<PAGE> 1
As filed with the Securities and Exchange Commission on April , 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KELLOGG COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 38-0710690
(State of Incorporation) (I.R.S. Employer Indemnification No.)
_________________________________
ONE KELLOGG SQUARE
BATTLE CREEK, MICHIGAN 49016
(Address, including zip code, of principal executive offices)
_________________________________
1993 KELLOGG EMPLOYEE STOCK OWNERSHIP PLAN
Richard M. Clark
Senior Vice President, General Counsel and Secretary
Kellogg Company
One Kellogg Square
Battle Creek, Michigan 49016
(616) 961-2181
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF PROPOSED
SECURITIES AMOUNT PROPOSED AGGREGATE AMOUNT OF
TO BE TO BE MAX. OFFERING OFFERING REGISTRATION
REGISTERED REGISTERED PRICE PER SHARE PRICE FEE
<S> <C> <C> <C> <C>
Common Stock, 6,000,000 $51.4375 (2) $308,625,000(2) $106,422.41
par value $.25
per share
</TABLE>
(1) Pursuant to Rule 416, this registration statement also includes an
indeterminable number of additional shares that may become issuable as a
result of the antidilution adjustment provisions of the Plan.
(2) Pursuant to Rule 457(h) and solely for the purpose of calculating the
applicable registration fee, the proposed maximum offering price per
share has been estimated at $51.4375, which amount represents the
average of the high and low sales prices reported for the shares on the
New York Stock Exchange on April 25, 1994.
<PAGE> 2
PART I
INFORMATION REQUIRED IN A SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1993 (File No. 1-4171);
(b) All other reports, if any, filed by the Registrant
pursuant to Sections 13(a) or 15(d) of the Securities Exchange
Act of 1934 since the end of the fiscal year covered by the
annual report referred to in (a) above;
(c) The description of the Registrant's common stock
contained in Item 14 of the Registrant's Application for
Registration of Securities on a National Securities Exchange
on Form 10 filed pursuant to the Securities Exchange Act,
dated March 20, 1959, including any subsequent amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment to this Registration Statement which
indicates that all the shares of Common Stock offered hereby
have been sold or which deregisters all of such shares then
remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be
modified or superseded for the purposes of this Registration
Statement to the extent that a statement contained in any
subsequently filed document which also is or is deemed to be
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<PAGE> 3
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.
See Item 3.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The financial statements incorporated in this
Registration Statement by reference to the Annual Report on
Form 10-K of the Registrant for the year ended December 31,
1993, have been so incorporated in reliance on the report of
Price Waterhouse, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law
contains provisions under which corporations organized
thereunder are permitted or required in certain circumstances
to indemnify directors, officers and others against certain
liabilities, and are permitted to maintain insurance to cover
such liabilities against which such corporations may not
directly indemnify such persons. The Amended and Restated
Certificate of Incorporation and the Bylaws of the Registrant,
as amended, grant indemnification to such persons to the
extent permitted by Delaware law and authorize the purchase of
such insurance. The Registrant maintains policies of
indemnity insurance for its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The exhibits to this Registration Statement are listed
in the Exhibit Index on page E-1 of this Registration
Statement, which index is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective
amendment to this Registration Statement:
3
<PAGE> 4
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set
forth in the Registration Statement.
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the Registration Statement or any
material change to such information in the
Registration Statement;
Provided, however, that paragraph (a)(1)(i) and
(a)(1)(ii) shall not apply if the information required to
be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new Registration
Statement relating to the securities offered 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 Securities Act
of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered
herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
4
<PAGE> 5
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the provisions described in Item 6, 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.
5
<PAGE> 6
SIGNATURES
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 Battle Creek, State of Michigan, on April 25, 1994.
KELLOGG COMPANY
By: /s/ARNOLD G. LANGBO
Arnold G. Langbo
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities
indicated below on April 25, 1994.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
--------- --------
<S> <C>
/s/ARNOLD G. LANGBO Chairman of the Board and
- --------------------------------------- Chief Executive Officer; Director
Arnold G. Langbo (Principal Executive Officer)
/s/CHARLES W. ELLIOTT Executive Vice President -
- -------------------------------------- Administration and
Charles W. Elliott Chief Financial Officer; Director
(Principal Financial Officer)
/s/ALAN TAYLOR Corporate Controller
- ------------------------------------------- (Principal Accounting Officer)
Alan Taylor
Norman A. Brown * Director
Claudio X. Gonzalez * Director
Gordon Gund * Director
William E. LaMothe * Director
Russell G. Mawby * Director
Ann McLaughlin * Director
J. Richard Munro * Director
Harold A. Poling * Director
Donald Rumsfeld * Director
Timothy P. Smucker * Director
Dolores D. Wharton * Director
* By: /s/RICHARD M. CLARK
----------------------------------
Richard M. Clark
As Attorney-in-Fact
</TABLE>
6
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
ELECTRONIC (E),
PAPER (P),
INCORP. BY
EXHIBIT NO. DESCRIPTION REF. (IBRF)
<S> <C> <C>
4.01 Restated Certificate of Incorporation IBRF
of Kellogg Company, as amended,
incorporated by reference to Exhibit 3.01
to the Registrant's Annual Report on
Form 10-K for the fiscal year ended
December 31, 1991, Commission file
number 1-4171.
