<PAGE>
As filed with the Securities and Exchange Commission on May 21, 1999
Registration No. 333-76549
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
POST-EFFECTIVE AMENDMENT NO. 1
TO FORM S-4
ON
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
---------------------
Whitman Corporation
(Exact name of registrant as specified in its charter)
Delaware 13-6167838
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3501 Algonquin Road 60008
Rolling Meadows, Illinois (Zip Code)
(Address of principal executive offices)
Whitman Corporation
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
(312) 818-5000
(Name, address, and telephone number,
including area code, of agent for service)
----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate
Securities to be to be Price Per Offering Amount of
Registered Registered Share Price Registration Fee
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 11,496,988 shares (1) (2) (2) (2)
$.01 par value
========================================================================================
</TABLE>
(1) This registration statement also covers such additional and
indeterminate number of shares as may become issuable because of the
provisions of the Whitman Corporation Revised Stock Incentive Plan
relating to adjustments for changes resulting from a stock dividend,
stock split or similar change.
(2) Not applicable. All filing fees payable in connection with the
registration of these securities were paid in connection with the
initial filing with the Securities and Exchange Commission of the
Registration Statement on Form S-4 being amended by this post-effective
amendment.
==============================================================================
<PAGE>
INTRODUCTORY STATEMENT
Whitman Corporation, a Delaware corporation formerly known as Heartland
Territories Holdings, Inc. (the "Company"), hereby amends its Registration
Statement on Form S-4 (Registration No. 333-76549) (the "Form S-4") by filing
this Post-Effective Amendment No. 1 on Form S-8 to Form S-4 (this "Post-
Effective Amendment No. 1").
Pursuant to the terms of an Amended and Restated Contribution and Merger
Agreement dated as of March 18, 1999 (the "Merger Agreement") among Whitman
Corporation, a Delaware Corporation ("Old Whitman"), PepsiCo, Inc, a North
Carolina corporation, and the Company, Old Whitman merged with and into the
Company on May 20, 1999. The Company survived the merger and simultaneously
changed its name to Whitman Corporation. Each option (an "Outstanding Option")
to purchase common stock, without par value, of Old Whitman, which was
outstanding immediately prior to the effective time of the merger (the
"Effective Time") pursuant to the Whitman Corporation Revised Stock Incentive
Plan or the predecessor Whitman Corporation Stock Incentive Plan (in either
case, the "Plan") was converted to an option to purchase the same number of
shares of common stock, par value $.01 per share, of the Company ("Common
Stock"). Each Outstanding Option will otherwise be exercisable upon the same
terms and conditions as were applicable immediately prior to the Effective Time.
This Post-Effective Amendment No. 1 relates to the offer and sale after
the Effective Time of Common Stock pursuant to and in accordance with the Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by the Company are incorporated herein by
reference:
(a) The Company's proxy statement/prospectus dated April 19, 1999 which
was filed with the Commission on April 19, 1999 pursuant to the
Securities Act of 1933, as amended (the "Securities Act");
(b) All of the Company's other reports filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since April 19, 1999;
(c) The description of the securities being registered contained in the
registration statement filed pursuant to Section 12 of the Exchange
Act relating to the Common Stock, including any amendments or
reports filed for the purpose of updating such description; and
(d) The consolidated financial statements and other information included
on pages F-1 through F-27 of Old Whitman's Annual Report on Form
10-K/A for the fiscal year ended January 2, 1999, which was filed
with the Commission on April 16, 1999.
<PAGE>
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this
Post-Effective Amendment No. 1 and prior to the filing of a post-effective
amendment to the Form S-4 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 into this registration statement and
to be a part hereof from the respective dates of filing of such documents (such
documents, and the documents listed above, being hereinafter referred to as
"Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Post-Effective Amendment No. 1 to
the extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Post-Effective Amendment No. 1.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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
Company, 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.
II-2
<PAGE>
Item 8. Exhibits.
See the Exhibit Index for a list of Exhibits to this Post-Effective
Amendment No. 1.
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities 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;
(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.
II-3
<PAGE>
(b) The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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 Securities Act and will be governed by the final adjudication
of such issue.
II-4
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Rolling Meadows, State of Illinois on this 21st
day of May, 1999.
WHITMAN CORPORATION
By: WILLIAM B. MOORE
-------------------------------------
William B. Moore
Senior Vice President, Secretary
and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated, on this 21st day of May, 1999.
Signature Title
--------- -----
*Bruce S. Chelberg Chairman and Chief Executive Officer
- --------------------------- (principal executive officer)
Bruce S. Chelberg
*Martin M. Ellen Senior Vice President and Chief
- --------------------------- Financial Officer
Martin M. Ellen (principal financial and 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
II-5
<PAGE>
*Archie R. Dykes Director
- ---------------------------
Archie R. Dykes
*Charles W. Gaillard Director
- ---------------------------
Charles W. Gaillard
*Jarobin Gilbert, Jr. Director
- ---------------------------
Jarobin Gilbert, Jr.
*Victoria B. Jackson Director
- ---------------------------
Victoria B. Jackson
*Charles S. Locke Director
- ---------------------------
Charles S. Locke
Director
- ---------------------------
Robert F. Sharpe, Jr.
Director
- ---------------------------
Karl von der Heyden
By: * WILLIAM B. MOORE
- ---------------------------
William B. Moore
Attorney-in-fact
II-6
<PAGE>
EXHIBIT INDEX
-------------
Exhibit
No. Description
- ------- -----------
4.1* Certificate of Incorporation of the Company
4.2* Certificate of Merger
4.3* Amended and Restated By-Laws of the Company
4.4* Whitman Corporation Revised Stock Incentive Plan
4.5* Form of Non-Qualified Stock Option Agreement and addendum
thereto
5* Opinion of Sidley & Austin
23.1* Consent of KPMG LLP (Chicago)
23.2* Consent of KPMG LLP (New York)
23.3* Consent of Sidley & Austin (contained in Exhibit 5)
24* Powers of Attorney
- ------------------------
*Filed herewith
II-7
<PAGE>
EXHIBIT 4.1
CERTIFICATE OF INCORPORATION
OF
WHITMAN CORPORATION
FIRST: The name of the corporation (the "Corporation") is
WHITMAN CORPORATION
SECOND: The registered office of the Corporation within the
State of Delaware is The Corporation Trust Center, 1209 Orange Street in the
City of Wilmington, County of New Castle, State of Delaware. The registered
agent of the Corporation within the State of Delaware is The Corporation Trust
Company, the business office of which is identical with the registered office of
the Corporation.
THIRD: The purpose of the Corporation shall be to engage in
any lawful act or activity for which corporations may be organized and
incorporated under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock
which the Corporation shall have authority to issue is 362,500,000, of which
350,000,000 shares, par value $0.01 per share, shall be "Common Stock" and
12,500,000 shares, par value $0.01 per share, shall be "Preferred Stock".
