As filed with the Securities and Exchange Commission on December 10, 1999
Registration No. 333-_________
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NABISCO, INC.
-------------
(Exact name of registrant as specified in its charter)
New Jersey 13-1841519
---------- ----------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
7 Campus Drive
Parsippany, New Jersey 07054-0311
---------------------------------
(Address, including zip code of registrant's principal executive offices)
Nabisco, Inc.
Deferred Compensation Plan
--------------------------
(Full title of the Plan)
James A. Kirkman III, Esq.
Nabisco, Inc.
7 Campus Drive
Parsippany, New Jersey 07054-0311
(973) 682-5000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------
With a Copy to:
Warren J. Casey, Esq.
Pitney, Hardin, Kipp & Szuch LLP
P.O. Box 1945
Morristown, New Jersey 07962
(973) 966-6300
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered Registered Offering price aggregate offering Registration fee (2)
per share price
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
Deferred Compensation N/A N/A N/A $11,557
Obligations (1)
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
</TABLE>
- --------------------------
(1) The Deferred Compensation Obligations are unsecured obligations of Nabisco,
Inc. to pay deferred compensation in the future in accordance with the terms of
the Nabisco, Inc. Deferred Compensation Plan.
(2) Based upon estimated obligations in the amount of $43,778,124 used solely
for the purpose of calculating the registration fee.
<PAGE>
PART I
INFORMATION REQUIREMENT IN THE SECTION 10(a) PROSPECTUS
ITEM 1. Plan Information
Not required to be filed with this Registration Statement.
ITEM 2. Registrant Information and Employee Plan Annual Information
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Documents Incorporated By Reference
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Nabisco, Inc. (the "Company") are incorporated
by reference in this Registration Statement:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1998, filed on March 22, 1999.
2. The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1999, filed on May 4, 1999.
3. The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1999, filed on August 13, 1999.
4. The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999, filed on November 15, 1999.
5. The Company's Current Report on Form 8-K dated June 15, 1999 and filed
on June 16, 1999, reporting the completion of a series of
reorganization transactions through which the Company and Nabisco
Holdings Corp. ("NH") are no longer affiliated with R.J. Reynolds
Tobacco Holdings, Inc. ("RJR") and its subsidiaries, including (i) the
May 18, 1999 transfer by RJR of all the outstanding Class B Common
Stock of NH to Nabisco Group Holdings Corp. through a merger
transaction, and (ii) the June 14, 1999 dividend by Nabisco Group
Holdings Corp. of 100% of the common stock of RJR to record holders of
Nabisco Group Holdings Corp. common stock as of May 27, 1999.
All documents hereafter filed by the Company or the Nabisco, Inc.
Deferred Compensation Plan (the "Plan") 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 which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, are hereby
incorporated by reference in this Registration Statement and are a part hereof
from the date of filing of such documents. Any statement contained herein or 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 or is 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
Not applicable.
ITEM 6. Indemnification of Directors and Officers
Section 14A:3-5 of the New Jersey Business Corporation Act (the "Act")
sets forth the extent to which the Registrant's officers and directors may be
indemnified against any liabilities which they may incur in their capacity as
such. Section 14A:3-5 of the Act provides standard provisions that no
indemnification shall be made if such person shall have been adjudged liable to
a corporation unless the court in which such proceeding was brought determines
upon application that the defendant, officers or directors are fairly and
reasonably entitled to indemnity for such expenses despite such adjudication of
liability. In any case, a corporation must indemnify an officer or director
against expenses (including attorney's fees) to the extent that he has been
successful on the merits or otherwise in defense of any claim or issue.
<PAGE>
Directors and officers of the Registrant may be indemnified under
certain insurance policies maintained on their behalf by the Registrant.
Article IV of the By-Laws of the Registrant provides for
indemnification of the Registrant's officers and directors to the full extent
permitted by applicable law.
ITEM 7. Exemption from Registration Claimed
Not applicable.
ITEM 8. Exhibits
5 Opinion of Pitney, Hardin, Kipp & Szuch LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Pitney, Hardin, Kipp & Szuch LLP
(included in Exhibit 5 hereto)
24 Power of Attorney
99.1 Nabisco, Inc. Deferred Compensation Plan
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:
(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 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 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 purposes 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.
<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons 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 such 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Nabisco, Inc. certifies that it has reasonable grounds to believe that it meets
all 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 Town of Parsippany, State of New Jersey, on December 8,
1999.
NABISCO, INC.
THOMAS J. PESCE
By: ________________________________________
Thomas J. Pesce
__________________ SENIOR VICE PRESIDENT AND CONTROLLER
__________________ (PRINCIPAL ACCOUNTING OFFICER)
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on December 8, 1999.
