As filed with the Securities and Exchange Commission on May 3, 1999
Registration No. 333-75235
- -------------------------------------------------------------------------------
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
---------------------------
International Paper Company
(Exact Name of Registrant as specified in its charter)
New York ____ 13-0872805
(State of incorporation) (I.R.S. Employer
Identification No.)
Two Manhattanville Road
Purchase, New York 10577
(Address of principal executive offices)
---------------------------
Union Camp Corporation 1989 Stock Option and
Stock Award Plan
(Full title of Plan)
---------------------------
James W. Guedry, Esq.
Vice President and Secretary
International Paper Company
Two Manhattanville Road
Purchase, New York 10577
(914) 397-1500
(Name, address and telephone number,
including area code of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
=========================================================================================================================
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities Amount to be Price Per Offering Registration
to be Registered Registered Share Price Fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 5,225,442 Shares (1) N/A N/A $0 (2)
par value $1.00 per share ..
=========================================================================================================================
</TABLE>
(1) This post-effective Amendment No. 1 to Form S-4 on Form S-8 covers
5,225,442 shares of the Registrant's common stock, par value $1.00 per
share, originally registered on the Registration Statement on Form S-4 to
which this Post Effective Amendment relates. These 5,225,442 shares of
common stock are issuable pursuant to options granted under the Union
Camp Corporation 1989 Stock Option and Stock Award Plan (the "Plan"). See
"Purpose of Amendment."
(2) The registrant previously paid $409,445.53 upon the initial filing of the
Registration Statement to register 120,817,082 shares of common stock
issuable to the stockholders of Union Camp Corporation, including the
5,225,442 shares of common stock which may be issued pursuant to the
Plan.
<PAGE>
PURPOSE OF AMENDMENT
The purpose of this Post Effective Amendment No. 1 is to register on
Form S-8 5,225,442 shares of common stock, par value $1.00 per share, of
International Paper Company, a New York corporation (the "Registrant")
previously registered on Form S-4 (Registration No. 333-75235) for issuance
pursuant to options granted under the Union Camp Corporation 1989 Stock Option
and Stock Award Plan (the "Plan"), pursuant to the terms and conditions of the
Agreement and Plan of Merger dated as of November 24, 1998 between Union Camp
Corporation ("UCC"), the Registrant and Maple Acquisition, Inc. ("MergerSub"),
which provided for the merger of MergerSub with and into UCC. The merger was
consummated on April 30, 1999.
PART I
The following documents listed under this Part I and the documents
incorporated by reference under Item 3 of Part II to this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended (the "1933 Act"), and are
incorporated herein by reference.
ITEM 1. PLAN INFORMATION
The information required to be provided to participants pursuant to this
Item is set forth in the Prospectus for the Plan. A copy of the Plan is
attached to the Prospectus as Exhibit A.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The written statement required to be provided to participants pursuant to
this Item is set forth in the Prospectus referenced in Item 1 above.
2
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the registrant, International Paper Company,
a New York corporation (the "Registrant"), pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), are incorporated herein by
reference.
(1) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998;
(2) All reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since December 31, 1998;
(3) The Registrant's Current Reports on Form 8-K filed January 5,
1999 and March 10, 1999; and
(4) The description of the Registrant's capital stock which is
contained in the Registrant's registration statement on Form
8-A, dated July 20, 1976, as amended.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this registration statement to
the extent that a statement contained herein or in any other subsequently
filed document which also is incorporated or deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters with respect to the offering of the shares of
Common Stock registered hereby have been passed upon by James W. Guedry, Vice
President and Secretary of the Registrant. Mr. Guedry does not own a material
or significant amount of the outstanding shares of Common Stock. He
participates in the Registrant's Stock Option Plan and in its Salaried Savings
Plan, having an interest in a fund under that plan which invests in the
Registrant's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 721 of the New York Business Corporation Law ("NYBCL")
provides that, in addition to indemnification provided in Article 7 of the
NYBCL, a corporation may indemnify a director or the officer by a provision
contained in its certificate of incorporation or by-laws or by a duly
authorized resolution of its shareholders or directors or by agreement,
provided that no indemnification may be made to or on behalf of any director
or officer if a judgment or other final adjudication adverse to the director
or officer establishes that his acts
3
<PAGE>
were committed in bad faith or were the result of active and deliberate
dishonesty and material to the cause of action, or that such director or
officer personally gained in fact a financial profit or other advantage to
which he was not legally entitled.
Section 722(a) of the NYBCL provides that a corporation may indemnify
a director or officer made, or threatened to be made, a party to any action
other than a derivative action, whether civil or criminal, against judgments,
fines, amounts paid in settlement and reasonable expenses actually and
necessarily incurred as a result of such action, if such director or officer
acted, in good faith, for a purpose which he reasonably believed to be in, or
not opposed to, the best interests of the corporation and, in criminal actions
or proceedings, in addition, has no reasonable cause to believe that his
conduct was unlawful.
