<PAGE>
As filed with the Securities and Exchange Commission on January 10, 1997
Registration No. 033-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
OGDEN CORPORATION
(Exact Name of issuer as specified in charter)
DELAWARE 13-5549268
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Two Pennsylvania Plaza - 25th Floor
New York, New York 10121
(Address of Principal Executive Offices)(Zip Code)
-----------------------------
OGDEN SELECT SAVINGS PLAN
(Full title of the plan)
J. L. Effinger, Esq.
Associate Counsel and Assistant Secretary
Ogden Corporation
Two Pennsylvania Plaza
New York, New York 10121
(212)868-6126
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
Title of securities to Amount to be Proposed Maximum Proposed Maximum Amount of
be Registered (1) Registered (2) Offering Price per Aggregate Registration Fee
Share/Unit Offering Price
<S> <C> <C> <C> <C>
Deferred Compensa-
tion Obligations $7,000,000 100% $7,000,000 $2,121.21
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Deferred Compensation Obligations are unsecured obligations of Ogden
Corporation to pay deferred compensation in the future in accordance with
the terms of the Ogden Select Savings Plan for a select group of eligible
employees.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee.
<PAGE>
PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The document(s) containing the information specified in Part I of this Form
S-8 will be sent or given to participating employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
These documents and the documents incorporated by reference into this
Registration Statement pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the Commission by the
registrant are incorporated by reference in this registration statement:
(a) The registrant's latest annual report (Form 10-K) filed pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), which contains audited financial statements for the
registrant's latest fiscal year; and
(b) All other reports filed by the registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by
the annual report referred to in (a) above.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered hereby have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be part
thereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
The Ogden Select Savings Plan (the "Plan") allows participants to submit
elections to defer compensation, including elections as to the amount to be
deferred and the timing and manner of distribution, before the start of the
fiscal year in which the compensation will be earned.
The amount of compensation deferred by each participant (the "Deferral
Amounts") represent unsecured general obligations of the registrant to pay
deferred compensation (plus any net investment earnings attributable thereto) in
the future in accordance with the terms of the Plan and the Trust Agreement
between the registrant or a subsidiary of the registrant and the American
Express Trust
2
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Company, as trustee (the "Trustee") dated as of January 1, 1995 (the "Trust
Agreement") thereunder. In the event of the insolvency of the registrant, the
trust fund established under the Trust Agreement (the "Trust") shall be subject
to the claims of the general creditors of the registrant. In such event, all
participants and beneficiaries shall constitute unsecured general creditors of
the registrant with respect to amounts otherwise payable thereunder and shall
have no special or priority claim with respect to the assets held in the Trust.
The Deferral Amount is determined in accordance with the Plan based on the
participant's election. Under the Plan, Deferral Amounts may be invested in one
or more investment funds available under the Plan. Each participant under the
Plan will have a separate participant account, and each participant's account
will be valued separately. Any earnings and realized and unrealized gains
attributable to a participant's account shall be credited to such account on a
segregated basis, and any amounts distributed from, any realized losses incurred
by, and any expenses and fees properly chargeable to, a participant's account
shall be charged against such account on a segregated basis.
Except as set forth in the Plan, or as otherwise provided by applicable
law, the interest of any participant in the Plan, in the Trust, or in any
distribution to be made under the Plan may not be assigned, pledged, alienated,
anticipated, or otherwise encumbered (either at law or in equity) and shall not
be subject to attachment, bankruptcy, garnishment, levy, execution, or other
legal or equitable process. Each participant in the Plan has the right to
designate a beneficiary to receive the balance, if any, of the participant's
account at the time of the participant's death and shall have the right at any
time to revoke such designation or to substitute another such beneficiary.
The registrant's Board of Directors has the right to amend or terminate the
Plan at any time and for any reason, provided, however, that no amendment or
termination of the Plan shall reduce any participant's or beneficiary's rights
or benefits accrued under the Plan before the date the amendment is adopted or
the Plan is terminated, as appropriate, including the participant's or
beneficiary's right to payment of the balance of the participant's account as of
such date.