Signature Title
*
- ------------------------------------- Chairman of the Board
Steven F. Goldstone
* Director, President and Chief
- ------------------------------------- Executive Officer (Principal
James M. Kilts Executive Officer)
* Executive Vice President and Chief
- ------------------------------------- Financial Officer (Principal
James E. Healey Financial Officer)
*
- ------------------------------------- Director
Herman Cain
*
- ------------------------------------- Director
John T. Chain, Jr.
*
- ------------------------------------- Director
Julius L. Chambers
*
- ------------------------------------- Director
John N. Clendenin
*
- ------------------------------------- Director
Ray J. Groves
*
- ------------------------------------- Director
David B. Jenkins
*
- ------------------------------------- Director
Kay Koplovitz
*
- ------------------------------------- Director
Fred H. Langhammer
<PAGE>
*
- ------------------------------------- Director
H. Eugene Lockhart
*
- ------------------------------------- Director
Theodore E. Martin
*
- ------------------------------------- Director
Rozanne L. Ridgway
JAMES A. KIRKMAN III
*By:__________________________________
James A. Kirkman III
Attorney-in-Fact
<PAGE>
INDEX TO EXHIBITS
Exhibit 5 Opinion of Pitney, Hardin, Kipp & Szuch LLP
Exhibit 23.1 Consent of Deloitte & Touche LLP
Exhibit 23.2 Consent of Pitney, Hardin, Kipp & Szuch LLP
(included in Exhibit 5 hereto)
Exhibit 24 Power of Attorney
Exhibit 99.1 Nabisco, Inc. Deferred Compensation Plan
EXHIBIT 5
PITNEY, HARDIN, KIPP & SZUCH LLP
P.O. Box 1945
Morristown, New Jersey 07962-1945
December 10, 1999
Nabisco, Inc.
7 Campus Drive
Parsippany, New Jersey 07054-0311
We refer to the Registration Statement on Form S-8 (the
"Registration Statement") of Nabisco, Inc. (the "Company") relating to interests
(the "Securities") in the Nabisco, Inc. Deferred Compensation Plan (the "Plan")
filed with the Securities and Exchange Commission.
We have examined originals, or copies certified or otherwise
identified to our satisfaction, of such corporate records, documents,
agreements, instruments and certificates of public officials and of officers of
the Company as we have deemed necessary or appropriate in order to express the
opinion hereinafter set forth.
Based upon the foregoing, we are of the opinion that, when the
Securities have been duly issued as contemplated by the Registration Statement
(including the Prospectus which is not filed therewith)and the Plan and for the
consideration determined in accordance with the terms of the Plan, the
Securities will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the federal laws of the
United States and the laws of the State of New Jersey, and expresses no
opinion as to the effect of the laws of any other jurisdiction.
We hereby consent to the use of this opinion as an Exhibit to
the Registration Statement. In giving such consent, we do not thereby admit that
we come within the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the Rules and Regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
PITNEY, HARDIN, KIPP & SZUCH LLP
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration
Statement of Nabisco, Inc. on Form S-8, dated December 10, 1999, of our
report dated January 27, 1999 that appears in the Annual Report on Form 10-K of
Nabisco Holdings Corp. and Nabisco, Inc. for the year ended December 31, 1998.
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
December 10, 1999
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned appoints
James A. Kirkman III as the attorney-in-fact and agent of the undersigned, with
full power and authority of substitution, to execute for and on behalf of the
undersigned a REGISTRATION STATEMENT ON FORM S-8 by Nabisco, Inc. for the
Nabisco, Inc. Deferred Compensation Plan, and all amendments or supplements to
this Registration Statement and all related documents and instruments, and to
file the same with the Securities and Exchange Commission, granting to this
attorney-in-fact and agent full power and authority to take such action as he
deems advisable or necessary to carry out the intent of this Power of Attorney.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of December 8, 1999.
Signature Title
STEVEN F. GOLDSTONE
- ------------------------------------- Chairman of the Board
Steven F. Goldstone
JAMES M. KILTS Director, President and Chief
- ------------------------------------- Executive Officer (Principal
James M. Kilts Executive Officer)
JAMES E. HEALEY Executive Vice President and Chief
- ------------------------------------- Financial Officer (Principal
James E. Healey Financial Officer)
HERMAN CAIN
- ------------------------------------- Director
Herman Cain
JOHN T. CHAIN, JR.
- ------------------------------------- Director
John T. Chain, Jr.