4.02 Bylaws of Kellogg Company, as amended, IBRF
incorporated by reference to Exhibit 3.02
to the Registrant's Annual Report on
Form 10-K for the fiscal year ended
December 31, 1993, Commission file
number 1-4171.
5.01 Opinion of Richard M. Clark, as to the E
validity of the Securities.
23.01 Consent of Price Waterhouse E
23.02 Consent of Richard M. Clark (included in E
Exhibit 5.01)
24.01 Powers of Attorney E
99.01 1993 Kellogg Employee Stock Ownership Plan E
</TABLE>
<PAGE> 1
Exhibit 5.01
April 25, 1994
Kellogg Company
One Kellogg Square
Battle Creek, Michigan 49016-3599
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
This refers to the Registration Statement on Form S-8 (the "Registration
Statement") being filed on or about the date hereof by Kellogg Company (the
"Company") with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act") relative to 6,000,000 shares
of Kellogg Company Common Stock, $.25 par value per share (the "Shares"), to be
issued under the 1993 Kellogg Employee Stock Ownership Plan (the "Plan").
I am Senior Vice President, General Counsel and Secretary of the Company. I,
or counsel under my general supervision, have participated in the preparation
of the Registration Statement and the proceedings to date with respect to the
establishment and administration of the Plan. In rendering the opinion
hereinafter set forth, I, or counsel under my general supervision, have
examined the minutes of the proceedings of the stockholders and the Board of
Directors of the Company, the Plan and such other agreements, documents,
instruments, records and regulatory approvals as I deemed necessary or
appropriate under the circumstances for me to express the opinion hereinafter
set forth. As to various factual matters that are material to my opinion, I
have relied upon certificates of officers of the Company and certificates and
orders of various public officials where relevant.
In making the foregoing examinations, I have assumed the genuineness of all
signatures, the authenticity of all documents submitted to me as originals, the
conformity to the original documents of all documents submitted to me as
copies, the authority of the person or persons who executed each of such
documents on behalf of any person or entity other than the Company, the
correctness and accuracy of all certificates of officers of the Company and the
correctness and accuracy of all certificates and orders of various public
officials.
Based upon and subject to the assumptions qualifications, limitations and
exceptions set forth herein, I am of the opinion that the Shares, when issued
in accordance with the Plan against payment in full of the purchase price
therefor, will be validly issued, fully paid and nonassessable.
My conclusions are limited to the matters expressly set forth as my "opinion"
in the immediately preceding paragraph, and no opinion is implied or to be
inferred beyond the matters expressly so stated. Such opinion is given as of
the date hereof, and I expressly decline any undertaking to revise or update
such opinion subsequent to the date hereof or to advise the Commission of any
matter arising subsequent to the date hereof which would cause me to modify, in
whole or in part, such opinion.
<PAGE> 2
Kellogg Company
April 25, 1994
Page 2
I am admitted to the bars of the states of New York and Michigan and I express
no opinion as to the laws of any jurisdiction other than the laws of the states
of New York and Michigan, the general corporate laws of the state of Delaware
and the laws of the United States.
I hereby consent to the filing of this Opinion as an Exhibit to the
Registration Statement and to all references to myself included in the
prospectus relating to the Plan or otherwise made a part of the Registration
Statement, or in any amendments or supplements thereto. In giving this
consent, I do not admit that I am in the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission promulgated thereunder.
Very truly yours,
/s/ RICHARD M. CLARK
Richard M. Clark
ls
<PAGE> 1
Exhibit 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 4, 1994, appearing on page
F-2 of Kellogg Company's Annual Report on Form 10-K for the year ended December
31, 1993. We also consent to the reference to us under the heading "Interests
of Named Experts and Counsel" in this Registration Statement.
/s/ PRICE WATERHOUSE
PRICE WATERHOUSE
Battle Creek, MI
April 27, 1994
<PAGE> 1
Exhibit 24.01
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard M. Clark and Edward J. Gildea
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution, for him or her and in his or her name, place and stead,
in any and all capacities, to sign the Registration Statement on Form S-8 of
Kellogg Company relating to the 1993 Kellogg Employee Stock Ownership Plan to
be filed with the Securities and Exchange Commission, and any and all
amendments (including post-effective amendments) thereto, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
This 22nd day of April 1994.
