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As filed with the Securities and Exchange Commission on August 4, 1999
Registration No. 333-__________
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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
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WORTHINGTON FOODS, INC.
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(Exact name of registrant as specified in its charter)
Ohio 31-0733120
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
900 Proprietors Road, Worthington, Ohio 43085
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(Address of principal executive offices, including zip code)
WORTHINGTON FOODS, INC.
AMENDED AND RESTATED 1995 STOCK OPTION PLAN
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(Full title of the plan)
Copy to:
Dale E. Twomley Elizabeth Turrell Farrar, Esq.
Worthington Foods, Inc. Vorys, Sater, Seymour and Pease LLP
900 Proprietors Road 52 East Gay Street
Worthington, Ohio 43085 P.O. Box 1008
----------------------- Columbus, Ohio 43216-1008
(Name and address of agent
for service)
(614) 885-9511
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(Telephone number, including area code, of agent for service)
[Facing Page continued on next page]
Index to Exhibits at II-17 (Page 18 as sequentially numbered)
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<TABLE>
Calculation of Registration Fee
<CAPTION>
- ------------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
Securities Amount offering aggregate Amount of
To be to be price offering registration
Registered registered Per unit (1) price (1) fee
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares, 500,000 $13.78 $6,890,625 $1,915.59
Without Par Value (2)
- ------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the aggregate offering price
and the registration fee pursuant to Rules 457(c) and 457(h) promulgated under
the Securities Act of 1933, as amended, and computed on the basis of $13.78,
which price is the average of the high and low sales prices of the common shares
as reported on The Nasdaq National Market on August 2, 1999.
(2) This Registration Statement also covers related Preferred Share Purchase
Rights (the "Rights") which evidence the right to purchase, under certain
conditions, .0045 of one Series A Junior Participating Preferred Share, without
par value. Registrant is required to deliver one Right with each common share
that becomes outstanding until the "distribution date" for the Rights, at which
date the Rights will commence trading separately from the common shares.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The Annual Report on Form 10-K for the fiscal year ended December 31,
1998 of Worthington Foods, Inc. (the "Registrant") and all other reports filed
with the Securities and Exchange Commission (the "Commission") pursuant to the
requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), since that date are hereby incorporated
by reference.
The description of the Registrant's Common Shares contained in
Amendment No. 1 on Form 8 to the Registrant's Registration Statement on Form 8-A
(File No. 0-19887) filed with the Commission on April 7, 1992, which
incorporates by reference the description of the Registrant's Common Shares
contained in Amendment No. 1 to the Registrant's Registration Statement on Form
S-1 (Registration No. 33-45945) filed with the Commission on April 3, 1992; and
the description of the Preferred Share Purchase Rights of the Registrant (the
"Rights") contained in the Registrant's Current Reports on Form 8-K filed with
the Commission on June 14, 1995, December 12, 1995, October 31, 1996 and
November 6, 1997 (File No. 0-19887), and all amendments or reports filed by the
Registrant with the Commission subsequent to the date hereof for the purpose of
updating such descriptions, are hereby incorporated by reference.
Any definitive proxy statement or information statement filed pursuant
to Section 14 of the Exchange Act and all documents which may be filed with the
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to
the date hereof and prior to the completion of the offering contemplated hereby,
shall also be deemed to be incorporated herein by reference and to be made a
part hereof from the date of filing of such documents; provided, however, that
no report of the Compensation Committee of the Board of Directors of the
Registrant on executive compensation and no performance graph included in any
proxy statement or information statement filed pursuant to Section 14 of the
Exchange Act shall be deemed to be incorporated herein by reference.
Item 4. Description of Securities.
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Not applicable.
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Item 5. Interests of Named Experts and Counsel.
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The validity of the issuance of the Common Shares of the Registrant being
registered on this Registration Statement on Form S-8 will be passed upon for
the Registrant by Vorys, Sater, Seymour and Pease LLP, 52 East Gay Street, P.O.
Box 1008, Columbus, Ohio 43216-1008. As of July 27, 1999, members of Vorys,
Sater, Seymour and Pease LLP and attorneys employed thereby, together with
members of their immediate families, beneficially owned an aggregate of 40,761
Common Shares of the Registrant.
Item 6. Indemnification of Directors and Officers.
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ARTICLE FIVE of the Amended Regulations of the Registrant governs the
indemnification of officers and directors of Worthington Foods, Inc. ARTICLE
FIVE provides:
Section 5.01. Mandatory Indemnification. The corporation shall
indemnify any officer or director of the corporation 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 (including, without limitation, any action threatened or
instituted 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, trustee, officer, employee or agent of another corporation
(domestic or foreign, nonprofit or for profit), partnership, joint venture,
trust or other enterprise, against expenses (including, without limitation,
attorneys' fees, filing fees, court reporters' fees and transcript costs),
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, he had no reasonable cause to believe his
conduct was unlawful. A person claiming indemnification under this Section
5.01 shall be presumed, in respect of any act or omission giving rise to
such claim for indemnification, to have 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 matter,
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to have had no reasonable cause to believe his conduct was unlawful, and
the termination of any action, suit or proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, rebut such presumption.
Section 5.02. Court-Approved Indemnification. Anything contained in
the Regulations or elsewhere to the contrary notwithstanding:
(A) the corporation shall not indemnify any officer or director of the
corporation who was a party to any completed action or suit instituted 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 a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation
as a director, trustee, officer, employee or agent of another corporation
(domestic or foreign, nonprofit or for profit), partnership, joint venture,
trust or other enterprise, in respect of any claim, issue or matter
asserted in such action or suit as to which he shall have been adjudged to
be liable for gross negligence or misconduct (other than negligence) in the
performance of his duty to the corporation unless and only to the extent
that the Court of Common Pleas of Franklin County, Ohio or the court in
which such action or suit was brought shall determine upon application
that, despite such adjudication of liability, and in view of all the
circumstances of the case, he is fairly and reasonably entitled to such
indemnity as such Court of Common Pleas or such other court shall deem
proper; and
(B) the corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as contemplated by
this Section 5.02.