JULIUS L. CHAMBERS
- ------------------------------------- Director
Julius L. Chambers
JOHN N. CLENDENIN
- ------------------------------------- Director
John N. Clendenin
RAY J. GROVES
- ------------------------------------- Director
Ray J. Groves
DAVID B. JENKINS
- ------------------------------------- Director
David B. Jenkins
KAY KOPLOVITZ
- ------------------------------------- Director
Kay Koplovitz
FRED H. LANGHAMMER
- ------------------------------------- Director
Fred H. Langhammer
<PAGE>
H. EUGENE LOCKHART
- ------------------------------------- Director
H. Eugene Lockhart
THEODORE E. MARTIN
- ------------------------------------- Director
Theodore E. Martin
ROZANNE L. RIDGWAY
- ------------------------------------- Director
Rozanne L. Ridgway
EXHIBIT 99.1
---------------------------------------------------------------------
Nabisco, Inc.
Deferred Compensation Plan
---------------------------------------------------------------------
<PAGE>
Nabisco, Inc.
Deferred Compensation Plan
Page
1. Purposes........................................................ 1
2. Definitions..................................................... 1
3. Administration.................................................. 3
4. Participation................................................... 4
5. Deferrals....................................................... 4
6. Deferral Accounts............................................... 6
7. Settlement of Deferral Accounts................................. 7
8. Provisions Relating to Section 162(m) of the Code............... 8
9. Statements...................................................... 9
10. Amendment/Termination........................................... 9
11. General Provisions.............................................. 9
12. Claim and Appeal Procedure...................................... 11
13. Effective Date.................................................. 13
<PAGE>
Nabisco, Inc.
Deferred Compensation Plan
1. Purposes. The purposes of this Nabisco, Inc. Deferred Compensation Plan (the
"Plan") are to provide a select group of management or highly compensated
employees of Nabisco, Inc. (the "Company") and its subsidiaries and certain
affiliated entities, as well as members of its or their Boards of Directors,
with the opportunity to elect to defer receipt of specified portions of
compensation and fees and to have such deferred amounts treated as if invested
in specified investment options.
2. Definitions. In addition to the terms defined in Section 1 above, the
following terms used in the Plan shall have the meanings set forth below:
(a) "Administrator" shall mean the Administration Committee set forth in Section
3(b) to whom the Committee has delegated the authority to take action under the
Plan.
(b) "Beneficiary" shall mean the beneficiary designated by the Participant under
the Company-paid group term life insurance plan, unless the Participant has
designated any other person or persons (who may be designated contingently or
successively and which may be an entity other than a natural person) on a form
supplied by the Administrator to receive benefits payable in the event of the
death of the Participant. In the event of the Participant's death without an
effective Beneficiary designation, any Plan benefits payable shall be paid in
equal parts to the Participant's surviving spouse or, if the Participant has no
surviving spouse, to the Participant's surviving children or, if the Participant
has no surviving children, to the Participant's surviving parents, or if the
Participant has no surviving parents, to the Participant's surviving siblings
or, if the Participant has no surviving siblings, to the Participant's estate.
(c) "Board" shall mean the Board of Directors of Nabisco Holdings Corp. ("NHC").
(d) "Change of Control" shall be deemed to occur on the date upon which one of
the following events occurs: (i) any individual, corporation, partnership,
group, associate or other entity or "person" as such term is defined in Section
14(d) of the Exchange Act, other than NHC, Nabisco Group Holdings Corp.
("NGHC"), or any of their subsidiaries, or any employee benefit plan(s)
sponsored by the Company, NHC, NGHC or any of their subsidiaries, is or becomes
the "beneficial owner" (as defined in Rule 13D-3 under the Exchange Act),
directly or indirectly, of 50% or more of the combined voting power of NHC's or
NGHC's outstanding securities ordinarily having the right to vote at elections
of directors;
(ii) individuals who constitute the Board or the board of directors of NGHC on
January 1, 1999 (the "Incumbent Board") cease for any reason to constitute at
least a majority thereof, provided that any person becoming a director
subsequent to the date hereof whose election or nomination for election by NHC's
or NGHC's shareholders was approved by a vote of at least three-quarters of the
directors comprising that Incumbent Board (either by a specific vote or by
approval of the proxy statement of NHC or NGHC in which such person is named as
a nominee for director, without objection to such nomination) shall be, for
purposes of this paragraph 2(d)(ii), considered as though such person were a
member of the Incumbent Board; or
(iii) the approval of the shareholders of NHC or NGHC of a plan or agreement
providing (I) for a merger or consolidation of NHC or NGHC other than with a
wholly-owned subsidiary of or with NGHC, NHC or any of their subsidiaries, and
other than a merger or consolidation that would result in the voting securities
of NHC or NGHC outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) more than 50% of the combined voting power of the voting
securities of NHC, NGHC, or such surviving entity outstanding immediately after
such merger or consolidation, or (II) for a sale, exchange or other disposition
of all or substantially all the assets of the Company, NHC, NGHC. If any of the
events enumerated in this paragraph 2(d)(iii) occur, the Board shall determine
the effective date of the Change of Control resulting therefrom for purposes of
the Plan.
