<PAGE> 1
As filed with the Securities and Exchange Commission on November 17, 1995
Registration No. 33-63283
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
POST-EFFECTIVE AMENDMENT
NO. 1
ON
FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
Under
The Securities Act of 1933*
---------------
Cardinal Health, Inc.
(Exact name of registrant as specified in its charter)
Ohio 31-0958666
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
655 Metro Place South, Suite 925, Dublin, Ohio 43017
(Address of Principal Executive Offices) (Zip Code)
---------------
1990 STOCK OPTION PLAN
EMPLOYEE INCENTIVE STOCK OPTION PLAN
EXECUTIVE CHOICE PLAN
(Full title of the plan)
---------------
George H. Bennett, Jr.,
Executive Vice President, Secretary and General Counsel
Cardinal Health, Inc.
655 Metro Place South, Suite 925
Dublin, Ohio 43017
(Name and address of agent for service)
(614) 761-8700
(Telephone number, including area code, of agent for service)
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Amount Proposed Proposed Amount of
securities to to be maximum offering maximum aggregate registration
be registered registered(1) price per share(1) offering price fee
<S> <C> <C> <C> <C>
Common Shares,
without par value 125,000 (2) (2) (2)
</TABLE>
(1) Also includes an indeterminable number of additional shares that may
become issuable pursuant to the anti-dilution provisions of the Plan.
(2) Not applicable. All filing fees payable in connection with the
registration of the issuance of these securities were paid in
connection with the filing of (a) preliminary proxy materials on
Schedule 14A of Medicine Shoppe International, Inc. on September 27,
1995, and (b) the Registrant's Form S-4 Registration Statement
(33-63283) on October 10, 1995.
* Filed as a Post-Effective Amendment on Form S-8 to such Form S-4
Registration Statement pursuant to the procedure described in Part II
under "Introductory Statement."
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
INTRODUCTORY STATEMENT
Cardinal Health, Inc. (the "Company" or the "Registrant") hereby amends
its Registration Statement on Form S-4 (No. 33- 63283) (the "Form S-4") by
filing this Post-Effective Amendment No. 1 on Form S-8 ("Amendment No. 1") with
respect to up to 125,000 of the Registrant's Common Shares, without par
value ("Common Shares"), issuable in connection with the following plans of
Medicine Shoppe International, Inc. ("MSI"):
(a) 1990 Stock Option Plan;
(b) Employee Incentive Stock Option Plan; and
(c) Executive Choice Plan (collectively, the "Plans").
All such Common Shares were previously included in the Form S-4.
On November 13, 1995, Arch Merger Corp., a Delaware corporation and a
wholly owned subsidiary of the Registrant ("AMC"), was merged with and into MSI
(the "Merger") pursuant to an Agreement and Plan of Merger dated August 26, 1995
among the Registrant, AMC and MSI (the "Merger Agreement"). As a result of the
Merger, each outstanding share of MSI Common Stock (with certain specified
exceptions) was converted into Common Shares of the Registrant pursuant to the
exchange ratio (the "Exchange Ratio") set forth in the Merger Agreement. Also as
a result of the Merger, shares of MSI Common Stock are no longer issuable upon
the exercise of options to purchase MSI Common Stock ("MSI Options") pursuant to
the Plans. Instead, participants in the Plans will receive in lieu of MSI Common
Stock that number of Common Shares of the Registrant equal to the number of
shares of MSI Common Stock issuable immediately prior to the effective time of
the Merger upon exercise of an MSI Option multiplied by the Exchange Ratio with
an exercise price for such option equal to the exercise price which existed
under the corresponding MSI Option divided by the Exchange Ratio.
The designation of Amendment No. 1 as Registration No. 33-63283-01
denotes that Amendment No. 1 relates only to the Common Shares issuable pursuant
to the Plans and that this is the first Post-Effective Amendment to the S-4
filed with respect to such shares.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed in (a) through (e) below are incorporated by
reference in the registration statement. All documents filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), subsequent to the date of the filing
of this registration statement and prior to the filing of a post-effective
amendment that indicates that all securities registered hereunder have been
sold, or that de-registers all securities then remaining unsold, shall be deemed
to be incorporated by reference in the registration statement and to be a part
hereof from the date of the filing of such documents.
(a) The Annual Report on Form 10-K of the Company for the fiscal year
ended June 30, 1995 filed with the Commission on September 21, 1995;
(b) The Company's Current Report on a Form 8-K dated August 26, 1995;
(c) The Company's Quarterly Report on Form 10-Q filed with the
Commission on November 6, 1995;
(d) The Company's Current Report on Form 8-K dated November 16, 1995; and
<PAGE> 3
(e) The description of the Company's Common Shares contained in the
Company's Registration Statement on Form 8-A dated August 19, 1994, pursuant to
Section 12 of the Exchange Act.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The legality of the Common Shares offered hereby has been passed upon for
the Company by Baker & Hostetler, Cleveland, Ohio. Michael E. Moritz, a partner
of Baker & Hostetler, was the beneficial owner of 536,925 Common Shares as of
November 10, 1995.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 1701.13(E) of the Ohio Revised Code sets forth conditions and
limitations governing the indemnification of officers, directors, and other
persons.
Article 6 of the Company's Restated Code of Regulations ("Code of
Regulations"), as amended, contains certain indemnification provisions adopted
pursuant to authority contained in Section 1701.13(E) of the Ohio Revised Code.
The Company's Code of Regulations provides for the indemnification of its
officers, directors, employees, and agents against all expenses with respect to
any judgments, fines, and amounts paid in settlement, or with respect to any
threatened, pending, or completed action, suit, or proceeding to which they were
or are parties or are threatened to be made parties by reason of acting in such
capacities, provided that it is determined, either by a majority vote of a
quorum of disinterested directors of the Company or the shareholders of the
Company or otherwise as provided in Section 1701.13(E) of the Ohio Revised Code,
that (a) they acted in good faith and in a manner they reasonably believed to be
in or not opposed to the best interest of the Company; (b) in any action, suit,
or proceeding by or in the right of the Company, they were not, and have not
been adjudicated to have been, negligent or guilty of misconduct in the
performance of their duties to the Company; and (c) with respect to any criminal
action or proceeding, that they had no reasonable cause to believe that their
conduct was unlawful. Section 1701.13(E) provides that to the extent a director,
officer, employee, or agent has been successful on the merits or otherwise in
defense of any such action, suit, or proceeding, he shall be indemnified against
expenses reasonably incurred in connection therewith. At present there are no
material claims, actions, suits, or proceedings pending where indemnification
would be required under these provisions, and the Company does not know of any
such threatened claims, actions, suits, or proceedings which may result in a
request for such indemnification.