Section 722(c) of the NYBCL provides that a corporation may indemnify
a director or officer, made or threatened to be made a party in a derivative
action, against amounts paid in settlement and reasonable expenses actually
and necessarily incurred by him in connection with the defense or settlement
of such action or in connection with an appeal therein if such director or
officer acted, in good faith, for a purpose which he reasonably believed to be
in, or not opposed to, the best interests of the corporation, except that no
indemnification will be available under Section 722(c) of the NYBCL in respect
of a threatened or pending action which is settled or otherwise disposed of or
any claim as to which such director or officer shall have been adjudged liable
to the corporation, unless and only to the extent that the court in which the
action was brought, or, if no action was brought, any court of competent
jurisdiction, determines, upon application, that, in view of all the
circumstances of the case, the director or officer is fairly and reasonably
entitled to indemnity for such portion of the settlement amount and expenses
as the court deems proper.
Section 723 of the NYBCL specifies the manner in which payment of
indemnification under Section 722 of the NYBCL or indemnification permitted
under Section 721 of the NYBCL may be authorized by the corporation. It
provides that indemnification may be authorized by the corporation. It
provides that indemnification by a corporation is mandatory in any case in
which the director or officer has been successful, whether on the merits or
otherwise, in defending an action. In the event that the director or officer
has not been successful or the action is settled, indemnification must be
authorized by the appropriate corporate action as set forth in Section 723.
Section 724 of the NYBCL provides that, upon application by a
director or officer, indemnification may be awarded by a court to the extent
authorized under Section 722 and 723 of the NYBCL contains certain other
miscellaneous provisions affecting the indemnification of directors and
officers.
Section 726 of the NYBCL authorizes the purchase and maintenance of
insurance to indemnify (1) a corporation for any obligation which it incurs as
a result of the indemnification of directors and officers under the above
section, (2) directors and officers in instances in which they may be
indemnified by a corporation under such section, and (3) directors and
officers in instances in which they may not otherwise be indemnified by a
corporation under such section, provided the contract of insurance covering
such directors and officers provides, in a manner acceptable to the New York
State Superintendent of Insurance, for a retention amount and for
co-insurance.
Article VII of the Restated Certificate of Incorporation of the
Registrant provides in part as follows:
"Each Director of the Corporation shall be indemnified by the
Corporation against expenses actually and necessarily incurred by
him in connection with the defense of any action, suit or proceeding
in which he is made a party by reason of his being or having been a
Director of the Corporation, except in relation to matters as to
which he shall be adjudged in such action, suit or proceeding to be
liable for negligence or misconduct in the performance of his duties
as such Director, provided that such right of indemnification shall
not be deemed exclusive of any other rights to which a Director of
the Corporation may be entitled, under any by-law, agreement, vote
of stockholders or otherwise."
4
<PAGE>
Article IX of the By-laws, as amended, of the Registrant provides as
follows:
"The Corporation shall indemnify each Officer or Director who is
made, or threatened to be made, a party to any action by reason of
the fact that he or she is or was an Officer or Director of the
Corporation, or is or was serving at the request of the Corporation
in any capacity for the Corporation or any other enterprise, to the
fullest extent permitted by applicable law. The Corporation may, so
far as permitted by law, enter into an agreement to indemnify and
advance expenses to any Officer or Director who is made, or
threatened to be made, a party to any such action."
The Registrant has purchased certain liability insurance for its
officers and directors as permitted by Section 727 of the NYBCL and has
entered into indemnity agreements with its directors and certain officers
providing indemnification in addition to that provided under the NYBCL as
permitted by Section 721 of the NYBCL.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is therefore
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
5.1 Opinion of James W. Guedry, Vice President and Secretary of the
Registrant, regarding the legality of the securities being
registered.
23.1 Consent of Arthur Andersen LLP, independent public accountants
23.2 Consent of James W. Guedry (included in Exhibit 5.1)
24.1 Power of Attorney
99.1 Union Camp Corporation 1989 Stock Option and Stock Award Plan
ITEM 9. REQUIRED UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
1933 Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represents a fundamental change in the information
set forth in this registration statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this registration
statement or any material change to such information in this
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 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
5
<PAGE>
contained in periodic reports filed by the Registrant 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 1933
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each
filing of the Registrant'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 this 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
1933 Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the 1933 Act, the registrant has duly
caused this registration statement on form S-8 to be signed on its behalf by
the undersigned, thereunto duly authorized, in the city of Purchase, State of
New York, on this 1st day of May, 1999.
INTERNATIONAL PAPER COMPANY
By: /s/ JAMES W. GUEDRY
-------------------------------------
James W. Guedry
Secretary
Pursuant to the requirements of the 1933 Act, this registration
statement has been signed by the following persons in the capacities and on the
9th day of March, 1999.
