<PAGE>
As filed with the Securities and Exchange Commission on July 14, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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 (I.R.S. Employer
of incorporation or organization) Identification No..)
Two Pennsylvania Plaza - 25th Floor
New York, New York 10121
(Address of Principal Executive Offices) (Zip Code)
OGDEN CORPORATION
1999 STOCK OPTION PLAN
(Full title of the Plans)
J. L. Effinger, Esquire
Associate Counsel and Assistant Secretary
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)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Offering Price Per Aggregate Offering Amount of Registration
be Registered Registered (*) Share/Unit (**) Price Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 4,000,000 Shares $26.0625 $104,250,000 $28,981.50
$.50 per share
</TABLE>
(*) Consists of shares of the registrant's common stock to be issued pursuant to
the Ogden Corporation 1999 Stock Option Plan (the "Plan"). Such indeterminable
number of additional shares as may be issuable pursuant to the operation of the
recapitalization and adjustment provisions of the Plan are also registered
hereby.
(**) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"), on the basis of the average of the high and low
reported prices of the registrant's common stock reported on the New York Stock
Exchange - Composite Tape on July 12, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference
The reports listed below have been filed with or furnished to
the Securities and Exchange Commission (the "Commission") by the Registrant and
are incorporated herein by reference to the extent not superseded by reports or
other information subsequently filed or furnished.
a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1998.
b) The description of the common stock of the Registrant
(the "Common Stock") contained in the Registrant's
Registration Statement on Form S-4, dated October 27,
1994, as amended on November 29, 1994, filed under
the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including any amendment or reports
filed for the purpose of updating such description.
c) The Registrant's Form 10-Q for the Quarterly Period
ended March 31, 1999.
d) The Registrant's Proxy Statement and Notice of
Meeting relating to the Annual Meeting of
Stockholders held on May 20, 1999.
e) The Registrant's Current Report on Form 8-K, dated
March 11, 1999.
f) The Registrant's Current Report on Form 8-K, dated
June 24, 1999.
g) The Registrant's Form 11-K, dated June 29, 1999.
h) All of the Registrant's reports filed with the
Commission pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, after the date of this
Registration Statement and prior to filing 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 hereof
from the date of filing of such reports.
Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. Description of Securities
Not Applicable.
ITEM 5. Interests of Named Experts and Counsel
Not Applicable.
ITEM 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the
"Delaware Law") provides for indemnification of directors, officers, employees
and other individuals against expenses (including attorney's fees), judgments,
fines and other amounts incurred in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than derivative actions), if they acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interest of Ogden Corporation, or
for a criminal matter, if they had no reasonable cause to believe their conduct
was unlawful. However, in the case of a derivative action, indemnification
extends only to expenses (including attorneys' fees) incurred in connection with
defense or settlement of such an action and then only if and to the extent that
the appropriate court determines that such person is fairly and reasonably
entitled to such indemnification. Section 145(f) of the Delaware Law permits
advancement of expenses to a director or officer in such actions. In addition,
Section 102(b) of the Delaware Law permits a corporation to include in its
certificate of incorporation a provision eliminating or limiting the personal
liability of a director for monetary damages for breach of his fiduciary duty of
care, but not for breaches of loyalty to the corporation and its stockholders,
acts or omissions not in good faith or involving intentional misconduct or a
knowing violation of law, or transactions from which a director derives improper
benefit.
II-1
<PAGE>
Section 16-A of the Registrant's By-Laws, as amended, provides
for indemnification of the Registrant's directors, officers and employees to the
full extent permitted under the Delaware Law. Section 20 of the Registrant's
Amended and Restated Certificate of Incorporation also eliminates the personal
liability of the Registrant's directors for monetary damages for breach of
fiduciary duty to the extent permitted under the Delaware Law.
The Registrant shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Registrant, or is or was serving at the request of the Registrant
as a director, officer, employee or agent of another corporation, partnership,
joint venture, employee benefit plan trust or other enterprise, against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person' status as such, whether or not the
Registrant would have the power to indemnify such person against such liability
under the provisions of Section 16-A of Registrant's By-Laws, Section 20 of the
Registrant's Amended and Restated Certificate of Incorporation or otherwise.