The Company has entered into indemnification contracts with each of its
directors and executive officers. These contracts generally: (i) confirm the
existing indemnity provided to them under the Company's Code of Regulations and
assure that this indemnity will continue to be provided; (ii) provide that if
the Company does not maintain directors' and officers' liability insurance, the
Company will, in effect, become a self-insurer of the coverage; and (iii)
provide that, in addition, the directors and officer shall be indemnified to the
fullest extent permitted by law against all expenses (including legal fees),
judgments, fines, and settlement amounts paid or incurred by them in any action
or proceeding, including any action by or in the right of the Company, on
account of their service as a director, officer, employee, or agent of the
Company or at the request of the Company as a director, officer, employee, or
agent of another corporation or enterprise. Coverage under the contracts is
excluded: (A) on account of conduct which is finally adjudged to be knowingly
fraudulent, deliberately dishonest, or willful misconduct; or (B) if a final
court of adjudication shall determine that such indemnification is not lawful;
or (C) in respect of any suit in which judgment is rendered for violations of
Section 16(b) of the Securities and Exchange Act of 1934, as amended, or similar
provisions of any federal, state, or local statutory law; or (D) on account of
any remuneration paid which is finally adjudged to have been in violation of
law; or (E) as to officers who are not directors, with respect to any act or
omission which is finally adjudged to have been a violation, other than in good
faith, of the Company's Standards of Business Conduct of which the officer then
most recently has received written notice. The indemnification agreements are
applicable to claims asserted after their effective date, whether arising from
acts or omissions occurring before or after their effective date, and associated
legal expenses.
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<PAGE> 4
ITEM 8. EXHIBITS.
Exhibit Number Description of Exhibit
- -------------- ----------------------
5 Opinion of Baker & Hostetler as to legality of the
Common Shares being registered
23(a) Consent of Deloitte & Touche LLP
23(b) Consents of Arthur Andersen LLP
23(c) Consent of Baker & Hostetler (included in Opinion
filed as Exhibit 5 hereto)
24 Power of attorney (included on the Signature Page of
this Form S-8)
99(a) 1990 Stock Option Plan
99(b) Employee Incentive Stock Option Plan
99(c) Executive Choice 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, as
amended (the "Securities Act"); (ii) to reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that clauses (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 6 above 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 Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
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<PAGE> 5
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
Securities Act and will be governed by the final adjudication of such issue.
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<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 Post-Effective
Amendment No. 1 on Form S-8 to the Registrant's Registration Statement on Form
S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Dublin, State of Ohio, on the 14th day of November, 1995.
CARDINAL HEALTH, INC.
By: /s/ Robert D. Walter
--------------------------------
Robert D. Walter, Chairman and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert D. Walter, George H. Bennett, Jr., and
Paul S. Williams, and each of them, severally, as his or her attorney-in-fact
and agent, with full power of substitution and resubstitution, for him or her
and in his or her name, place, and stead, in any and all capacities, to sign any
and all pre- or post-effective amendments to this Registration Statement, and to
file the same with all exhibits hereto, and other documents with the Securities
and Exchange Commission, granting unto said attorney-in-fact and agent, and each
of them, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, or
their or his or her substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on the 14th day of November, 1995.
Signature Title
- --------- -----
/s/ Robert D. Walter Chairman and Chief Executive
- ----------------------------- Officer (principal executive officer)
Robert D. Walter
/s/ David Bearman Executive Vice President and Chief
- ----------------------------- Financial Officer (principal financial
David Bearman officer and principal accounting officer)
/s/ John F. Finn Director
- -----------------------------
John F. Finn
/s/ Robert L. Gerbig Director
- -----------------------------
Robert L. Gerbig
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<PAGE> 7
/s/ John F. Havens Director
- ----------------------------------
John F. Havens
/s/ Regina E. Herzlinger Director
- ----------------------------------
Regina E. Herzlinger
/s/ John C. Kane Director
- ----------------------------------
John C. Kane
/s/ George R. Manser Director
- ----------------------------------
George R. Manser
/s/ John B. McCoy Director
- ----------------------------------
John B. McCoy
/s/ Jerry E. Robertson Director
- ----------------------------------
Jerry E. Robertson
/s/ L. Jack Van Fossen Director
- ----------------------------------
L. Jack Van Fossen
/s/ Melburn G. Whitmire Director
- ----------------------------------
Melburn G. Whitmire
-6-
<PAGE> 8
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------- -------------------
5 Opinion of Baker & Hostetler as to legality of the
Common Shares being registered
23(a) Consent of Deloitte & Touche LLP
23(b) Consents of Arthur Andersen LLP
23(c) Consent of Baker & Hostetler (included in Opinion
filed as Exhibit 5 hereto)
24 Power of Attorney (included on the Signature Page of
this Form S-8)
99(a) 1990 Stock Option Plan
99(b) Employee Incentive Stock Option Plan
99(c) Executive Choice Plan
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<PAGE> 1
EXHIBIT 5
November 16, 1995
Cardinal Health, Inc.
Suite 925
655 Metro Place South
Dublin, OH 43017
Gentlemen:
We have acted as counsel to Cardinal Health, Inc., an Ohio
corporation (the "Company"), in connection with Post-Effective Amendment No. 1
on Form S-8 to the Company's Registration Statement on Form S-4 (the
"Registration Statement") filed under the Securities Act of 1933 (the "Act")
relating to the issuance of up to 125,000 Common Shares, without par value
(the "Common Shares"), of the Company pursuant to the following plans (the
"Plans"): (a) the Medicine Shoppe International, Inc. ("MSI") 1990 Stock Option
Plan; (b) the MSI Employee Incentive Stock Option Plan; and (c) the MSI
Executive Choice Plan.
In connection with the foregoing, we have examined: (a) the
Amended and Restated Articles of Incorporation, as amended, and Restated Code of
Regulations, as amended, of the Company, (b) the Plans, and (c) such records of
the corporate proceedings of the Company and such other documents as we deemed
necessary to render this opinion.
Based on such examination, we are of the opinion that the
Common Shares available for issuance under the Plans, when issued, delivered and
paid for in accordance with the terms and conditions of the Plans, will be
legally issued, fully paid and nonassessable.
We hereby consent to the filing of this Opinion as Exhibit 5 to
the Registration Statement and the reference to our firm in Item 5 of Part II of
the Registration Statement.
Very truly yours,
Baker & Hostetler
<PAGE> 1
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Cardinal Health, Inc. on Form S-8 filed as a Post Effective Amendment to Form
S-4 Registration Statement No. 33-63283 of our report dated August 14, 1995,
except for Note 16, as to which the date is August 26, 1995 (which report
expresses an unqualified opinion and includes an explanatory paragraph relating
to the change in method of accounting for income taxes), appearing in the
Annual Report on Form 10-K of Cardinal Health, Inc. for the year ended June 30,
1995.