Section 5.03. Indemnification for Expenses. Anything contained in the
Regulations or elsewhere to the contrary notwithstanding, to the extent
that an officer or director of the corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred
to in Section 5.01, or in defense of any claim, issue or matter therein, he
shall be promptly indemnified by the corporation against expenses
(including, without limitation, attorneys' fees, filing fees, court
reporters' fees and transcript
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costs) actually and reasonably incurred by him in connection with the
action, suit or proceeding.
Section 5.04. Determination Required. Any indemnification required
under Section 5.01 and not precluded under Section 5.02 shall be made by
the corporation only upon a determination that such indemnification of the
officer or director is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 5.01. Such
determination may be made only (A) by a majority vote of a quorum
consisting of directors of the corporation who were not and are not parties
to, or threatened with, any such action, suit or proceeding, or (B) if such
a quorum is not obtainable or if a majority of a quorum of disinterested
directors so directs, in a written opinion by independent legal counsel
other than an attorney, or a firm having associated with it an attorney,
who has been retained by or who has performed services for the corporation,
or any person to be indemnified, within the past five years, or (C) by the
shareholders, or (D) by the Court of Common Pleas of Franklin County, Ohio
or (if the corporation is a party thereto) the court in which such action,
suit or proceeding was brought, if any; any such determination may be made
by a court under division (D) of this Section 5.04 at any time (including,
without limitation, any time before, during or after the time when any such
determination may be requested of, be under consideration by or have been
denied or disregarded by the disinterested directors under division (A) or
by independent legal counsel under division (B) or by the shareholders
under division (C) of this Section 5.04); and no failure for any reason to
make any such determination, by the disinterested directors under division
(A) or by independent legal counsel under division (B) or by shareholders
under division (C) of this Section 5.04 shall be evidence in rebuttal of
the presumption recited in Section 5.01. Any determination made by the
disinterested directors under division (A) or by independent legal counsel
under division (B) of this Section 5.04 to make indemnification in respect
of any claim, issue or matter asserted in an action or suit threatened or
brought by or in the right of the corporation shall be promptly
communicated to the person who threatened or brought such action or suit,
and within ten (10) days after receipt of such notification such person
shall have the right to petition the Court of Common Pleas of Franklin
County, Ohio or the court in which such action
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or suit was brought, if any, to review the reasonableness of such
determination.
Section 5.05. Advances for Expenses. Expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and
transcript costs) incurred in defending any action, suit or proceeding
referred to in Section 5.01 shall be paid by the corporation in advance of
the final disposition of such action, suit or proceeding to or on behalf of
the officer or director promptly as such expenses are incurred by him, but
only if such officer or director shall first agree, in writing, to repay
all amounts so paid in respect of any claim, issue or other matter asserted
in such action, suit or proceeding in defense of which he shall not have
been successful on the merits or otherwise;
(A) if it is ultimately determined as provided in Section 5.04 that he
is not entitled to be indemnified by the corporation as provided under
Section 5.01; or
(B) if, in respect of any claim, issue or other matter asserted by or
in the right of the corporation in such action or suit, he shall have been
adjudged to be liable for gross negligence or misconduct (other than
negligence) in the performance of his duty to the corporation, unless and
only to the extent that the Court of Common Pleas of Franklin County, Ohio
or the court in which such action or suit was brought shall determine upon
application that, despite such adjudication of liability, and in view of
all the circumstances, he is fairly and reasonably entitled to all or part
of such indemnification.
Section 5.06. Article FIVE Not Exclusive. The indemnification
authorized by this Article FIVE shall not be exclusive of, and shall be in
addition to, any other rights granted to any person seeking indemnification
under the Articles or the Regulations or any agreement, vote of
shareholders 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 an
officer or director of the corporation and shall inure to the benefit of
the heirs, executors, and administrators of such a person.
Section 5.07. Insurance. The corporation may purchase and maintain
insurance or furnish similar
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protection, including but not limited to, trust funds, letters of credit,
or self-insurance on behalf of or for 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, trustee, officer, employee or
agent of another corporation (domestic or foreign, nonprofit or for
profit), 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 obligation or the power to indemnify him against such liability
under the provisions of this Article FIVE. Insurance may be purchased from
or maintained with a person in which the corporation has a financial
interest.
Section 5.08. Certain Definitions. For purposes of this Article FIVE,
and as examples and not by way of limitation:
(A) A person claiming indemnification under this Article FIVE shall be
deemed to have been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 5.01, or in defense of
any claim, issue or other matter therein, if such action, suit or
proceeding shall be terminated as to such person, with or without
prejudice, without the entry of a judgment or order against him, without a
conviction of him, without the imposition of a fine upon him and without
his payment or agreement to pay any amount in settlement thereof (whether
or not any such termination is based upon a judicial or other determination
of the lack of merit of the claims made against him or otherwise results in
a vindication of him); and
(B) References to an "other enterprise" shall include employee benefit
plans; references to a "fine" shall include any excise taxes assessed on a
person with respect to an employee benefit plan; and references to "serving
at the request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on, or
involves services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants or beneficiaries; and
a person who acted in good faith and in a manner he reasonably believed to
be in the best interests of the participants and beneficiaries of an
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employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" within the meaning of
that term as used in this Article FIVE.
Section 5.09. Venue. Any action, suit or proceeding to determine a
claim for indemnification under this Article FIVE may be maintained by the
person claiming such indemnification, or by the corporation, in the Court
of Common Pleas of Franklin County, Ohio. The corporation and (by claiming
such indemnification) each such person consent to the exercise of
jurisdiction over its or his person by the Court of Common Pleas of
Franklin County, Ohio in any such action, suit or proceeding.
Division (E) of Section 1701.13 of the Ohio Revised Code addresses
indemnification by an Ohio corporation and provides as follows:
(E)(1) A corporation may indemnify or agree to 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, trustee, officer,
employee, member, manager, or agent of another corporation, domestic or
foreign, nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, against expenses,
including attorney's 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, if he had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit, or proceeding by judgment,
order, settlement, or 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 he reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to
any criminal action
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or proceeding, he had reasonable cause to believe that his conduct was
unlawful.