Signature Title
- --------- ---------
/s/ JOHN T. DILLON*
- --------------------------
John T. Dillon Director and Chairman
of the Board
(Chief Executive Officer)
/s/ C. WESLEY SMITH*
- --------------------------
C. Wesley Smith Executive Vice President and
Director
/s/ PETER I. BIJUR*
- --------------------------
Peter I. Bijur Director
/s/ ROBERT J. EATON*
- --------------------------
Robert J. Eaton Director
/s/ JOHN A. GEORGES*
- --------------------------
John A. Georges Director
/s/ JAMES A. HENDERSON*
- --------------------------
James A. Henderson Director
/s/ JOHN R. KENNEDY*
- --------------------------
John R. Kennedy Director
<PAGE>
- --------------------------
Donald F. McHenry Director
/s/ PATRICK F. NOONAN*
- --------------------------
Patrick F. Noonan Director
/s/ JANE C. PFEIFFER*
- --------------------------
Jane C. Pfeiffer Director
/s/ CHARLES R. SHOEMATE*
- --------------------------
Charles R. Shoemate Director
/s/ MARIANNE M. PARRS*
- --------------------------
Marianne M. Parrs Senior Vice President and
Chief Financial Officer
/s/ANDREW R. LESSIN*
- --------------------------
Andrew R. Lessin Vice President and Controller
and Chief Accounting Officer
*By: /s/ JAMES W. GUEDRY*
--------------------------------
James W. Guedry, Attorney-in-fact
8
<PAGE>
Exhibit
No. Description of Exhibit Page No.
- ------- -------------------------- --------
5.1 Opinion of James W. Guedry, Vice President and
Secretary of the Registrant, regarding the legality
of the securities being registered. 10
23.1 Consent of Arthur Andersen LLP, independent public accountants. 11
23.2 Consent of James W. Guedry (included in Exhibit 5.1).
24.1 Power of Attorney 12
99.1 Union Camp Corporation 1989 Stock Option and Stock Award Plan 14
9
EXHIBIT 5.1
International Paper Company
Two Manhattanville Road
Purchase, New York 10577
April 30, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Gentlemen:
The following opinion is furnished by the undersigned in connection with
the Registration Statement on Form S-8 (the "Registration Statement") being
filed by International Paper Company, a New York corporation (the "Company")
under the Securities Act of 1933, as amended, relating to the issuance of up
to 5,225,442 shares of the Common Stock, par value $1.00 per share of the
Company (the "Shares"), in connection with the Union Camp Corporation 1989
Stock Option and Stock Award Plan (the "Plan").
I have examined originals or copies, certified or otherwise identified to
my satisfaction, or such corporate records and other documents, and have
conducted such other investigations of fact and law, as I have deemed
necessary or advisable for purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion that the Shares have
been duly authorized and, subject to the Registration Statement becoming
effective, when issued in accordance with the terms of the Plans, the Shares
will be legally issued, fully paid and nonassessable.
I consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to me in the Prospectus forming a part of the
Registration Statement.
Very truly yours,
/s/ James W. Guedry
------------------------------
James W. Guedry
10
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our reports dated
February 9, 1999 included in International Paper Company's Form 10- K for the
year ended December 31, 1998 and to all references to our Firm included in
this Registration Statement.
ARTHUR ANDERSEN LLP
New York, New York
April 28, 1999
11
EXHIBIT 24.1
POWER OF ATTORNEY
EACH PERSON WHOSE SIGNATURE APPEARS BELOW HEREBY CONSTITUTES AND
APPOINTS JAMES W. GUEDRY AND BARBARA L. SMITHERS, AND EACH OF THEM, HIS OR HER
TRUE AND LAWFUL ATTORNEYS-IN-FACT AND AGENTS WITH FULL POWER OF SUBSTITUTION AND
RESUBSTITUTION, FOR HIM OR HER AND IN HIS OR HER NAME, PLACE AND STEAD, AND IN
ANY AND ALL CAPACITIES, TO SIGN, EXECUTE AND AFFIX THEIR SEAL THERETO AND FILE
ANY AND ALL FORM S-8 REGISTRATION STATEMENTS FOR VARIOUS PLANS OF
INTERNATIONAL PAPER FOR ITS EMPLOYEES/DIRECTORS AND FORMER UNION CAMP
CORPORATION EMPLOYEES, ON BEHALF OF INTERNATIONAL PAPER COMPANY (THE
"COMPANY"), UNDER THE SECURITIES ACT OF 1933, AS AMENDED, TOGETHER WITH ANY
AND ALL AMENDMENTS THERETO (INCLUDING POST-EFFECTIVE AMENDMENTS) TO SUCH FORM
S-8 REGISTRATION STATEMENTS AND TO FILE THE SAME, WITH ALL EXHIBITS THERETO,
AND OTHER DOCUMENTS IN CONNECTION THEREWITH, WITH THE SECURITIES AND EXCHANGE
COMMISSION, AND HEREBY GRANTS TO SUCH ATTORNEYS-IN-FACT AND AGENTS, AND EACH
OF THEM, FULL POWER AND AUTHORITY TO DO AND PERFORM EACH AND EVERY ACT AND
THING REQUISITE AND NECESSARY TO BE DONE AS FULLY TO ALL INTENTS AND PURPOSES
AS HE OR SHE MIGHT OR COULD DO IN PERSON, HEREBY RATIFYING AND CONFIRMING ALL
THAT SAID ATTORNEYS-IN-FACT AND AGENTS OR ANY OF THEM OR HIS, HER OR THEIR
SUBSTITUTE OR SUBSTITUTES MAY LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE
HEREOF.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSON IN
THE CAPACITIES AND ON THE DATES INDICATED.