DELOITTE & TOUCHE LLP
Columbus, Ohio
November 13, 1995
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to incorporation by
reference in this Registration Statement on Form S-8 filed as a Post Effective
Amendment to Form S-4 Registration Statement No. 33-63283 of our report on
Whitmire Distribution Corporation for the year ended July 3, 1993, dated
September 3, 1993, included in Cardinal Health, Inc.'s Form 10K for the year
ended June 30, 1995, and to all references to our Firm included in this
registration statement.
Arthur Andersen LLP
Sacramento, California
November 13, 1995
<PAGE> 1
EXHIBIT 99(a)
MEDICINE SHOPPE INTERNATIONAL, INC.
1990 STOCK OPTION PLAN
1. PURPOSE OF THE PLAN
The Medicine Shoppe International, Inc. 1990 Stock Option Plan ("Plan")
is intended to provide additional incentive to certain valued and trusted
employees and directors of Medicine Shoppe International, Inc., a Delaware
corporation, (the "Company") by encouraging them to acquire shares of the $.01
par value common stock of the Company (the "Stock") through options to purchase
Stock granted pursuant to the Plan ("Options"), thereby increasing such
employees' and directors' proprietary interest in the business of the Company,
and providing them with an increased personal interest in the continued success
and progress of the Company, the result of which will promote both the interests
of the Company and its shareholders.
Options granted under the Plan will be either options intended to
qualify as "incentive stock options" within the meaning of Section 422A of the
Internal Revenue Code of 1986, as amended (the "Code") ("ISOs") or non-qualified
options ("NQOs"). Each employee or director granted an Option shall enter into
an agreement with the Company (the "Option Agreement") setting forth the terms
and conditions of the Option, as determined in accordance with this Plan.
2. ADMINISTRATION OF PLAN
This Plan shall be administered by the Compensation Committee appointed
by the Board of Directors of the Company (the "Committee"), to be composed of
three (3) members of the Board of Directors of the Company who shall be
appointed from time to time by the Board of Directors. If no committee is
appointed, reference to "Committee" shall be deemed to refer to the Board of
Directors. The Committee shall have the sole power:
a. Subject to the provisions of the Plan, to construe and interpret the
Plan and Options granted under it; to define the terms therein; to determine the
time or times an Option may be exercised, the number of shares which may be
exercised at any one time, and when an Option may terminate; and, to establish,
amend, and revoke rules and regulations relating to the Plan and its
administration. The Committee may correct any defect, supply any omission, or
reconcile any inconsistency in the Plan, or in any Option Agreement, in a manner
and to the extent it shall deem necessary to expedite and make the Plan fully
effective. All determinations and interpretations made by the Committee shall be
conclusive and binding on all Optionees and on their legal representatives and
beneficiaries.
<PAGE> 2
b. To determine all questions of policy and expediency that may arise
in the administration of the Plan and generally exercise such powers and perform
such acts as are deemed necessary or expedient to promote the best interest of
the Company.
3. SHARES SUBJECT TO THE PLAN
Subject to the provisions of paragraph 13, the Stock which may be sold
pursuant to Options granted under the Plan shall not exceed in the aggregate Two
Hundred Thousand (200,000) shares of Stock. If any Options granted under the
Plan terminate, expire or are surrendered without having been exercised in full,
the number of shares of Stock not purchased under such Options shall be
available again for the purpose of the Plan.
4. PERSONS ELIGIBLE FOR OPTIONS
a. All employees and directors of the Company shall be eligible to
receive the grant of Options under the Plan. The Committee shall determine the
employees and directors to whom Options shall be granted, the time or times such
Options shall be granted, the type of Option to be granted, the number of shares
to be subject to each Option and the times when each Option may be exercised. An
employee or director who has been granted an Option (an "Optionee"), if he is
otherwise eligible, may be granted additional Options. An employee or director
may be granted ISOs or NQOs or both under the Plan; provided, however, that the
grant of ISOs and NQOs to an employee or director shall be the grant of separate
Options and each ISO and each NQO shall be specifically designated as such in
accordance with the applicable provisions of the Department of Treasury
regulations.
b. With respect to the granting of ISOs only, no ISO will be granted to
an Optionee, and an attempted grant of such an ISO will be void, if the
aggregate fair market value (determined at the time an ISO is granted) of the
Stock with respect to which the ISO and previously granted ISOs are exercisable
for the first time by such Optionee during any calendar year (under all such
Plans of the Company) exceeds $100,000.00.
5. PURCHASE PRICE
The purchase price of each share of Stock covered by each ISO shall not
be less than one hundred percent (100%) of the Fair Market Value Per Share (as
defined below) of the Stock on the date the ISO is granted; provided, however,
if when an ISO is granted the employee or director receiving the ISO owns or
will be considered to own by reason of Section 425(d) of the Code more than ten
percent (10%) of total combined voting power of all classes of stock of the
Company, the purchase price of the Stock covered by such ISO shall not be less
than one hundred and ten percent (110%) of the Fair Market Value Per Share of
the Stock on the date the ISO is granted.
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<PAGE> 3
The purchase price of each share of Stock covered by each NQO shall be
set from time to time in the total discretion of the Committee.
"Fair Market Value Per Share of the Stock" shall mean: (1) if the Stock
is not publicly traded, the amount determined by the Committee on the date of
the grant of an Option; (2) if the Stock is traded only otherwise than on a
securities exchange and is not quoted on the National Association of Securities
Dealers automated quotation system ("NASDAQ"), the closing quoted selling price
of the Stock on the date of grant of an Option as quoted in "pink sheets"
published by the National Daily Quotation Bureau; (3) if the Stock is traded
only otherwise than on a securities exchange an is quoted on NASDAQ, the closing
quoted selling price of the Stock on the date of granting the Option, as
reported by the Wall Street Journal; or (4) if the Stock is admitted to trading
on a securities exchange, the closing quoted selling price of the Stock on the
date of grant of the Option, as quoted in the Wall Street Journal. For purposes
of Items (1) through (4) of this paragraph, if there were no sales on the date
of the grant of an Option, the Fair Market Value Per Share shall be determined
by the Committee in accordance with Section 20.2031-2 of the Federal Estate Tax
Regulations.
6. DURATION OF OPTIONS
The expiration date of the Option and all rights thereunder shall be
determined by the Committee, but not more than ten (10) years from the date the
Option is granted, and shall be subject to earlier termination as provided
herein; provided, however, if when an ISO is granted the Optionee owns, or would
be considered to own by reason of Section 425(d) of the Code, more than ten
percent (10%) of the total combined voting power of all classes of stock of the
Company, such ISO shall expire not more than five (5) years from the date the
ISO is granted.