The Deferral Amounts are not convertible into another security of the
registrant. The Trustee was appointed pursuant to the Trust Agreement to take
action with respect to the Deferral Amounts. Pursuant to the Trust Agreement,
the Trustee shall be directed by the Plan Administrator with respect to the
investment of Trust assets in accordance with the investment decisions of the
participants (and, if applicable, beneficiaries), and the Trustee will follow
such directions.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102 of the Delaware General Corporation Law allows a corporation to
eliminate the personal liability of directors of a corporation to any of its
stockholders for monetary damage for a
3
<PAGE>
breach of fiduciary duty as a director, except in the case where the director
breached his duty of loyalty, failed to act in good faith, engaged in
intentional misconduct or knowingly violated a law, authorized the payment of a
dividend or approved a stock repurchase in violation of Delaware corporate law
or obtained an improper personal benefit. The Registrant's Amended and Restated
Certificate of Incorporation contains a provision that eliminates directors'
personal liability as set forth above.
Section 145 of the Delaware General Corporation Law, as amended, provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at its request in such capacity in another
corporation or business association against expenses (including attorneys'
fees), judgements, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
In addition to the foregoing, (i) Article 20 of the registrant's Amended
and Restated Certificate of Incorporation provides that a director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent such exemption from liability or limitation thereof is not
permitted under the Delaware General Corporation Law as presently in effect or
as the same may hereafter be amended and; (ii) section 16-A of the registrant's
By-laws provides that (a) the Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) The Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was
4
<PAGE>
a director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery of the State of Delaware
or such other court shall deem proper.
(c) To the extent that a director, officer, employee or
agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections (a) and
(b), or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b)
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b). Such
determination shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(e) Expenses incurred in defending a civil or criminal
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in these By-laws.
(f) The indemnification and advancement of expenses
provided by this Section 16-A of the By-laws shall not be deemed exclusive of
any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any other by-law, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(g) The Corporation shall have power to purchase and
maintain
5
<PAGE>
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of these By-laws.
(h) Any amendment to this Section 16-A shall not apply to
any liability of a director, officer, employee or agent arising out of a
transaction or omission occurring prior to the adoption of such amendment, but
any such liability based on a transaction or omission occurring prior to the
adoption of such amendment shall be governed by Section 16-A of the By-laws, as
in effect at the time of such transaction or omission, and (c) the registrant
has purchased directors and officers liability insurance which would indemnify
the directors and officers of the registrant against damages arising out of
certain kinds of claims which might be made against them based on their
negligent acts or omissions while acting in their capacity as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
4 Ogden Select Savings Plan
5 Opinion regarding Legality
23 Consent of Independent Auditors
24 Power of Attorney (see page S-1)
ITEM 9. UNDERTAKINGS
(a) The undersigned hereby undertakes:
(1) To file, during any period in which offers and sales are being
made, a post-effective amendment to this registration statement;
(i) to include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration statement;
(iii) to include any material information with respect to the
plan of
6
<PAGE>
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraph (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on 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 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(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 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act that is
incorporated by reference in this registration statement shall be deemed to
be a new registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering hereof.
(c) Insofar as indemnification for liabilities under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in 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 by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in a successful defense of any action, suit
of 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 of 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.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that is has reasonable grounds to believe that it meets all of the
requirements for filing of Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, on November 21, 1996.
OGDEN CORPORATION
(Registrant)
By:/S/ R. Richard Ablon
--------------------------------
R. Richard Ablon, Chairman of the
Board, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints J. L. Effinger and Lynde H. Coit true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Security Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities
indicated.