Notwithstanding the foregoing, no Change of Control shall be deemed to have
occurred as a result of the spin-off of the tobacco business of NGHC.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended. References
to any provision of the Code or regulation (including a proposed regulation)
thereunder shall include any successor provisions or regulations.
(f) "Committee" shall mean the Compensation Committee of the Board or any other
directors of NHC designated as the Committee. Any function of the Committee may
be delegated to the Administrator.
(g) "Deferral Account" shall mean the account or subaccount established and
maintained by the Company for specified deferrals and contributions attributable
to a Participant, as described in Section 5. Deferral Accounts will be
maintained solely as bookkeeping entries by the Company to evidence unfunded
obligations of the Company, its subsidiaries and/or related entities.
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
References to any provision of the Exchange Act or rule thereunder shall include
any successor provisions or rules.
(i) "Participant" shall mean any employee of the Company or any subsidiary or
affiliated entity or a member of the board of directors of the Company or
Nabisco Group Holdings, Inc., who is on U.S. payroll and subject to taxation in
the United States and who is designated by the Committee as an eligible
Participant in the Plan and who participates or makes an election to participate
in the Plan.
(j) "Plan Year" shall mean the period from June 1, 1999 through December 31,
1999, and thereafter shall mean the calendar year.
(k) "Trust" shall mean any trust or trusts established by the Company as part of
the Plan; provided, however, that the assets of such trusts shall remain subject
to the claims of the general creditors of the Company.
(l) "Trustee" shall mean the trustee of a Trust.
(m) "Trust Agreement" shall mean the agreement entered into between the Company
and the Trustee to carry out the purposes of the Plan, as amended or restated
from time to time.
(n) "Valuation Date" shall mean the close of business on the last business day
of each calendar month.
3. Administration.
(a) Authority. Both the Committee and the Administrator (subject to the ability
of the Committee to restrict the Administrator) shall administer the Plan in
accordance with its terms, and shall have all powers necessary to accomplish
such purpose, including the power and authority to construe and interpret the
Plan, to define the terms used herein, to prescribe, amend and rescind rules and
regulations, agreements, forms, and notices relating to the administration of
the Plan, and to make all other determinations necessary or advisable for the
administration of the Plan. Any actions of the Committee or the Administrator
with respect to the Plan shall be conclusive and binding upon all persons
interested in the Plan, except that any action of the Administrator will not be
binding on the Committee. The Committee and Administrator may each appoint
agents and delegate thereto powers and duties under the Plan, except as
otherwise limited by the Plan.
(b) Administrator. The Administration Committee shall consist of such number of
members as shall be determined by the Committee, each of whom shall be appointed
by, shall remain in office at the will of, and may be removed, with or without
cause, by the Committee. Any member of the Administration Committee may resign
at any time. No member of the Administration Committee shall be entitled to act
on or decide any matter relating solely to himself or herself or any of his or
her rights or benefits under the Plan. The members of the Administration
Committee shall not receive any special compensation for serving in their
capacities as members of the Administration Committee but shall be reimbursed
for any reasonable expenses incurred in connection therewith. No bond or other
security need be required of the Administration Committee or any member thereof
in any jurisdiction. The initial members of the Administration Committee are the
Company's Executive Vice President & Chief Personnel Officer - Human Resources,
Executive Vice President & Chief Financial Officer, and Senior Director -
Compensation and Relocation. The Senior Vice President & Treasurer is appointed
to act as a business consultant to the Administration Committee.
(c) Limitation of Liability. Each member of the Committee and the Administrator
shall be entitled to, in good faith, rely or act upon any report or other
information furnished to him or her by any officer or other employee of the
Company or any subsidiary or affiliated entity, the Company's independent
certified public accountants, or any executive compensation consultant, legal
counsel, or other professional retained by the Company to assist in the
administration of the Plan. To the maximum extent permitted by law, no member of
the Committee or the Administrator, nor any person to whom ministerial duties
have been delegated, shall be liable to any person for any action taken or
omitted in connection with the interpretation and administration of the Plan.
4. Participation. The Administrator will notify each person of his or her
participation or eligibility to participate in the Plan not later than 15 days
(or such other period as may be practicable in the circumstances) prior to any
deadline for filing an election form.