(2) A corporation may indemnify or agree to 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
a director, officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director, trustee, officer,
employee, member, manager, or agent of another corporation, domestic or
foreign, nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, against expenses,
including attorney's 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, except that no
indemnification shall be made in respect of any of the following:
(a) Any claim, issue, or matter as to which such person is adjudged to
be liable for negligence or misconduct in the performance of his duty to
the corporation unless, and only to the extent that, the court of common
pleas or the court in which such action or suit was brought determines,
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 as the court of common pleas or
such other court shall deem proper;
(b) Any action or suit in which the only liability asserted against a
director is pursuant to section 1701.95 of the Revised Code.
(3) To the extent that a director, trustee, officer, employee, member,
manager, or agent has been successful on the merits or otherwise in defense
of any action, suit, or proceeding referred to in division (E)(1) or (2) of
this section, or in defense of any claim, issue, or matter therein, he
shall be indemnified against expenses, including attorney's fees, actually
and reasonably incurred by him in connection with the action, suit, or
proceeding.
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(4) Any indemnification under division (E)(1) or (2) of this section,
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, trustee, officer, employee, member, manager, or agent is
proper in the circumstances because he has met the applicable standard of
conduct set forth in division (E)(1) or (2) of this section. Such
determination shall be made as follows:
(a) By a majority vote of a quorum consisting of directors of the
indemnifying corporation who were not and are not parties to or threatened
with the action, suit, or proceeding referred to in division (E)(1) or (2)
of this section;
(b) If the quorum described in division (E)(4)(a) of this section is
not obtainable or if a majority vote of a quorum of disinterested directors
so directs, in a written opinion by independent legal counsel other than an
attorney, or a firm having associated with it an attorney, who has been
retained by or who has performed services for the corporation or any person
to be indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the action,
suit, or proceeding referred to in division (E)(1) or (2) of this section
was brought.
Any determination made by the disinterested directors under division
(E)(4)(a) or independent legal counsel under division (E)(4)(b) of this
section shall be promptly communicated to the person who threatened or
brought the action or suit by or in the right of the corporation under
division (E)(2) of this section, and, within ten days after receipt of such
notification, such person shall have the right to petition the court of
common pleas or the court in which such action or suit was brought to
review the reasonableness of such determination.
(5)(a) Unless at the time of a director's act or omission that is the
subject of an action, suit, or proceeding referred to in division (E)(1) or
(2) of this section, the articles or the regulations of a corporation
state, by specific reference to this division, that the provisions of this
division do not
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apply to the corporation and unless the only liability asserted against a
director in an action, suit, or proceeding referred to in division (E)(1)or
(2) of this section is pursuant to section 1701.95 of the Revised Code,
expenses, including attorney's fees, incurred by a director in defending
the action, suit, or proceeding shall be paid by the corporation as they
are incurred, in advance of the final disposition of the action, suit, or
proceeding upon receipt of an undertaking by or on behalf of the director
in which he agrees to do both of the following:
(i) Repay such amount if it is proved by clear and convincing evidence
in a court of competent jurisdiction that his action or failure to act
involved an act or omission undertaken with deliberate intent to cause
injury to the corporation or undertaken with reckless disregard for the
best interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning the action,
suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, member, manager, or agent in defending any
action, suit, or proceeding referred to in division (E)(1) or (2) of this
section, may be paid by the corporation as they are incurred, in advance of
the final disposition of the action, suit, or proceeding, as authorized by
the directors in the specific case, upon receipt of an undertaking by or on
behalf of the director, trustee, officer, employee, member, manager, or
agent to repay such amount, if it ultimately is determined that he is not
entitled to be indemnified by the corporation.
(6) The indemnification authorized by this section shall not be
exclusive of, and shall be in addition to, any other rights granted to
those seeking indemnification under the articles, the regulations, any
agreement, a vote of shareholders or disinterested directors, or otherwise,
both as to action in their official capacities and as to action in another
capacity while holding their offices or positions, and shall continue as to
a person who has ceased to be a director, trustee, officer, employee,
member, manager, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
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(7) A corporation may purchase and maintain insurance or furnish
similar protection, including, but not limited to, trust funds, letters of
credit, or self-insurance, on behalf of or for 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, trustee, officer,
employee, member, manager, or agent of another corporation, domestic or
foreign, nonprofit or for profit, a limited liability company, or a
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 this section.
Insurance may be purchased from or maintained with a person in which the
corporation has a financial interest.
(8) The authority of a corporation to indemnify persons pursuant to
division (E)(1) or (2) of this section does not limit the payment of
expenses as they are incurred, indemnification, insurance, or other
protection that may be provided pursuant to divisions (E)(5), (6), and (7)
of this section. Divisions (E)(1) and (2) of this section do not create any
obligation to repay or return payments made by the corporation pursuant to
division (E)(5), (6), or (7).
(9) As used in division (E) of this section, "corporation" includes
all constituent entities in a consolidation or merger and the new or
surviving corporation, so that any person who is or was a director,
officer, employee, trustee, member, manager, or agent of such a constituent
entity, or is or was serving at the request of such constituent entity as a
director, trustee, officer, employee, member, manager or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited
liability company, or a partnership, joint venture, trust, or other
enterprise, shall stand in the same position under this section with
respect to the new or surviving corporation as he would if he had served
the new or surviving corporation in the same capacity.
The Board of Directors of the Registrant has in the past and may in the
future maintain insurance to insure its present and former directors, officers
and employees against liabilities and expenses arising out of any claim or
breach of duty, error, misstatement, misleading statement, omission or other
acts done
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by reasons of their being such directors, officers or employees of the
Registrant.
Section 2(d) of the Worthington Foods, Inc. Amended and Restated 1995 Stock
Option Plan(the "Plan") governs indemnification of certain persons in connection
with the operation of the Plan and provides as follows:
Each person who is or shall have been a member of the Committee or of the
Board of Directors shall be indemnified and held harmless by the Company
against and from any loss, cost, liability or expense that may be imposed
upon or reasonably incurred by him or her in connection with or resulting
from any claim, action, suit or proceeding to which he or she may be a
party or in which he or she may be involved by reason of any action taken
or failure to act under the Plan and against and from any and all amounts
paid by him or her in settlement thereof, with the Company's approval, or
paid by him or in satisfaction of judgment in any such action, suit or
proceeding against him or her; provided that he or she shall give the
Company an opportunity, at its own expense, to handle and defend the same
before he or she undertakes to handle or defend it on his or her own
behalf. The foregoing right of indemnification shall not be exclusive of
any other rights of indemnification to which such person may be entitled
under the Company's Articles of Incorporation or Regulations, as a matter
of law, or otherwise, or any power that the Company may have to indemnify
or hold him or her harmless.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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See the Index to Exhibits attached hereto at Page II-17.