A. Preferred Stock
Shares of Preferred Stock may be issued from time to time in
one or more series. The Board of Directors is hereby authorized to fix by
resolution or resolutions adopted in accordance with the by-laws of the
Corporation the voting rights, if any, designations, powers, preferences and the
relative, participation, optional or other rights, if any, and the
qualifications, limitations or restrictions thereof, of any unissued series of
Preferred Stock; and to fix by such resolution or resolutions the number of
shares constituting such series, and to increase or decrease the number of
shares of any such series (but not below the number of shares thereof then
outstanding).
B. Common Stock
(1) Except as otherwise provided by law or by the resolution
or resolutions adopted by the Board in accordance with the by-laws of the
Corporation designating the rights, powers and preferences of any series of
Preferred Stock and subject to the provisions of the by-laws of the Corporation
as from time to time amended, with respect to the fixing of a record date for
the determination of stockholders entitled to vote, the holders of outstanding
shares of Common Stock shall exclusively possess voting power for the election
of directors and for all other purposes, each holder of record of shares of
Common Stock being entitled to one vote for each share of Common Stock standing
in his name on the books of the Corporation.
<PAGE>
(2) Subject to any rights or preferences of holders of
Preferred Stock, the holders of Common Stock shall be entitled to receive such
dividends as from time to time may be declared on the Common Stock by the Board
of Directors.
(3) In the event of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, subject to any rights or
preferences of holders of Preferred Stock, the holders of Common Stock shall be
entitled to share, ratably according to the number of shares of Common Stock
held by them, in all assets of the Corporation available for distribution to its
stockholders.
C. Provisions Relating to All Classes of Stock
(1) No holder of shares of Common Stock or Preferred Stock of
the Corporation shall be entitled as of right to pre-emptive or prior right to
subscribe for, purchase, or receive any part of any new or additional issue of
stock of any class, whether now or hereafter authorized, or of any bonds,
debentures, or other securities, convertible or exchangeable into stock of any
class, and all such new or additional shares of stock, bonds, debentures or
other securities, convertible or exchangeable into stock, or stock that has been
purchased by the Corporation or its nominee or nominees, may be issued and
disposed of by the Board of Directors to such persons, firms or corporations and
on such terms and for such consideration permitted by law as the Board of
Directors, in their absolute discretion, may deem advisable.
(2) Neither the merger or consolidation of the Corporation
into or with another corporation nor the merger or consolidation of any other
corporation into or with the Corporation, nor the sale, transfer or lease of all
or substantially all the assets of the Corporation, shall be deemed to be a
liquidation, dissolution or winding up of the Corporation.
(3) All stockholder action shall be taken at an annual or
special meeting, and no stockholder action may be taken without a meeting.
FIFTH: The minimum amount of capital with which the
Corporation will commence business is One Thousand Dollars ($1,000.00).
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The private property of the stockholders shall not
be subject to the payment of corporate debts to any extent whatever.
EIGHTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized:
To make, alter or repeal the by-laws of the
Corporation.
To authorize and cause to be executed mortgages and
liens upon the real and personal property of the Corporation.
-2-
<PAGE>
To set apart out of any of the funds of the
Corporation available for dividends a reserve or reserves for
any proper purpose and to abolish any such reserve in the
manner in which it was created.
By resolution passed by the Board of Directors in
accordance with the by-laws of the Corporation, to designate
one or more committees, each committee to consist of two or
more of the directors of the Corporation, which, to the extent
provided in the resolution or in the by-laws of the
Corporation, shall have and may exercise the powers of the
Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it.
Such committee or committees shall have such name or names as
may be stated in the by-laws of the Corporation or as may be
determined from time to time by resolution adopted by the
Board of Directors.
When and as authorized by the affirmative vote of the
holders of a majority of the stock issued and outstanding
having voting power given at a stockholders' meeting duly
called for that purpose, or when authorized by the written
consent of the holders of a majority of the voting stock
issued and outstanding, to sell, lease or exchange all of the
property and assets of the Corporation, including its good
will and its corporate franchise, upon such terms and
conditions and for such consideration, which may be in whole
or in part shares of stock in, and/or other securities of, any
other corporation or corporations, as its Board of Directors
shall deem expedient and for the best interests of the
Corporation.
NINTH: No director shall be personally liable to the
Corporation or any stockholder for monetary damages for breach of fiduciary duty
by such director as a director, except for any matter in respect of which such
director shall be liable under Section 174 of the Delaware General Corporation
Law or shall be liable by reason that, in addition to any and all other
requirements for such liability, he (i) shall have breached his duty of loyalty
to the Corporation or its stockholders, (ii) in acting or in failing to act,
shall not have acted in good faith or shall have acted in a manner involving
intentional misconduct or a knowing violation of law or (iii) shall have derived
an improper personal benefit from the transaction in respect of which such
breach of fiduciary duty occurred. Neither the amendment nor repeal of this
Article NINTH shall eliminate or reduce the effect of this Article NINTH in
respect of any matter occurring, or any cause of action, suit or claim that, but
for this Article NINTH would accrue or arise, prior to such amendment or repeal.
If the Delaware General Corporation Law is amended after approval by the
stockholders of this Article NINTH to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended from
time to time.
TENTH: (1) In anticipation that PepsiCo, Inc. is currently,
and will remain, a substantial stockholder of the Corporation, and in
anticipation that the Corporation and PepsiCo, Inc. may engage in the same or
similar activities or lines of business and have an interest in the same areas
of business opportunities, and in recognition of the benefits to be derived by
the Corporation through its continued contractual, corporate and business
relations with PepsiCo,
-3-
<PAGE>
Inc. (including service of employees, officers and directors of PepsiCo, Inc. as
officers and directors of the Corporation), the provisions of this Article TENTH
are set forth to regulate and define the conduct of certain affairs of the
Corporation as they may involve PepsiCo, Inc. and its employees, officers and
directors, and the powers, rights, duties and liabilities of the Corporation and
its officers, directors and stockholders in connection therewith.
(2) PepsiCo, Inc. shall have the right to engage (and shall
have no duty to refrain from engaging) in the same or similar activities or
lines of business as the Corporation, and the Corporation shall not be deemed to
have an interest or expectancy in any business opportunity, transaction, or
other matter (each a "Business Opportunity") in which PepsiCo, Inc. engages or
seeks to engage merely because the Corporation engages in the same or similar
activities or lines of business as that involved in or implicated by such
Business Opportunity. Neither PepsiCo, Inc. nor any employee, officer or
director thereof (except as provided in paragraph 3 below) shall be liable to
the Corporation or its stockholders for breach of any fiduciary duty by reason
of any such activities of PepsiCo, Inc. or of such person's participation
therein. In the event that PepsiCo, Inc. acquires knowledge of a potential
Business Opportunity which may be deemed to constitute a corporate opportunity
for both PepsiCo, Inc. and the Corporation, PepsiCo, Inc. shall have no duty to
communicate or offer such Business Opportunity to the Corporation and shall not
be liable to the Corporation or its stockholders for breach of any fiduciary
duty as a stockholder of the Corporation by reason of the fact that PepsiCo,
Inc. pursues or acquires such Business Opportunity for itself, directs such
Business Opportunity to another person, or does not communicate information
regarding such Business Opportunity to the Corporation.