S-1
<PAGE>
SIGNATURE TITLE
- --------- -----
/S/ R. Richard Ablon President, Chairman of the Board and Chief
- ------------------------------- Executive Officer, Director
R. Richard Ablon
/S/ Philip G. Husby Senior Vice President, Chief Financial
- ------------------------------- Officer and Treasurer
Philip G. Husby
/S/ Robert M. DiGia Vice President and Controller
- ------------------------------- (Chief Accounting Officer)
Robert M. DiGia
/S/ Ralph E. Ablon Director
- -------------------------------
Ralph E. Ablon
/S/ David M. Abshire Director
- -------------------------------
David M. Abshire
/S/ Norman G. Einspruch Director
- -------------------------------
Norman G. Einspruch
/S/ Attallah Kappas Director
- -------------------------------
Attallah Kappas
- ------------------------------- Director
Terry Allen Kramer
/S/ Judith D. Moyers Director
- -------------------------------
Judith D. Moyers
/S/ Homer A. Neal Director
- -------------------------------
Homer A. Neal
/S/ Stanford S. Penner Director
- -------------------------------
Stanford S. Penner
/S/ Frederick Seitz Director
- -------------------------------
Frederick Seitz
/S/ Robert E. Smith Director
- -------------------------------
Robert E. Smith
S-2
<PAGE>
/S/ Helmut F.O. Volcker Director
- -------------------------------
Helmut F.O. Volcker
/S/ Abraham Zaleznik Director
- -------------------------------
Abraham Zaleznik
S-3
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. EXHIBIT
- ----------- -------
4 Ogden Select Savings Plan
5 Opinion regarding Legality
23 Consent of Independent Auditors
24 Power of Attorney (See Page S-1)
<PAGE>
EXHIBIT 4
OGDEN SELECT SAVINGS PLAN
ARTICLE I
PURPOSE
1.1 PURPOSE. The purpose of the Ogden Select Savings Plan is to enable
eligible employees of the Company to enhance their retirement security by
permitting them to elect to defer receipt of a portion of their compensation to
a later date or event. The Ogden Select Savings Plan was originally effective
as of October 1, 1990, the amendment and restatement of the Ogden Select Savings
Plan shall be January 1, 1995.
ARTICLE II
DEFINITIONS
When used herein the following terms shall have the following meanings:
2.1 "BOARD" shall mean the Board of Directors of the Company.
2.2 "CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
2.3 "COMMITTEE" shall mean the Administrative Committee of the Ogden
Profit Sharing Plan as appointed by the Board to administer the Plan.
2.4 "COMPANY" shall mean Ogden Services Corporation along with certain
of its designated subsidiaries and affiliates.
2.5 "COMPENSATION" shall mean a Participant's annual salary including
any bonuses, any car allowance or other current cash compensation paid by the
Company but excluding Discretionary Profit Sharing Cash Payments, any Select
Awards, imputed income, salary gross-ups, non-cash compensation and severance
pay.
2.6 "COMPENSATION COMMITTEE" shall mean the Compensation Committee of
the Ogden Corporation Board of Directors.
2.7 "DEFERRAL YEAR" shall mean each Plan Year as to which an election is
made to defer Compensation in accordance with the provisions of Section 3.3 of
the Plan.
2.8 "DISABILITY" shall mean the inability of a Participant to perform
the duties of his position with the Company due to a physical or mental ailment,
as determined by the Committee in its sole discretion, such physical or mental
ailment to result in the Executive's termination of employment or retirement.
2.9 "DISCRETIONARY PROFIT SHARING CASH PAYMENT" shall mean the cash
payment awarded to a Participant out of Company profits by the Compensation
Committee in its sole
1
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discretion. Any Discretionary Profit Sharing Cash Payment awarded shall be paid
from the profits of the Company and not be Compensation.
2.10 "DISTRIBUTION DATE" shall mean, as determined by a Participant,
either (i) the last business day of the calendar quarter immediately following
such Participant's Termination of Service; or (ii) the December 31 immediately
following such Participant's Termination of Service.
2.11 "EFFECTIVE DATE" shall mean January 1, 1995.
2.12 "EXECUTIVE" shall mean any officer or other member of the management
group of the Company whose Compensation is within the top 4% of all employees of
the Company.
2.13 "INVESTMENT COMMITTEE" shall mean the Investment Committee of the
Ogden Profit Sharing Plan as appointed by the Board to manage and direct the
investment of the assets of the Plan.
2.14 "PARTICIPANT" shall mean any Executive who becomes a Participant in
the Plan as provided in Section 3.2 of the Plan.
2.15 "PAYMENT EVENT" shall mean Termination of Service, death, or
Disability, in accordance with Section 5.2 of the Plan.
2.16 "PLAN" shall mean this Ogden Select Savings Plan, as amended and
restated herein, and as amended from time to time.
2.17 "PLAN YEAR" shall mean calendar year.
2.18 "SELECT AWARD" shall mean an amount determined by the Compensation
Committee in its sole discretion and contributed by the Company to the deferral
account of a Participant in accordance with Section 3.4 of the Plan.
2.19 "TRUST" shall mean the trust established under the Trust Agreement.
2.20 "TRUST AGREEMENT" shall mean as of the Effective Date the agreement
between the Company and The Bank of New York dated as of October 1, 1990, and as
in effect through December 31, 1994 and the agreement with American Express
Trust dated as of January 1, 1995, as amended from time to time or an agreement
between the Company and such other trustee as may be appointed by the Board from
time to time.