Item 9. Undertakings.
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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:
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(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; 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 paragraphs A(1)(i) and A(1)(ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is incorporated by reference in
the Registration Statement shall be deemed to be a new
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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
of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions described in Item 6 of this Part
II, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
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<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Worthington, State of Ohio, on
August 4, 1999.
WORTHINGTON FOODS, INC.
By: /s/ William T. Kirkwood
----------------------------------
William T. Kirkwood, Executive
Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title
- --------- -----
Dale E. Twomley* Chairman, President, Chief Executive Officer
- ----------------------- and Director
Dale E. Twomley
William T. Kirkwood* Executive Vice President and Chief Financial
- ----------------------- Officer (Principal Financial Officer and
William T. Kirkwood Principal Accounting Officer)
Roger D. Blackwell* Director
- -----------------------
Roger D. Blackwell
Emil J. Brolick* Director
- -----------------------
Emil J. Brolick
Donald G. Orrick* Director
- -----------------------
Donald G. Orrick
William D. Parker* Director
- -----------------------
William D. Parker
II-15
<PAGE> 18
Francisco J. Perez* Director
- -----------------------
Francisco J. Perez
*By Power of Attorney
/s/ William T. Kirkwood
- -----------------------
William T. Kirkwood
(Attorney-in-Fact)
II-16
<PAGE> 19
INDEX TO EXHIBITS
-----------------
Exhibit No. Description Page No.
- ----------- ----------- --------
5 Opinion of Vorys, Sater, Seymour and Pease LLP, *
Counsel to Registrant
10 Worthington Foods, Inc. Amended and Restated 1995 *
Stock Option Plan
23(a) Consent of Ernst & Young LLP, Independent Auditors *
to Registrant
23(b) Consent of Vorys, Sater, Seymour and Pease LLP, *
Counsel to Registrant (See Exhibit 5)
24 Powers of Attorney *
- ----------------
* Filed herewith.
II-17
<PAGE> 1
Exhibit 5
---------
Opinion of Vorys, Sater, Seymour and Pease LLP,
Counsel to Registrant
<PAGE> 2
(614) 464-6400
August 4, 1999
Board of Directors
Worthington Foods, Inc.
900 Proprietors Road
Worthington, Ohio 43085
Ladies and Gentlemen:
We are familiar with the proceedings taken and proposed to be taken by
Worthington Foods, Inc. (the "Company") in connection with the adoption of the
Worthington Foods, Inc. Amended and Restated 1995 Stock Option Plan (the
"Plan"), which, among other things, makes an additional 500,000 common shares,
without par value (the "Common Shares"), of the Company available under the 1995
Stock Option Plan; the granting of options to purchase Common Shares of the
Company pursuant to the Plan; and the issuance and sale of Common Shares of the
Company upon exercise of options granted and to be granted under the Plan, all
as described in the Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission on the date
hereof. The purpose of the Registration Statement is to register the additional
500,000 Common Shares reserved for issuance under the Plan pursuant to the
provisions of the Securities Act of 1933, as amended (the "Act"), and the rules
and regulations promulgated thereunder (the "Rules and Regulations").
In connection with this opinion, we have examined an original or copy
of, and have relied upon the accuracy of, without independent verification or
investigation: (a) the Registration Statement; (b) the Plan; (c) the Amended and
Restated Articles of Incorporation of the Company, as currently in effect; (d)
the Amended Regulations of the Company, as currently in effect; and (e) certain
proceedings of the directors and of the shareholders of the Company. We have
also relied upon such representations of the Company and officers of the Company
and such authorities of law as we have deemed relevant as a basis for this
opinion.
<PAGE> 3
We have relied solely upon the examinations and inquiries recited
herein, and we have not undertaken any independent investigation to determine
the existence or absence of any facts, and no inference as to our knowledge
concerning such facts should be drawn.
Based upon and subject to the foregoing and the further qualifications
and limitations set forth below, as of the date hereof, we are of the opinion
that after the additional 500,000 Common Shares of the Company to be registered
under the Registration Statement have been issued and delivered by the Company
upon the exercise of options under the Plan against payment of the purchase
price therefor, in accordance with the terms of the Plan, said Common Shares
will be validly issued, fully paid and non-assessable, assuming compliance with
applicable federal and state securities laws.
Our opinion is limited to the General Corporation Law of Ohio in
effect as of the date hereof. This opinion is furnished by us solely for the
benefit of the Company in connection with the offering of the Common Shares
pursuant to the Plan and the filing of the Registration Statement and any
amendments thereto. This opinion may not be relied upon by any other person or
assigned, quoted or otherwise used without our specific written consent.
Notwithstanding the foregoing, we consent to the filing of this
opinion as an exhibit to the Registration Statement and to the reference to us
therein. By giving such consent, we do not admit that we come within the
category of persons whose consent is required under Section 7 of the Act or the
Rules and Regulations.
Very truly yours,
/s/ Vorys, Sater, Seymour and Pease LLP
VORYS, SATER, SEYMOUR AND PEASE LLP
<PAGE> 1
Exhibit 10
----------
Worthington Foods, Inc.
Amended and Restated 1995 Stock Option Plan
<PAGE> 2
WORTHINGTON FOODS, INC.
AMENDED AND RESTATED
1995 STOCK OPTION PLAN
PART I GENERAL
1. Purpose
-------
The purpose of this Worthington Foods, Inc. Amended and Restated 1995
Stock Option Plan (the "Plan") is to advance the interests of Worthington
Foods, Inc. or any adopting successor thereto (the "Company") and its
present and future subsidiaries and to enhance the value of the
shareholders' investment in the Company by encouraging key employees to
acquire or increase and retain a financial interest in the Company and
thereby encourage the key employees to remain in the employment of the
Company and to put forth maximum efforts for the success of the Company.
In addition, the Plan is intended to enable the Company to compete
effectively for the services of potential employees by furnishing an
additional incentive to join the employment of the Company.