7. EXERCISE OF OPTIONS
a. An Option may be exercisable in installments or otherwise upon such
terms as the Committee shall determine when an Option is granted. As a condition
of the exercise, in whole or in part, of any Option, the Committee may require
the Optionee to pay, in addition to the purchase price of the Stock covered by
the Option, an amount equal to any Federal, state and local taxes that may be
required to be withheld in connection with the exercise of such Option.
b. No Option will be exercisable (and any attempted exercise will be
deemed null and void) if such exercise would create a right of recovery for
"short-swing profits" under Section 16(d) of the Securities Exchange Act of
1934.
8. METHOD OF EXERCISE
a. When the right to purchase shares accrues, Options may be exercised
by giving written notice to the Company stating the
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<PAGE> 4
number of shares for which the Option is being exercised, accompanied by payment
in full by cash, or its equivalent, acceptable to the Company, of the purchase
price for the shares being purchased and, if applicable, any Federal, state or
local taxes required to be withheld in accordance with the provisions of Section
7. The Company shall issue a separate certificate or certificates of Stock for
each Option exercised by an Optionee.
b. In the Committee's discretion, determined at the time the Option is
granted, payment of the purchase price for the shares may be made in whole or in
part with other shares of Stock of the Company which are free and clear of all
liens and encumbrances. The value of the shares of Stock tendered in payment for
the shares being purchased shall be the Fair Market Value Per Share on the date
of the Optionee's notice of exercise.
c. Notwithstanding the foregoing, the Company shall have the right to
postpone the time of delivery of the shares for such period as may be required
for the Company with reasonable diligence, to comply with any applicable listing
requirements of any national securities exchange or any Federal, state or local
law. If the Optionee, or other person entitled to exercise the Option, fails to
accept delivery of and pay for the shares specified in such notice, the
Committee shall have the right to terminate his Option with respect to such
shares.
9. NONTRANSFERABILITY OF OPTIONS
No Option granted under the Plan shall be assignable or transferable by
the Optionee, either voluntarily or by operation of law, other than by will or
the laws of descent and distribution, and shall be exercisable during his
lifetime only by the Optionee.
10. CONTINUANCE OF EMPLOYMENT
Nothing contained in the Plan or in any Option granted under the Plan
shall confer upon any Optionee who is also an employee any rights with respect
to the continuation of his employment by the Company or interfere in any way
with the right of the Company (subject to the terms of any separate employment
agreement to the contrary) at any time to terminate such employment or to
increase or decrease the compensation of the Optionee from the rate in existence
at the time of the granting of any Option.
11. RESTRICTIONS ON SHARES
If the Company shall be advised by counsel that certain requirements
under the Federal or state securities law must be met before Stock may be issued
under this Plan, the Company shall notify all persons who have been issued
Options, and the Company shall have no liability for failure to issue Stock
under any exercise of Options because of a delay while such requirements are
being met.
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<PAGE> 5
12. PRIVILEGE OF STOCK OWNERSHIP
No person entitled to exercise any Option granted under the Plan shall
have the rights or privileges of a stockholder of the Company for any shares of
Stock issuable upon exercise of such Option until such person has become the
holder of record of such shares. No adjustment shall be made for dividends or
other rights for which the record date is prior to the date on which such person
becomes the holder of record, except as provided in Section 13.
13. ADJUSTMENT
a. If the number of outstanding shares of Stock are increased or
decreased, or such shares are exchanged for a different number or kind of shares
or securities of the Company through reorganization, merger, recapitalization,
reclassification, stock dividend, stock split, combination of shares, or other
similar transaction, the aggregate number of shares of Stock subject to the Plan
as provided in Section 3, and the Shares of Stock subject to issued and
outstanding Options under the Plan shall be appropriately and proportionately
adjusted by the Committee. Any such adjustment in an outstanding Option shall be
made without change in the aggregate purchase price applicable to the
unexercised portion of the Option but with an appropriate judgment in the price
for each share or other unit of any security covered by the Option.
b. Notwithstanding subsection (a) of this Section, upon the dissolution
or liquidation of the Company, or upon a reorganization, merger or
consolidation of the Company with one or more corporations as a result of which
the Company is not the surviving corporation, or upon a sale of substantially
all of the assets of the Company or of more than 80% of the then outstanding
Stock of the Company to another corporation, the Plan shall terminate, and any
Options granted under the Plan shall terminate on the day before the
consummation of the transaction, and the Committee shall have the right, but
shall not be obligated, to accelerate the time in which any Option may be
exercised prior to such termination, unless provision shall be made in writing
in connection with such transaction for the continuance of the Plan, for the
assumption of Options previously granted or the substitution for such Options
with new options to purchase the Stock of a successor employer corporation, or
parent or subsidiary thereof, with appropriate adjustments as to number and kind
of shares and the Option price, in which event the Plan and Options previously
granted shall continue in the manner and under the terms so provided; provided,
however, that the Committee or Directors shall have the authority to amend this
Section to provide for a requirement that a successor corporation assume any
outstanding Options if such is required for the Plan to be qualified in
Delaware.
c. Adjustments under this Section shall be made by the Committee whose
determination as to what adjustments shall be made, and the extent thereof,
shall be final, binding and conclusive. No
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fractional shares of Stock shall be issued under the Plan or in connection with
any such adjustment.
14. AMENDMENT AND TERMINATION OF PLAN
a. The Board of Directors of the Company may, from time to time, with
respect to any shares at the time not subject to Options, suspend or terminate
the Plan or amend or revise the terms of the Plan; provided that any amendment
to the Plan shall be approved by a majority of the shareholders of the Company
if the amendment would (i) materially increase the benefits accruing to
participants under the Plan; (ii) increase the number of shares of Stock which
may be issued under the Plan, except as permitted under the provisions of
Section 13; or (iii) materially modify the requirements as to eligibility for
participation in the Plan.
b. The Plan shall terminate ten (10) years from the earlier of the
adoption of the Plan by the Board of Directors or its approval by the
shareholders.
c. No amendment, suspension or termination of the Plan shall, without
the consent of the Optionee, alter or impair any rights or obligations under any
Option granted to such Optionee under the Plan.
15. EFFECTIVE DATE OF PLAN
This Plan shall become effective upon adoption by the Board of
Directors of the Company and approval by the Company's shareholders; provided,
however, that prior to approval of the Plan by the Company's shareholders but
after adoption by the Board of Directors, Options may be granted under the Plan
subject to obtaining such approval.
16. TERM OF PLAN
No Option shall be granted pursuant to the Plan after ten (10) years
from the earlier of the date of adoption of the Plan by the Board of Directors
of the Company or the date of approval by the Company's shareholders.
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EXHIBIT 99(b)
MEDICINE SHOPPE INTERNATIONAL, INC.