2.21 "TERMINATION OF SERVICE" shall mean termination of employment with
the Company and all of its affiliates including any form of retirement other
than by reason of Disability or death.
2.22 "VALUATION DATE" shall mean each business day of the Plan Year that
the New York Stock Exchange is open for business and shall be the date upon
which the Participant's account balances are determined in accordance with
Section 4.1(c).
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ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 ELIGIBILITY. Participation in the Plan shall be limited to those
Executives who (i) are eligible to participate in the Ogden Profit Sharing Plan,
or any other defined contribution plan sponsored by any affiliate or subsidiary
of the Company, and (ii) have received written notification from either (1) the
Company or (2) from a person designated by the Company, that they are eligible
to participate in the Plan.
3.2 PARTICIPATION.
(a) An Executive eligible to participate in the Plan under
Section 3.1 may become a Participant for any Plan Year by executing an
irrevocable deferral election (on a form prescribed by the Committee) with
respect to his Compensation, his Discretionary Profit Sharing Cash Payment, or
both, for such Plan Year. Except as provided in Section 3.2(b), such election
must be executed and delivered to the Committee on or before the last day of
December of the preceding Plan Year.
(b) With respect to an Executive who first becomes eligible to
participate in the Plan under Section 3.1 after the beginning of a Plan Year,
such Executive may participate in the Plan for the remainder of such Plan Year
by executing an irrevocable deferral election (on a form prescribed by the
Committee) with respect to such Executive's Compensation, Discretionary Profit
Sharing Cash Payment, or both, earned on or after the date the deferral election
is made, within 30 days of the date such Executive receives notice from the
Committee that the Executive is eligible to participate.
(c) An Executive eligible to participate in the Plan under
Section 3.1 will become a Participant for any Plan Year in which the
Compensation Committee grants a Select Award on behalf of such Participant.
3.3 DEFERRAL ELECTION.
(a) As a condition of participation under Section 3.2(a) and (b)
of the Plan, an Executive must agree to defer from 1% to 10% of Compensation, or
1% to 100% of his Discretionary Profit Sharing Cash Payment, or both, for each
Plan Year as to which such Executive elects to defer Compensation or
Discretionary Profit Sharing Cash Payment. The amount so deferred must be in
increments of 1%. The Executive may make separate elections with respect to
base salary, bonus payments, or both. The Committee may from time to time
provide another manner of specifying the amount of Compensation or Discretionary
Profit Sharing Cash Payment to be deferred, including, but not limited to, a
specific dollar amount.
(b) An election made under the Plan shall relate only to
Compensation, a Discretionary Profit Sharing Cash Payment, or both for the Plan
Year, or to Compensation, Discretionary Profit Sharing Cash Payment, or both for
the remainder of a Plan Year if Section 3.2(b) applies. A separate election
must be made in order to defer Compensation or a Discretionary Profit Sharing
Cash Payment for each subsequent Plan Year. In the event of a failure to make a
timely deferral election for any Plan Year, no portion of the Participant's
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<PAGE>
Compensation or Discretionary Profit Sharing Cash Payment for such Plan Year may
be deferred under the Plan.
(c) Each deferral election under Sections 3.2 and 3.3 shall (in
accordance with Section 5.2) also designate:
(1) the Distribution Date the payment shall commence; and
(2) the method of payment. The Participant may choose
between a lump sum distribution and annual installments
to a maximum of five years;
(3) the investment fund or funds the deferral is to be
initially invested under; and
(4) the beneficiary to receive any payments if the
Participant dies before receiving all amounts to which
the Participant is entitled under the Plan.
3.4 SELECT AWARD. The Compensation Committee may contribute directly to
the Plan on behalf of any Executive or group of Executives a discretionary
amount in a given Plan Year. Each Select Award shall be a bookkeeping entry on
the Company's records. The Participant shall be a general unsecured creditor of
the Company with respect to the amount of any Select Award credited to his
account. The Compensation Committee may establish a vesting schedule for any
Select Award. The vesting schedule will be determined at the time the Select
Award is determined.
ARTICLE IV
PARTICIPANT'S ACCOUNT
4.1 ACCOUNTS.
(a) The Company shall establish written bookkeeping accounts to
record the deferrals of Compensation, Discretionary Profit Sharing Cash Payments
and any Select Award and earnings, increases and decreases thereon under the
Plan.