2. Administration of the Plan
--------------------------
(a) Committee. The Plan shall be administered by a committee of the
Board of Directors (the "Committee"), designated by the Board of
Directors to administer the Plan which shall satisfy the
requirements contained in Section 1.162-27(c)(4) of the Final
Regulations. The Committee shall at all times consist of not less
than three (3) members of the Board of Directors of the Company,
each of whom shall (a) be an individual from time to time permitted
to serve as a member of the Committee by the rules promulgated under
Section 16 of the Exchange Act in order for grants of stock options
under the Plan to be exempt transactions under said Section 16; and
(b) receive remuneration from the Company in no other capacity than
as a director, except as permitted under Section 1.162-27(e)(3) of
the Final Regulations. The members of the Committee shall be
appointed by, and serve at the pleasure of, the Board of Directors
of the Company.
(b) Authority of the Committee. The Committee shall have full power and
authority in its discretion, subject to and not inconsistent with
the express provisions of the Plan, to administer the Plan and to
exercise all the power and authority specifically granted to it
under the Plan or necessary or advisable, in the sole and absolute
discretion of the Committee, to the administration of the Plan
including, without limitation, the authority to: select from among
eligible employees those persons to whom stock
<PAGE> 3
options may be granted pursuant to the Plan; fix the terms and
provisions and restrictions of any option granted under the Plan;
grant options; interpret and construe any provision of the Plan or
of any option granted hereunder; make all required or appropriate
determinations under the Plan or any option granted hereunder;
adopt, amend and rescind such rules and regulations relating to the
Plan as the Committee shall determine in its discretion, subject to
the express provisions of the Plan; and make all other
determinations deemed by it necessary or advisable for the
administration of the Plan. All decisions and designations made by
the Committee pursuant to the provisions of the Plan shall be final,
binding and conclusive with respect to all interested parties,
unless otherwise determined by the Board of Directors.
Notwithstanding the preceding sentence, the selection of employees
of the Company for participation in the Plan and decisions
concerning the timing, pricing and amount of a grant of options
under the Plan shall be made solely by the Committee.
(c) Vacancies, etc. The Board of Directors shall fill all vacancies,
however caused, in the Committee. The Board of Directors may from
time to time appoint additional members to the Committee, and may at
any time remove one or more Committee members and substitute others.
One member of the Committee shall be selected by the Board of
Directors to serve as chairman of the Committee. The Committee shall
hold its meetings at such times and places as it shall deem
advisable. All determinations of the Committee shall be made by a
majority of its members. The Committee may appoint a secretary and
make such rules and regulations for the conduct of its business as
it shall deem advisable, and shall keep minutes of its meetings.
(d) Indemnification. Each person who is or shall have been a member of
the Committee or of the Board of Directors shall be indemnified and
held harmless by the Company against and from any loss, cost,
liability or expense that may be imposed upon or reasonably incurred
by him or her in connection with or resulting from any claim,
action, suit or proceeding to which he or she may be a party or in
which he or she may be involved by reason of any action taken or
failure to act under the Plan and against and from any and all
amounts paid by him or her in settlement thereof, with the Company's
approval, or paid by him or her in satisfaction of judgment in any
such action, suit or proceeding against him or her; provided that he
or she shall give the Company an opportunity, at its own expense, to
handle and defend the same before he or she undertakes to handle and
defend it on his or her own behalf. The foregoing right of
indemnification shall not be exclusive of any other rights of
indemnification to which such person may be entitled under the
Company's Articles of Incorporation or Regulations, as a matter of
law, or otherwise, or any power
<PAGE> 4
that the Company may have to indemnify or hold him or her harmless.
3. Eligibility
-----------
(a) General. All full-time employees of the Company or any subsidiary,
including those who are officers or directors, are eligible to
receive options pursuant to the Plan if selected by the Committee to
receive an option; provided, however, that members of the Committee
may not participate in the Plan. More than one option may be granted
to an employee.
(b) Factors. In determining the individuals to whom options are to be
granted under the Plan, the Committee shall take into consideration
the respective duties of the individuals, their present and
potential contributions to the success of the Company and such other
factors as the Committee shall deem relevant in connection with
accomplishing the purpose of the Plan.
(c) No Other Rights. Nothing contained in the Plan, nor any option
granted pursuant to the Plan, shall confer upon any employee any
right to continue in the employment of the Company or any subsidiary
nor limit in any way the right of the Company to terminate his or
her employment at any time.
4. Shares Subject to the Plan
--------------------------
(a) Subject to the provisions of Section 11 hereof, the shares for which
options may be granted under the Plan shall consist of 1,166,666
Common Shares, without par value ("Common Shares"), of the Company.
The Common Shares hereby reserved are in addition to the Common
Shares previously reserved under the Company's 1985 Stock Option
Plan (the "Prior Stock Option Plan"). No additional options shall be
granted under the Prior Stock Option Plan. Any Common Shares as to
which stock options granted under the Prior Stock Option Plan may
lapse, expire, terminate or be canceled (so long as the holder
thereof has not received any benefits of ownership of such shares),
shall also be reserved and available for issuance in connection with
stock options granted under this Plan. All of such shares may, but
need not, be issued pursuant to the exercise of Incentive Stock
Options.
(b) Common Shares subject to the Plan may be, at the discretion of the
Board of Directors, either authorized and unissued Common Shares or
Common Shares reacquired by the Company and held as treasury shares.
<PAGE> 5
(c) If any outstanding option under the Plan for any reason expires,
lapses, terminates or is canceled without having been exercised in
full, the Common Shares allocable to the unexercised portion of such
option shall (unless the Plan shall have been terminated) become
available for subsequent grants of options under the Plan.
5. Termination of Plan
-------------------
This Plan shall terminate upon the earlier of (i) February 20, 2005; or
(ii) the date on which all Common Shares available for issuance under the
Plan have been issued pursuant to the exercise of options granted
hereunder; or (iii) the determination of the Board that the Plan shall
terminate. No options may be granted under the Plan after such termination
date, provided that the options granted and outstanding on such date shall
continue to have force and effect in accordance with the provisions of the
documents evidencing such options.