5. Deferrals. To the extent authorized by the Administrator, a Participant may
elect to defer compensation or awards to be received from the Company or a
subsidiary or an affiliated entity, including annual base salary, Company
contributions made on behalf of a Participant to a Company-sponsored defined
benefit or defined contribution nonqualified deferred compensation plan, some or
all Annual Incentive Award Plan ("AIAP") awards, some or all Long-Term Incentive
Plan ("LTIP") awards, severance pay, fees, and sign-on bonuses, or as otherwise
designated by the Administrator; provided, however, that a Participant may
defer, with respect to a given year, receipt of only that portion of the
Participant's compensation that exceeds the amount necessary to satisfy Medicare
and all other applicable payroll taxes imposed on the wages of such Participant
from the Company and its subsidiaries and/or affiliated entities, unless
otherwise determined by the Administrator. In addition to such limitations, and
any terms and conditions of deferral set forth under plans, programs or
arrangements from which receipt of compensation or awards is deferred, the
Administrator may impose (1) limitations on the amounts permitted to be
deferred, (2) limitations on the sources and timing and form of deferrals, (3)
limitations on amounts and sources of deferrals for particular Participants; and
(4) terms and conditions regarding all deferrals under the Plan. Any such
limitations, and other terms and conditions of deferral, shall be set forth in
the rules relating to the Plan or election forms, other forms, or instructions
of the Committee and/or the Administrator, which may be, but need not be, set
forth in writing. Amounts deferred under this Plan generally are subject to FICA
withholding at the later of the time of deferral or the time of vesting, which
FICA withholding amounts will be withheld (and subject to federal, state and/or
local income taxation) from non-deferred compensation, or at such other time as
is required by law and from such other sources (including from the applicable
Deferral Account) as is determined by the Administrator.
(a) Elections. Once an election form, properly completed, is received by the
Company, the elections of the Participant shall be irrevocable. Deferral
election forms apply only for a given Plan Year. A new deferral election form
must be filed each year. The minimum deferral amount in the aggregate for any
Plan Year in which a Participant elects to participate herein is $5,000 .
Deferral elections shall specifically state the period of
deferral; deferrals must be for either a period of years or until termination of
employment, and different deferral elections may be made with respect to
different deferral sources. Deferrals for a period of years must be for at least
two full calendar years, and will be scheduled for payment in January of the
applicable Plan Year. Notwithstanding the preceding sentence, the Administrator
may permit some deferrals for a period of years to be for a minimum period of
two elapsed years (i.e., not two full calendar years). If a Participant
terminates employment prior to a scheduled withdrawal, the Deferral Account will
be distributed (pursuant to Section 7) following such termination of employment,
unless otherwise provided herein. Scheduled in-service distributions may be
redeferred by the Participant up to two times, each such redeferral election
being for a period of at least two full calendar years (unless otherwise
determined by the Administrator) beyond the previously scheduled distribution
date. A redeferral election must be made prior to the date established therefor
by the Administrator.
(b) Date of Election. An election to defer compensation or awards hereunder must
be received by the Administrator prior to the date specified by the
Administrator. Under no circumstances may a Participant defer compensation or
awards to which the Participant has attained, at the time of deferral, a legally
enforceable right to current receipt of such compensation or awards, as
determined in the sole discretion of the Administrator.
(c) Company Contributions. In addition to the deferrals elected by Participants,
the Company may choose at any time to make discretionary Company contributions
to the Deferral Accounts of Participants in such amounts as it, in its sole
discretion, wishes. Discretionary Company contributions will be subject to a
vesting schedule, established by the Company or the Administrator at the time of
the contribution, except that any unvested Deferral Account balance will become
fully vested upon a Change of Control.
(d) Severance Deferrals. The Administrator may designate for participation in
this Plan certain individuals whose employment with the Company or its
subsidiaries or related entities is being terminated, who would otherwise
receive certain severance payments and/or other payments attributable to the
termination of employment from their employer. Such Participants may elect, at
such times and in such manner as the Administrator determines, to defer or
redefer (for such periods as the Administrator determines) receipt of some or
all of such severance pay and/or related payments, and to have the deferred
amounts credited to a Deferral Account hereunder.
Such deferred severance and/or other pay will generally be
subject to the terms and conditions of this Plan, except that the deferral
election shall be for a period of years only (with the maximum deferral and
redeferral periods after termination of employment to be determined by the
Administrator), and will be paid out in the form of a lump sum or installments
(in the form permitted under Section 7), as elected by the Participant. If the
Participant dies prior to the end of the period of years, the Deferral Account
shall be paid out to the Participant's Beneficiary as soon as practicable
following notice of death. Participants participating pursuant to this Section
5(d) may direct the investment of their Deferral Accounts pursuant to Section
6(b) and 6(c).