<TABLE>
<S> <C>
/s/ NORMAN A. BROWN /s/ J. RICHARD MUNRO
- ----------------------------------------------- ------------------------------------------------
Norman A. Brown J. Richard Munro
/s/ CLAUDIO X. GONZALEZ /s/ HAROLD A. POLING
- ----------------------------------------------- ------------------------------------------------
Claudio X. Gonzalez Harold A. Poling
/s/ GORDON GUND /s/ DONALD RUMSFELD
- ----------------------------------------------- ------------------------------------------------
Gordon Gund Donald Rumsfeld
/s/ WILLIAM E. LAMOTHE /s/ TIMOTHY P. SMUCKER
- ----------------------------------------------- -----------------------------------------------
William E. LaMothe Timothy P. Smucker
/s/ RUSSELL G. MAWBY /s/ DOLORES D. WHARTON
- ----------------------------------------------- -----------------------------------------------
Russell G. Mawby Dolores D. Wharton
/s/ ANN MCLAUGHLIN
- -----------------------------------------------
Ann McLaughlin
</TABLE>
<PAGE> 1
EXHIBIT 99.01
KELLOGG COMPANY
1993 KELLOGG EMPLOYEE STOCK OWNERSHIP PLAN
ARTICLE I
Purpose
The purpose of this 1993 Kellogg Employee Stock Ownership Plan (the "Plan")
is to enable Kellogg Company (the "Company") to offer employees of the Company
and Designated Subsidiaries (defined below) who are not eligible to participate
in the Company's Key Employee Long Term Incentive Plan stock options to purchase
shares of Company Common Stock (defined below) or other incentive awards,
thereby attracting, retaining and rewarding such employees, and strengthening
the mutuality of interests between employees and the Company's stockholders. The
Plan is intended as a means by which such employees can enlarge their
proprietary interest in the Company, thereby encouraging the judgment,
initiative and efforts of such employees for the successful conduct of the
Company's business.
ARTICLE II
Definitions
For purposes of this Plan, the following terms shall have the following
meanings:
2.1 "Administrative Committee" shall mean the Administrative Committee of
the Company consisting of two or more officers or executives (who may be
non-officers) of the Company appointed by the Chief Executive Officer of the
Company, none of whom shall be eligible to receive any Award pursuant to this
Plan.
2.2 "Award" shall mean any award under this Plan of any Stock Option or
Other Incentive Award.
2.3 "Board" shall mean the Board of Directors of the Company.
2.4 "Code" shall mean the Internal Revenue Code of 1986, as amended, and
the regulations and rules thereunder.
2.5 "Committee" shall mean the Compensation Committee of the Board of
Directors of the Company consisting of two or more directors of the Company,
none of whom shall be eligible to receive any Award pursuant to this Plan.
2.6 "Common Stock" or "Stock" means the Common Stock, $0.25 par value per
share, of the Company.
2.7 "Designated Subsidiary" shall mean one of such subsidiaries of the
Company, fifty percent (50%) or more of the voting capital stock of which is
owned, directly or indirectly, by the Company, which is specifically designated
from time to time by the Committee or the Board.
2.8 "Disability" shall mean Total Disability as defined in the Company's
Long Term Disability Plan.
2.9 "Fair Market Value" for purposes of this Plan shall mean, as of any
date, the mean between the high and low sales prices of a share of Common Stock
as reported (a) on the Composite Tape for securities listed on the New York
Stock Exchange, or (b) if the Common Stock is not listed or admitted for trading
on the New York Stock Exchange, on the principal national securities exchange on
which the Common stock is listed or admitted for trading, or (c) if the Common
Stock is not listed or admitted for trading on any national securities exchange,
on the National Market System of the National Association of Securities Dealers,
Inc. Automated Quotations System ("NASDAQ"), or (d) if the Common Stock is not
quoted on such National Market System, by NASDAQ in the over-the-counter market;
and, in each case, if no sales of Common Stock were made on such exchange or
reported on such system or in such market on such date, then on the next
preceding date on which sales were made on such exchange or reported on such
system or in such market.
2.10 "Non-Qualified Stock Option" shall mean any Stock Option which does
not comply with the requirements of Section 422 of the Code, or any successor
provision.
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2.11 "Other Incentive Award" shall mean an Award under Article 7 of this
Plan that is valued in whole or in part by reference to, or is payable in or
otherwise based on, Common Stock or an Award based on Company and/or subsidiary
performance including, without limitation, bonus stock, performance shares,
performance units or stock appreciation rights.
2.12 "Participant" shall mean an employee to whom an Award has been made
pursuant to this Plan.
2.13 "Retirement" shall mean termination of employment by an employee who
is at least 55 years of age after at least 5 years of employment by the Company
and/or a Designated Subsidiary.
2.14 "Stock Option" or "Option" shall mean any option to purchase shares of
Common Stock granted pursuant to Article 6.
2.15 "Termination of employment" shall mean a termination of service for
reasons other than a military or personal leave of absence granted by the
Company.
2.16 "Withholding Election" shall have the meaning set forth in Section
10.4.
ARTICLE III
ADMINISTRATION
3.1 The Committee. The Plan shall be administered and interpreted by the
Committee and/or the Administrative Committee, as provided for by the following
sentence. The Committee may delegate some or all of its powers and authority
hereunder to the Administrative Committee, as the Committee may from time to
time deem appropriate, consistent with the requirements of the Delaware General
Corporation Law. With respect to matters so delegated hereunder to the
Administrative Committee, the term "Committee" as used herein shall be deemed to
mean the Administrative Committee.