6. Amendment of the Plan
---------------------
(a) Amendments to the Plan. The Board may amend, alter, suspend,
discontinue or terminate the Plan or any portion thereof at any
time; provided that no such amendment, alteration, suspension,
discontinuation or termination shall be made without shareholder
approval if such approval is necessary to comply with any tax or
regulatory requirement, including for these purposes any approval
requirement which is a prerequisite for exemptive relief from
Section 16(b) of the Exchange Act for which or with which the Board
deems it necessary or desirable to qualify or comply.
Notwithstanding anything to the contrary herein, the Committee may
amend the Plan, subject to any shareholder approval required under
Rule 16b-3, in such manner as may be necessary so as to have the
Plan conform with local rules and regulations in any jurisdiction
outside the United States.
(b) Amendments to Options. Subject to the provisions of this Plan, the
Committee may waive any conditions or rights under, amend any terms
of, or alter, suspend, discontinue, cancel or terminate any option
theretofore granted, prospectively or retroactively; provided that
any such waiver, amendment, alteration, suspension, discontinuance,
cancellation or termination that would impair the rights of any
holder or beneficiary of any option theretofore granted shall not to
that extent be effective without the consent of the affected holder
or beneficiary.
<PAGE> 6
7. Notices
-------
Each notice relating to this Plan shall be in writing and delivered in
person or by first class or certified mail to the proper addressee. Each
notice shall be deemed to have been given on the date it is received. Each
notice to the Committee shall be addressed as follows:
Worthington Foods, Inc.
900 Proprietors Road
Worthington, Ohio 43085
Attention: President
Each notice to a holder of an option (or other person or persons then
entitled to exercise an option) shall be addressed to the holder (or such
other person or persons), at the holder's address set forth in the
Company's current personnel records. Anyone to whom a notice may be given
under this Plan may designate, in writing, a new address by notice to that
effect.
8. Definitions
-----------
(a) The term "Code" where used in this Plan shall mean the Internal
Revenue Code of 1986, as amended.
(b) The term "Exchange Act" where used in this Plan shall mean the
Securities Exchange Act of 1934, as amended.
(c) The term "Final Regulations" where used in this Plan shall mean the
final regulations promulgated by the Internal Revenue Service under
Section 162(m) of the Code.
(d) The term "subsidiary" where used in this Plan shall have the meaning
set forth for the term "subsidiary corporation" in Section 424(f) of
the Code.
PART II OPTIONS
9. Grant of Options
----------------
(a) To the extent not inconsistent with the provisions of this Plan, the
Committee shall fix the terms and provisions and restrictions of
options, including the number of Common Shares to be subject to each
option, the dates on which options may be fully or partially
exercised, the minimum period (if any) during which the same must be
held until exercisable and the expiration dates thereof. Options
granted hereunder shall be evidenced by a written option agreement
(an "Agreement") between the employee and the Company. The Agreement
shall contain such terms, conditions and limitations as provided by
the
<PAGE> 7
Committee, but shall also be subject to the provisions of this
Section 9 and other Sections of Part II of this Plan.
(b) During the period in which this Plan remains in effect, no person
shall be granted options under this Plan covering more than 50,000
Common Shares (subject to adjustment pursuant to Section 11) over
any one-year period. For this purpose, to the extent that any option
is canceled (as described in Section 1.162-27(e)(2)(vi)(B) of the
Final Regulations), such canceled option shall continue to be
counted against the maximum number of Common Shares for which
options may be granted to an person under this Plan.
(c) It is intended that certain options issued pursuant to this Plan
shall constitute incentive stock options within the meaning of
Section 422 of the Code ("Incentive Stock Options"). Non-qualified
stock options may also be issued under this Plan in accordance with
the Plan's terms and conditions. An eligible employee may be granted
Incentive Stock Options, non-qualified stock options or both, but
only on the terms and subject to the restrictions set forth in this
Plan.
(d) Notwithstanding anything in this Plan to the contrary, no person
shall be eligible to receive an Incentive Stock Option if, at the
time of grant, such person owns of record and beneficially more than
ten percent (10%) of the total combined voting power of all classes
of stock of the Company then outstanding and entitled to vote;
provided, however, that the foregoing limitation shall not apply if
the option price at the time the option is granted is at least one
hundred ten percent (110%) of the fair market value (as defined in
Section 9(f) of this Plan) of the Common Shares subject to the
option on the date of grant of the option and the option term is not
more than five (5) years. Further, the aggregate fair market value
(determined at the time the option is granted) of the Common Shares
with respect to which Incentive Stock Options are exercisable for
the first time by any option holder during any calendar year (under
all stock option plans of the Company) shall not exceed One Hundred
Thousand Dollars ($100,000).
(e) Subject to the exception set forth in Section 9(c) of this Plan, the
purchase price of the Common Shares covered by each Incentive Stock
Option shall not be
<PAGE> 8
less than one hundred percent (100%) of the fair market value of
such Common Shares on the date of grant of such option. The purchase
price of the Common Shares covered by any other option issued under
this Plan shall be as determined by the Committee; provided,
however, that in no event shall the purchase price be less than
$1.00 per share.
(f) The fair market value of Common Shares on a particular date shall be
the last reported closing price for the Company's Common Shares on
the NASDAQ National Market System or any securities exchange on
which the Common Shares may be listed on that date or, if no such
sale occurred on that date, then for the next preceding date on
which a sale was made. If the Common Shares should be no longer
traded on the NASDAQ National Market System or any securities
exchange, the fair market value shall be determined by the
Committee. Subject to the foregoing, the Committee, in fixing the
purchase price, shall have full authority and discretion and be
fully protected in doing so.
(g) Any option granted hereunder shall provide as determined by the
Committee for appropriate arrangements for the satisfaction by the
Company and the option holder of all federal, state, local or other
income, excise or employment taxes or tax withholding requirements
applicable to the exercise of the option or the later disposition of
the Common Shares or other property acquired upon exercise of an
option and all such additional taxes or amounts as determined by the
Committee in its discretion, including, without limitation, the
right of the Company to receive transfers of Common Shares or other
property from the option holder or to deduct or withhold in the form
of cash or shares from any transfer or payment to an option holder,
in such amount or amounts deemed required or appropriate by the
Committee in its sole and absolute discretion.