6. Deferral Accounts.
(a) Establishment; Crediting of Amounts Deferred. One or more Deferral Accounts
will be established for each Participant, as determined by the Administrator.
The amount of compensation or awards deferred with respect to each Deferral
Account will be credited to such Deferral Account as of the date on which such
amounts would have been paid to the Participant but for the Participant's
election to defer receipt hereunder. The amounts of hypothetical income and
appreciation and depreciation in value of such account will be credited and
debited to, or otherwise reflected in, such Deferral Account from time to time.
Unless otherwise determined by the Administrator, amounts credited to a Deferral
Account shall be deemed invested in a hypothetical investment as of the date of
deferral.
(b) Hypothetical Investment Options. Amounts credited to a Deferral Account
shall be deemed to be invested, at the Participant's direction, in one or more
investment options as may be specified from time to time by the Administrator.
Until such time as a Participant's life insurance policy under the Plan is
approved, deferrals will be deemed invested in a money market vehicle. The
Administrator may change or discontinue any hypothetical investment option
available under the Plan in its discretion; provided, however, that, subject to
the authority of the Administrator to disregard the directions of any
Participant, each affected Participant is given the opportunity, without
limiting or otherwise impairing any other right of such Participant regarding
changes in investment directions, to redirect the allocation of his or her
Deferral Account deemed invested in the discontinued investment option among the
other hypothetical investment options, including any replacement option.
(c) Allocation and Reallocation of Hypothetical Investments. A Participant may
allocate amounts credited to his or her Deferral Account to one or more of the
hypothetical investment options authorized under the Plan. Subject to the rules
established by the Administrator, a Participant may reallocate amounts credited
to his or her Deferral Account as of the Valuation Date following the
Participant's election to one or more of such hypothetical investments, by
filing with the Administrator a notice, in such form as may be specified by the
Administrator, not later than the date specified by the Administrator. The
Committee or Administrator may, in its discretion, restrict allocation into or
reallocation by specified Participants into or out of specified investment
options or specify minimum amounts that may be allocated or reallocated by
Participants.
(d) Trusts. The Committee may, in its discretion, establish one or more Trusts
(including sub-accounts under such Trusts), and deposit therein amounts of cash
or other property not exceeding the amount of the Company's obligations with
respect to a Participant's Deferral Account established under this Section 6. In
such case, the amounts of income, appreciation and depreciation in value of such
Deferral Account shall be determined by the Administrator, based upon the
hypothetical investment elections made by Participants. Other provisions of the
Plan notwithstanding, the timing of allocations and reallocations of assets in
such a Deferral Account, and the investment options available with respect to
such Deferral Account, may be varied to reflect the timing of actual investments
of the assets of such Trust and the actual investments available to such Trust,
all as determined in the sole discretion of the Administrator. The Trust's
investment vehicles may include life insurance (including, but not limited to,
variable life insurance), and such other assets as may be selected from time to
time.
7. Settlement of Deferral Accounts.
(a) Form of Payment. The Company shall settle a Participant's Deferral Account,
and discharge all of its obligations to pay deferred compensation under the Plan
with respect to such Deferral Account, by payment of cash. Any forfeited amounts
will be held in the trust to offset future contributions and as directed by the
Committee.
Scheduled in-service distributions, as well as distributions
made under Section 7(c), will be made in the form of a lump sum.
Distributions as a result of termination of employment, by
reason of death, involuntary termination with cause (as determined by the
Administrator), or resignation, shall be made in the form of a lump sum.
Distributions as a result of termination of employment by
reason of retirement on or after early retirement age (as defined in the
Company's retirement plan or as otherwise determined by the Administrator),
disability (as defined in the Company's long term disability plan or as
otherwise determined by the Administrator), or involuntary termination without
cause (as determined by the Administrator), will generally be made in the form
of a lump sum. Nevertheless, Participants whose termination of employment is
described in the above sentence, and who have at least five (5) years of service
with the Company and its related companies, and who would otherwise be entitled
to a distribution of at least $30,000 hereunder, may elect on a timely basis (as
determined by the Administrator) to receive their Deferral Accounts distributed
in quarterly installments over a period of five (5), ten (10) or fifteen (15)
years.
If a Participant receiving installment payments pursuant to
this Section dies, any remaining amounts in his Deferral Account will be
distributed to his Beneficiary in the form of a lump sum as soon as practicable
following notice of his death.
(b) Timing of Payments. Payments in settlement of a Deferral Account shall be
made as soon as practicable after the date or dates (including upon the
occurrence of specified events) elected by the Participant in his or her
election relating to such Deferral Account. Distributions made as a result of
termination of employment shall be made as of the first day of the calendar
quarter following such termination. In-service withdrawals, other than those
made pursuant to Section 7(c), will be paid as of the first day of a calendar
year.