(3) In the event that a director or officer of the Corporation
who is also a director, officer or employee of PepsiCo, Inc. acquires knowledge
of a potential Business Opportunity which may be deemed to be a corporate
opportunity for both the Corporation and PepsiCo, Inc., such director or officer
of the Corporation shall have fully satisfied and fulfilled the fiduciary duty
of such director or officer to the Corporation and its stockholders with respect
to such Business Opportunity and, to the extent permitted by applicable law,
shall not be liable to the Corporation or its stockholders for breach of any
fiduciary duty by reason of the fact that PepsiCo, Inc. pursues or acquires such
Business Opportunity for itself or directs such Business Opportunity to another
person or does not communicate information regarding such Business Opportunity
to the Corporation, if such director or officer acts in a manner consistent with
the following policy:
A Business Opportunity offered to any person who is
an officer of the Corporation, and who is also a director or
an officer or an employee of PepsiCo, Inc., shall belong to
the Corporation; and (b) a Business Opportunity offered to any
person who is a director but not an officer of the
Corporation, and who is also a director or officer of PepsiCo,
Inc., shall belong to the Corporation if such Business
Opportunity is expressly offered to such person solely in his
or her capacity as a director of Corporation, and otherwise
shall belong to PepsiCo, Inc.
(4) Any person purchasing or otherwise acquiring any interest
in share of the capital stock of the Corporation shall be deemed to have
consented to the provisions of this Article TENTH.
-4-
<PAGE>
(5) For purposes of this Article TENTH:
(a) A director of the Corporation who is Chairman of
the Board of Directors of the Corporation or of a committee
thereof shall not be deemed to be an officer of the
Corporation by reason of holding such position (without regard
to whether such position is deemed an office of the
Corporation under the by-laws of the Corporation), unless such
person is a full-time employee of the Corporation; and
(b) PepsiCo, Inc. shall include all subsidiary
corporations and other entities in which PepsiCo, Inc. owns
(directly or indirectly) more that 50% of the outstanding
voting capital stock or voting power.
(6) Any proposed amendment to this Article TENTH shall require
the approval of two-thirds of the whole Board of Directors.
ELEVENTH: Meetings of stockholders may be held outside the
State of Delaware, if the by-laws of the Corporation so provide. The books of
the Corporation may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the by-laws of the Corporation.
Elections of directors need not be by ballot unless the by-laws of the
Corporation shall so provide.
TWELVETH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
THIRTEENTH: The Corporation hereby expressly elects not to be
governed by Section 203(a) of the Delaware General Corporation Law relating to
business combinations with interested shareholders.
-5-
<PAGE>
EXHIBIT 4.2
CERTIFICATE OF MERGER
MERGING
WHITMAN CORPORATION
WITH AND INTO
HEARTLAND TERRITORIES HOLDINGS, INC.
Pursuant to Section 251 of the
Delaware General Corporation Law
The undersigned, being the Vice President of Heartland
Territories Holdings, Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY AS FOLLOWS:
FIRST: That the names and states of incorporation of each of the
constituent corporations of the merger are as follows:
NAME STATE OF INCORPORATION
WHITMAN CORPORATION Delaware
HEARTLAND TERRITORIES HOLDINGS, INC. Delaware
SECOND: That the Amended and Restated Contribution and Merger
Agreement, dated as of March 18, 1999, among Whitman Corporation, PepsiCo, Inc.
and Heartland Territories Holdings, Inc. has been approved, adopted, certified,
executed, and acknowledged by each of the constituent corporations in accordance
with the requirements of Section 251 of the General Corporation Law of the State
of Delaware.
THIRD: That the name of the surviving entity will be Heartland
Territories Holdings, Inc. which shall be changed herewith to Whitman
Corporation.
FOURTH: That the Certificate of Incorporation of Heartland Territories
Holdings, Inc. shall be amended and restated in its entirety in the form
attached as Exhibit A.
FIFTH: That the executed Amended and Restated Contribution and Merger
Agreement is on file at the principal place of business of the surviving
corporation. The address of said principal place of business is 3501 Algonquin
Road, Rolling Meadows, Illinois 60008.
SIXTH: That a copy of the aforesaid Amended and Restated Contribution
and Merger Agreement will be furnished by the aforesaid surviving corporation,
upon request, and without cost, to any stockholder of each of the aforesaid
constituent corporations.
SEVENTH: That this Certificate of Merger shall be effective at 11:05
a.m. on the 20th day of May, 1999.
<PAGE>
IN WITNESS WHEREOF, Heartland Territories Holdings, Inc. has caused
this Certificate of Merger to be signed by W. Timothy Heaviside, its Vice
President, on this 20th day of May, 1999.
HEARTLAND TERRITORIES HOLDINGS, INC.
By: /s/ W. Timothy Heaviside
--------------------------------
Name: W. Timothy Heaviside
Title: Vice President
<PAGE>
EXHIBIT 4.3
WHITMAN CORPORATION
(formerly named Heartland Territories Holdings, Inc.)
AMENDED AND RESTATED
BY-LAWS
ARTICLE I
Meetings of Stockholders
Section 1. Beginning with the 2000 annual meeting, annual meetings of
stockholders for the election of directors and for the transaction of such other
business as may come before the meeting shall be held on the first Thursday of
May at 10:30 A.M., at Chicago, Illinois, or on such other date or at such other
time or place, whether within or without the State of Delaware, as shall be
designated by the Board of Directors.
Section 2. At any annual or special meeting of the stockholders, only
such business shall be conducted as shall have been brought before the meeting
(a) by or at the direction of the Board of Directors or (b) by any stockholder
of the Corporation who complies with the notice procedures set forth in this
Section 2. For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, in the case of an annual
meeting, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 60 days nor
more than 90 days prior to the meeting; provided, however, that in the event
that less than 70 days' notice or prior public disclosure of the date of the
meeting is given or made to the stockholders, notice by the stockholder to be
timely must be received not later than the close of business on the 10th day
following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure was made. In the case of a special meeting
requested by a stockholder, such stockholder must provide notice in accordance
with the following sentence at the time of such request. A stockholder's notice
to the Secretary shall be set forth as to each matter the stockholder proposes
to bring before the annual or special meeting, as the case may be, (a) a brief
description of the business desired to be brought before such meeting and the
reasons for conducting such business at such meeting, (b) the name and address,
as they appear on the Corporation's books, of the stockholder proposing such
business, (c) the class and number of shares of the Corporation which are
beneficially owned by the stockholder and (d) any material interest of the
stockholder in such business. Notwithstanding anything in these By-Laws to the
contrary, no business shall be conducted at an annual or special meeting except
in accordance with the procedures set forth in this Section 2. The chairman of
any annual or special meeting shall, if the facts warrant, determine and declare
to the meeting that business was not properly brought before the meeting and in
accordance with the provisions of this Section 2, and if he should so determine,
he shall so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted.