(h) The Committee shall have the authority to effect, at any time and
from time to time, with the consent of the affected option holder or
option holders, the cancellation of any or all outstanding options
granted under the Plan and the grant in substitution therefor of new
options under the Plan (subject to the limitations hereof) covering
the same or different numbers of Common Shares at an option price
per share in all events not less than the fair market value on the
new grant date (as determined under Section 9(f)).
<PAGE> 9
10. Notice of Grant of Option
-------------------------
Upon the granting of any option to an employee, the Committee shall
promptly cause such employee to be notified of the fact of such grant. The
date on which an option shall be granted shall be the date of the
Committee's authorization of such grant or such later date as may be
determined by the Committee at the time such grant is authorized, subject
to satisfaction of any conditions the Committee may place on the
effectiveness of the grant.
11. Adjustments and Changes in the Common Shares
--------------------------------------------
(a) In the event that the Common Shares as presently constituted shall
be changed into or exchanged for a different kind or number of
shares or other securities of the Company or of another corporation
(whether by reason of merger, consolidation, recapitalization,
reclassification, split-up, combination of shares or otherwise) or
if the number of such shares shall be increased through the payment
of a stock dividend, then unless such change results in the
termination of all outstanding options pursuant to the provisions of
Section 12 hereof, then the Committee shall proportionately adjust
any or all (as necessary) of (i) the number of Common Shares or
other securities of the Company (or number and kind of other
securities or property) which may be issued under the Plan; (ii) the
number of Common Shares or other securities of the Company (or
number and kind of other securities or property) subject to
outstanding options; and (iii) the maximum number of Common Shares
subject to options that may be granted to an employee under Section
9(b). Outstanding options shall also be appropriately amended as to
price and other terms as may be necessary to reflect the foregoing
events. In the event there shall be any other change in the number
or kind of the outstanding shares of the Company, or of any shares
or other securities into which such shares shall have been changed,
or for which they shall have been exchanged, then if the Committee
shall, in its sole discretion, determine that such change equitably
requires an adjustment in any option theretofore granted or which
may be granted under the Plan, such adjustment shall be made in
accordance with such determination. Fractional shares resulting from
any adjustment in options
<PAGE> 10
pursuant to this Section 11 shall be rounded down to the nearest
whole number of shares.
(b) Notwithstanding the foregoing, any and all adjustments in connection
with an Incentive Stock Option shall comply in all respects with
Sections 422 and 424 of the Code and the regulations promulgated
thereunder.
(c) Notice of any adjustment shall be given by the Company to each
holder of an option which shall have been so adjusted, provided that
such adjustment (whether or not such notice is given) shall be
effective and binding for all purposes of the Plan and any
instrument or agreement issued thereunder.
12. Acceleration of Options
-----------------------
(a) In the event that the Company or its shareholders enter into one or
more agreements to dispose of all or substantially all of the assets
or 50 percent or more of the outstanding capital stock of the
Company by means of sale (whether as a result of a tender offer or
otherwise), merger, reorganization or liquidation in one or a series
of related transactions (each, an "Acceleration Event"), then each
option outstanding under the Plan shall become exercisable during
the fifteen (15) days immediately prior to the scheduled
consummation of the Acceleration Event with respect to the full
number of Common Shares for which such option has been granted;
provided, however, that no such Acceleration Event shall occur in
the event that (i) the primary purpose of the transaction is to
change the Company's domicile solely within the United States; (ii)
the terms of the agreement(s) require as a prerequisite for the
consummation of the transaction that each such option shall either
be assumed by the successor corporation or parent thereof or be
replaced with a comparable option to purchase shares of capital
stock of the successor corporation or parent thereof; or (iii) the
transaction is approved by a majority of the members of the Board of
Directors of the Company who had either been in office for more than
twelve (12) months prior to such transaction or had been elected, or
nominated for election by the Company's shareholders, by the vote of
three-fourths of the directors then still in office who were
directors at the beginning of such twelve-month period; and provided
further that any such exercise of an option during such fifteen (15)
day period shall be conditioned upon the
<PAGE> 11
consummation of such transaction and shall be effective only
immediately before such consummation, except to the extent that an
option holder may indicate, in writing, that such exercise is
unconditional with regard to all or part of the unaccelerated
portion of the option. Upon consummation of the Acceleration Event
contemplated by said agreement, all outstanding options, whether or
not accelerated, shall terminate and cease to be exercisable, unless
assumed by the successor corporation or parent thereof.
(b) In the event of the occurrence of an Acceleration Event (as defined
by Section 12(a)), any option holder who is subject to the filing
requirements imposed under Section 16(a) of the Exchange Act with
respect to the Company shall receive a payment of cash equal to the
difference between the aggregate Fair Value of the Common Shares
subject to such accelerated option and the aggregate option exercise
price of such Common Shares. Notwithstanding the provisions of the
preceding sentence, no payment of cash shall be made in respect of
an accelerated option unless a period of at least six (6) months has
elapsed from the date of grant of such option. For this purpose,
"Fair Value" shall mean the highest fair market value of the subject
Common Shares during the 60-day period immediately preceding the
date of the consummation of the Acceleration Event (as determined
under Section 9(e) hereof). Payment of said cash shall be made
within ten (10) days after said consummation of the Acceleration
Event. The foregoing payments under this Section 12(b) shall be made
in lieu of and in full discharge of any and all obligations of the
Company in respect of all subject options of the option holder
granted under this Plan. The right to receive a payment of cash
under this Section 12(b) shall not be transferable except by will or
the laws of descent and distribution. Notwithstanding any of the
foregoing, the provisions of this Section 12(b) shall not be
applicable to Incentive Stock Options granted under this Plan.
(c) The grant of options under this Plan shall in no way affect the
right of the Company to adjust, reclassify, reorganize or otherwise
change its capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its
business or assets.
<PAGE> 12
13. Additional Provisions
---------------------
Any Agreements authorized under the Plan may contain such provisions as the
Committee and the Board of Directors of the Company shall deem advisable
which are not inconsistent with the terms herein stated. All Incentive
Stock Option Agreements shall contain such limitations and restrictions
upon the exercise of the option governed thereby as shall be necessary in
order that such option will be an "incentive stock option" as defined in
Section 422 of the Code, or to conform to any change in the applicable law,
rulings or regulations. In the event this Plan is inconsistent in any
respect with an Agreement between the Company and an option holder, the
provisions of the Plan shall control.