3.2 Awards. The Committee shall have full authority to grant, pursuant to
the terms of this Plan, to employees eligible under Article 5: (i) Stock
Options, and (ii) Other Incentive Awards. In particular, the Committee shall
have the authority:
(a) to select the eligible employees of the Company to whom Stock
Options and Other Incentive Awards may from time to time be granted
hereunder;
(b) to determine whether and to what extent Stock Options and Other
Incentive Awards, or any combination thereof, are to be granted hereunder
to one or more eligible employees;
(c) to determine the number of shares of Common Stock, if any, to be
covered by each such Award granted hereunder;
(d) to determine the terms and conditions, not inconsistent with the
terms of this Plan, of any Award granted hereunder (including, but not
limited to, the share price, any restriction or limitation, any vesting
schedule or acceleration thereof, or any forfeiture restrictions or waiver
thereof, regarding any Stock Option or Other Incentive Award and the shares
of Common Stock relating thereto, based on such factors as the Committee
shall determine, in its sole discretion);
(e) to determine whether, to what extent and under what circumstances
grants of Options and Other Incentive Awards under this Plan are to operate
on a tandem basis and/or in conjunction with or apart from other cash
awards made by the Company outside of this Plan;
(f) to determine whether and under what circumstances an Award may be
settled in cash or Common Stock under Subsection 6.3(j);
(g) to determine whether, to what extent and under what circumstances
Common Stock and other amounts payable with respect to an Award under this
Plan shall be deferred either automatically or at the election of the
Participant;
(h) to authorize foreign Designated Subsidiaries to adopt plans as
provided in Section 5.2 hereof; and
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<PAGE> 3
(i) to determine the terms and conditions of Awards for, and to make
such adjustments or modifications to Awards to, Participants working
outside the United States as are necessary and advisable to fulfill the
purposes of this Plan.
3.3 Guidelines. The Committee shall have the authority (a) to adopt, alter
and repeal such administrative rules, guidelines and practices governing this
Plan ("Guidelines") as it shall, from time to time, deem advisable; (b) to
interpret the terms and provisions of this Plan, the Guidelines and any Award
issued under this Plan (and any agreements relating thereto); and (c) to
otherwise supervise the administration of this Plan. The Guidelines may specify
such additional terms and conditions applicable to Awards under this Plan which
the Committee in its discretion determines to be appropriate and not
inconsistent with the terms of this Plan, including such terms and conditions as
it may deem necessary or desirable to make available tax or other benefits of
the laws of any foreign jurisdiction to Participants who are subject to such
laws or to the Company or any of its Designated Subsidiaries. The Committee may
correct any defect, supply any omission or reconcile any inconsistency in this
Plan or in any Award granted in the manner and to the extent it shall deem
necessary to carry this Plan into effect. Notwithstanding the foregoing, except
as permitted by Section 8.1 and the Plan provisions referred to therein, no
action of the Committee under this Section 3.3 shall impair the rights of any
Participant with respect to any outstanding Award without the Participant's
consent.
3.4 Decisions Final. Any decision, interpretation or other action made or
taken in good faith by the Committee arising out of or in connection with the
Plan shall be final, binding and conclusive on the Company and all employees and
their respective heirs, executors, administrators, successors and assigns.
Determinations by the Committee under this Plan, including without limitation
determinations of employee eligibility, the form, amount and timing of Awards,
the terms and provisions of Awards, and the agreements evidencing Awards, need
not be uniform and may be made selectively among eligible employees who receive
or are eligible to receive Awards hereunder, whether or not such eligible
employees are similarly situated.
ARTICLE IV
SHARE LIMITATION
4.1 Shares. The maximum aggregate number of shares of Common Stock which
may be issued under this Plan shall not exceed six million (6,000,000) shares
(subject to any increase or decrease pursuant to Section 4.2) which may be
either authorized and unissued Common Stock or issued Common Stock reacquired by
the Company or both. If any Option or Other Incentive Award granted under this
Plan shall expire, terminate, be forfeited or be canceled for any reason without
having been exercised in full, the number of unpurchased shares thereunder shall
again be available for the purposes of the Plan; provided, however, that if such
expired, terminated, forfeited or canceled Option or Other Incentive Award shall
have been issued in conjunction with another Award, none of such unpurchased
shares thereunder shall again become available for purposes of this Plan to the
extent that the related Award granted under this Plan is exercised. If an Option
is exercised using Common Stock already owned by the Participant who is
exercising the Option, the number of shares that shall be treated as issued
under the Plan shall be (i) the number of shares issued minus (ii) the number of
shares exchanged in satisfaction of the Option Price, and the number of shares
so exchanged shall be added to the total number of shares of Common Stock
available under the Plan. Further, if any shares of Common Stock granted
hereunder are forfeited or such Award otherwise terminates without the delivery
of such shares upon the lapse of restrictions, the shares subject to such grant,
to the extent of such forfeiture or termination, shall again be available under
this Plan.