Signature Title Date
- --------- ----- ----
/s/ JOHN T. DILLON*
- ----------------------------- Director and Chairman March 9, 1999
John T. Dillon of the Board
(Chief Executive Officer)
/s/ C. WESLEY SMITH*
- ----------------------------- Executive Vice President and March 9, 1999
C. Wesley Smith Director
/s/ PETER I. BIJUR*
- ----------------------------- Director March 9, 1999
Peter I. Bijur
/s/ ROBERT J. EATON*
- ----------------------------- Director March 9, 1999
Robert J. Eaton
/s/ JOHN A. GEORGES*
- ----------------------------- Director March 9, 1999
John A. Georges
12
<PAGE>
/s/ JAMES A. HENDERSON*
- ----------------------------- Director March 9, 1999
James A. Henderson
/s/ JOHN R. KENNEDY*
- ----------------------------- Director March 9, 1999
John R. Kennedy
- ----------------------------- Director March 9, 1999
Donald F. McHenry
/s/ PATRICK F. NOONAN*
- ----------------------------- Director March 9, 1999
Patrick F. Noonan
/s/ JANE C. PFEIFFER*
- ----------------------------- Director March 9, 1999
Jane C. Pfeiffer
/s/ CHARLES R. SHOEMATE*
- ----------------------------- Director March 9, 1999
Charles R. Shoemate
/s/ MARIANNE M. PARRS*
- ----------------------------- Senior Vice President and March 9, 1999
Marianne M. Parrs Chief Financial Officer
/s/ANDREW R. LESSIN*
- ----------------------------- Vice President and Controller March 9, 1999
Andrew R. Lessin and Chief Accounting Officer
* By: /s/ JAMES W. GUEDRY
---------------------------------
James W. Guedry, Attorney-in-fact
13
Exhibit 99.1
UNION CAMP CORPORATION
1989 STOCK OPTION AND STOCK AWARD PLAN
1. Purpose
The purpose of this 1989 Stock Option and Stock Award Plan (the "Plan") is
to encourage and enable selected officers and other key employees of Union Camp
Corporation (the "Company") and its subsidiaries to acquire a proprietary
interest in the Company through the ownership of common stock of the Company.
Such ownership will provide such employees with a more direct stake in the
future welfare of the Company, and encourage them to remain with the Company
and its subsidiaries. It is also expected that the Plan will encourage
qualified persons to seek and accept employment with the Company and its
subsidiaries. Pursuant to the Plan, such employees will be offered the
opportunity to acquire such common stock through the grant of options, the
award of restricted stock under the Plan, bonuses payable, in stock or a
combination thereof.
As used herein, the term "subsidiary" shall mean any present or future
corporation which is or would be a "subsidiary corporation" of the Company as
the term is defined in Section 424 of the Internal Revenue Code of 1986, as
amended (the "Code").
2. Administration of the Plan
The Plan shall be administered by a Personnel, Compensation and Nominating
Committee (the "Committee") as appointed from time to time by the Board of
Directors of the Company (the "Board"), which committee shall consist of not
less than two (2) members of such Board; none of such members of the Committee
shall be eligible to be granted options or awarded restricted stock under the
Plan or receive bonuses payable in stock or shall have been so eligible within
one year prior to appointment.
In administering the Plan, the Committee may adopt rules and regulations
for carrying out the Plan. The interpretation and decision with regard to any
questions arising under the Plan made by the Committee shall be final and
conclusive on all employees of the Company and its subsidiaries participating
or eligible to participate in the Plan. The Committee shall determine the
employees to whom, and the time or times at which, grants or awards shall be
made and the number of shares to be included in the grants or awards.
<PAGE>
3. Shares of Stock Subject to the Plan
The total number of shares that may be optioned or awarded under the Plan
is 2,896,638 shares of the $1 par value common stock of the Company (the
"Common Stock") plus an additional amount of shares on January 1 each calendar
year, from and including 1994 to 1999, equal to one percent (1.0%) of the
number of shares of Common Stock outstanding on December 31 of the immediately
preceding year (the "Additional Annual Increment"), of which (i) 579,327 shares
plus an additional amount of shares each calendar year equal to twenty percent
(20%) of the Additional Annual Increment with respect to such year may be
awarded as restricted stock, (ii) from November 30, 1993 until April 24, 1999,
the current expiration date of the plan, no more than 750,000 shares may be
optioned to any one executive and (iii) no more than one million (1,000,000)
shares may be awarded as Incentive Stock Options, as defined in Section 422 of
the Code, except that, notwithstanding any of the foregoing limitations set
forth in this Paragraph 3, said numbers of shares shall be adjusted as provided
in Paragraph 12. Any shares subject to an option which for any reason expires
or is terminated unexercised and any restricted stock which is forfeited may
again be optioned or awarded under the Plan.