(b) During the Deferral Year, the Company shall credit each
Participant's account for that Deferral Year with the amount deferred under
Sections 3.2 3.3 and 3.4 by each Participant. Any deferral of Compensation,
Discretionary Profit Sharing Cash Payments or Select Awards will be credited to
such Participant's account as soon as it is received by the Trustee. Generally,
this will be in the month immediately following the month in which the deferral,
or Select Award is payable.
(c) The amounts determined in accordance with Section 4.1(b)
shall be deemed to be invested by the Investment Committee in accordance with
the Participant's election. The Committee shall maintain written records of
such investments. If a Participant
4
<PAGE>
does not make a written election, he shall be deemed to have directed the
investment of his funds into the investment fund with the highest price
stability and the least volatile total return potential. Income, gains and
losses on such investments shall be credited to or charged against each
Participant's account as of the Valuation Date.
(d) A Participant's account shall be reduced by any payments
made to the Participant, or his beneficiary, estate or representative. The
Company's obligation to make payments pursuant to the Plan to any
Participant, his beneficiary, estate or representative shall be limited to
the amount credited to such Participant's account as of the date of such
payment. Neither the Plan nor any action taken pursuant thereto guarantees
any fixed dollar amount of payments to the Participant, his beneficiary,
estate or representative. The amount of payment under the Plan shall vary in
accordance with the performance of the investment of amounts deferred under
the Plan in the investment fund or funds selected by the Participant. The
Company, the Committee, the Investment Committee, the Compensation Committee,
and the Board shall not be responsible for any decrease in value of any
Participant's account due to such investment.
(e) With respect to the employee benefit or welfare plans
sponsored by the Company under which the amount of any benefit is based on the
rate of salary paid to an employee, a Participant's rate of salary for the
purposes of such employee benefit or welfare plan shall include any amount of
Compensation deferred under the Plan, unless otherwise specifically provided in
such plan.
4.2 FUNDING PROHIBITIONS. All entries in a Participant's account shall
be bookkeeping entries only and shall not represent a special reserve or
otherwise constitute a funding of the Company's unsecured promise to pay any
amounts hereunder. All payments to be made under the Plan shall be paid from
the general funds of the Company. All such assets shall be the property solely
of the Company and shall be subject to the claims of the Company's unsecured
general creditors. To the extent a Participant or any other person acquires a
right to receive payments from the Company under the Plan, such right shall be
no greater than the right of any unsecured general creditor of the Company and
such person shall have only the unsecured promise of the Company that such
payments shall be made. In its sole discretion, the Company may authorize the
creation of an irrevocable grant or trust or other arrangement to meet the
obligations created under the Plan. The existence of such trust or other
arrangement shall be consistent with the "unfunded" status of the Plan.
ARTICLE V
PAYMENT
5.1 PAYMENT OF ACCOUNT. Payment of amounts credited to a Participant's
account shall be made in the manner and at the time or times specified herein.
All payments shall be made by Company check or by other arrangements.
5.2 COMMENCEMENT OF PAYMENT.
Notwithstanding any provisions of the Plan to the contrary, upon the
occurrence of a Payment Event, the balance in the Participant's account shall be
valued on the last Valuation Date of the calendar quarter or of the Plan Year as
elected in accordance with Section 3.3 and
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paid to the Participant (or, in the case of death, to the Participant's
beneficiary) on or before the first day of the month following 90 days from the
Valuation Date in accordance with Section 5.3.
5.3 METHOD OF PAYMENT.
(a) For all Payment Events, the method of payment selected by
the Participant will be irrevocable. Selection of method of payment shall be
made at the time the Participant first elects to participate in the Plan. Any
Participant who was a Participant prior to January 1, 1995 may elect a method of
payment before January 1, 1995 other than a lump sum for those amounts deferred
(and earnings thereof) on or after January 1, 1995. The method of payments
shall be:
(i) lump sum; or
(ii) substantially equal annual installments not to exceed five years.
Earnings or losses credited to a Participant's account as of the Valuation Date
preceding the date of the next distribution shall be added to the Participant's
account and distributed as a part of the next installment. Distribution shall
be made or commence as specified in Section 5.2 of the Plan. Subsequent
installments will be made each year in the month of the first installment. Each
such installment shall include earnings or losses credited to the balance of the
Participant's accounts. The final installment will be the balance of the
Participant's deferred compensation account and earnings or losses credited to
the account.