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Section 3. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by law or by the Certificate of
Incorporation, may be called by the Chairman and Chief Executive Officer and
shall be called by him or by the Secretary at the request of (i) a majority of
the Board of Directors or (ii) any stockholder which, individually or together
with any other entity in which such stockholder has a 20% or greater equity or
other ownership interest, owns 20% or more of the issued and outstanding
securities of the Corporation entitled to vote generally in the election of
directors of the Corporation, provided that such request shall state the purpose
or purposes of the proposed meeting and in the case of a request by a
stockholder, shall also comply with the provisions of Section 2 of this Article
I. Special meetings may be held at such time and place and for such purposes as
shall be stated in the notice issued by the Chairman and Chief Executive Officer
or the Secretary calling the meeting, provided that in the case of a special
meeting requested by a stockholder, such special meeting shall take place not
later than 70 days from the date of receipt of proper notice from such
stockholder requesting the meeting. In the case of a special meeting requested
by a stockholder, the Board of Directors shall fix a record date for
stockholders entitled to vote at the special meeting, which record date shall be
not later than 10 days from receipt of proper notice from such stockholder
requesting the meeting, subject to compliance with the applicable regulations of
any exchange on which the Corporation's securities are listed.
Section 4. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders (a) by or
at the direction of the Board of Directors or (b) by any stockholder of the
Corporation entitled to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this Section 4. Nominations by
stockholders shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice shall be delivered to
or mailed and received at the principal executive offices of the Corporation not
less than 60 days nor more than 90 days prior to the meeting; provided, however,
that in the event that less than 70 days' notice or prior public disclosure of
the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the 10th day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a director, all information relating to
such person that is required to be disclosed in solicitations of proxies for the
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (including
such person's written consent to being named in the proxy statement as a nominee
and to serving as a director if elected); and (b) as to the stockholder giving
the notice (i) the name and address, as they appear on the Corporation's books,
of such stockholder and (ii) the class and number of shares of the Corporation
which are beneficially owned by such stockholder. At the request of the Board of
Directors any person nominated by the Board of Directors for election as a
director shall furnish to the Secretary of the Corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in
these By-Laws. The chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not
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made in accordance with the procedures prescribed in this Section 4, and if he
should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
Section 5. Unless waived, written notice of the date, place, and time
of the holding of each annual and special meeting of the stockholders and, in
the case of a special meeting, the purpose or purposes thereof, shall be given
personally or by mail in a postage prepaid envelope to each stockholder entitled
to vote at such meeting, not less than ten nor more than sixty days before the
date of such meeting, and, if mailed, it shall be directed to such stockholder
at his address as it appears on the records of the Corporation.
Section 6. The officer who has charge of the stock ledger of the
Corporation shall prepare and make before every meeting of stockholders a
complete list of the stockholders as of the record date entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 7. The Board may, in advance of any meeting of stockholders,
appoint one or more inspectors to act at such meeting, or any adjournment
thereof. If the inspectors shall not be so appointed or if any of them shall
fail to appear or act, the chairman of the meeting may, and on the request of
any stockholder entitled to vote thereat shall, appoint inspectors. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. The inspectors
shall determine the number of shares outstanding and the voting power of each,
the number of shares represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
result, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the chairman of the meeting or any
stockholder entitled to vote thereat, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall execute
a certificate of any fact found by them. No director or candidate for the office
of director shall act as inspector of an election of directors. Inspectors need
not be stockholders.
Section 8. At each meeting of the stockholders the Chairman and Chief
Executive Officer or, in his absence or inability to act, the President shall
act as chairman of the meeting. The Secretary or, in his absence or inability to
act, the Assistant Secretary or any person appointed by the chairman of the
meeting shall act as secretary of the meeting and keep the minutes thereof. The
order of business at all meetings of the stockholders shall be as determined by
the chairman of the meeting.
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Section 9. Except as otherwise provided by law or the Certificate of
Incorporation, at all meetings of the stockholders fifty-one per cent of the
votes of the shares of stock of the Corporation issued and outstanding and
entitled to vote shall be present in person or by proxy to constitute a quorum
for the transaction of any business, provided that (except as aforesaid) when
stockholders are required to vote by class or series, fifty-one per cent of the
votes represented by the issued and outstanding shares of the appropriate class
or series shall be present in person or by proxy. In the absence of a quorum,
the holders of a majority of the votes of the shares of stock present in person
or by proxy and entitled to vote may adjourn the meeting from time to time.
Unless the Board shall fix after the adjournment a new record date for an
adjourned meeting, notice of such adjourned meeting need not be given, except as
hereinafter provided, if the time and place to which the meeting shall be
adjourned were announced at the meeting at which the adjournment is taken. If
the adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting. At the adjourned meeting the corporation may transact any business
which might have been transacted at the original meeting.
Section 10. Except as otherwise provided by law, the Certificate of
Incorporation, or any certificate filed by the Corporation in the State of
Delaware pursuant to Section 151 (or any successor provisions) of the General
Corporation Law of the State of Delaware, each holder of record of shares of
stock of the Corporation having voting power shall be entitled at each meeting
of the stockholders to one vote for every share of such stock standing in his
name on the record of stockholders of the Corporation on the date fixed by the
Board as the record date for the determination of the stockholders who shall be
entitled to notice of and to vote at such meeting. Each stockholder entitled to
vote at any meeting of stockholders may authorize another person or persons to
act for him by proxy signed by such stockholder or his attorney-in-fact. Any
such proxy shall be delivered to the secretary of such meeting at or prior to
the time designated in the order of business for so delivering in such proxies.
No proxy shall be valid after the expiration of three years from the date
thereof, unless otherwise provided in the proxy. A proxy shall be revocable at
the pleasure of the stockholder executing it, except in those cases where an
irrevocable proxy is permitted by law. Except as otherwise provided by law, the
Certificate of Incorporation, or these By-Laws, any corporate action to be taken
by vote of the stockholders shall be authorized by a majority of the total votes
cast, or when stockholders are required to vote by class or series by a majority
of the votes cast of the appropriate class or series. Unless required by law or
determined by the chairman of the meeting to be advisable, the vote on any
question need not be by written ballot. On a vote by written ballot, each ballot
shall be signed by the stockholder voting, or by his proxy, and shall state the
number of shares voted.
