidiary
following the end of the applicable performance period but prior
to full payment according to the terms of the Performance Award,
payment shall be made in accordance with terms established by
the Committee for the payment of such Performance Award.
(G) Other Terms and Conditions. When a Performance Award is
payable in installments in Common Stock, if determined by the
Committee, one or more stock certificates or book-entry credits
registered in the name of the Holder representing shares of
Common Stock which would have been issuable to the Holder of the
Performance Award if such payment had been made in full on the
day following the end of the applicable performance period may
be registered in the name of such Holder, and during the period
until such installment becomes due such Holder shall have the
right to receive dividends (or the cash equivalent thereof) and
shall also have the right to vote such Common Stock and all
other shareholder's rights (in each case unless otherwise
provided in the agreement evidencing the Performance Award),
with the exception that (i) the Holder shall not be entitled to
delivery of any stock certificate until the installment payable
in shares becomes due, (ii) the Corporation shall retain custody
of any stock certificates until such time and (iii) the Holder
may not sell, transfer, pledge, exchange, hypothecate or dispose
of such Common Stock until such time. A distribution with
respect to shares of Common Stock payable in installments which
has not become due, other than a distribution in cash, shall be
subject to the same restrictions as the shares of Common Stock
with respect to which such distribution was made, unless
otherwise determined by the Committee.
(H) Performance Award Agreements. Each Performance Award shall
be evidenced by an agreement in such form and containing such
provisions not inconsistent with the provisions of the Plan as
the Committee from time to time shall approve.
10. Adjustments Upon Changes in Capitalization; Change in
Control
(A) Notwithstanding any other provision of the Plan, each
Option, Restricted Stock Award or Performance Award agreement
may contain such provisions as the Committee shall determine to
be appropriate for the adjustment of (i) the number and class of
shares or other consideration subject to any Option or to be
delivered pursuant to any Restricted Stock Award or Performance
Award and (ii) the Option or Restricted Stock Award price, in
the event of a stock dividend, spin-off, split-up,
recapitalization, merger, consolidation, combination or exchange
of shares, or the like. In such event, the maximum number and
class of shares available under the Plan, and the number and
class of shares subject to Options, SARS, Restricted Stock
Awards or Performance Awards, shall be appropriately adjusted by
the Committee, whose determination shall be conclusive.
(B)(i) In the event of a "change in control" (as hereinafter
defined) pursuant to subparagraph (C)(i) or (ii) below, or in
the event of a change in control pursuant to subparagraph
(C)(iii) or (iv) below in connection with which the holders of
Common Stock receive consideration other than shares of common
stock that are registered under Section 12 of the Exchange Act:
(1)(x) each Option granted under the Plan shall be
exercisable in full, (y) each Holder of an Option shall
receive from the Corporation within 60 days after the change
in control, in exchange for the surrender of the Option or
any portion thereof to the extent the Option is then
exercisable in accordance with clause (x), an amount in cash
equal to the difference between the fair market value (as
determined by the Committee) on the date of the change in
control of the Common Stock covered by the Option or portion
thereof which is so surrendered and the purchase price of
such Common Stock under the Option and (z) each SAR shall be
surrendered by the Holder thereof and shall be canceled
simultaneously with the cancellation of the related Option;
(2) each Holder of a Restricted Stock Award shall receive
from the Corporation within 60 days after the change in
control, in exchange for the surrender of the Restricted
Stock Award, an amount in cash equal to the fair market
value (as determined by the Committee) on the date of the
change in control of the Common Stock subject to the
Restricted Stock Award;
(3) each Holder of a Performance Award for which the
performance period has not expired shall receive from the
Corporation within 60 days after the change in control, in
exchange for the surrender of the Performance Award, an
amount in cash equal to the product of the value of the
Performance Award and a fraction the numerator of which is
the number of whole months which have elapsed from the
beginning of the performance period to the date of the
change in control and the denominator of which is the number
of whole months in the performance period; and
(4) each Holder of a Performance Award that has been earned
but not yet paid shall receive an amount in cash equal to
the value of the Performance Award.