4. Eligibility
Key employees, including officers, of the Company and its subsidiaries
(but excluding members of the Committee) are eligible to be granted options and
awarded restricted stock under the Plan and to have their bonuses payable in
stock. The employees who shall receive awards or options under the Plan shall
be selected from time to time by the Committee, in its sole discretion, from
among those eligible, and the Committee shall determine, in its sole
discretion, the number of shares to be covered by the award or awards and by
the option or options granted to such employee selected.
5. Duration of the Plan
No award or option may be granted under the Plan after April 24, 1999, but
awards or options theretofore granted may extend beyond that date.
6. Terms and Conditions of Stock Options
All options granted under this Plan shall be either Incentive Stock
Options as defined in Section 422 of the Code or options other than Incentive
Stock Options. Each such option shall be subject to all the applicable
provisions of the Plan, including the following terms and conditions, and to
such other terms and conditions not inconsistent therewith as the Committee
shall determine.
15
<PAGE>
(a) The option price per share shall be determined by the Committee, but
shall not be less than 100% of the fair market value at the time the option is
granted. The fair market value shall be the mean of the high and low sale
prices for the Common Stock as reported on the Composite Tape for New York
Stock Exchange issues for the day on which the option is granted. If there is
no sale of the shares on such Exchange on the date the option is granted, the
mean of the bid and asked prices on such Exchange at the close of the market on
such date shall be deemed to be the fair market value of the shares. In the
event that the method for determining the fair market value of the shares
provided for in this Paragraph 6 (a) shall not be practicable, then the fair
market value per share shall be determined by such other reasonable method as
the Committee shall, in its discretion, select and apply at the time of grant
of the option concerned.
(b) Each option shall be exercisable during and over such period ending
not later than ten years from the date it was granted, as may be determined by
the Committee and stated in the option.
(c) No option shall be exercisable within two years from the date of the
granting of the option, except as provided in Paragraphs 6 (j), 9 and 12 of the
Plan.
(d) Each option shall state whether it will or will not be treated as an
Incentive Stock Option.
(e) Each option may be exercised by giving written notice to the Company
specifying the number of shares to be purchased, which shall be accompanied by
payment in full including applicable taxes, if any. Payment shall be (i) in
cash, or (ii) in shares of Common Stock of the Company already owned by the
optionee (the value of such Stock shall be its fair market value on the date of
exercise as determined under Paragraph 6 (a)), or (iii) by a combination of
cash and shares of Common Stock of the Company. No option shall be exercised
for less than the lesser of 50 shares or the full number of shares for which
the option is then exercisable. No optionee shall have any rights to dividends
or other rights of a shareholder with respect to shares subject to his option
until he has given written notice of exercise of his option and paid in full
for such shares. Payment of taxes, if any, shall be in cash at time of exercise
or on the applicable tax date under Section 83 of the Code, if later, provided,
however, tax withholding obligations may be met by the withholding of Common
Stock otherwise deliverable to the optionee pursuant to procedures approved by
the Committee. In no event shall Common Stock be delivered to any optionee
until he has paid to the Company in cash the amount of tax required to be
withheld by the Company or has elected to have his tax withholding obligations
met by the withholding of Common Stock in accordance with the procedures
approved by the Committee, except that in the
16
<PAGE>
case of later tax dates under Section 83 of the Code, the Company may
deliver Common Stock prior to the optionee's satisfaction of tax withholding
obligations if the optionee makes arrangements satisfactory to the Company that
such obligations will be met on the applicable tax date.
(f) Notwithstanding the foregoing Paragraph 6 (e) of the Plan, each option
granted hereunder may provide, or be amended to provide, the right either (i)
to exercise such option in whole or in part without any payment of the option
price, or (ii) to request the Committee to permit, in its sole discretion, such
exercise without any payment of the option price. If an option is exercised
without a payment of the option price, the optionee shall be entitled to
receive that number of whole shares as is determined by dividing (a) an amount
equal to fair market value per share on the date of exercise as determined
under Paragraph 6(a) into (b) an amount equal to the excess of the total fair
market value of the shares on such date as so determined with respect to which
the option is being exercised over the total cash purchase price of such shares
as set forth in the option. Fractional shares will be rounded to the next
lowest number and the optionee will receive cash in lieu thereof. At the sole
discretion of the Committee, or as specified in the option, the settlement of
all or part of an optionee's rights under this Paragraph 6 (f) may be made in
cash in an amount equal to the fair market value of the shares otherwise
payable hereunder. The number of shares with respect to which any option is
exercised under this Paragraph 6 (f) shall reduce the number of shares
thereafter available for exercise under the option, and such shares thereafter
may not again be optioned under the Plan.
(g) Each option may provide, or be amended to provide, that the optionee
may exercise the option without payment of the option price by delivery to the
Company of an exercise notice and irrevocable instructions to deliver shares of
Common Stock directly to the stock broker named therein in exchange for payment
of the option price and withholding taxes by such broker to the Company.