ARTICLE II
Board of Directors
Section 1. The business and affairs of the Corporation shall be
managed by the Board of Directors. The Board may exercise all such authority and
powers of the Corporation
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and do all such lawful acts and things as are not by law or the Certificate of
Incorporation directed or required to be exercised or done by the stockholders.
Section 2. The number of directors of the Corporation shall be such
number of persons, not less than three (3), as shall from time to time be fixed
by resolution of two-thirds of the whole Board. Directors need not be
stockholders. Except as otherwise provided by law, the Certificate of
Incorporation, or these By-Laws, the directors shall be elected at the annual
meeting of the stockholders, and the persons receiving a plurality of the votes
cast at such election shall be elected. Directors shall hold office until their
respective successors shall have been duly elected and qualified, or until
death, resignation, or removal, as hereinafter provided in these By-Laws, or as
otherwise provided by law of the Certificate of Incorporation. The Board shall
elect one of its members as Chairman and Chief Executive Officer.
Section 3. The Chairman and Chief Executive Officer, if present, shall
preside at all meetings of the Board. He shall serve as Chairman of the
Executive Committee of the Board and be a member of such other committees of the
Board as shall be determined by the Board at the time of the creation or the
election of the members of any such committees.
Section 4. Meetings of the Board may be held at such place, either
within or without the State of Delaware, as the Board may from time to time
determine or as shall be specified in the notice or waiver of notice of such
meeting.
Section 5. Regular meetings of the Board may be held without notice at
such time and place as the Board may from time to time determine.
Section 6. Special meetings of the Board may be called by two or more
directors of the Corporation or by the Chairman and Chief Executive Officer or
the Secretary.
Section 7. Notice of each special meeting of the Board shall be given
by the Secretary as hereinafter provided in this Section, in which notice shall
be stated the time and place of the meeting. Notice of each such meeting shall
be delivered to each director either personally or by telephone, telegraph,
cable, or similar means, at least twenty-four hours before the time at which
such meeting is to be held or mailed by first-class mail, postage prepaid,
addressed to the director at his residence or usual place of business, at least
three days before the day on which such meeting is to be held. Notice of any
such meeting need not be given to any director who shall, either before or after
the meeting, submit a signed waiver of notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice to such
director. Except as otherwise specifically required by these By-Laws, a notice
or waiver of notice of any regular or special meeting need not state the purpose
of such meeting.
Section 8. Subject to Section 14 of this Article, one-third of the
entire Board shall be present in person at any meeting of the Board in order to
constitute a quorum for the transaction of business at such meeting, and, except
as otherwise expressly required by law, the Certificate of Incorporation or
these By-Laws, the act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the Board. In the absence of a
quorum at any meeting of the Board, a majority of the directors present thereat
may adjourn such meeting to
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another time and place, or such meeting need not be held. At any adjourned
meeting at which a quorum is present, any business may be transacted which might
have been transacted at the meeting as originally called. Except as otherwise
provided in this Article II, the directors shall act only as a Board and the
individual directors shall have no power as such.
Section 9. Any director of the Corporation may resign at any time by
giving a written notice of resignation to the Board, the Chairman and Chief
Executive Officer, or the Secretary. Any such resignation shall take effect at
the time specified therein or, if the time when it shall become effective shall
not be specified therein, immediately upon its receipt; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 10. Vacancies or newly created directorships resulting from an
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, and the directors so
chosen shall hold office until their successors are duly elected and shall
qualify. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or holder or holders
of at least ten percent of the votes of the shares at the time outstanding
having the right to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly created directorships, or to replace
the directors chosen by the directors then in office. Except as otherwise
provided in these By-Laws, when one or more directors shall resign from the
Board, effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, to vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office as
provided in this Section 10 in the filling of other vacancies.
Section 11. Except as otherwise provided in the Certificate of
Incorporation or these By-Laws, any director may be removed, either with or
without cause, at any time, by the affirmative vote of a majority of the votes
of the issued and outstanding stock entitled to vote for the election of
directors of the Corporation given at a special meeting of the stockholders
called and held for such purpose; and the vacancy in the Board caused by any
such removal may be filled by such stockholders at such meeting, or, if the
stockholders shall fail to fill such vacancy, as in these By-Laws provided.
Section 12. The Board shall have authority to fix the compensation,
including fees and reimbursement of expenses, of directors for services to the
Corporation in any capacity, provided that no such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor.
Section 13. Any action required or permitted to be taken at any
meeting of the Board or of any committee thereof may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee. Members of the Board or of any committee designated
by the Board may participate in a meeting of such Board or committee by
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means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other and
participation in a meeting pursuant to this procedure shall constitute presence
in person at such meeting.
Section 14. The issuance of preferred stock by the Corporation shall
require the approval of two-thirds of the whole Board.
ARTICLE III
Committees of the Board
Section 1. The Board of Directors may, by resolution adopted by
two-thirds of the whole Board, designate an Executive Committee to exercise,
subject to applicable provisions of law, all the powers of the Board in the
management of the business and affairs of the Corporation when the Board is not
in session, including without limitation the power to declare dividends and to
authorize the issuance of the Corporation's capital stock, and may, by
resolution similarly adopted, designate one or more other committees. The
Executive Committee and each such other committee shall consist of two or more
directors of the Corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. Any such committee, other than the
Executive Committee whose powers are expressly provided for herein, may to the
extent permitted by law exercise such powers and shall have such
responsibilities as shall be specified in the designating resolution. In the
absence or disqualification of any member of such committee or committees, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not constituting a quorum, may unanimously appoint another
member of the Board to act at the meeting in the place of any such absent or
disqualified member. Each committee shall keep written minutes of its
proceedings and shall report such proceedings to the Board when required.
Section 2. (a) The Board of Directors shall designate an Affiliated
Transaction Committee. The Affiliated Transaction Committee shall review,
consider and pass upon any Affiliated Transaction, and no such transaction shall
be effected without the concurrence of the Affiliated Transaction Committee. The
Affiliated Transaction Committee shall have the powers to (i) negotiate with the
representatives of any party to an Affiliated Transaction; (ii) require approval
of an Affiliated Transaction by a vote of the stockholders of the Corporation
which may be greater than or in addition to any vote required by law; and (iii)
engage Independent Advisers at the reasonable expense of the Corporation, and
without prior approval of the Corporation, to assist in its review and decision
regarding any Affiliated Transaction.
(b) The Affiliated Transaction Committee shall consist of
at least three Independent Directors, with each other Independent Director being
an alternate member if any committee member is unable or unwilling to serve.
(c) The Affiliated Transaction Committee shall cease to
exist on the later of (i) May 20, 2009 or (ii) the date on which any Affiliated
Transaction being reviewed,
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considered and passed upon by the Affiliated Transaction Committee prior to May
20, 2009 shall have been either consummated or abandoned.