(ii) Notwithstanding any other provision of the Plan or any
agreement relating to an Option, Restricted Stock Award or
Performance Award, in the event of a change in control pursuant
to subparagraph (C)(iii) or (iv) below in connection with which
the holders of Common Stock receive shares of common stock that
are registered under Section 12 of the Exchange Act:
(1) each Option and SAR granted under the Plan shall be
exercisable in full;
(2) the Restriction Period applicable to any outstanding
Restricted Stock Award shall lapse and, if applicable, any
other restrictions, terms or conditions shall lapse and/or
be deemed to be satisfied at the maximum value or level;
(3) the performance measures applicable to any outstanding
Performance Award shall be deemed to be satisfied at the
maximum value; and
(4) there shall be substituted for each share of Common
Stock remaining available for issuance under the Plan,
whether or not then subject to an outstanding Option (and
SAR), Restricted Stock Award or Performance Award, the
number and class of shares into which each outstanding share
of Common Stock shall be converted pursuant to such Change
in Control. In the event of any such substitution, the
purchase price per share in the case of any award
shall be appropriately adjusted by the Committee (whose
determination shall be conclusive), such adjustments to be
made without any increase in the aggregate purchase price.
(C) For purposes of this paragraph, the term "change in control"
shall mean:
(i) the acquisition by any individual, entity or group (a
"Person"), including any "person" within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act, of beneficial
ownership within the meaning of Rule 13d-3 promulgated under the
Exchange Act, of 25% or more of either (x) the then outstanding
shares of common stock of the Corporation (the "Outstanding
Common Stock") or (y) the combined voting power of the then
outstanding securities of the Corporation entitled to vote
generally in the election of directors (the "Outstanding Voting
Securities"); excluding, however, the following: (1) any
acquisition directly from the Corporation (excluding any
acquisition resulting from the exercise of an exercise,
conversion or exchange privilege unless the security being so
exercised, converted or exchanged was acquired directly from the
Corporation), (2) any acquisition by the Corporation, (3) any
acquisition by an employee benefit plan (or related trust)
sponsored or maintained by the Corporation or any corporation
controlled by the Corporation or (4) any acquisition by any
corporation pursuant to a transaction which complies with
clauses (1), (2) and (3) of clause (iii) in this definition of
change in control;
(ii) individuals who, as of the effective date of the Plan,
constitute the Board of Directors of the Corporation (the
"Incumbent Board") cease for any reason to constitute at least a
majority of such Board; provided, however, that any individual
who becomes a director of the Corporation subsequent to such
effective date whose election, or nomination for election by the
Corporation's shareholders, was approved by the vote of at least
a majority of the directors then comprising the Incumbent Board
shall be deemed a member of the Incumbent Board; and provided
further, that any individual who was initially elected as a
director of the Corporation as a result of an actual or
threatened election contest, as such terms are used in Rule 14a-
11 of Regulation 14A promulgated under the Exchange Act, or any
other actual or threatened solicitation of proxies or consents
by or on behalf of any Person other than the Board of Directors
shall not be deemed a member of the Incumbent Board;
(iii) the consummation of a reorganization, merger or
consolidation of the Corporation or sale or other disposition of
all or substantially all of the assets of the Corporation (a
"Corporate Transaction"); excluding, however, a Corporate
Transaction pursuant to which (1) all or substantially all of
the individuals or entities who are the beneficial owners,
respectively, of the Outstanding Common Stock and the
Outstanding Voting Securities immediately prior to such
Corporate Transaction will beneficially own, directly or
indirectly, more than 66 2/3% of, respectively, the outstanding
shares of common stock, and the combined voting power of the
outstanding securities of such corporation entitled to vote
generally in the election of directors, as the case may be, of
the corporation resulting from such Corporate Transaction
(including, without limitation, a corporation which as a result
of such transaction owns the Corporation or all or substantially
all of the Corporation's assets either directly or indirectly)
in substantially the same proportions relative to each other as
their ownership, immediately prior to such Corporate
Transaction, of the Outstanding Common Stock and the Outstanding
Voting Securities, as the case may be, (2) no Person (other
than: the Corporation; any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or any
corporation controlled by the Corporation; the corporation
resulting from such Corporate Transaction; and any Person which
beneficially owned, immediately prior to such Corporate
Transaction, directly or indirectly, 25% or more of the
Outstanding Common Stock or the Outstanding Voting Securities,
as the case may be) will beneficially own, directly or
indirectly, 25% or more of, respectively, the outstanding shares
of common stock of the corporation resulting from such Corporate
Transaction or the combined voting power of the outstanding
securities of such corporation entitled to vote generally in the
election of directors and (3) individuals who were members of
the Incumbent Board will constitute at least a majority of the
members of the board of directors of the corporation resulting
from such Corporate Transaction; or
(iv) the consummation of a plan of complete liquidation or
dissolution of the Corporation.