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 foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the 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 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 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.
ITEM 7. Exemption From Registration Claimed
Not Applicable.
ITEM 8. Exhibits
EXHIBIT NUMBER
(4)(a) Ogden's Restated Certificate of Incorporation as
amended (Filed as Exhibit (3)(a) to Ogden's Form 10-K
for the fiscal year ended December 31, 1988 and
incorporated herein by reference).
(b) Ogden's By-Laws, as amended (filed as Exhibit 3.2 to
Ogden's Form 10-Q for the quarterly period ended
March 31, 1998 and incorporated herein by reference).
(c) Fiscal Agency Agreement between Ogden and Bankers
Trust Company, dated as of June 1, 1987 and Offering
Memorandum dated June 12, 1987, relating to U.S. $85
million Ogden 6% Convertible Subordinated Debentures,
Due 2002 (filed as Exhibits (C) (3) and (C) (4) to
Ogden's Form 8-K filed with the Securities and
Exchange Commission on July 7, 1987 and incorporated
herein by reference).
(d) Fiscal Agency Agreement between Ogden and Bankers
Trust Company, dated as of October 15, 1987, and
Offering Memorandum, dated October 15, 1987, relating
to U.S. $75 million Ogden 5 3/4% Convertible
Subordinated Debentures, Due 2002 (Filed as Exhibit
(4) to Ogden's Form S-3 Registration Statement filed
with the Securities and Exchange Commission on
December 4, 1987, Registration No. 33-18875, and
incorporated herein by reference).
(e) Rights Agreement, dated as of September 20, 1990,
between Ogden and Manufacturers Hanover Trust Company
as Rights Agent (filed as an exhibit to Ogden's Form
8-A Registration Statement filed with the Securities
and Exchange Commission on September 28, 1990).
(5) Opinion of Counsel.
II-2
<PAGE>
(23) Consent of Experts.
(99) Ogden Corporation 1999 Stock Option 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 and
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.
2) That, for the purpose of determining any
liability under the Securities Act of 1933,
each such 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 Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act , the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on May 20, 1999.
Ogden Corporation
By: /s/ R. Richard Ablon
--------------------
R. Richard Ablon
Title: President, Chief Executive Officer
and Chairman of the Board
POWER OF ATTORNEY
We, the undersigned directors and officers of Ogden Corporation, do
hereby severally constitute and appoint Lynde H. Coit and Jerry L. Effinger, and
each of them our true and lawful attorneys and agents, to do any and all acts
and things in our name and on our behalf in our capacities as directors and
officers and to execute any and all instruments for us and in our names in the
capacities indicated below, which said attorneys and agents, or any of them, may
deem necessary or advisable to enable said Company to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with this Registration on Form
S-8 including specifically, but without limitation, power and authority to sign
for us or any of us in our names in the capacities indicated below, any and all
amendments (including post-effective amendments) hereto; and we do each hereby
ratify and confirm all that said attorneys and agents, or any one of them, shall
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
on the dates indicated.
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE DATE
--------- ----
<S> <C>
/s/ R. Richard Ablon May 20, 1999
-----------------------------------------------------
R. Richard Ablon
President, Chief Executive Officer and
Chairman of the Board
(Director and Principal Executive Officer)
/s/ Raymond E. Dombrowski, Jr. May 20, 1999
-----------------------------------------------------
Raymond E. Dombrowski, Jr.
Senior Vice President and Chief Financial
Officer
/s/ Robert M. Digia May 20, 1999
-----------------------------------------------------
Robert M. DiGia
Vice President, Controller and Chief Accounting Officer
May 20, 1999
-----------------------------------------------------
David M. Abshire
Director
/s/ Anthony J. Bolland May 20, 1999
-----------------------------------------------------
Anthony J. Bolland
Director
/s/ Norman G. Einspruch May 20, 1999
-----------------------------------------------------
Norman G. Einspruch
Director
/s/ George L. Farr May 20, 1999
-----------------------------------------------------
George L. Farr
Director
/s/ Jeffrey F. Friedman May 20, 1999
-----------------------------------------------------
Jeffrey F. Friedman
Director
/s/ Attallah Kappas May 20, 1999
-----------------------------------------------------
Attallah Kappas
Director
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE DATE
--------- ----
<S> <C>
/s/ Judith D. Moyers May 20, 1999
-----------------------------------------------------
Judith D. Moyers
Director
May 20, 1999
-----------------------------------------------------
Homer A. Neal
Director
/s/ Robert E. Smith May 20, 1999
-----------------------------------------------------
Robert E. Smith
Director
/s/ Helmut F.O. Volcker May 20, 1999
-----------------------------------------------------
Helmut F.O. Volcker
Director
</TABLE>
II-6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
- ----------- -------
<S> <C>
4(a) Ogden's Restated Certificate of Incorporation as
amended (Filed as Exhibit (3)(a) to Ogden's Form 10-K
for the fiscal year ended December 31, 1988 and
incorporated herein by reference).