EMPLOYEE INCENTIVE STOCK OPTION PLAN
------------------------------------
1. PURPOSE. This Stock Option Plan (the "Plan") is intended to
encourage the ownership of stock of Medicine Shoppe International, Inc. (the
"Company") by key employees of the Company and its subsidiaries, to provide
additional incentive for them to promote the success of the business, and to
encourage them to remain in its employ. It is further intended that options
issued pursuant to this Plan shall constitute Incentive Stock Options within
the meaning of Section 422A of the Internal Revenue Code of 1954, as amended,
and the rules and regulations thereunder (the "Code").
2. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the
Compensation Committee of the Board of Directors of the Company (the
"Committee"). The Committee shall determine the key employees who are to be
granted options hereunder and the amount of stock to be optioned to each.
The interpretation and construction by the Committee of any
provisions of the Plan or any Option, as defined in Paragraph 4 hereof, granted
hereunder shall be final. No member of the Committee shall be liable for any
action or determination made in good faith with respect to the Plan or any
Option granted under it.
3. PARTICIPANTS. The Committee, in its sole discretion but subject to
the requirements of Section 422A of the Code, shall select from among the key
employees of the Company and
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its subsidiaries, including officers, whether or not they are Directors, and
shall determine which of such persons (the "Participants") shall receive
Options. No Director shall participate in the granting of Options to himself
under the Plan.
4. GRANT OF OPTIONS. The Committee, prior to the expiration of ten
years from the day on which this Plan is adopted by the Committee, in its
discretion, may grant to the Participants the right to purchase Common Stock,
as defined in Paragraph 5 hereof, pursuant to the terms and conditions set
forth in Paragraph 7 hereof (the "Option").
5. STOCK SUBJECT TO THE PLAN. The stock subject to the Option shall
be shares of the Company's authorized but unissued or reacquired $0.01 par
value common stock (the "Common Stock"). The aggregate number of shares which
may be issued under Options hereunder shall not exceed 125,000 shares of Common
Stock. The limitations established in this Plan by the preceding sentences
shall be subject to adjustment as provided in Paragraph 6 hereunder.
In the event that any outstanding Option under the Plan for any
reason expires, is cancelled or is terminated, the shares of Common Stock
allocable to the unexercised portions of such Option may again be subjected to
an Option under the Plan.
6. CHANGES IN CAPITAL STRUCTURE. In the event that the shares of
outstanding Common Stock are hereafter increased or decreased into or exchanged
for a different number or kind of shares or other securities of the Company or
of another
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corporation, by reason of reorganization, merger, consolidation,
recapitalization, reclassification, stock split-up, combination of shares or
dividend payable in corporate shares, an appropriate adjustment shall be made
in the number and kind of shares as to which Options may be granted under the
Plan, including the maximum number that may be granted to any one Participant.
In addition, an appropriate adjustment shall be made in the number and kind of
shares as to which outstanding Options, or portions thereof then unexercised,
shall be exercisable to the end that each Participant's proportionate interest
in the total shares subject to option shall be maintained as before the
occurrence of such event; such adjustment in the shares subject to option shall
be made without changing the total price applicable to the unexercised portion
of any Option and with a corresponding adjustment in the option price per
share; provided, however, that each such adjustment in the number and kind of
shares subject to outstanding options, including any adjustment in the option
price, shall be made in such manner as not to constitute a "Modification" as
defined in Section 425 of the Code. Any adjustment made by the Committee shall
be conclusive.
7. TERMS AND CONDITIONS OF OPTIONS. Options shall be evidenced by
Common Stock Option Agreements (the "Option Agreements") in such form not
inconsistent with this Plan as the Committee shall from time to time determine,
provided that the substance of the following be included therein.
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(a) NUMBER OF SHARES. Each Option Agreement shall state the number
of shares of Common Stock to which it pertains. The aggregate fair
market value of Common Stock for which an employee may be granted
Options under this Plan and any other incentive stock option plan of
the Company (fair market value being determined as of the date of grant
in accordance with the provisions of subparagraph 7(b) hereof) in any
one calendar year shall not exceed $100,000 plus any unused limit
carryover determined pursuant to Section 422A(c)(4) of the Code.
(b) OPTION PRICE. Each Option Agreement shall state the option
price, which shall not be less than 100% of the fair market value of a
share of Common Stock on the date of the granting of the Option. Such
fair market value shall be deemed to be the closing price of Common
Stock on the stock exchange upon which the Common Stock is traded, or
average closing price if there be more than one such exchange, on the
day the Option is granted. If no sale of the Common Stock shall be made
on any stock exchange on that day, the fair market value shall be
determined by taking the mean between the last available bona fide bid
and asked prices (or average thereof if there be more than one) on the
valuation date as the same may be available, in the order indicated,
from the following sources:
(i) the stock exchange(s) on which the Common Stock is traded;
(ii) NASDAQ (the National Association of Securities Dealers, Inc.
Automated Quotation System); or
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(iii) three primary over-the-counter market in the Common
Stock (or such lesser number as shall then be making a
primary market in such shares).
If there are not sales or bid and asked prices on the valuation
date, the value may be determined by taking the mean between the bona
fide sales or bid and asked prices on the nearest date before and the
nearest date after the valuation date. Subject to the foregoing, the
Committee in fixing the option price shall have full authority and
discretion and be fully protected in doing so.
(c) METHOD OF PAYMENT. Each Option Agreement shall state that
Common Stock purchased under Options shall at the time of purchase be
paid in full. To the extent that the right to purchase shares is
accrued thereunder, Options may be exercised from time to time by the
delivery of written notice to the Company stating the number of shares
of Common Stock with respect to which the Option is being exercised and
the time and date of purchase thereof, which shall be during the normal
business hours of the Company on a regular business day not less than
fifteen (15) days after the giving of such notice unless an earlier
date shall have been mutually agreed upon. At the time specified in
such notice, the Company shall, without transfer or issue tax, transfer
and set aside for the benefit of the Participant (including, for all
purposes hereof, such other person as shall be entitled to exercise the
Option hereunder) a certificate or certificates for
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<PAGE> 6
such shares out of its theretofore authorized but unissued or
reacquired Common Stock, against payment of the option price in full by
cash (including certified or bank cashier's check or the equivalent
thereof). If the Participant fails to pay for any part of the number of
shares specified in such notice in accordance with the terms of the
Plan and such notice, the Participant's right to exercise the Option
with respect to such shares may, by subsequent action of the
Committee, be terminated.
(d) OPTION TERM. Each Option Agreement shall specify the period
for which the Option thereunder is granted. In no event shall an Option
be exercisable after the expiration of five years from the date the
Option is granted. At the end of such specified period the Option
shall expire.