(D) With respect to any Holder of an Option or SAR who is
subject to Section 16 of the Exchange Act, (i) notwithstanding
the exercise periods set forth in Paragraph 7(E) or as set forth
pursuant to Paragraph 7(E) in any agreement evidencing such
Option or SAR and (ii) notwithstanding the expiration date of
the term of such Option or SAR, in the event the Corporation is
involved in a business combination which is intended to be
treated as a pooling of interests for financial accounting
purposes (a "Pooling Transaction") or pursuant to which such
Holder receives a substitute option to purchase securities of
any entity, including an entity directly or indirectly acquiring
the Corporation, then each Option or SAR (or option or stock
appreciation right in substitution thereof) held by such Holder
shall be exercisable to the extent set forth in the Plan or the
agreement evidencing such Option or SAR until and including the
latest of (x) the expiration date of the term of the Option or
SAR or, in the event of such Holder's termination of employment
or service, the date determined pursuant to Paragraph 7(E), (y)
the date which is six months and ten business days after the
consummation of such business combination and (z) the date which
is ten business days after the date of expiration of any period
during which such Holder may not dispose of a security issued in
the Pooling Transaction in order for the Pooling Transaction to
be accounted for as a pooling of interests.
11. Withholding Taxes
(A) If provided in the agreement evidencing an Option, SAR,
Restricted Stock Award or Performance Award, the Holder thereof
may elect, by written notice to the Corporation at the office of
the Corporation designated for that purpose, to pay through
withholding by the Corporation all or a portion of the estimated
federal, state, local and other taxes arising from (1) the
exercise of an Option or SAR and (2) the vesting or distribution
of shares of Common Stock pursuant to a Restricted Stock Award
or Performance Award (a) by having the Corporation withhold
shares of Common Stock or (b) by delivering previously-owned
shares (collectively, "Share Withholding"), in each case being
such number of shares of Common Stock as shall have a fair
market value equal to the amount of taxes to be withheld,
rounded up to the nearest whole share.
(B) A Share Withholding election shall be subject to disapproval
by the Corporation.
(C) If the date as of which the amount of tax to be withheld is
determined (the "Tax Date") is deferred until after the exercise
of an Option or SAR, the expiration of the Restriction Period
applicable to a Restricted Stock Award or the payment of a
Performance Award, and if the Holder elects Share Withholding,
the Corporation shall issue to the Holder the full number of
shares of Common Stock, if any, resulting from such exercise,
expiration or payment and the Holder shall be unconditionally
obligated to deliver to the Corporation on the Tax Date such
number of shares of Common Stock as shall have an aggregate fair
market value equal to the amount to be withheld on the Tax Date,
rounded up to the nearest whole share.
(D) The fair market value of shares of Common Stock used for
payment of taxes, as provided in this Paragraph 11, shall be the
mean sale price per share, as reported for New York Stock
Exchange Composite Transactions, on the Tax Date.