(b) Ogden's By-Laws, as amended (filed as Exhibit 3.2 to
Ogden's Form 10-Q for the quarterly period ended March
31, 1998 and incorporated herein by reference).
(c) Fiscal Agency Agreement between Ogden and Bankers Trust
Company, dated as of June 1, 1987 and Offering
Memorandum dated June 12, 1987, relating to U.S. $85
million Ogden 6% Convertible Subordinated Debentures,
Due 2002 (filed as Exhibits (C) (3) and (C) (4) to
Ogden's Form 8-K filed with the Securities and Exchange
Commission on July 7, 1987 and incorporated herein by
reference).
(d) Fiscal Agency Agreement between Ogden and Bankers Trust
Company, dated as of October 15, 1987, and Offering
Memorandum, dated October 15, 1987, relating to U.S.
$75 million Ogden 5 3/4% Convertible Subordinated
Debentures, Due 2002 (Filed as Exhibit (4) to Ogden's
Form S-3 Registration Statement filed with the
Securities and Exchange Commission on December 4, 1987,
Registration No. 33-18875, and incorporated herein by
reference).
(e) Rights Agreement, dated as of September 20, 1990,
between Ogden and Manufacturers Hanover Trust Company
as Rights Agent and amended August 15, 1995 to provide
The Bank of New York as successor Rights' Agent (filed
as an exhibit to Ogden's Form 8-A Registration
Statement filed with the Securities and Exchange
Commission on September 28, 1990).
5 Opinion of Counsel
23 Consent of Experts
99 Ogden Corporation 1999 Stock Option Plan (filed as
exhibit 10.3(a)(a) to Ogden's Form 10-Q for the
quarterly period ended March 31, 1999 and
incorporated herein by reference).
</TABLE>
<PAGE>
Exhibit 5
July 12, 1999
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Gentlemen:
I am Associate Counsel and Assistant Secretary of Ogden Corporation, a
Delaware corporation (the "Company") and have acted a counsel for the Company in
connection with the filing with the Securities and Exchange Commission a
Registration Statement on Form S-8 (the "Registration Statement") for the
registration under the Securities Act of 1933, as amended, of 4,000,000 shares
of the Company's Common Stock, par value $.50 per shares (the "Stock"), in
connection with the Company's 1999 Stock Option Plan (the "Plan").
I am familiar with the preparation of the Registration Statement and
have made such further investigation as I have deemed pertinent and necessary as
a basis for this opinion.
Based on the foregoing, it is my opinion that the Stock is duly and
validly authorized and upon the Registration Statement becoming effective, the
shares of Stock being registered by means of the Registration Statement when
issued in accordance with the Plan will be legally issued, fully paid and
non-assessable.
I hereby consent to the use of this opinion in connection with the
Registration Statement.
Very truly yours,
/s/ J. L. Effinger
<PAGE>
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Ogden Corporation on Form S-8 of our reports dated February 9, 1999, appearing
in and incorporated by reference in the Annual Report on Form 10-K of Ogden
Corporation for the year ended December 31, 1998.