(d) For the purposes of the foregoing Article III, Section
2, the following definitions shall apply:
(i) "Corporation" means the Corporation or any company
in which the Corporation has more than 50% of the voting power in the
election of directors or in which it has the power to elect a majority
of the Board of Directors.
(ii) "PepsiCo, Inc." means PepsiCo, Inc. or any company
in which PepsiCo, Inc. has more than 50% of the voting power in the
election of directors or in which it has the power to elect a majority
of the Board of Directors.
(iii) "Affiliate" means any entity (other than the
Corporation) in which PepsiCo, Inc. has a 20% or greater equity or
other ownership interest, or any entity controlled directly or
indirectly by such Affiliate. Notwithstanding the above, no entity
shall be an Affiliate solely by virtue of the rights granted to
PepsiCo, Inc. pursuant to a bottling contract.
(iv) "Affiliated Transaction" means any proposed merger
or consolidation with, purchase of an equity interest in, or purchase
of assets other than in the ordinary course of business from an
Affiliate, and which transaction has an aggregate value exceeding $10
million; provided, however, that any such merger, consolidation, or
purchase which constitutes a "Permitted Acquisition" under the
Shareholder Agreement between the Corporation and PepsiCo, Inc., dated
as of May 20, 1999 (as it may be amended from time to time, the
"Shareholders Agreement"), shall not constitute an Affiliated
Transaction for purposes of this Article III, Section 2.
(v) "Independent Directors" means any member of the
Corporation's Board of Directors who (i) is not, and for the past two
years has not been, an officer, director or employee of PepsiCo, Inc.
or (other than serving as a director of the Corporation) an Affiliate;
(ii) does not own in excess of 1% of the shares of PepsiCo, Inc.; and
(iii) own any equity or other ownership interest in an entity (except
as permitted by the preceding (ii) and other than in the Corporation)
which is a party to the Affiliated Transaction.
(vi) "Independent Adviser" means any legal or financial
adviser or other expert (i) that has not represented or provided
services to PepsiCo, Inc. during the past calendar year, or (ii)
notwithstanding (i) above, that the Affiliated Transaction Committee
(as defined below) determines, after due inquiry, is able to represent
it in an independent manner not adverse to the interests of the
Corporation and its stockholders.
Section 3. A majority of any committee may determine its action and
fix the time and place of its meetings, unless the Board shall otherwise
provide. Notice of such meetings shall be given to each member of the committee
in the manner provided for in Article II, Section 7.
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The Board shall have power at any time to fill vacancies in, to change the
membership of, or to dissolve any such committee. Nothing herein shall be deemed
to prevent the Board from appointing one or more committees consisting in whole
or in part of persons who are not directors of the Corporation; provided,
however, that no such committee shall have or may exercise any authority of the
Board.
ARTICLE IV
Officers
Section 1. The officers of the Corporation shall consist of the
Chairman and Chief Executive Officer, the President, one or more Vice
Presidents, the Treasurer, the Controller and the Secretary. Any two or more
offices may be held by the same person. Each such officer shall be elected from
time to time by the Board of Directors to hold office until his successor shall
have been duly elected and shall have qualified, or until his death, or until he
shall have resigned, or have been removed, as hereinafter provided in these
By-Laws. The Board may from time to time elect, or the Chairman and Chief
Executive Officer may appoint, such other officers (including one or more
Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers, and
Assistant Controllers) and such agents, as may be necessary or desirable for the
conduct of the business of the Corporation. Such other officers and agents shall
have such duties and shall hold their offices for such terms as shall be
provided in these By-Laws or as may be prescribed by the Board or by the
Chairman and Chief Executive Officer.
Section 2. Any officer or agent of the Corporation may resign at any
time by giving written notice of his resignation to the Board, the Chairman and
Chief Executive Officer, or the Secretary. Any such resignation shall take
effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 3. Any officer or agent of the Corporation may be removed,
either with or without cause, at any time, by the vote of a majority of the
whole Board at any meeting of the Board, or, except in the case of an officer or
agent elected by the Board, by the Chairman and Chief Executive Officer. Such
removal shall be without prejudice to the contractual rights, if any, of the
person so removed.
Section 4. A vacancy in any office, whether arising from death,
resignation, removal or any other cause, may be filled for the unexpired portion
of the term of the office which shall be vacant in the manner prescribed in
these By-Laws for the regular election or appointment of such office.
Section 5. The Chairman and Chief Executive Officer shall have the
primary responsibility for and the general control and management of all of the
business and affairs of the Corporation, under the direction of the Board. He
shall have power to select and appoint all necessary officers and employees of
the Corporation except such officers as under these By-Laws are to be elected by
the Board, to remove all appointed officers or employees whenever he shall
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deem it necessary, and to make new appointments to fill the vacancies. He shall
have the power of suspension from office for cause of any elected officer, which
shall be forthwith declared in writing to the Board. Whenever in his opinion it
may be necessary, he shall define the duties of any officer or employee of the
Corporation which are not prescribed in the By-Laws or by resolution of the
Board. He shall have such other authority and shall perform such other duties as
may be assigned to him by the Board.
Section 6. The President shall be the chief operating officer of the
Corporation and shall have such authority and perform such duties relative to
the business and affairs of the Corporation as may be delegated to him by the
Board or the Chairman and Chief Executive Officer. In the absence of the
Chairman and Chief Executive Officer, the President shall preside at meetings of
the stockholders and of the directors.
Section 7. Each Vice President and each Assistant Vice President shall
have such powers and perform all such duties as from time to time may be
assigned to him by the Board, the Chairman and Chief Executive Officer, the
President or the senior officer to whom he reports.
Section 8. The Treasurer shall exercise general supervision over the
receipt, custody and disbursement of corporate funds. He shall have such further
powers and duties and shall be subject to such directions as may be granted or
imposed upon him from time to time by the Board or the Chairman and Chief
Executive Officer.
Section 9. The Controller shall be the chief accounting officer of the
Corporation and shall maintain adequate records of all assets, liabilities and
transactions of the Corporation; he shall establish and maintain internal
accounting controls and, in cooperation with the independent public accountants
selected by the Board, shall supervise internal auditing. He shall have such
further powers and duties as may be conferred upon him from time to time by the
Board or the Chairman and Chief Executive Officer.
Section 10. The Secretary shall keep or cause to be kept in one or
more books provided for that purpose, the minutes of all meetings of the Board,
the committees of the Board and the stockholders; he shall see that all notices
are duly given in accordance with the provisions of these By-Laws and as
required by law; he shall be custodian of the records and the seal of the
Corporation and affix and attest the seal to all stock certificates of the
Corporation (unless the seal of the Corporation on such certificates shall be a
facsimile, as hereinafter provided) and affix and attest the seal to all other
documents to be executed on behalf of the Corporation under its seal; he shall
see that the books, reports, statements, certificates and other documents and
records required by law to be kept and filed are properly kept and filed; and in
general, he shall perform all the duties incident to the office of Secretary and
such other duties as from time to time may be assigned to him by the Board or
the Chairman and Chief Executive Officer.