4.2 Changes. In the event of any merger, reorganization, consolidation,
recapitalization, dividend (other than a dividend or its equivalent which is
credited to a Plan Participant or a regular cash dividend), stock split,
issuance of warrants, rights or convertible securities or other material change
in corporate structure affecting the Common Stock, such substitution or
adjustment shall be made in the maximum aggregate number of shares which may be
issued under this Plan, in the number and option price of shares subject to
outstanding Options granted under this Plan, and in the number of shares subject
to other outstanding Awards granted under this Plan, as may be determined to be
appropriate by the Committee, in its sole discretion, provided that the number
of shares subject to any Award shall always be a whole number.
3
<PAGE> 4
4.3 Grant Date. The date of grant of an Award under this Plan shall be the
date on which the Committee grants the Award or such later date as is specified
in advance by the Committee.
ARTICLE V
ELIGIBILITY
5.1 Eligible Employees. Employees of the Company and its Designated
Subsidiaries, who (a) are neither an officer nor a director of the Company, and
(b) are not eligible to participate in the Company's Key Employee Long Term
Incentive Plan or any subsequent or successor plan intended to provide similar
benefits, are eligible to be granted Options and other Awards under this Plan.
Eligibility under this Plan shall be determined by the Committee in its sole
discretion.
5.2 Foreign Equity Incentive Plans. The Committee may from time to time
authorize any foreign Designated Subsidiary to adopt a plan for granting Awards
(a "Foreign Equity Incentive Plan"). All awards granted under such Foreign
Equity Incentive Plans shall be treated as Awards under this Plan and must have
the prior approval of the Committee. Such Foreign Equity Incentive Plans shall
have such terms and provisions as the Committee permits not inconsistent with
the provisions of this Plan and which may be more restrictive than those
contained herein. Awards granted under such Foreign Equity Incentive Plans shall
be governed by the terms of this Plan except to the extent that the provisions
of the Foreign Equity Incentive Plans are more restrictive than the terms of
this Plan, in which case such terms of the Foreign Equity Incentive Plans shall
control. This Plan shall be deemed to include any such authorized Foreign Equity
Incentive Plans, which together with this Plan shall constitute one Plan.
ARTICLE VI
STOCK OPTIONS
6.1 Options. Stock Options may be granted alone or in addition to other
Awards granted under this Plan. Each Stock Option granted under this Plan shall
be a Non-Qualified Stock Option.
6.2 Grants. The Committee shall have the authority to grant to any
Participant one or more Non-Qualified Stock Options.
6.3 Terms of Options. Stock Options granted under this Plan shall be
subject to the following terms and conditions and shall be in such form and
contain such additional terms and conditions, not inconsistent with the terms of
this Plan, as the Committee shall deem desirable:
(a) Option Price. The option price per share of Common Stock
purchasable under a Stock Option shall be determined by the Committee on or
before the date of grant but shall be not less than 100% of the Fair Market
Value of the Common Stock on the date of grant.
(b) Option Term. The term of each Stock Option shall be fixed by the
Committee, but no Stock Option shall be exercisable more than ten years and
one day after the date the Option is granted.
(c) Exercisability. Stock Options shall be exercisable at such time or
times and subject to such terms and conditions as shall be determined by
the Committee at grant; provided, however, that the Committee may waive
such installment exercise provisions at any time at or after grant in whole
or in part, based on such factors as the Committee shall determine, in its
sole discretion. The Committee may limit the number of times that
Participants may exercise their Options in any calendar year or other
relevant period.
(d) Method of Exercise. Subject to whatever installment exercise and
waiting period provisions apply under subsection (c) above, Stock Options
may be exercised in whole or in part at any time during the option term, by
giving written notice of exercise to the Company specifying the number of
shares to be purchased. Such notice shall be accompanied by payment in full
of the purchase price in such form as the Committee may accept. At or after
grant, the Committee, in its sole discretion, may permit payment in full or
in part of the option price in the form of Common Stock duly owned by the
Participant (and for
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which the Participant has good title free and clear of any liens and
encumbrances) based on the Fair Market Value of the Stock on the date of
exercise as determined by the Committee. No shares of Stock shall be issued
under any Stock Option until payment therefor, as provided herein, has been
made. A Participant shall generally have the rights to dividends or other
rights of a stockholder with respect to shares subject to the Option only
when the Participant has given written notice of exercise, has paid for
such shares as provided herein, and, if requested, has given the
representation described in Section 10.1 hereof. A Participant may exercise
a Stock Option with respect to such minimum number of shares or such
minimum percentage of each Stock Option Award as may be determined from
time to time by the Committee, but a Participant must exercise the Stock
Option in full shares of Common Stock and no fractional shares shall be
issued as a result of exercising an Option.
(e) Non-Transferability of Options. Except as provided in Section 10.5
hereof, no Stock Option shall be transferable by the Participant otherwise
than by will or by the laws of descent and distribution, and all Stock
Options shall be exercisable, during the Participant's lifetime, only by
the Participant.
(f) Termination by Death. If a Participant's employment by the Company
or a Designated Subsidiary terminates by reason of death, any Stock Option
held by such Participant may terminate, become fully vested or continue to
vest as determined by the Committee in the Option Agreement and may
thereafter (if not terminated) be exercised by the legal representative of
the estate for a period following the date of such death to the extent so
specified.