/s/ DELOITTE & TOUCHE LLP
New York, New York
July 12, 1999
<PAGE>
EXHIBIT 99
OGDEN CORPORATION
1999 STOCK OPTION PLAN
(EFFECTIVE MAY 20, 1999)
1. PURPOSE.
The purposes of this Ogden Corporation 1999 Stock Option Plan
(the "Plan") are to induce certain individuals to remain in the employ of, or to
continue to serve as directors of, Ogden Corporation (the "Company") and its
present and future subsidiary corporations (each a "Subsidiary"), as defined in
section 424(f) of the Internal Revenue Code of 1986, as amended (the "Code"), to
attract new individuals to enter into such employment and service and to
encourage such individuals to secure or increase on reasonable terms their stock
ownership in the Company. The Board of Directors of the Company (the "Board")
believes that the granting of stock options and other awards (the "Awards")
under the Plan will promote continuity of management and increased incentive and
personal interest in the welfare of the Company and aid in securing its
continued growth and financial success.
2. SHARES SUBJECT TO PLAN.
The maximum number of shares of the common stock, par value
$.50 per share (the "Common Stock"), of the Company that may be delivered to
participants ("Participants") and their beneficiaries under the Plan shall be
4,000,000. For purposes of this Section 2, the number of shares that may be
delivered under the Plan shall be determined after giving effect to the use by a
Participant of the right, if granted, to cause the Company to withhold from the
shares of Common Stock otherwise deliverable to him or her upon the exercise of
stock options shares of Common Stock in payment of all or a portion of his or
her withholding obligation arising from such exercise (I.E., only the number of
shares issued net of the shares tendered shall be deemed delivered for purposes
of determining the maximum number of shares available for delivery under the
Plan). If any Awards expire or terminate for any reason without having been
exercised in full, new Awards may thereafter be granted with respect to the
unpurchased shares subject to such expired or terminated Awards.
3. ADMINISTRATION.
(A) The Plan shall be administered by a committee (the
"Committee") which shall consist of three or more members of the Board. The
Committee shall be appointed annually by the Board, which may at any time and
from time to time remove any members of the Committee, with or without cause,
appoint additional members to the Committee and fill vacancies, however caused,
in the Committee. In the event that no Committee shall have been appointed, the
Plan shall be administered by the Board. A majority of the members of the
Committee shall constitute a quorum. All determinations of the Committee shall
be made by a majority of its members present at a meeting duly called and held
except that the Committee may
<PAGE>
delegate to any one of its members the authority of the Committee with respect
to the grant of Awards to an employee who shall not be an officer and/or
director of the Company and who is not, and may not reasonably be expected to
become, a "covered employee" within the meaning of section 162(m)(3) of the
Code. Any decision or determination of the Committee reduced to writing and
signed by all of the members of the Committee (or by a member of the Committee
to whom authority has been delegated) shall be fully as effective as if it had
been made at a meeting duly called and held.
(B) The Committee's powers and authority shall include, but
not be limited to (i) selecting individuals for participation who are employees
of the Company and any subsidiary of the Company and members of the Board; (ii)
determining the types and terms and conditions of all awards granted, including
performance and other earnout and/or vesting contingencies; (iii) permitting
transferability of awards to third parties; (iv) interpreting the Plan's
provisions; and (v) administering the Plan in a manner that is consistent with
its purpose. The Committee's determination on the matters referred to in this
Section 3(B) shall be conclusive. Any dispute or disagreement which may arise
under or as a result of or with respect to any Award shall be determined by the
Committee, in its sole discretion, and any interpretations by the Committee of
the terms of any Award shall be final, binding and conclusive.
4. TYPES OF AWARDS.
An Award may be granted singularly, in combination with
another Award(s) or in tandem whereby exercise or vesting of one Award held by a
Participant cancels another award held by the Participant. Subject to Section 6
hereof, an Award may be granted as an alternative to or replacement of an
existing Award under the Plan or under any other compensation plans or
arrangements of the Company, including the plan of any entity acquired by the
Company. The types of Awards that may be granted under the Plan include:
(A) A stock option, which represents a right to purchase a
specified number of shares of Common Stock during a specified period at a price
per share which is no less than that required by Section 6 hereof. Options will
be either (a) "incentive stock options" (which term, when used herein, shall
have the meaning ascribed thereto by the provisions of section 422(b) of the
Internal Revenue Code of 1986, as amended (the "Code")) or (b) options which are
not incentive stock options ("non-qualified stock options"), as determined at
the time of the grant thereof by the Committee.