(h) If an optionee's employment by the company or a subsidiary terminates
by reason of his retirement under a retirement plan of the Company or a
subsidiary, his option may thereafter be exercised whenever two years from the
date of grant have elapsed until the expiration of the stated period of the
option; provided, however, that if the optionee dies after such termination of
employment, any unexercised option may thereafter be immediately exercised in
full by the legal representative of his estate or by the legatee of the
optionee under his last will until the expiration of the stated period of the
option; provided, further, that any right granted to such an optionee pursuant
to Paragraph 6 (f) of the Plan, may be exercised by such optionee (or his legal
representative or legatee in the event his death) whenever two years from the
date of grant have elapsed, but may not be
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exercised after the expiration of the period of three years from the date
of such termination of employment or the stated period of the option, whichever
period is shorter.
(i) If an optionee's employment by the Company or a subsidiary terminates
by reason of permanent disability, as determined by the Committee, his
option may thereafter be exercised whenever two years from the date of grant
have elapsed until the expiration of the stated period of the option;
provided, however, that if the optionee dies after such termination of
employment, any unexercised option may thereafter be immediately exercised in
full by the legal representative of his estate or by the legatee of the
optionee under his last will until the expiration of the stated period of the
option; provided, further, that any right granted to such an optionee pursuant
to Paragraph 6 (f) of the Plan, may be exercised by such optionee (or
his legal representative or legatee in the event his death) whenever two years
from the date of grant have elapsed, but may not be exercised after the
expiration of the period of three years from the date of such termination of
employment or the stated period of the option, whichever period is shorter.
(j) If an optionee's employment by the Company or a subsidiary terminates
by reason of his death, his option may thereafter be immediately exercised in
full by the legal representative of his estate or by the legatee of the
optionee under his last will until the expiration of the stated period of the
option; provided, however, that any right granted to such an optionee pursuant
to Paragraph 6 (f) of the Plan, may immediately after his death be exercised in
full by said legal representative or legatee for a period of three years from
the date of his death or the expiration of the stated period of the option,
whichever period is shorter.
(k) Unless otherwise determined by the Committee, if an optionee's
employment terminates for any reason other than death, retirement or permanent
disability, his option shall thereupon terminate.
(l) The option by its terms shall be personal and shall not be
transferable by the optionee otherwise than by will or by the laws of descent
and distribution. During the lifetime of an optionee, the option shall be
exercisable only by him.
(m) Notwithstanding any intent to grant Incentive Stock Options, an option
granted will not be considered an Incentive Stock Option to the extent that it
together with any earlier Incentive Stock Options permits the exercise for the
first time in any calendar year of more than $100,000 in value of Common Stock
(determined at the time of grant).
7. Terms and Conditions of Restricted Stock Awards
All awards of restricted stock under the Plan shall be subject to all the
applicable provisions of the Plan, including the following terms and
conditions, and to such other terms and conditions not inconsistent therewith,
as the Committee shall determine.
(a) Awards of restricted stock may be in addition to or in lieu of option
grants.
(b) During a period set by the Committee at the time of each award of
restricted stock (the "restriction period"), the recipient shall not be
permitted to sell, transfer, pledge, or assign the shares of restricted stock.
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(c) Shares of restricted stock shall become free of all restrictions if
the recipient dies or his employment terminates by reason of permanent
disability, as determined by the Committee, during the restriction period and,
to the extent set by the Committee at the time of the award or later, if the
recipient retires under a retirement plan of the Company or a subsidiary during
such period. The Committee may require medical evidence of permanent
disability, including medical examinations by physicians selected by it. If the
Committee determines that any such recipient is not permanently disabled or
that a retiree's restricted stock is not to become free of restrictions, the
restricted stock held by either such recipient, as the case may be, shall be
forfeited and revert to the Company.
(d) Shares of restricted stock shall be forfeited and revert to the
Company upon the recipient's termination of employment during the restriction
period for any reason other than death, permanent disability or retirement
under a retirement plan of the Company or a subsidiary except to the extent the
Committee, in its sole discretion, finds that such forfeiture might not be in
the best interest of the Company and, therefore, waives all or part of the
application of this provision to the restricted stock held by such recipient.
(e) Stock certificates for restricted stock shall be registered in the
name of the recipient but shall be appropriately legended and returned to the
Company by the recipient, together with a stock power, endorsed in blank by the
recipient. The recipient shall be entitled to vote shares of restricted stock
and shall be entitled to all dividends paid thereon, except that dividends paid
in Common Stock or other property shall also be subject to the same
restrictions.
(f) Restricted stock shall become free of the foregoing restrictions upon
expiration of the applicable restriction period and the Company shall deliver
Common Stock certificates evidencing such stock.