(c) Hardship Distributions. Other provisions of the Plan notwithstanding, if,
upon the written application of a Participant, the Administrator determines that
the Participant has suffered a hardship within the meaning of the Treasury
Regulations issued under Section 401(k) of the Code, then the Administrator may
authorize a hardship distribution hereunder. A distribution hereunder will be
made on account of hardship only if the distribution is both made on account of
an immediate and heavy financial need of the Participant, and the distribution
amount is necessary to satisfy the financial need, all as determined by the
Administrator using the noted Treasury Regulations as a guide, and the
distribution amount is at least $5,000.
(d) Non-Scheduled In-Service Distributions. Other provisions of the Plan
notwithstanding, a Participant may at any time request a distribution of some or
all of his or her vested Deferral Account (with a minimum distribution amount of
$5,000) for any reason, if such distribution is approved by the Administrator.
In such event, however, ten percent (10%) of the amount deducted from the
Participant's Deferral Account will be forfeited and not paid to the
Participant, and the Participant may make no further deferrals for the balance
of that Plan Year or the following Plan Year. Withdrawals made pursuant to this
Section 7(d) will be paid as soon as administratively practicable following
approval of the Administrator.
8. Provisions Relating to Section 162(m) of the Code.
Compliance with Section 162(m) of the Code. It is the intent
of the Company that any compensation (including any award) deferred under the
Plan by a person who is, with respect to the year of payout, deemed by the
Committee to be a "covered employee" within the meaning of Section 162(m) of the
Code and regulations thereunder, which compensation constitutes "qualified
performance-based compensation" within the meaning of Section 162(m) of the Code
and regulations thereunder, shall not, as a result of deferral hereunder, become
compensation with respect to which the Company in fact would not be entitled to
a tax deduction under Section 162(m) of the Code. Accordingly, unless otherwise
determined by the Committee, if any compensation would become so disqualified
under Section 162(m) as a result of deferral hereunder, the terms of such
deferral shall be automatically modified to the extent necessary to ensure that
the compensation would not, at the time of payout, be so disqualified.
9. Statements. The Administrator will furnish statements to each Participant
reflecting the amount credited to a Participant's Deferral Accounts and
transactions therein not less frequently than once each calendar quarter.
10. Amendment/Termination. The Committee may, with prospective or retroactive
effect, amend, alter, suspend, discontinue, or terminate the Plan at any time
without the consent of Participants, stockholders, or any other person;
provided, however, that, without the consent of a Participant, no such action
shall adversely affect the rights of such Participant with respect to the right
to payment of amounts credited to such Participant's Deferral Account as of the
date of such action. Notwithstanding the foregoing, upon the occurrence of a
Change of Control, the Plan may not be amended in any way or terminated prior to
the payment of amounts credited to Deferral Accounts as of the date of the
Change of Control, pursuant to the terms of the Plan and the Participants'
elections with respect thereto.
11. General Provisions.
(a) Limits on Transfer of Awards. Other than by will or the laws of descent and
distribution, no right, title or interest of any kind in the Plan shall be
transferable or assignable by a Participant or his or her Beneficiary or be
subject to alienation, anticipation, encumbrance, garnishment, attachment, levy,
execution or other legal or equitable process, nor subject to the debts,
contracts, liabilities or engagements, or torts of any Participant or his or her
Beneficiary. Any attempt to alienate, sell, transfer, assign, pledge, garnish,
attach or take any other action subject to legal or equitable process or
encumber or dispose of any interest in the Plan shall be void.
(b) Receipt and Release. Payments (in any form) to any Participant or
Beneficiary in accordance with the provisions of the Plan shall, to the extent
thereof, be in full satisfaction of all claims for the compensation or awards
deferred and relating to the Deferral Account to which the payments relate
against the Company or any subsidiary or affiliated entity thereof, the
Committee, or the Administrator, and the Administrator may require such
Participant or Beneficiary, as a condition to such payments, to execute a
receipt and release to such effect.
(c) Unfunded Status of Awards: Creation of Trusts. The Plan is intended to
constitute an "unfunded" plan for deferred compensation and Participants shall
rely solely on the unsecured promise of the Company or applicable affiliated
entity for payment hereunder. With respect to any payment not yet made to a
Participant under the Plan, nothing contained in the Plan shall give a
Participant any rights that are greater than those of a general unsecured
creditor of the Company or the applicable affiliated entity; provided, however,
that the Committee may authorize the creation of Trusts, including but not
limited to the Trusts referred to in Section 6 hereof, or make other
arrangements to meet the Company's obligations under the Plan, which Trusts or
other arrangements shall be consistent with the "unfunded" status of the Plan
unless the Committee otherwise determines with the consent of each affected
Participant.