Section 11. Any Assistant Secretary, Assistant Treasurer, or Assistant
Controller elected or appointed as heretofore provided, shall perform the duties
and exercise the powers of the Secretary, Treasurer and Controller,
respectively, in their absence or inability to act, and shall perform such other
duties and have such other powers as the Board, the Chairman and Chief
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Executive Officer, the Secretary, Treasurer, or Controller (as the case may be),
may from time to time prescribe.
Section 12. If required by the Board, any officer of the Corporation
shall give a bond or other security for the faithful performance of his duties
in such amount and with such surety or sureties as the Board may specify.
Section 13. The compensation of the officers of the Corporation for
their services as such officers shall be fixed from time to time by the Board;
provided, however, that the Board may by resolution delegate to the Chairman and
Chief Executive Officer the power to fix compensation of non-elected officers
and agents appointed by him. An officer of the Corporation shall not be
prevented from receiving compensation by reason of the fact that he is also a
director of the Corporation, but any such officer who shall also be a director
shall not have any vote in the determination of the amount of compensation paid
to him.
ARTICLE V
Indemnification and Insurance
Section 1. Each person who was or is made a party or is threatened to
be made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans maintained
or sponsored by the Corporation, whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said Law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, excise taxes pursuant to the Employee Retirement Income
Security Act of 1974 or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except as provided in
Section 2 of this Article, the Corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in
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any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Section or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the Corporation
with the same scope and effect as the foregoing indemnification of directors and
officers.
Section 2. If a claim under Section 1 of this Article is not paid in
full by the Corporation within thirty days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standard of conduct which makes it permissible under
the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
Section 3. The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise. No repeal or modification of this Article shall in any
way diminish or adversely affect the rights of any director, officer, employee
or agent of the Corporation hereunder in respect of any occurrence or matter
arising prior to any such repeal or modification.
Section 4. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
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ARTICLE VI
Contracts, Proxies, Etc.
Section 1. Except as otherwise required by law, the Certificate of
Incorporation or these By-laws, any contracts or other instruments may be
executed and delivered in the name and on behalf of the Corporation by such
officer or officers (including any assistant officer) of the Corporation as the
Board of Directors may from time to time direct. Such authority may be general
or confined to specific instances as the Board may determine. The Chairman and
Chief Executive Officer, the President or any Vice President may execute bonds,
contracts, deeds, leases and other instruments to be made or executed for or on
behalf of the Corporation. Subject to any restrictions imposed by the Board or
the Chairman and Chief Executive Officer, the President or any Vice President of
the Corporation may delegate contractual power to others under his jurisdiction,
it being understood, however, that any such delegation of power shall not
relieve such officer of responsibility with respect to the exercise of such
delegated power.
Section 2. Unless otherwise provided by resolution adopted by the
Board, the Chairman and Chief Executive Officer, the President or any Vice
President may from time to time appoint an attorney or attorneys or agent or
agents of the Corporation, in the name and on behalf of the Corporation, to cast
the votes which the Corporation may be entitled to cast as the holder of stock
or other securities in any other corporation, any of whose stock or other
securities may be held by the Corporation, at meetings of the holders of the
stock or other securities of such other corporation, or to consent in writing,
in the name of the Corporation as such holder, to any action by such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed in the name and on behalf of the Corporation and under its corporate
seal or otherwise, all such written proxies or other instruments as he may deem
necessary or proper in the premises.
ARTICLE VII
Shares, Books, Etc.
Section 1. Every holder of stock in the Corporation shall be entitled
to have a certificate signed by or in the name of the Corporation by the
Chairman and Chief Executive Officer, the President or a Vice President, and by
the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary, certifying the number of shares owned by such holder in the
Corporation. Any of or all the signatures on the certificate may be facsimile.
In case any officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent, or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if such person were
such officer, transfer agent, or registrar at the date of issue.
Section 2. The books and records of the Corporation may be kept at
such places within or without the State of Delaware, as the Board of Directors
may from time to time determine.
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Section 3. Transfers of shares of stock of the Corporation shall be
made on the stock records of the Corporation only upon authorization by the
registered holder thereof, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary or with a transfer agent,
and or surrender of the certificate or certificates for such shares properly
endorsed or accompanied by a duly executed stock transfer power and the payment
of all taxes thereon. Except as otherwise provided by law, the Corporation shall
be entitled to recognize the exclusive right of a person in whose name any share
or shares stand on the record of stockholders as the owner of such share or
shares for all purposes, including, without limitation, the right to receive
dividends or other distributions, and to vote as such owner, and the Corporation
may hold any such stockholder of record liable for calls and assessments and
shall not be bound to recognize any equitable or legal claim to or interest in
any such share or shares on the part of any other person whether or not it shall
have express or other notice thereof.
Section 4. The Board may make such additional rules and regulations,
not inconsistent with these By-Laws, as it may deem expedient concerning the
issue, transfer and registration of certificates for shares of stock of the
Corporation. It may appoint or authorize any officer or officers to appoint, one
or more transfer agents or one or more registrars and may require all
certificates for shares of stock to bear the signature or signatures of any of
them.
Section 5. Upon notice to the Corporation by the holder of any
certificate representing shares of stock of the Corporation of any loss, theft,
destruction or mutilation of such certificate, the Corporation may issue a new
certificate of stock in the place of any certificate theretofore issued by it
which the holder thereof shall allege to have been lost, stolen, or destroyed or
which shall have been mutilated, and the Board may, in its discretion, require
such holder or his legal representatives to give to the Corporation a bond in
such sum, limited or unlimited, and in such form and with such surety or
sureties as the Board in its absolute discretion shall determine, and to
indemnify the Corporation against any claim which may be made against it on
account of the alleged loss, theft, or destruction of any such certificate, or
of the issuance of a new certificate. Anything herein to the contrary
notwithstanding, the Board, in its absolute discretion, may refuse to issue any
such new certificate, except pursuant to legal proceedings under the laws of the
State of Delaware.
ARTICLE VIII
Fiscal Year
The fiscal year of the Corporation shall be determined by the Board of
Directors.
ARTICLE IX
Seal
The Corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it, or a facsimile thereof, to be
impressed or affixed or reproduced or otherwise.
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ARTICLE X
Amendments
These By-Laws may be amended or repealed, or new By-Laws may be
adopted, by two-thirds of the whole Board of Directors at any meeting thereof;
provided that By-Laws adopted by the Board may be amended or repealed by the
stockholders.
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EXHIBIT 4.4
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.
<PAGE>
(l) "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
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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.
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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 subsidiary 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
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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
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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
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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
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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
certificate (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
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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 department 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
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<PAGE>
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.