(g) Recipients of restricted stock shall be required to pay taxes to the
Company upon the expiration of restriction periods or such earlier dates as
elected pursuant to Section 83 of the Code; provided, however, tax withholding
obligations may be met by the withholding of Common Stock otherwise deliverable
to the recipient pursuant to procedures approved by the Committee. In no event
shall Common Stock be delivered to any awardee until to the has paid to the
Company in cash the amount of tax required to be withheld by the Company or has
elected to have his withholding obligations met by the withholding of Common
Stock in accordance with the procedures approved by the Committee.
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8. Bonuses Payable in Stock
In lieu of cash bonuses otherwise payable under the Company's compensation
practices to employees eligible to participate in the Plan, the Committee, in
its sole discretion, may determine that such bonuses shall be payable in stock
or partly in cash. Such bonuses shall be in consideration of services
previously performed and shall consist of shares of Common Stock free of any
restrictions imposed by the Plan. The number of shares of Common Stock payable
in lieu of an amount of each bonus otherwise payable shall be determined by
dividing such amount by the fair market value of one share of Common Stock on
the date the bonus is payable,.with the fair market value determined in
accordance with Paragraph 6 (a). The Company shall withhold from any such bonus
an amount of cash sufficient to meet its tax withholding obligation.
9. Limited Rights
Any option granted under the Plan may, at the discretion of the Committee,
contain provisions for limited rights, as described herein. A limited right
shall be exercisable upon the occurrence of an event specified in the option as
an exercise event, and shall expire thirty (30) days after the occurrence of
such event. Exercise events may include, at the discretion of the Committee and
as specified in the option, consummation of a tender or exchange offer for at
least 20% of the Company's Common Stock outstanding at the commencement of such
offer or a proxy contest the result of which is the replacement of a majority
of the members of the Company's Board, or consummation of a merger or
reorganization of the Company in which the Company does not survive or in which
the shareholders of the Company receive stock or securities of another
corporation or cash, or a liquidation or dissolution of the Company or other
similar events. Limited rights shall permit optionees to receive in cash either
(i) the highest market price per share for each share covered by an option,
without regard to the date on which the option otherwise would be exercisable,
which the Company's Common Stock traded on the New York Stock Exchange for the
sixty days immediately preceding the exercise event or (ii) if provided by the
Committee in its discretion at the time of grant, the highest market price per
share for each share covered by the option which the Company's Common Stock
traded on the New York Stock Exchange on the date of exercise, less the option
price per share specified in the option. In the event the exercise event is
consummation of a tender or exchange offer, the value per share set by the
tenderor or offeror shall be substituted for the highest market price per share
provided in clause (i) in the preceding sentence. Limited rights shall not
extend the exercise period of any option and, to the extent exercised, shall
reduce the shares of Company Common Stock available under the Plan and the
shares of such Stock covered by the options to which the limited rights relate.
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10. Transfer, Leave of Absence, Etc.
For the purpose of the Plan: (a) a transfer of an employee from the
Company to a subsidiary, or vice versa, or from one subsidiary to another, and
(b) a leave of absence, duly authorized in writing by the Company, shall not be
deemed a termination of employment.
11. Rights of Employees
(a) No person shall have any rights or claims under the Plan except
in accordance with the provisions of the Plan.
(b) Nothing contained in the Plan shall be deemed to give any
employee the right to be retained in the service of the Company or its
subsidiaries.
12. Changes in Capital
Upon changes in the Common Stock by a stock dividend, stock split, reverse
split, subdivision, recapitalization, merger, consolidation (whether or not the
Company is a surviving corporation) combination or exchange of shares,
separation, reorganization or liquidation, the number and class of shares
available under the Plan as to which stock options and restricted stock may be
awarded, the number and class of shares under each option and the option price
per share shall be correspondingly adjusted by the Committee, such adjustments
to be made in the case of outstanding options without change in the total price
applicable to such options; provided, however, no such adjustments shall be
made in the case of stock dividends aggregating in any fiscal year of the
Company not more than 10% of the Common Stock issued and outstanding at the
beginning of such year or in the case of one or more splits, subdivisions or
combinations of the Common Stock during any fiscal year of the Company
resulting in an increase or decrease of not more than 10% of the Common Stock
issued and outstanding at the beginning of such year.
In the event of a "Change in Control" (as hereinafter defined) (i) all
restrictions on restricted stock previously awarded to recipients under the
Plan shall lapse, and (ii) all stock options and stock appreciation rights
which are outstanding shall become immediately exercisable in full without
regard to any limitations of time or amount otherwise contained in the Plan,
the options or the rights. Further, in the event of Change in Control the
Committee may determine that the options shall be adjusted and make such
adjustments by substituting for Common Stock subject to options, stock or other
securities of any successor corporation to the Company or that may be issuable
by another corporation that is
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a party to the Change in Control if such stock or other securities are
publicly traded or, if such stock or other securities are not publicly traded,
by substituting stock or other securities of a parent or affiliate of such
corporation if the stock or other securities of such parent or affiliate are
publicly traded, in which event the aggregate option price shall remain the
same and the amount of shares or other securities subject to option shall be
the amount of shares or other securities which could have been purchased on the
day of the Change in Control with the proceeds which would have been received
by the optionee if the option had been exercised in full prior to such Change
in Control and the optionee had exchanged all of such shares in the Change in
Control transaction . No optionee shall have any right to prevent the
consummation of any of the foregoing acts affecting the number of shares
available to the optionee.