(g) Termination by Reason of Disability. If a Participant's employment
by the Company or a Designated Subsidiary terminates by reason of
Disability, any Stock Option held by such Participant may terminate, become
fully vested or continue to vest as determined by the Committee in the
Option Agreement and may thereafter (if not terminated) be exercised by the
Participant for a period following the date of such termination of
employment to the extent so specified; provided, however, that, if the
Participant dies within the exercise period described in the preceding
sentence, any unexercised Stock Option held by such Participant may
thereafter be exercisable, to the extent to which it was exercisable at the
time of death, for a period determined at grant by the Committee.
(h) Termination by Reason of Retirement. If a Participant's employment
by the Company or a Designated Subsidiary terminates by reason of
Retirement, any Stock Option held by such Participant may terminate, become
fully vested or continue to vest as determined by the Committee in the
Option Agreement and may thereafter (if not terminated) be exercised by the
Participant for a period following the date of such termination of
employment to the extent so specified; provided, however, that, if the
Participant dies within the exercise period described in the preceding
sentence, any unexercised Stock Option held by such Participant may
thereafter be exercisable, to the extent to which it was exercisable at the
time of death, for a period determined at grant by the Committee.
(i) Other Termination. Subject to the applicable provisions of the
Award agreement and this Article 6, if a Participant's employment by the
Company terminates for any reason other than death, Disability or
Retirement, any Stock Options held by such participant shall thereupon
terminate, vest, continue to vest, or remain exercisable for a fixed period
in accordance with the terms and conditions established by the Committee in
the Option Agreement or as the Committee may determine thereafter.
(j) Buy Out of Options. The Committee shall have the right, at any
time, in its sole discretion and without the consent of the Award holder,
to buy out any Option previously granted based on such terms and conditions
as the Committee shall establish and communicate to the Participant at the
time that such offer is made. In no event shall the Company be required to
deliver a fractional share of Common Stock in satisfaction of this buyout
provision. Payments of any such buyout amounts shall be made net of any
applicable foreign, federal (including FICA), state and local withholding
taxes.
(k) Agreement. Each Stock Option Award shall be evidenced by, and
subject to the terms of, a Stock Option agreement executed by the Company
and the Participant.
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ARTICLE VII
OTHER INCENTIVE AWARDS
7.1 Other Incentive Awards. If deemed necessary or desirable by the
Committee, in its sole discretion, in order to comply with, or obtain approval,
qualification or exemption under, any applicable tax or other laws of any
foreign jurisdiction, the Committee may grant (a) incentive awards that are
valued in whole or in part by reference to, or are made payable in or otherwise
based on Common Stock, and/or (b) incentive awards that are valued in whole or
in part by reference to or otherwise based on Company and/or subsidiary
performance, including under (a) or (b), without limitation, Awards of bonus
stock, performance shares, performance units or stock appreciation rights (the
Awards described in this Section 7.1 being collectively referred to herein as
"Other Incentive Awards"). Other Incentive Awards may be granted either alone or
in tandem with Stock Options, as the Committee shall determine.
Subject to the provisions of this Plan, the Committee shall have authority
to determine the persons to whom and the time or times at which such Other
Incentive Awards shall be made, the number of shares of Common Stock (if any) to
be awarded pursuant to such Other Incentive Awards, and all other conditions of
the Other Incentive Awards. The Committee may also provide for the grant of
Common Stock or cash, or a combination of both, under such Other Incentive
Awards upon the completion of a specified performance period or otherwise. The
Committee shall have full authority to amend the terms of any outstanding Other
Awards prospectively or retroactively so as to comply with, or obtain approval,
qualification or exemption under, any applicable tax or other laws of any
foreign jurisdiction.
The provisions of Other Incentive Awards need not be the same with respect
to each Participant and such Awards to individual Participants need not be the
same in subsequent years.
7.2 Terms and Conditions. Other Incentive Awards made pursuant to this
Article 7 shall be subject to the following terms and conditions and such
additional terms and conditions as may be contained in the Guidelines or the
agreement referred to in Section 7.2(e):
(a) Non-Transferability. Subject to the provisions of this Plan and
the Award agreement referred to in subsection (e) below, neither the Awards
nor shares of Common Stock subject to Awards made under this Article 7 may
be sold, assigned, transferred, pledged or otherwise encumbered except that
the shares of Common Stock may be free of such restriction after the date
on which the shares are issued, or, if later, the date on which any
applicable restriction, performance or deferral period lapses.
(b) Dividends. If so determined by the Committee at the time of Award,
subject to the provisions of this Plan and the Award agreement, the
recipient of an Award under this Article 7 shall be entitled to receive,
currently or on a deferred basis, dividends or dividend equivalents with
respect to the number of shares of any Common Stock covered by the Award,
as determined at the time of the Award by the Committee, in its sole
discretion.
(c) Vesting. Any Award granted under this Article 7 and any Common
Stock covered by any such Award shall vest or be forfeited to the extent so
provided in the Award agreement, as determined by the Committee, in its
sole discretion.
(d) Waiver of Limitation. In the event of the Participant's
Retirement, Disability or death, or in cases of special circumstances, the
Committee may, in its sole discretion, waive in whole or in part any or all
of the limitations imposed hereunder (if any) with respect to any or all of
an Award under this Article 7.