(e) EXERCISE OF OPTIONS. During the first year an Option is
outstanding, it may not be exercised; during the second year an Option
is outstanding, the Option may be exercised as to not more than 25% of
the total number of shares covered thereby; in each additional year the
Option may be exercised as to an additional 25% of the total number of
shares covered, such that in the fifth and final year, the Option shall
be exercisable as to the entire option amount. To the extent not
exercised, Options shall accumulate and be exercisable, in whole or in
part, in any subsequent period but not later than five years from the
date the Option is granted. Not less than ten shares may
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<PAGE> 7
be purchased at any one time unless the number purchases is the total
number at the time purchasable under the Option. During the lifetime of
the Participant, the Option shall be exercised only by him and shall
not be assignable or transferable by him and no other person shall
acquire any rights therein.
(f) PRIOR OUTSTANDING OPTIONS. Subject to the provisions of this
subparagraph 7(f), no Option (for purpose of this subparagraph called
"New Option") shall be exercisable while there is outstanding, within
the meaning of the Code, any Incentive Stock Option (as defined in
Section 422A of the Code) granted before the granting of the New Option
to the person to whom the New Option is granted to purchase stock in
the Company or in a corporation which, at the time the New Option is
granted is a parent or subsidiary corporation (as those terms are
defined in Section 425 of the Code) of the Company, or is a predecessor
corporation of the Company or such parent or subsidiary corporation.
(g) EFFECT OF TERMINATION OF EMPLOYMENT, DEATH OR DISABILITY.
Except as otherwise provided in this subparagraph, upon termination of
a Participant's employment with the Company and its subsidiaries for
any reason, any outstanding Option or unexercised portion thereof
granted to the Participant shall terminate. If the employment of a
Participant is terminated by reason of retirement (under normal
Company policies), death or
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disability, any outstanding Option or unexercised portion thereof
granted to him may be fully exercised by the Participant, his personal
representative, executor, administrator, heirs or devisees, as
applicable, at any time, within three months of the date of the
Participant's retirement or within one year after his death or after
the date of termination by reason of disability, but in no event after
the termination of the term of the Option in accordance with its
terms. Any transfer of employment from the Company to any parent or
subsidiary thereof, or vice versa, shall not be deemed a termination
of employment.
(h) INVESTMENT PURPOSE. Each Option issued under this Plan may
be issued on the condition that any purchase of stock thereunder which
shall not be the subject of a registration statement permitting the
sale or other distribution thereof shall be for investment purposes
and not with a view to resale or distribution (the "Restricted
Stock"). If requested by the Company, each Participant must agree, at
the time of the purchase of any Restricted Stock, to execute an
"investment letter" setting forth such investment intent in the form
acceptable to the Company and must consent to any stock certificate
issued to him thereunder bearing a restrictive legend setting forth
the restrictions applicable to the further resale, transfer or other
conveyance thereof without registration under the Securities Act of
1933, as amended, and under the applicable securities or blue sky laws
of any other
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jurisdiction (together, the "Securities Laws"), or the availability
of exemptions from registration thereunder and to the placing of
transfer restrictions on the records of the transfer agent for such
stock. No Restricted Stock may thereafter be resold, transferred or
otherwise conveyed unless:
(1) an opinion of the Participant's counsel is
received, in form and substance satisfactory to counsel for
the Company, that registration under the applicable Securities Laws
is not required; or
(2) such stock is registered under the applicable
Securities Laws; or
(3) "no action" letters are received from the staff of
the Securities and Exchange Commission and from the administrative
agencies administering all other applicable securities or blue sky
laws, based on an opinion of counsel for Participant in form and
substance reasonably satisfactory to counsel for the Company,
advising that registrations under the Securities Laws are not
required.
(i) RIGHTS AS A STOCKHOLDER. Each Participant shall have all
rights attributable to stockholders of the Company with respect to any
shares issued to him or for his benefit pursuant to the terms of his
Option but shall have no shareholder rights prior thereto. Except as
provided in Paragraph 6 hereof, no adjustment shall be made for
dividends or other rights appurtenant to the ownership of
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shares in the Company for which the record date is prior to the date of
purchase of shares in accordance with subparagraph 7(e) hereof.
(j) STOCK OWNERSHIP. In the event an Option shall be granted to
any person who, at any time such Option is granted, owns stock in
excess of the limitations imposed by Section 422A(b)(6) or
other comparable restriction under the Code (i.e., owns more than 10%
of the total combined voting power of all classes of stock of the
Company or of its Parent or Subsidiary Corporation), the Option Price
(as defined in subparagraph 7(b) hereof) shall be increased to not less
than 110% of the fair market value of the stock as of the date of grant.
(k) WAIVER OF RESTRICTIONS. The Committee, in its discretion or
pursuant to contract, may waive the restrictions imposed by paragraph
7(e) hereof (relating to time of exercise) on any Participant with
respect to Options granted under the Plan; provided, however, no
restriction which is required by Section 422A of the Code may be waived.
8. EFFECTIVE DATE AND AMENDMENT AND TERMINATION OF THE PLAN. This Plan
will become effective upon adoption by the Board of Directors of the Comapny
("Adoption Date"). Within twelve months after the Adoption Date, this Plan
shall be submitted to the Shareholders of the Comapny for their approval in
accordance with Section 422A(b)(1) of the Code. The Board of Ditrectors of the
Comapny may amend or terminate this Plan at
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any time. The amendment or termination of this Plan shall not affect rights and
obligations theretofor granted and then in effect.
9. USE OF PROCEEDS. The proceeds from the sale of stock pursuant to
Options granted under the Plan shall constitute general funds of the Company.
10. CONSTRUCTION. When used herein the male, female and neuter gender
shall include the other and the singular shall include the plural as the
context or facts so require.
By order of the Board of Directors
on October 24, 1993.
MEDICINE SHOPPE INTERNATIONAL, INC.
By _______________________________
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EXHIBIT 99(c)
MEDICINE SHOPPE INTERNATIONAL, INC.
EXECUTIVE CHOICE PLAN
I. PURPOSE
Medicine Shoppe International, Inc. (the "Company") wishes to recognize
the contributions of those executives whose skills, creativity and application
have benefited the Company during their working careers by providing them the
opportunity to receive supplemental retirement income and the opportunity to
obtain or increase a proprietary interest in the Company on a favorable basis.
The Plan provides recognition of the contributions of such executives with
choices of retirement income following retirement from the company, or grants of
restricted stock or stock options that will provide the opportunity to the
executive to accumulate capital and will provide for the Company and its
stockholders the benefits of the incentive inherent in common stock ownership by
key employees of the Company. Participation in the plan is limited to those key
employees selected by the Compensation Committee of the Board of Directors, who
have made or are expected to make significant contributions to the growth and
success of the Company.