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<PAGE>
(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;
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(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
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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.
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<PAGE>
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.
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<PAGE>
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.
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<PAGE>
Exhibit 4.5
FORM OF 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");
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 of the Agreement 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
<PAGE>
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, state and FICA 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 all
shares subject to this Option shall be fully exercisable and 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
one year after the Holder's death, but in no event after the date on which this
Option would otherwise terminate.
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<PAGE>
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;
provided, however, that the acquisition or ownership by PepsiCo, Inc., together
with its subsidiaries and affiliates, of Common Stock of the Corporation or its
successor by merger constituting less than 50% of the total number of shares of
such Common Stock outstanding shall not constitute a "change in control" for any
purpose of Paragraph 10 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
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<PAGE>
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:
-----------------------------------
Senior Vice President
-----------------------------------
Holder
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<PAGE>
ADDENDUM TO NONQUALIFIED STOCK OPTION FOR ELECTED OFFICERS OF
-------------------------------------------------------------
WHITMAN CORPORATION AND PEPSI-COLA GENERAL BOTTLERS, INC.
---------------------------------------------------------
Notwithstanding anything herein which would otherwise limit
the transferability of this Option, this Option may be
transferred by the Holder to (i) the spouse, children or
grandchildren of the Holder ("Immediate Family Members"); (ii)
a trust or trusts for the exclusive benefit of such Immediate
Family Members; or (iii) a partnership in which such Immediate
Family Members are the only partners, in any case provided
that (x) there is no consideration for any such transfer and
(y) subsequent transfers of transferred Options shall be
prohibited except transfers to those persons or entities to
which the Holder could have transferred this Option or
transfers otherwise in accordance with this Option. Following
transfer, this Option shall continue to be subject to the same
terms and conditions as were applicable immediately prior to
transfer, except that the term "Holder", for the purposes of
any permitted exercise of this Option, shall be deemed to
refer to the transferee. The Corporation disclaims any
obligation to provide notice to a transferee of circumstances
(including, without limitation, termination of employment)
which may result in early termination of this Option.
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<PAGE>
EXHIBIT 5
[LETTERHEAD OF SIDLEY & AUSTIN]
May 21, 1999
Whitman Corporation
3501 Algonquin Road
Rolling Meadows, Illinois 60008
Re: Whitman Corporation
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Whitman Corporation, a Delaware
corporation (the "Company"), in connection with the filing of a Registration
Statement as Post-Effective Amendment No. 1 to Form S-4 on Form S-8
(Registration No. 333-76549) (the "Registration Statement") under the Securities
Act of 1933, as amended (the "Securities Act"), relating to the registration of
11,496,988 shares of common stock, par value $.01 per share, of the Company (the
"New Shares"), to be offered to participants in the Whitman Corporation Revised
Stock Incentive Plan (the "Plan").
We are familiar with the proceedings to date with respect to
the proposed issuance and sale of the New Shares and have examined such records,
documents and questions of law and satisfied ourselves as to such matters of
fact, as we have considered relevant and necessary as a basis for this opinion
letter.
Based upon the foregoing, we are of the opinion that:
1. The Company is duly incorporated and validly existing under
the laws of the State of Delaware.
2. Each New Share will be legally issued, fully paid and
nonassessable when: (i) the Registration Statement shall have become effective
under the Securities Act; (ii) the Company's Board of Directors or a duly
authorized committee thereof shall have duly adopted final resolutions
authorizing the issuance and sale of the New Shares as contemplated by the
Registration Statement; (iii) such New Share shall have been duly issued and
sold in the manner
<PAGE>
SIDLEY & AUSTIN CHICAGO
Whitman Corporation
May 21, 1999
Page 2
contemplated by the Plan; and (iv) a certificate representing such New Share
shall have been duly executed, countersigned and registered and duly delivered
to the purchaser thereof against payment of the agreed consideration therefor
(not less than the par value thereof) in accordance with the Plan.
We do not find it necessary for the purposes of this opinion
letter to cover, and accordingly we express no opinion as to the application of
the securities or blue sky laws of the various states to the sale of the New
Shares.
This opinion letter is limited to the General Corporation Law
of the State of Delaware.
We hereby consent to the filing of this opinion letter as an
exhibit to the Registration Statement and to all references to our firm included
in or made a part of the Registration Statement.
Very truly yours,
/s/ Sidley & Austin
<PAGE>
EXHIBIT 23.1
CONSENT OF KPMG LLP
We consent to the incorporation by reference in this registration statement on
Form S-8 of Whitman Corporation of our report dated January 25, 1999, relating
to the consolidated balance sheets of Whitman Corporation and subsidiaries as of
the end of fiscal years 1998 and 1997 and the related consolidated statements of
income, shareholders' equity, and cash flows for each of the fiscal years 1998,
1997 and 1996, which report appears in the Whitman Corporation annual report on
Form 10-K/A.
/s/ KPMG LLP
KPMG LLP
Chicago, Illinois
May 20, 1999
<PAGE>
EXHIBIT 23.2
CONSENT OF KPMG LLP
We consent to the incorporation by reference in this registration statement on
Form S-8 of Whitman Corporation of our report dated February 19, 1999, relating
to the combined balance sheets of PepsiCo Bottling Operations as of December 26,
1998 and December 27, 1997 and the related combined statements of operations,
cash flows and shareholder's equity and accumulated other comprehensive loss for
each of the years in the three-year period ended December 26, 1998, which report
appears in the Whitman Corporation current report on Form 8-K dated April 22,
1999.
/s/ KPMG LLP
KPMG LLP
New York, New York
May 21, 1999
<PAGE>
EXHIBIT 24
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 shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, 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, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Bruce S. Chelberg
---------------------------------
<PAGE>
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 shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, 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, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Herbert M. Baum
---------------------------------
<PAGE>
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 shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, 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, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Richard G. Cline
---------------------------------
<PAGE>
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 shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, 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, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Pierre S. du Pont
---------------------------------
<PAGE>
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 shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, 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, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Archie R. Dykes
---------------------------------
<PAGE>
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 shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, 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, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Charles W. Gaillard
---------------------------------
<PAGE>
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 shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, 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, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Jarobin Gilbert, Jr.
---------------------------------
<PAGE>
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 shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, 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, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Victoria B. Jackson
---------------------------------
<PAGE>
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 shares of the Company's Common Stock pursuant to the
Company's Revised Stock Incentive Plan and a Registration Statement on Form S-8
for the registration of shares of the Company's Common Stock pursuant to the
Company's Retirement Savings Plan, hereby constitutes and appoints BRUCE S.
CHELBERG, WILLIAM B. MOORE and MARTIN M. ELLEN, 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, I have hereunto set my hand and seal this 20th day
of May, 1999.
/s/ Charles S. Locke
---------------------------------