For the purposes of the foregoing, Change in Control means the occurrence
of any of the following events:
(a) any "person", as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than
the Company, any employee benefit plan sponsored by the Company, any trustee or
other fiduciary holding securities under an employee benefit plan of the
Company, or any corporation owned, directly or indirectly, by the stockholders
of the Company in substantially the same proportions as their ownership of
stock of the Company), is or becomes (other than pursuant to a transaction
which is deemed to be a "Non-Qualifying Transaction" (as hereinafter defined))
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing 50% or more
of the combined voting power of the Corporation's then outstanding securities
eligible to vote for the election of the Board (the "Company Voting
Securities");
(b) individuals who, on October 29, 1996, constitute the Board (the
"Incumbent Directors") cease for any reason to constitute at least a majority
of the Board, provided that any person becoming a director subsequent to
October 29, 1996, whose election or nomination for election was approved by a
vote of at least two-thirds of the Incumbent Directors then on the Board
(either by a specific vote or by approval of the proxy statement of the Company
in which such person is named as a nominee for director, without written
objection to such nomination) shall be an Incumbent Director; provided,
however, that no individual initially elected or nominated as a director of the
Company as a result of an actual or threatened election contest with respect to
directors (including without limitation in order to settle any such contest) or
any other actual or threatened solicitation of proxies by or on behalf of any
person other than the Board shall be an Incumbent Director;
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(c) the stockholders of the Company approve a merger, consolidations,
statutory share exchange or similar form of corporate transaction involving the
Company or any of its subsidiaries that requires such approval, whether for
such transaction or the issuance of securities in the transaction (a "Business
Combination", unless immediately following such Business Combination: (i) more
than 50% of the total voting power of (x) the corporation resulting form such
Business Combination (the "Surviving Corporation"), or (y) if applicable, the
ultimate parent corporation that directly or indirectly has beneficial
ownership of 100% of the voting securities eligible to elect directors of the
Surviving Corporation (the "Parent Corporation"), will be represented by
Company Voting Securities that were outstanding immediately prior to such
Business Combination (or, if applicable, shares into which such Company Voting
Securities were converted pursuant to such Business Combination), (ii) no
person (other than any employee benefit plan sponsored or maintained by the
Surviving Corporation or the Parent Corporation) will be or becomes the
beneficial owner, directly or indirectly, of 25% or more of the total voting
power of the outstanding voting securities eligible to elect directors of the
Parent Corporation (or, if there is no Parent Corporation, the Surviving
Corporation), and (iii) at least a majority of the members of the board of
directors of the Parent Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) following the consummation of the Business Combination
were Incumbent Directors at the time of the Board's approval of the execution
of the initial agreement providing for such Business Combination (any Business
Combination which satisfies all of the criteria specified in (i), (ii) and
(iii) above shall be deemed to be a "Non-Qualifying Transaction"); or
(d) the stockholders of the Company approve a plan of complete liquidation
or dissolution of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets.
Anything contained herein to the contrary notwithstanding, a Change in
Control of the Company shall be deemed not to have occurred with respect to any
optionee who participates as an investor in the acquiring entity (which shall
include the Parent Corporation when applicable) in such Change in Control
transaction, unless such acquiring entity is a publicly-traded corporation and
the optionee's interests in such acquiring entity immediately prior to the
acquisition constitutes less than one percent (1%) of both (1) the combined
voting power of such entity's outstanding securities and (2) the aggregate fair
market value of such entity's outstanding equity securities. For this purpose
the optionee's interest in any equity securities shall include any such
interest of which such optionee is a "beneficial owner" as defined in Rule
13d-3 under the Exchange Act.
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13. Use of Proceeds
Proceeds from the sale of shares pursuant to options granted under this
Plan shall constitute general funds of the Company.
14. Amendments
The Board may amend, alter or discontinue the Plan, including without
limitation any amendment considered to be advisable by reason of changes to the
United States Internal Revenue Code, but no amendment, alteration or
discontinuation shall be made which would impair the rights of any holder of an
award of restricted stock or option or stock bonus theretofore granted, without
his consent, or which, without the approval of the shareholders, would:
(a) Except as is provided in Paragraph 12 of the Plan, increase the
total number of shares reserved for the purpose of the Plan.
(b) Except as is provided in Paragraph 6(f) of the Plan, decrease the
option price of an option to less than 100% of the fair market value on
the date of the granting of the option.
(c) Extend the duration of the Plan.
The Committee may amend the terms of any award of restricted stock or
option theretofore granted, retroactively or prospectively, but no such
amendment shall impair the rights of any holder without his consent.
Adopted April 25, 1989
As Amended April 28, 1992
As Amended April 27, 1993
As Amended November 30, 1993
As Amended October 29, 1996
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