(B) A stock appreciation right, which is a right to receive a
payment in cash, shares of Common Stock or a combination, equal to the excess of
the aggregate market price at time of exercise of a specified number of shares
of Common Stock over the aggregate exercise price of the stock appreciation
rights being exercised.
(C) A cash award, which is a right denominated in cash or cash
units to receive a cash payment, based on the attainment of pre-established
performance goals and such other conditions, restrictions and contingencies as
the Committee shall determine. The performance goals that may be used by the
Committee for such awards shall consist of cash generation targets, profits,
revenue and market share targets, profitability targets as measured by return
ratios and shareholder returns. The Committee may designate a single goal
criterion or
<PAGE>
multiple goal criteria for performance measure purposes with the measurement
based on absolute Company or business unit performance and/or on performance as
compared with that of other publicly traded companies.
(D) The Committee may provide a loan to any Participant in an
amount determined by the Committee to enable the Participant to pay (i) any
federal, state or local income taxes arising out of the exercise of an Award or
(ii) the exercise price with respect to any Award or (iii) to purchase shares of
Common Stock on the open market. Any such loan (i) shall be for such term and at
such rate of interest as the Committee may determine, (ii) shall be evidenced by
a promissory note in a form determined by the Committee and executed by the
Participant and (iii) shall be subject so such other terms and conditions as the
Committee may determine.
5. ELIGIBILITY.
An Award may be granted only to (i) employees of the Company
or a Subsidiary, (ii) directors of the Company who are not employees of the
Company or a Subsidiary and (iii) employees of a corporation which has been
acquired by the Company or a Subsidiary, whether by way of exchange or purchase
of stock, purchase of assets, merger or reverse merger, or otherwise, who hold
options with respect to the stock of such corporation which the Company has
agreed to assume.
6. STOCK OPTION PRICES AND FAIR MARKET VALUE.
(A) Except as otherwise provided in Section 14 hereof, the
initial per share option price of any stock option shall not be less than the
fair market value of a share of Common Stock on the date of grant; PROVIDED,
HOWEVER, that, in the case of a Participant who owns (within the meaning of
section 424(d) of the Code) more than 10% of the total combined voting power of
the Common Stock at the time a stock option which is an incentive stock option
is granted to him or her, the initial per share option price shall not be less
than 110% of the fair market value of a share of Common Stock on the date of
grant.
(B) For all purposes of this Plan, the fair market value of a
share of Common Stock on any date shall be (i) the average of the high and low
sales prices on such day of a share of Common Stock as reported on the principal
securities exchange on which shares of Common Stock are then listed or admitted
to trading or (ii) if not so reported, the average of the closing bid and ask
prices on such date as reported on the National Association of Securities
Dealers Automated Quotation System or (iii) if not so reported, as furnished by
any member of the National Association of Securities Dealers, Inc. selected by
the Committee. In the event that the price of a share of Common Stock shall not
be so reported, the Fair Market Value of a share of Common Stock shall be
determined by a qualified appraiser selected by the Committee.
7. OPTION TERM.
Options shall be granted for such term as the Committee shall
determine, not in excess of ten years from the date of the granting thereof;
PROVIDED, HOWEVER, that, except as otherwise provided in Section 14 hereof, in
the case of a Participant who owns (within the meaning of section 424(d) of the
Code) more than 10% of the total combined voting power of
<PAGE>
the Common Stock at the time an Option which is an incentive stock option is
granted to him or her, the term with respect to such Option shall not be in
excess of five years from the date of the granting thereof.
8. LIMITATION ON AMOUNT OF AWARDS GRANTED.
(A) Except as otherwise provided in Section 14 hereof, the
aggregate fair market value of the shares of Common Stock for which any
Participant may be granted incentive stock options which are exercisable for the
first time in any calendar year (whether under the terms of the Plan or any
other stock option plan of the Company) shall not exceed $100,000.
(B) No Participant shall be granted stock options and/or stock
appreciation rights during any calendar year to purchase more than an aggregate
of 500,000 shares of Common Stock.