12. Termination of Plan
The Plan may be terminated at any time by the Board of
Directors, except with respect to any Options, SARS, Restricted
Stock Awards or Performance Awards then outstanding. The
Corporation reserves the right to restrict, in whole or in part,
the exercise of any Options or SARs or the delivery of Common
Stock pursuant to any Restricted Stock Awards or Performance
Awards granted under the Plan until such time as:
(A) any legal requirements or regulations have been met
relating to the issuance of the shares covered thereby or to
their registration under the Securities Act of 1933 or to
any applicable State laws; and
(B) satisfactory assurances are received that the shares
when issued will be duly listed on the New York Stock
Exchange, Inc.
13. Amendment of the Plan
The Board of Directors may amend the Plan; provided, however,
that without approval of the shareholders the Board of Directors
may not amend the Plan, subject to Paragraph 10, to (a) increase
the maximum number of shares which may be issued on exercise of
Options or SARs or pursuant to Restricted Stock Awards or
Performance Awards granted under the Plan or (b) effect any
change inconsistent with Section 422 of the Code.
14. Effect of the Plan
Neither the adoption of the Plan nor any action of the Board of
Directors or of the Committee shall be deemed to give any person
any right to be granted an Option, a right to a Restricted Stock
Award or a right to a Performance Award or any rights hereunder
except as may be evidenced by an Option agreement, Restricted
Stock Award agreement or Performance Award agreement, duly
executed on behalf of the Corporation, and then only to the
extent and on the terms and conditions expressly set forth
therein.
NONQUALIFIED STOCK OPTION
NONQUALIFIED STOCK OPTION AGREEMENT dated as of
, between WHITMAN CORPORATION, a
Delaware corporation (the "Corporation"), and
, an employee of the Corporation
or one of its subsidiaries (the "Holder").
WHEREAS, the Corporation desires, by affording the Holder an
opportunity to purchase shares of the Corporation s Common Stock as
hereinafter provided, to carry out the purposes of the Corporation's
Revised Stock Incentive Plan (the "Plan"), as adopted by the Board
of Directors of the Corporation on November 21, 1997;
WHEREAS, the Management Resources and Compensation Committee of the
Board of Directors of the Corporation (the "Committee") has duly
made all determinations necessary or appropriate to the grant
hereof;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth and for other good and valuable
consideration, receipt of which is hereby acknowledged, the parties
hereto have agreed, and do hereby agree, as follows:
1. The Corporation hereby irrevocably grants to the Holder, as
a matter of separate agreement and not in lieu of salary or any
other compensation for services, the right and option (the
"Option"), to purchase shares of Common Stock of the
Corporation on the terms and conditions herein set forth.
2. For each of said shares purchased, the Holder shall pay to
the Corporation $ per share (the "Option Price").
3. Subject to the provisions of paragraphs 7, 8 and 9 hereof,
this Option shall be for a term of ten years from the date hereof
and shall become exercisable as to one-third of the shares covered
by this Option on the first anniversary hereof, as to two-thirds of
the shares covered by this Option on the second anniversary hereof
(reduced by such number of shares as may have theretofore been
purchased hereunder after the first anniversary), and as to all
shares covered by this Option and not theretofore purchased on the
third anniversary hereof. The Corporation shall not be required to
issue any fractional shares upon exercise of this Option, and any
fractional interests resulting from the calculation of the number of
shares in respect of which this Option may be exercised prior to the
third anniversary hereof shall be rounded down to the nearest whole
share. Except as provided in paragraphs 7, 8 and 9 hereof, this
Option may not be exercised unless the Holder shall, at the time of
exercise, be an employee of the Corporation or one of its
"subsidiaries", as defined in the Plan.
4. This Option may be exercised only by one or more notices in
writing of the Holder's intent to exercise this Option, accompanied
by payment by check to the Corporation in an amount equal to the
aggregate Option Price of the total number of whole shares then
being purchased. Unless otherwise specified by the Corporation,
each such notice and check shall be delivered to Muriel E. Ramsey,
Manager of Administrative Services, at the principal office of the
Corporation or, at the risk of the Holder, mailed to said Muriel E.
Ramsey at said office.