(d) Compliance. A Participant in the Plan shall have no right to receive payment
(in any form) with respect to his or her Deferral Account until legal and
contractual obligations of the Company relating to establishment of the Plan and
the making of such payments shall have been complied with in full. In addition,
the Company shall impose such restrictions on any interest constituting a
security as it may deem advisable in order to comply with the Securities Act of
1933, as amended, the requirements of the New York Stock Exchange or any other
applicable stock exchange or automated quotation system, any state securities
laws applicable to such a transfer, any provision of the Company's Certificate
of Incorporation or Bylaws, or any other law, regulation, or binding contract to
which the Company is a party.
(e) Other Participant Rights. No provision of the Plan or transaction hereunder
shall confer upon any Participant any right to be employed by the Company or a
subsidiary thereof, or to interfere in any way with the right of the Company or
a subsidiary to increase or decrease the amount of any compensation payable to
such Participant. Subject to the limitations set forth in Section 11(a) hereof,
the Plan shall inure to the benefit of, and be binding upon, the parties hereto
and their successors and assigns.
(f) Legal Fees and Expenses. On or after a Change of Control, the Company shall
pay all reasonable legal fees and expenses which a Participant may incur in
respect of obtaining from the Company any benefit to which he is entitled under
the Plan.
(g) Tax Withholding. The Company and any subsidiary or affiliated entity shall
have the right to deduct from amounts otherwise payable in settlement of a
Deferral Account any sums that federal, state, local or foreign tax law requires
to be withheld with respect to such payment.
(h) Governing Law. The validity, construction, and effect of the Plan and any
rules and regulations relating to the Plan shall be determined in accordance
with the laws of the State of New Jersey, without giving effect to principles of
conflicts of laws, and applicable provisions of federal law.
(i) Limitation. A Participant and his or her Beneficiary shall assume all risk
in connection with any decrease in value of the Deferral Account and neither the
Company or any subsidiary or affiliated entity, the Committee nor the
Administrator shall be liable or responsible therefor.
(j) Construction. The captions and numbers preceding the sections of the Plan
are included solely as a matter of convenience of reference and are not to be
taken as limiting or extending the meaning of any of the terms and provisions of
the Plan. Whenever appropriate, words used in the singular shall include the
plural or the plural may be read as the singular, and male references shall
include female and neuter, and vice versa.
(k) Severability. In the event that any provision of the Plan shall be declared
illegal or invalid for any reason, said illegality or invalidity shall not
affect the remaining provisions of the Plan but shall be fully severable, and
the Plan shall be construed and enforced as if said illegal or invalid provision
had never been inserted herein.
(l) Status. The establishment and maintenance of, or allocations and credits to,
the Deferral Account of any Participant shall not vest in any Participant any
right, title or interest in and to any specific assets or benefits except at the
time or times and upon the terms and conditions and to the extent expressly set
forth in the Plan and in accordance with the terms of the Trust.
12. Claim and Appeal Procedure. The Administrator shall provide adequate notice
in writing to any Participant or to any Beneficiary ("Claimant") whose claim for
benefits under the Plan has been denied. The Administrator's notice to the
Claimant shall set forth:
(a) The specific reason for the denial;
(b) Specific references to pertinent Plan provisions upon
which the Administrator based its denial;
(c) A description of any additional material and information
that is needed; and
(d) That any appeal the Claimant wishes to make of the adverse
determination must be in writing to the Administrator
within seventy-five (75) days after receipt of the
Administrator's notice of denial of benefits. The
Administrator's notice must further advise the Claimant
that his failure to appeal the action to the Administrator
in writing within the seventy-five (75) day period will
render the Administrator's determination final, binding
and conclusive.
If the Claimant should appeal to the Administrator, he, or his
duly authorized representative, may submit, in writing, whatever issues and
comments he or his duly authorized representative feels are pertinent. The
Claimant, or his duly authorized representative, may review pertinent Plan
documents. The Administrator shall re-examine all facts to the appeal and make a
final determination as to whether the denial of benefits is justified under the
circumstances. The Administrator shall advise the Claimant of its decision
within sixty (60) days of the Claimant's written request for review, unless
special circumstances (such as a hearing) would make the rendering of a decision
within the sixty (60) day limit unfeasible, but in no event shall the
Administrator render a decision respecting a denial for a claim of benefits
later than one hundred twenty (120) days after its receipt of a request for
review.
The Administrator's notice of denial of benefits shall
identify the name and address to whom the Claimant may forward his appeal.
13. Effective Date. The Plan shall be effective June 1, 1999.