(b) Notwithstanding any other provision of the Plan to the
contrary, a Participant may withdraw an amount from his account only in the
event of "financial hardship". To be a financial hardship, the hardship must be
unforeseeable and beyond the control of the Participant. The Committee shall
have the right to require such Participant to submit such documentation as it
deems appropriate for the purpose of determining that the Participant has
incurred a financial hardship. The amount withdrawn shall not exceed the amount
reasonably needed to satisfy such financial hardship.
ARTICLE VI
ADMINISTRATION
6.1 ADMINISTRATION. The Plan shall be administered by the Committee.
The Committee shall have all powers necessary to carry out the provisions of the
Plan, including, without limitation, the power to delegate administrative
matters to other persons, to interpret the Plan and to adopt guidelines for its
administration.
6.2 INVESTMENT. The investment of funds within the Trust shall be the
responsibility of the Investment Committee.
ARTICLE VII
MISCELLANEOUS
7.1 TERMINATION OF PLAN. The Company may at any time by action of the
Board terminate the Plan. Upon termination of the Plan, no further deferrals
will be permitted, and the
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Participant's Compensation and Discretionary Profit Sharing Cash Payment will be
restored on a nondeferred basis.
7.2 AMENDMENT. The Company may at any time amend the Plan in any
respect, (i) in the case of amendments which have a material effect on the cost
to the Company of maintaining the Plan, by action of the Compensation Committee
of the Board or, (ii) with respect to any other amendments, by action of the
Committee; provided, however, that no such amendment shall adversely affect the
rights of Participants or their beneficiaries to any amounts credited or to be
credited to the Participants' accounts with respect to any Deferral Year which
has commenced prior to the adoption of any such amendment or any funds held in
the Trust at the time of such amendment.
7.3 PAYMENTS TO PERSONS OTHER THAN PARTICIPANTS. If the Committee shall
find that any person to whom any amount is payable under the Plan is unable
to care for such person's affairs because of illness or accident, or is a
minor, or has died, then any payment due to such person or such person's
estate (unless a prior claim therefore has been made by a duly appointed
legal representative) may, if the Committee so directs the Company, be paid
to such person's spouse, child, a relative, an institution maintaining or
having custody of such person or any other person deemed by the Committee to
be a proper recipient on behalf of such person otherwise entitled to payment.
Any such payment shall be a complete discharge of the liability of the
Company, the Committee, the Investment Committee and the
Board.
7.4 BENEFICIARY. Each Participant shall designate a beneficiary to whom
any balance in each account under the Plan shall be payable on his death. A
Participant may also designate an alternate beneficiary to receive such payment
in the event that the designated beneficiary cannot receive payment for any
reason. In the event no designated or alternate beneficiary can receive such
payment for any reason, payment will be made to the Participant's estate. Each
Participant may at any time change any beneficiary designation. A change of
beneficiary designation must be made in writing and delivered to the Committee
or its delegate for such purposes. The interest of any beneficiary who dies
before the Participant will terminate unless otherwise specified by the
Participant.
7.5 NO LIABILITY OF MEMBERS. No member of the Committee, the Investment
Committee, Compensation Committee of the Board, nor any employee of the Company
shall be personally liable by reason of any contract or other instrument
executed by such member or employee or on such member's or employee's behalf in
his capacity as a member of the Committee, the Investment Committee, the
Compensation Committee of the Board or as an employee, or for any mistake of
judgment made in good faith, and the Company shall indemnify and hold harmless
each employee, officer or director of the Company to whom any duty or power
relating to the administration or interpretation of the Plan or investment of
the funds may be allocated or delegated, against any cost or expense (including
counsel fees) or liability (including any sum paid in settlement of a claim)
arising out of any act or omission to act in connection with the Plan unless
arising out of such person's own fraud or bad faith.
7.6 SUCCESSOR CORPORATION. The obligations of the Company under the
Plan shall be binding upon any successor corporation or organization resulting
from the merger, consolidation or other reorganization of the Company, or upon
any successor corporation or organization
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succeeding to substantially all of the assets and business of the Company. The
Company agrees that it will make appropriate provisions for the preservation of
Participants' rights under the Plan in any agreement or plan which it may enter
into or adopt to effect any such merger, consolidation, reorganization or
transfer of assets.