5. Following the exercise of this Option, the Corporation will
advise the Holder of the applicable Federal and state income taxes
required to be withheld by reason of such exercise. Thereupon, the
Holder shall forthwith deliver to the Corporation a check payable to
the Corporation or the subsidiary of the Corporation which employs
the Holder, as the case may be, representing said taxes.
6. This Option is not transferable by the Holder otherwise than
by will or the laws of descent and distribution and may be
exercised, during the lifetime of the Holder, only by the Holder.
7. In the event of the termination of employment of the Holder
with the Corporation or one of its subsidiaries, other than by
reason of Retirement (as defined in the Plan) or death, the Holder
may exercise this Option at any time within three months (or one
year, if the Holder is permanently and totally disabled within the
meaning of Section 22(e)(3) of the Federal Internal Revenue Code)
after such termination of employment, but only if and to the extent
this Option was exercisable at the date of termination, and in no
event after the date on which this Option would otherwise terminate;
provided, however, if such termination of employment was for cause
or a voluntary termination without the written consent of the
Corporation, then this Agreement shall be of no further force or
effect and all rights of the Holder under this Option shall
thereupon cease.
8. In the event of the termination of employment of the Holder
with the Corporation or one of its subsidiaries by reason of
Retirement, then all shares subject to this Option shall be fully
exercisable, and, subject to paragraph 9 hereof, this Option shall
be exercisable by the Holder at any time up to and including (but
not after) the date on which this Option would otherwise terminate.
9. In the event of the death of the Holder (i) while employed
by the Corporation or one of its subsidiaries or after Retirement,
(ii) within three months after termination of the Holder's
employment (other than a termination by reason of permanent and
total disability within the meaning of Section 22(e)(3) of the
Federal Internal Revenue Code), or (iii) within one year after
termination of the Holder's employment by reason of such disability,
then this Option may be exercised by the legatees under the last
will of the Holder, or by the personal representatives or
distributees of the Holder, at any time within a period of nine
months after the Holder's death, but only if and to the extent this
Option was exercisable at the date of death (unless death occurs
while the Holder is employed by the Corporation or one of its
subsidiaries, in which case all shares subject to this Option shall
be fully exercisable), and in no event after the date on which this
Option would otherwise terminate.
10. If, prior to the termination of this Option, the number of
outstanding shares of Common Stock of the Corporation shall be
increased or decreased by reason of a stock split, stock dividend,
reverse stock split or combination thereof, then the number of
shares at the time subject to this Option, the number of shares
reserved for issuance pursuant to exercise hereof, and the Option
Price per share shall be proportionately adjusted without any change
in the aggregate Option Price therefor.
11. If, prior to the termination of this Option, the outstanding
shares of Common Stock of the Corporation shall be affected by any
change other than those specifically mentioned in the preceding
paragraph (e.g., by reason of a spin-off, split-up,
recapitalization, merger, consolidation, combination or exchange of
shares), then the aggregate number and class of shares thereafter
subject to this Option and the Option Price thereof, and the number
and class of shares reserved for issuance pursuant to exercise
hereof, may be appropriately adjusted in such manner as the
Committee shall in its sole discretion determine to be equitable and
consistent with the purposes of the Plan. Such determination shall
be conclusive for all purposes of this Option.
12. This Option and each and every obligation of the Corporation
hereunder are subject to the requirement that if at any time the
Corporation shall determine, upon advise of counsel, that the
listing, registration, or qualification of the shares covered hereby
upon any securities exchange or under any state or Federal law, or
the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of or in connection with the
granting of this Option or the purchase of shares hereunder, this
Option may not be exercised in whole or in part unless and until
such listing, registration, qualification, consent or approval shall
have been effected or obtained free of any conditions not acceptable
to the Board of Directors of the Corporation.
13. In the event of a "change in control" or a "Pooling
Transaction", as those terms are defined in the Plan, the Holder
shall have all of the rights specified in Paragraph 10(B) and, if
applicable, Paragraph 10(D) of the Plan.