(e) Agreement. Each Award granted under this Article 7 shall be
evidenced by, and subject to the terms of, an agreement or other instrument
executed by the Company and the Participant.
(f) Price. Common Stock awarded on a bonus basis under this Article 7
may be awarded for no cash consideration. Common Stock purchased pursuant
to a purchase right awarded under this Article 7 shall be priced as
determined by the Committee.
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ARTICLE VIII
TERMINATION OR AMENDMENT OF THE PLAN
8.1 Termination or Amendment. The Board or the Committee may at any time
amend, discontinue or terminate this Plan or any part hereof including, without
limitation, any amendment deemed necessary by the Board or the Committee, as the
case may be, in its sole discretion to ensure that the Company complies with any
applicable law or regulatory requirement; provided, however, that, unless
otherwise required by, or deemed necessary under, applicable law or regulation,
the rights of a Participant with respect to Options or Other Incentive Awards
granted prior to such amendment, discontinuance or termination, may not be
impaired without the consent of such Participant.
The Committee may amend the terms of any Stock Option or Other Incentive
Award theretofore granted, prospectively or retroactively, but, subject to
Article 4, Section 7.1 and the proviso in the preceding paragraph above, no such
amendment or other action by the Committee shall impair the rights of any
Participant without the Participant's consent.
ARTICLE IX
UNFUNDED PLAN
9.1 Unfunded Status of Plan. This Plan is intended to constitute an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments not yet made to a Participant by the Company, nothing contained herein
shall give any such Participant any rights that are greater than those of a
general creditor of the Company.
ARTICLE X
GENERAL PROVISIONS
10.1 Legend. The Committee may require each person purchasing or otherwise
receiving shares pursuant to a Stock Option or Other Incentive Award under the
Plan to represent to and agree with the Company in writing that the Participant
is acquiring the shares without a view to distribution thereof. The Committee
may require any other investment intent representations it deems necessary in
order to comply with applicable laws and regulations. In addition to any legend
required by this Plan, the certificates for such shares and certificates
representing any Award may include any legend which the Committee deems
appropriate to reflect any restrictions on transfer.
All certificates for shares of Common Stock delivered under the Plan shall
be subject to such stock transfer orders and other restrictions as the Committee
may deem advisable under the rules, regulations and other requirements of the
Securities and Exchange Commission, any stock exchange upon which the Stock is
then listed, any applicable Federal or state securities law, any applicable
corporate law, and any applicable foreign law, and the Committee may cause a
legend or legends to be put on any such certificates to make appropriate
reference to such restrictions.
10.2 Other Plans. Nothing contained in this Plan shall prevent the Board
from adopting other or additional compensation arrangements, subject to
stockholder approval if such approval is required; and such arrangements may be
either generally applicable or applicable only in specific cases.
10.3 No Right to Employment; Agreement to Serve. Neither this Plan nor the
grant of any Option or Other Incentive Award hereunder shall give any
Participant or other employee any right with respect to continuance of
employment by, or length of employment with, the Company or any subsidiary, nor
shall there be a limitation in any way on the right of the Company or any
subsidiary by which an employee is employed to terminate his employment at any
time. Unless otherwise determined by the Committee on the date of grant, each
Participant who is granted an Award shall, by executing such Participant's Award
Agreement, agree that, as a condition of his Award, such Participant shall
remain in the employ of the Company or any of its Designated Subsidiaries for at
least one year after the date of grant of the Award.
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10.4 Withholding of Taxes. The Company shall have the right to deduct from
any payment to be made pursuant to this Plan, or to otherwise require, prior to
the issuance or delivery of any shares of Common Stock or the payment of any
cash hereunder, payment by the Participant of, any Federal, state, local, or
foreign taxes required by law to be withheld.
Subject to any terms and conditions which the Committee may impose, the
Committee may permit any such withholding obligation to be satisfied by reducing
the number of shares of Common Stock otherwise deliverable.
10.5 No Assignment of Benefits. Except as otherwise specifically provided
in this Plan, no Option, Award or other benefit payable under this Plan shall be
subject in any manner to anticipation, alienation, attachment, sale, transfer,
assignment, pledge, encumbrance or charge, and any attempt to anticipate,
alienate, attach, sell, transfer, assign, pledge, encumber or charge any such
benefit shall be void, and any such benefit shall not in any manner be liable
for or subject to the debts, contracts, liabilities, engagements or torts of any
person who shall be entitled to such benefit, nor shall it be subject to
attachment or legal process for or against such person; provided, however, that
a Participant may, in a manner specified by the Committee and to the extent
provided in an Award agreement, designate in writing a beneficiary to exercise
his Awards after the Participant's death.
10.6 Listing and Other Conditions.
(a) As long as the Common Stock is listed on the New York Stock
Exchange or a national securities exchange or system sponsored by a
national securities association, the issue of any shares of Common Stock
pursuant to an Option or Other Incentive Award shall be conditioned upon
such shares being listed on such exchange or system and any applicable
listing requirements having been met. The Company shall have no obligation
to issue such shares unless and until such shares are so listed, and the
right to exercise any Option or Other Incentive Award with respect to such
shares shall be suspended until such listing has been effected.