It is intended that the Plan constitute an unfunded plan for a select
group of management and highly compensated employees within the meanings of
Sections 201(2) and 301(a)(3) of Title I of ERISA.
II. DEFINITIONS
(a) Board of Directors means the Board of Directors of the Company.
(b) Code means the Internal Revenue Code of 1986, as amended.
Reference to a section of the Code shall include that section and any comparable
section or sections of any future legislation that amends, supplements or
supersedes said section.
(c) Common Stock means the common stock of the Company.
(d) Company means Medicine Shoppe International, Inc.
(e) Compensation Committee means the Compensation Committee
appointed in accordance with Section III as the administrator of the Plan.
(f) Plan means the Medicine Shoppe International, Inc. Executive
Choice Plan, as set forth herein, as amended from time to time.
(g) Subsidiary means any corporation, other than the Company, in
an unbroken chain of corporations beginning with the Company if, at the
applicable time, each of the
<PAGE> 2
corporations, other than the last corporation in the unbroken chain, owns stock
possessing 50% or more of the combined voting power of all classes of stock in
one of the other corporations in such chain.
(h) 1934 Act means the Securities Exchange Act of 1934 or any
successor legislation.
III. ADMINISTRATION
The Plan shall be administered by a committee of two or more directors,
which the Board of Directors of the Company shall appoint as the Compensation
Committee with respect to the Plan.
Subject to the provisions of the Plan, the Compensation Committee shall
have the exclusive authority to interpret and administer the Plan, to select
persons eligible to participate in the Plan, to grant Stock Options and
Restricted Stock and award Deferred Income Benefits in accordance with the Plan,
to establish the timing, pricing, amount and other terms and conditions of such
grants (which need not be uniform with respect to the various participants or
with respect to different grants to the same participant), to establish
appropriate rules relating to the Plan, to delegate some or all of its authority
under the Plan and to take all steps and make all such determinations in
connection with the Plan and the benefits granted pursuant to the Plan as it may
deem necessary or advisable.
Members of the Compensation Committee shall be "disinterested persons"
as defined in Rule 16b-3 promulgated under the Securities Exchange Act of 1934
or any successor regulation. In addition, a Stock Option intended to qualify as
performance-based compensation exempt from the deduction limitations of Section
162(m) of the Code shall be awarded by a committee comprised solely of Outside
Directors within the meaning of Section 162(m) of the Code. Such Outside
Directors may be a sub-committee of the Compensation Committee or may comprise
the whole committee.
IV. ELIGIBILITY
The Compensation Committee shall from time to time determine and
designate those key employees of the Company and its Subsidiaries who shall be
participants in the Plan; and the number of Stock Options, share of Restricted
Stock and the amount of Deferred Income Benefit, if any, to be awarded to each
such participant. In making any such award, the Compensation Committee may take
into account the nature and length of services rendered by the participant, the
capacity of the participant to contribute to the success of the Company, and any
other factors that the Compensation Committee may consider relevant.
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V. TYPES OF BENEFITS
Benefits under the Plan may be granted in any one or any combination of
(a) Stock Options; (b) Restricted Stock; and (c) Deferred Income Benefits.
The Compensation Committee may: (a) make the grant of Benefits
conditional upon an election by a participant to defer a portion of his salary
or to execute a supplemental employment agreement or agreement not to compete;
(b) give a participant a choice between two Benefits or combinations of
Benefits; (c) award Benefits in the alternative so that acceptance of or
exercise of one Benefit cancels the right of a participant to another; and (d)
award Benefits in any combination or combinations and subject to any condition
or conditions consistent with the terms of the Plan that the Compensation
Committee in its sole discretion may determine.
VI. SHARES SUBJECT TO PLAN
Subject to the provisions of Section X (relating to adjustment for
changes in capital stock), the maximum number of shares that may be issued under
this Plan shall not exceed in the aggregate 200,000 shares of Common Stock. Such
shares may be unissued shares, or issued shares that have been reacquired. If
any Stock Options granted under the Plan shall for any reason terminate or
expire, or be surrendered without having been exercised in full, the shares not
purchased under such options shall be available again for option or grant under
the Plan. If any Restricted Stock is forfeited before the end of the Restricted
Period, such shares shall not be available again for option or grant under the
Plan. In addition, the maximum number of shares that may be awarded to any one
participant in any one calendar year pursuant to Stock Options and Restricted
Stock shall not exceed 810,000 shares.
VII. STOCK OPTIONS
The Compensation Committee from time to time may grant options to
participants to purchase shares of Common Stock from the Company. Such options
shall be nonqualified options that are not intended to qualify as incentive
stock options within the meaning of Section 422 of the Code. Each option shall
be granted pursuant to an option agreement between the Company and the
participant that shall be in such form and contain such provisions as the
Compensation Committee shall deem appropriate. Option agreements need not be
identical, but each option agreement shall include the substance of the
provisions as follows:
(a) the purchase price shall be payable in full upon exercise of the
Stock Option. The purchase price shall be payable in cash or, to the extent
permitted by and subject to the conditions contained in the terms of the option
agreement, by tendering shares of Common Stock of the Company, or in the form of
any other property or note permitted by the option agreement;
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(b) a Stock Option shall not be transferable by the individual to whom
granted except by will or by the laws of dissent and distribution, and may be
exercised during the lifetime of the participant only by such participant, or by
such participant's guardian or legal representative.
(c) the Compensation Committee in its discretion may provide in any
option agreement that the option shall be exercisable in full at any time or
from time to time during the term of the option, or may provide for the exercise
of the option in such installments and at such times during the term of the
option as the Compensation Committee may determine; provided that no Stock
Option granted to a person subject to Section 16 of the 1934 Act shall be
exercisable for at least six months from the date of acquisition by the
participant of the Stock Option;
(d) the maximum term of a Stock Option shall be ten years from the date
it was created;
(e) the purchase price of the shares covered by each Stock Option shall
be not less than 100% of the fair market value of the stock subject to the
option at the time the option is granted; provided that, options granted as a
substitution of a new option for an old option in the course of a corporate
acquisition may be awarded at below such value if the aggregate fair market
value of the shares subject to the option immediately after the substitution
over the aggregate option price of such shares is not more than the excess of
the aggregate fair market value of all shares subject to the option immediately
before such substitution over the aggregate option price of such shares.
VIII. RESTRICTED STOCK
The Compensation Committee from time to time may grant shares of
Restricted Stock to a participant.
Restricted Stock consists of Common Stock that is subject to certain
restrictions on its disposition and rights of the Company to require such shares
upon specified terms upon the occurrence of certain events during a specified
period, as determined by the Compensation Committee. Each participant who is
awarded Restricted Stock shall enter into an agreement with the company in a
form specified by the Compensation Committee agreeing to the terms and
conditions of the award and such other matters consistent with the Plan as the
Compensation Committee in its sole discretion shall determine.