(C) Subject to Section 8(D), the following additional maximums
are imposed under the Plan. The maximum number of shares of Common Stock that
may be covered by stock options intended to be incentive stock options shall be
4,000,000. The maximum payment that may be made for awards granted to any one
individual pursuant to Section 4(C) hereof shall be $3,000,000 for any single or
combined performance goals established for a specified performance period. A
specified performance period for purposes of this performance goal payment limit
shall not exceed a sixty (60) consecutive month period.
(D) Subject to the overall limitation on the number of shares
of Common Stock that may be delivered under the Plan, the Committee may use
available shares of Common Stock as the form of payment for compensation, grants
or rights earned or due under any other compensation plans or arrangements of
the Company, including the plan of any entity acquired by the Company.
9. ADJUSTMENT OF NUMBER OF SHARES.
(A) In the event that a dividend shall be declared upon the
Common Stock payable in shares of Common Stock, the number of shares of Common
Stock then subject to any Award, the number of shares of Common Stock available
for purchase or delivery under the Plan but not yet covered by an Award shall be
adjusted by adding to each share the number of shares which would be
distributable thereon if such shares had been outstanding on the date fixed for
determining the stockholders entitled to receive such stock dividend. In the
event that the outstanding shares of Common Stock shall be changed into or
exchanged for a different number or kind of shares of stock or other securities
of the Company or of another corporation, whether through reorganization,
recapitalization, stock split-up, combination of shares, sale of assets, merger
or consolidation in which the Company is the surviving corporation, then, there
shall be substituted for each share of Common Stock then subject to any Award,
for each share of Common Stock which may be issued under the Plan but not yet
covered by an Award, for each share of Common Stock which may be purchased upon
the exercise of stock options granted under the Plan but not yet covered by a
stock option and for each share of Common Stock referred to in Section 8B, the
number and kind of shares of stock or other securities into which
<PAGE>
each outstanding share of Common Stock shall be so changed or for which each
such share shall be exchanged.
(B) In the event that there shall be any change, other than as
specified in Section 9(A) hereof, in the number or kind of outstanding shares of
Common Stock, or of any stock or other securities into which the Common Stock
shall have been changed, or for which it shall have been exchanged, then, if the
Committee shall, in its sole discretion, determine that such change equitably
requires an adjustment in the number or kind of shares then subject to any Award
and the number or kind of shares available for issuance in accordance with the
provisions of the Plan but not yet covered by an Award, such adjustment shall be
made by the Committee and shall be effective and binding for all purposes of the
Plan and of each Award.
(C) In the case of any substitution or adjustment in
accordance with the provisions of this Section 9, the option price in each stock
option for each share covered thereby prior to such substitution or adjustment
shall be the option price for all shares of stock or other securities which
shall have been substituted for such share or to which such share shall have
been adjusted in accordance with the provisions of this Section 9.
(D) No adjustment or substitution provided for in this Section
9 shall require the Company to issue a fractional share under any Award or to
sell a fractional share under any stock option.
(E) In the event of the dissolution or liquidation of the
Company, or a merger, reorganization or consolidation in which the Company is
not the surviving corporation, the Board, in its discretion, may accelerate the
payment of any Award, the exercisability of each Award and/or terminate the same
within a reasonable time thereafter.
(F) (i) Notwithstanding the foregoing provisions of this
Section 9, in the event of a Change in Control, each Award shall become fully
vested and exercisable.
(ii) As used herein, "Change in Control" shall mean:
(I) any Person (as such term is defined in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) becomes the "beneficial owner" (as such term is defined in Rule
13d-3 promulgated under the Exchange Act), directly or indirectly, of securities
of the Company representing 20% or more of the combined voting power of the
Company's then outstanding securities, other than beneficial ownership by a
Participant, the Company, any employee benefit plan of the Company or any person
or entity organized, appointed or established, pursuant to the terms of any such
benefit plan;
(II) the Company's stockholders approve an
agreement to merge or consolidate the Company with another corporation, or an
agreement providing for the sale of substantially all of the assets of the
Company to one or more corporations, in any case other than with or to a
corporation 50% or more of which is controlled by, or is under common control
with, the Company; or
(III) during any two-year period,
individuals who at the date on which the period commences constitute a majority
of the Board cease to constitute a majority of
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thereof for any reason; provided, however, that a director who was not a
director at the beginning of such period shall be deemed to have satisfied the
two-year requirement if such director was elected by, or on the recommendation
of, at least two-thirds of the directors who were directors at the beginning of
such period (either actually or by prior operation of this provision), other
than any director who is so approved in connection with any actual or threatened
contest for election to positions on the Board.