14. Nothing herein contained shall confer on the Holder any
right to continue in the employment of the Corporation or any of its
subsidiaries or interfere in any way with the right of the
Corporation or any subsidiary to terminate the Holder's employment
at any time; confer on the Holder any of the rights of a shareholder
with respect to any of the shares subject to this Option until such
shares shall be issued upon the exercise of this Option; affect the
Holder's right to participate in and receive benefits under and in
accordance with the provisions of any pension, profit-sharing,
insurance, or other employee benefit plan or program of the
Corporation or any of its subsidiaries; or limit or otherwise affect
the right of the Board of Directors of the Corporation (subject to
any required approval by the shareholders) at any time or from time
to time to alter, amend, suspend or discontinue the Plan and the
rules for its administration; provided, however, that no termination
or amendment of the Plan may, without the consent of the Holder,
adversely affect the Holder's rights under this Option.
IN WITNESS WHEREOF, this Nonqualified Stock Option Agreement has
been duly executed by the Corporation and the Holder as of the day
and year first above written.
WHITMAN CORPORATION
By:
Vice President
--------------------
Holder
11/97
Exhibit 5
WHITMAN CORPORATION
3501 Algonquin Road
Rolling Meadows, Illinois 60008
May 29, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Whitman Corporation Revised Stock Incentive Plan
Registration Statement on Form S-8
Gentlemen:
This refers to the Registration Statement on Form S-8 (the
"Registration Statement"), covering 5,000,000 shares of the
Common Stock without par value ("Common Stock"), of Whitman
Corporation, a Delaware corporation (the "Company"), issuable
pursuant to the Company's Revised Stock Incentive Plan (the
"Plan").
I have examined and am familiar with the Company's Restated
Certificate of Incorporation and By-Laws, in each case as
amended to date. I have also examined such other documents,
corporate records and instruments as I have deemed necessary
for the purposes of this opinion.
Based upon the foregoing, it is my opinion that the shares of
Common Stock being registered, when issued and delivered in
accordance with the terms of the Plan, will be legally and
validly issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement.
Very truly yours,
/s/ William B. Moore
William B. Moore
General Counsel
Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Whitman Corporation
We consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January
16, 1998, relating to the consolidated balance sheets of
Whitman Corporation as of December 31, 1997 and 1996, and the
related consolidated statements of income, shareholders'
equity and cash flows for each of the years in the three-year
period ended December 31, 1997, which report appears in the
Whitman Corporation annual report on Form 10-K.
KPMG Peat Marwick LLP
Chicago, Illinois
May 29, 1998
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"),
which is about to file with the Securities and Exchange Commission under
the provisions of the Securities Act of 1933, as amended, a Registration
Statement on Form S-8 for the registration of 5,000,000 shares of the
Company's Common Stock pursuant to the Company's Revised Stock Incentive
Plan, hereby constitutes and appoints BRUCE S. CHELBERG, WILLIAM B. MOORE
and FRANK T. WESTOVER, and each of them, his true and lawful attorneys-
in-fact and agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to
sign such Registration Statement and any and all amendments thereto
(including post-effective amendments), and to file such Registration
Statement and amendments, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority
to do and perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully and to all intents and
purposes as he might or could do if personally present, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal
on the date indicated.
Date Date
/s/ Bruce S. Chelberg 4/30/98 /s/ Archie R. Dykes 4/30/98
- --------------------- --------------------------
Bruce S. Chelberg Archie R. Dykes
/s/ Frank T. Westover 4/30/98 /s/ Charles W. Gaillard 4/30/98
- --------------------- --------------------------
Frank T. Westover Charles W. Gaillard
/s/ Herbert M. Baum 4/30/98 /s/ Jarobin Gilbert, Jr. 4/30/98
- --------------------- --------------------------
Herbert M. Baum Jarobin Gilbert, Jr.
/s/ Richard G. Cline 4/30/98 /s/ Victoria J. Gregoricus 4/30/98
- --------------------- --------------------------
Richard G. Cline Victoria J. Gregoricus
/s/ Pierre S. du Pont 4/30/98 /s/ Charles S. Locke 4/30/98
- --------------------- --------------------------
Pierre S. du Pont Charles S. Locke