(b) If at any time counsel to the Company shall be of the opinion that
any sale or delivery of shares of Common Stock pursuant to an Option or
Other Incentive Award is or may in the circumstances be unlawful, not in
compliance with any applicable regulation, rule or order or result in the
imposition of excise taxes or penalties under the statutes, rules or
regulations of any applicable jurisdiction, the Company shall have no
obligation to make such sale or delivery, or to make any application or to
effect or to maintain any qualification or registration under the
Securities Act of 1933, as amended, or other applicable law with respect to
shares of Common Stock or Awards, and the right to exercise any Option or
Other Incentive Award shall be suspended until, in the opinion of said
counsel, such sale or delivery shall be lawful, in compliance with such
applicable regulations, rules or orders and free of such excise taxes or
penalties.
(c) Upon termination of any period of suspension under this Section
10.6, any Award affected by such suspension which shall not then have
expired or terminated shall be reinstated as to all shares available before
such suspension and as to shares which would otherwise have become
available during the period of such suspension, but no such suspension
shall extend the term of any Option.
10.7 Governing Law. This Plan and actions taken in connection herewith
shall be governed and construed in accordance with the laws of the State of
Delaware (regardless of the law that might otherwise govern under applicable
Delaware principles of conflict of laws).
10.8 Construction. Wherever any words are used in this Plan in the
masculine gender they shall be construed as though they were also used in the
feminine gender in all cases where they would so apply, and wherever any words
are used herein in the singular form they shall be construed as though they were
also used in the plural form in all cases where they would so apply.
10.9 Liability of Committee. No member of the Board of Directors or of the
Committee nor any employee of the Company shall be liable for any act or action
hereunder, whether of omission or commission, by any other member or employee or
by any agent to whom duties in connection with the administration of the
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Plan have been delegated or, except in circumstances involving his bad faith,
gross negligence or fraud, for anything done or omitted to be done by himself.
10.10 Other Benefits. No Award payment under this Plan shall be deemed
compensation for purposes of computing benefits under any retirement plan of the
Company or its subsidiaries nor affect any benefits under any other benefit plan
(including but not limited to life insurance programs) now or subsequently in
effect under which the availability or amount of benefits is related to the
level of compensation.
10.11 Costs. The Company shall bear all expenses incurred in administering
this Plan, including expenses of issuing Common Stock pursuant to any Awards
hereunder; provided, however, that, unless the Committee determines otherwise,
any commissions, charges, taxes or other amounts of any kind or nature incurred
by a Participant in receiving or exercising his Award, selling shares under an
Award, obtaining share certificates or otherwise, shall be the sole
responsibility of such Participant.
10.12 Limitations. No eligible employee shall be granted Awards under this
Plan permitting the purchase in the aggregate of more than 2% of the shares
covered by this Plan.
10.13 Notification Under Section 83(b). The Committee may, on the date of
grant of an Award or any later date, prohibit a Participant from making the
election described below in this Section 10.13. If the Committee has not
prohibited such Participant from making such election, and the Participant
shall, in connection with the exercise of any Option, or the grant of any Other
Incentive Award, make the election permitted under Section 83(b) of the Code, or
any successor provision (i.e., an election to include in such Participant's
gross income in the year of transfer the amounts specified in Section 83(b) of
the Code), such Participant shall notify the Company of such election within 10
days of filing notice of the election with the Internal Revenue Service, in
addition to any filing and notification required pursuant to regulations issued
under the authority of Section 83(b) or any successor provision.
10.14 Misconduct. In the event a Participant has (a) used for personal gain
or disclosed to unauthorized persons any confidential or proprietary information
or trade secrets of the Company or its subsidiaries, (b) breached any agreement
with, or violated any other fiduciary obligation owed to, the Company or its
subsidiaries, or (c) engaged in unlawful trading in the securities of the
Company or of its subsidiaries or of another company based on information gained
as a result of that Participant's employment with the Company or its
subsidiaries, all outstanding Awards granted to such Participant shall
automatically be terminated and forfeited unless the Committee shall, in its
discretion, determine otherwise.
10.15 No Acquired Rights. The grant of an Award to an eligible employee
shall not be deemed to create any right of such employee or any other employee
to receive additional Awards in the future.
10.16 Captions. The captions to the several sections of this Plan are not a
part of this Plan, but are merely guides or labels to assist in locating the
several sections hereof.
ARTICLE XI
EFFECTIVE DATE OF PLAN
This Plan shall be effective as of the date it is approved by the holders
of a majority of the issued and outstanding shares of the Company entitled to
vote and present in person or represented by proxy at a meeting of stockholders
duly called in accordance with applicable law, where a quorum is present.
ARTICLE XII
TERM OF PLAN
No Stock Option or Other Incentive Award shall be granted pursuant to this
Plan on or after April 22, 2004 (the tenth anniversary of the approval of this
Plan by the Stockholders of the Company), but Awards granted prior to such date
may extend beyond that date.
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