10. PURCHASE FOR INVESTMENT, WAIVERS AND WITHHOLDING.
(A) Unless the delivery of shares under any Award shall be
registered under the Securities Act of 1933, such Participant shall, as a
condition of the Company's obligation to deliver such shares, be required to
represent to the Company in writing that he or she is acquiring such shares for
his or her own account as an investment and not with a view to, or for sale in
connection with, the distribution of any thereof.
(B) In the event of the death of a Participant, an additional
condition of exercising any Award shall be the delivery to the Company of such
tax waivers and other documents as the Committee shall determine.
(C) An additional condition of exercising any non-incentive
stock option shall be the entry by the Participant into such arrangements with
the Company with respect to withholding as the Committee shall determine.
11. NO STOCKHOLDER STATUS; NO RESTRICTIONS ON CORPORATE ACTS; NO EMPLOYMENT
RIGHT.
(A) Neither any Participant nor his or her legal
representatives, legatees or distributees shall be or be deemed to be the holder
of any share of Common Stock covered by an Award unless and until a certificate
for such share has been issued. Upon payment of the purchase price therefor, a
share issued upon exercise of an Award shall be fully paid and non-assessable.
(B) Neither the existence of the Plan nor any Award shall in
any way affect the right or power of the Company or its stockholders to make or
authorize any or all adjustments, recapitalizations, reorganizations or other
changes in the Company's capital structure or its business, or any merger or
consolidation of the Company, or any issue of bonds, debentures, preferred or
prior preference stock ahead of or affecting the Common Stock or the rights
thereof, or dissolution or liquidation of the Company, or any sale or transfer
of all or any part of its assets or business, or any other corporate act or
proceeding whether of a similar character or otherwise.
(C) Neither the existence of the Plan nor the grant of any
Award shall require the Company or any Subsidiary to continue any Participant in
the employ or service of the Company or such Subsidiary.
12. TERMINATION AND AMENDMENT OF THE PLAN.
The Board may at any time terminate the Plan or make such
modifications of the Plan as it shall deem advisable; provided, HOWEVER, that
the Board may not, without further
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approval of the holders of the shares of Common Stock, increase the number of
shares of Common Stock as to which Awards may be granted under the Plan (as
adjusted in accordance with the provisions of Section 9 hereof), or change the
class of persons eligible to participate in the Plan, or change the manner of
determining stock option prices. Except as otherwise provided in Section 14
hereof, no termination or amendment of the Plan may, without the consent of the
Participant to whom any Award shall theretofore have been granted, adversely
affect the rights of such Participant under such Award.
13. EXPIRATION AND TERMINATION OF THE PLAN.
The Plan shall terminate on May 19, 2009 or at such earlier
time as the Board may determine; PROVIDED, HOWEVER, that the Plan shall
terminate as of its effective date in the event that it shall not be approved by
the stockholders of the Company at its 1999 Annual Meeting of Stockholders.
Awards may be granted under the Plan at any time and from time to time prior to
its termination. Any Award outstanding under the Plan at the time of the
termination of the Plan shall remain in effect until such Award shall have been
exercised or shall have expired in accordance with its terms.
14. STOCK OPTIONS GRANTED IN CONNECTION WITH ACQUISITIONS.
In the event that the Committee determines that, in connection
with the acquisition by the Company or a Subsidiary of another corporation which
will become a Subsidiary or division of the Company (such corporation being
hereafter referred to as an "Acquired Subsidiary"), stock options may be granted
hereunder to employees and other personnel of an Acquired Subsidiary in exchange
for then outstanding stock options to purchase securities of the Acquired
Subsidiary. Such stock options may be granted at such option prices, may be
exercisable immediately or at any time or times either in whole or in part, and
may contain such other provisions not inconsistent with the Plan, or the
requirements set forth in Section 12 hereof that certain amendments to the Plan
be approved by the stockholders of the Company, as the Committee, in its
discretion, shall deem appropriate at the time of the granting of such stock
options.