Restricted Stock may not be sold, transferred, pledged or otherwise
encumbered during the Restricted Period. The Restricted Period shall commence on
the date of award and end at such later date as the Compensation Committee may
designate at the time of the award. In the case of a participant subject to
Section 16 of the 1934 Act, the Restricted Period shall be at least six months
after acquisition of the Restricted Stock, except in case of death or
disability. The Compensation Committee in its sole discretion from time to time
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may establish the terms and conditions under which Restricted Stock shall be
forfeited by the participant during the Restricted Period.
A participant shall not be entitled to delivery of the certificate
representing shares of Common Stock until the expiration of the Restricted
Period applicable to such Restricted Stock.
IX. DEFERRED INCOME BENEFIT
The Compensation Committee from time to time may award Deferred Income
Benefits to a participant payable at such times and in such amounts, and subject
to such terms and conditions, as the Compensation Committee in its sole
discretion shall determine, consistent with the terms of this Plan. Each
participant who is awarded a Deferred Income Benefit shall enter into an
agreement with the Company on a form specified by the Compensation Committee
agreeing to such terms and conditions of the benefit consistent with the Plan as
the Compensation Committee in its sole discretion shall determine.
A Deferred Income Benefit consists of a retirement income, the normal
form of which is an amount payable per month for the lifetime of a participant
beginning at a designated date after the termination of employment of the
participant with the Company. Each Deferred Income Benefit agreement may provide
for alternative forms of payment of benefits of actuarially equivalent value,
determined in accordance with the terms of such agreement. Such agreements also
may provide for appropriate early retirement benefits, postponed retirement
benefits, disability benefits and death benefits that are the actuarial
equivalent of such normal supplemental retirement benefit.
The payments to a participant, or his beneficiary, if any, shall be
made from the general assets of the Company or the Subsidiary that is the
employer of such participant. The right to payments of a participant or
beneficiary shall be no greater than the right of an unsecured general creditor
of the Company or such Subsidiary. Neither the Company nor any Subsidiary shall
be obligated to set aside, earmark or escrow any funds or any assets to satisfy
its obligations to pay such Deferred Income Benefit. Any benefit payable under
this Section shall not be represented by any note or evidence of indebtedness
other than the promises contained in this Plan and the Deferred Income Benefit
agreement between the Company and the participant. No benefit or any part
thereof which is payable hereunder shall be subject in any manner to
anticipation, alienation, transfer, sale, assignment, pledge, encumbrance,
attachment or the claims of creditors of any person having an interest
hereunder, nor be in any manner liable for or subject to the debts, contracts or
liabilities of such person. If, in its discretion, the Company or a Subsidiary
purchases an insurance policy or other investment to assist in funding the cost
of providing the benefits under this Section, neither the participant nor any of
his beneficiaries shall have any rights whatsoever in such a policy or
investment.
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X. ADJUSTMENT UPON CHANGES IN STOCK
If any change is made in the shares of Common Stock of the Company by
reason of any merger, consolidation, reorganization, recapitalization, stock
dividend, split up, combination of shares, exchange of shares, change in
corporate structure, or otherwise, appropriate adjustments shall be made by the
Compensation Committee to the kind and maximum number of shares subject to the
Plan and the kind and number of shares and price per share of stock subject to
each outstanding Benefit. Any additional shares, or right to acquire shares, as
the result of such an adjustment shall be subject to the same terms and
conditions that apply to the Benefit for which such increase was received. No
fractional shares of Common Stock shall be issued under the Plan on account of
any such adjustment, and rights to shares always shall be limited after such an
adjustment to the lower full share.
XI. AMENDMENT OF THE PLAN
The Board of Directors may at any time amend the Plan, provided that
the Board may not, without approval (within twelve months before or after the
date of such change) of such number of the stockholders as may be required by
federal income tax or federal securities laws for any particular amendment: (a)
increase the maximum number of shares of Common Stock in the aggregate which may
be issued under the Plan, except as may be permitted under the adjustment
provisions of Section X, or (b) adopt any other amendment for which stockholder
approval is required by federal income tax or federal securities laws. The Board
of Directors may not alter or impair any Benefit previously granted under the
Plan without the consent of the person to whom the Benefit was granted.
XII. TERMINATION OF THE PLAN
The Board of Directors may terminate or suspend the Plan at any time.
No Benefit shall be awarded after termination of the Plan.
Rights and obligations under a Benefit awarded while the Plan is in
effect shall not be altered or impaired by termination or suspension of the Plan
except by consent of the person to whom the Benefit was awarded.
XIII. WITHHOLDING TAX
The Company shall have the right to withhold with respect to any
distribution made to Participants under the Plan any taxes required by law to be
withheld because of such distribution. The Compensation Committee may require or
permit a Participant to satisfy any tax requirements with Company stock. If the
Compensation Committee permits a Participant to satisfy the tax requirements in
Company stock, the election by a Participant to do so shall be made prior to the
date the withholding obligation arises (the "Tax Date"),
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shall be irrevocable and shall be subject to the approval of the Compensation
Committee. Additionally, if a Participant is subject to Section 16 of the 1934
Act the Participant's election (a) may not be made until at least six months
after the award to which it relates except in the case of death or disability;
and (b) must be made six months prior to the Tax Date or during the period
beginning on the third business day following the date of release for
publication of quarterly and annual summary statements of sales and ending on
the twelfth business day following the date of such release.
XIV. RULES OF CONSTRUCTION
The terms of the Plan shall be construed in accordance with the laws of
the State of Missouri.
XV. COMPLIANCE WITH 1934 ACT
With respect to persons subject to Section 16 of the 1934 Act,
transactions under this Plan are intended to comply with all applicable
provisions of Rule 16b-3 or its successors under the 1934 Act. To the extent any
provision of the Plan or action by the Compensation Committee fails to so
comply, it shall be deemed null and void, to the extent permitted by law and
deemed advisable by the Compensation Committee.
XVI. NONTRANSFERABILITY
Each Option or similar right granted under this Plan shall not be
transferable other than by will or the laws of descent and distribution, and
shall be exercisable during the holder's lifetime only by the holder or the
holder's guardian or legal representative.
XVII. EFFECTIVE DATE
The Plan shall become effective as of June 1, 1994, subject only to
approval by the holders of a majority of the outstanding voting stock of the
Company present in person or by proxy at a meeting at which a quorum is present,
within twelve months after the adoption of the Plan by the Board of Directors.
Notwithstanding anything to the contrary in any award made pursuant to the Plan,
no Stock Option shall be exercisable, no Restricted Stock shall be issued and no
Deferred Income Benefit shall be paid before such approvals have been obtained.
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