7.7 NO ALIENATION OF BENEFITS. To the extent permitted by law,
Participants and beneficiaries shall not have the right to alienate, anticipate,
commute, sell, assign, transfer, pledge, encumber or otherwise convey the
right to receive any payments under the Plan, and any payments under the Plan or
rights thereto shall not be subject to the debts, liabilities, contracts,
engagements or torts of Participants or beneficiaries nor to attachment,
garnishment or execution, nor shall they be transferable by operation of law in
the event of bankruptcy or insolvency. Any attempt, whether voluntary or
involuntary, to effect any such action shall be null, void and of no effect.
7.8 NO RIGHTS TO CONTINUED EMPLOYMENT. Nothing contained herein shall
be construed as conferring upon an Executive the right to continue in the employ
of the Company as an Executive or in any other capacity.
7.9 HEADINGS. The headings are included solely for convenience of
reference and shall not control the meaning or interpretation of any of the
provisions of the Plan.
7.10 APPLICABLE LAW. The Plan shall be construed and administered in
accordance with the laws of the State of New York, without reference to the
principles of conflicts of law thereof.
Ogden Services Corporation
By: /s/ J. L. Effinger
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Vice President
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EXHIBIT 5
January 10, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: OGDEN CORPORATION FORM S-8 REGISTRATION STATEMENT
IN CONNECTION WITH THE OGDEN SELECT SAVINGS PLAN
Dear Sirs:
I am Associate Counsel and Assistant Secretary of Ogden Corporation
(the "Corporation"). In that capacity, I have acted as counsel for the
Corporation in connection with the Corporation's Registrant Statement on Form
S-8 (the "Registration Statement") filed by the Corporation on January 10, 1997
with the Securities and Exchange Commission (the "Commission") for the purpose
of registering under the Securities Act of 1933, as amended (the "Securities
Act"), $7,000,000 of Deferred Compensation Obligations which represent unsecured
obligations of the Corporation to pay deferred compensation in the future in
accordance with the terms of the Ogden Select Savings Plan (the "Plan").
In furnishing this opinion, I have examined such documents, legal
opinions and precedents, corporate and other records of the Corporation and
certificates of officers of the Corporation as I have deemed necessary or
appropriate to provide a basis for the opinion set forth below. In this
examination, I have assumed the genuineness of all signatures, the authenticity
of all documents submitted to me as original documents and conformity to
original documents of all documents submitted to me as certified or photostatic
copies.
Based upon the foregoing and my examination of such questions of law
as I have deemed necessary or appropriate for the purpose of this opinion, it is
my opinion that, when issued by the Corporation in the manner provided in the
Plan, the Deferred Compensation Obligations will be valid and binding
obligations of the Corporation, enforceable against the Corporation in
accordance with their terms, subject, as to enforcement, (i) to bankruptcy,
insolvency, reorganization, arrangement, moratorium and other laws of general
applicability relating to or affecting creditor's
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rights, and (ii) to general principles of equity, whether such enforcement is
considered in a proceeding in equity or at law.
This opinion is rendered to you in connection with the issuance of the
Deferred Compensation Obligations and is solely for your benefit. This opinion
may not be relied upon by you for any other purpose, or relied upon by any other
person, firm, corporation or other entity for any purpose, without my prior
written consent. I disclaim any obligation to advise you of any change of law
that occurs, or any facts of which we become aware, after the date of this
opinion.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. By giving such consent, I do not thereby admit that I
am an expert with respect to any part of the Registration Statement, including
this exhibit, within the meaning of the term "expert" as used in the Securities
Act or the rules and regulations of the Commission issued thereunder.
Very truly yours,
/S/ J. L. Effinger
------------------
J. L. Effinger
JLE/rd
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EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
Ogden Corporation:
We consent to the incorporation by reference in this Registration Statement of
Ogden Corporation on Form S-8 of our reports dated February 5, 1996 (which
express an unqualified opinion and include an explanatory paragraph relating to
the adoption of Statements of Financial Accounting Standards Nos. 106, 112, 115
and 121), appearing in and incorporated by reference in the Annual Report on
Form 10-K of Ogden Corporation for the year ended December 31, 1995.
/s/ DELOITTE & TOUCHE LLP
New York, New York
January 10, 1997