14. Exercise of Options
-------------------
Each option granted under this Plan shall be exercisable on such date or
dates and during such period and for such number of Common Shares as shall
be determined by the Committee and as set forth in the Agreement evidencing
such option. An option may be exercised by notice given to the Committee in
such form as the Committee shall require. Notwithstanding the preceding
provisions of this Section 14, no option granted under this Plan may be
exercised unless a period of at least six (6) months has elapsed from the
date of grant of such option. No fractions of a Common Share may be
purchased by an option holder upon exercising his or her option, and to the
extent that the use of fractional or percentage computations would
otherwise give rise to the right of the option holder to purchase a
fraction of a Common Share, the total Common Shares subject to exercise
shall be adjusted down to the nearest whole number.
15. Exercise After Termination of Employment
----------------------------------------
(a) Except as otherwise provided in the Plan, an option holder's options
under this Plan (i) are exercisable only by the option holder, (ii)
are exercisable only while the option holder is in the employment of
the Company and then only if the options have become exercisable by
their terms, and (iii) if not exercisable by their terms at the time
the option holder ceases to be in the employment of the Company,
shall immediately expire on the date of termination of employment.
<PAGE> 13
(b) Except as provided in this Section 15(b), any option holder's option
which is exercisable by its terms at the time the option holder
ceases to be in the employment of the Company must be exercised on
or before the earlier of three (3) months after the date of
termination of employment or the fixed expiration date of such
option after which period such option shall expire. If an option
holder is terminated for willful, deliberate or gross misconduct
(such as, for example, dishonesty), however, all options granted to
such option holder shall, to the extent not previously exercised,
expire immediately upon such termination. The circumstances under
which the employment of an option holder is terminated (i.e.,
whether employment is terminated for willful, deliberate or gross
misconduct) shall be decided by the Committee, whose decision shall
be final and binding on all affected parties.
(c) In the event of the death of the option holder while in the
employment of the Company or within three (3) months after his
termination of employment other than for willful, deliberate or
gross misconduct, each of that option holder's unexercised options
(whether or not then exercisable by their terms) shall become
immediately exercisable by such option holder's estate for a period
ending on the earlier of the fixed expiration date of such option or
twelve months after the date of death, after which period such
option shall expire. For purposes hereof, the estate of an option
holder shall be defined to include the legal representatives thereof
or any person who has acquired the right to exercise an option by
reason of the death of the option holder.
(d) In the case of any options, other than Incentive Stock Options, in
the event of the termination of employment by reason of the
permanent disability (as defined below) of the option holder, each
of that option holder's unexercised options (whether or not then
exercisable by their terms) shall become exercisable for a period
ending on the earlier of the fixed expiration date of such option or
twelve months from the date of termination of employment, after
which period such option shall expire. For purposes of this Section
15(d), "permanent disability" shall be deemed to be the inability of
the option holder to perform the duties of his job with the Company
because of a physical or mental disability as evidenced by the
opinion of a Company-approved doctor of medicine
<PAGE> 14
licensed to practice medicine in the United States of America.
(e) In the case of any options, other than Incentive Stock Options, in
the event of the normal retirement of the option holder, each of
that option holder's unexercised options (whether or not then
exercisable by its terms), granted to that option holder on or
before his 65th birthday shall become immediately exercisable for a
period ending on the earlier of the fixed expiration date of such
option or twelve months after the date of retirement, after which
period such option shall expire. Also, in the event of the normal
retirement of the option holder, each of that option holder's
unexercised options, other than Incentive Stock Options (whether or
not then exercisable by its terms) granted to that option holder
after his 65th birthday and held for a period of at least twelve
consecutive months of active employment with the Company after the
date of grant shall become immediately exercisable for a period
ending on the earlier of the fixed expiration date of such option or
twelve months after the date of retirement, after which period such
option shall expire. For purposes of this Section 15(e), retirement
shall be deemed to be "normal retirement" if the option holder is at
least 65 years of age and has completed at least five consecutive
years of employment with the Company at the date of retirement.
(f) In the case of Incentive Stock Options, in the event of the
termination of employment by reason of the permanent disability or
the normal retirement of the option holder (as defined in Sections
15(d) and (e), respectively, above), each Incentive Stock Option
then held by the option holder shall become exercisable and
terminate on the earlier of the period ending three months after the
termination of employment or the fixed expiration date of such
option; provided, however, that, if such termination of employment
occurs by reason of "disability" within the meaning of Section
22(e)(3) of the Code, said three-month period shall be extended to
twelve months.
(g) For purposes of this Section 15, employment by the Company shall
also include employment by any subsidiary of the Company.
<PAGE> 15
16. Payment for Common Shares
-------------------------
Common Shares which are subject to an option shall be issued only upon
exercise of the option in whole or in part and upon full payment of the
purchase price for the Common Shares as to which the option is exercised.
The option price shall be payable upon exercise of the option in United
States dollars in cash (including check, bank draft or money order). If
permitted by the Committee, the option price may also be payable (a) by
delivery of Common Shares of the Company already owned by the option
holder, or (b) by delivery of a combination of Common Shares and cash. Any
Common Shares delivered to the Company in payment of the option price shall
be valued at their fair market value (as defined in Section 9(f) of this
Plan) on the date of delivery. An employee to whom an option has been
granted shall have none of the rights of a shareholder with respect to the
Common Shares to be acquired until such Common Shares are transferred to
him.
17. Termination of Option
---------------------
Each option shall terminate in any event no later than ten (10) years from
the date of grant except as provided in Section 9(d) of this Plan.
18. Assignability
-------------
An option granted under the Plan may not be transferred except by will or
the laws of descent and distribution and, during the lifetime of the
employee to whom granted, may be exercised only by such employee or such
employee's guardian or legal representative.
19. Laws and Regulations
--------------------
(a) The Plan and all options granted pursuant to it are subject to all
laws and regulations of any governmental authority which may be
applicable thereto, and notwithstanding any provisions of this Plan
or the options granted, the holder of an option shall not be
entitled to exercise such option, nor shall the Company be obligated
to issue any Common Shares, if such exercise or issuance shall
constitute a violation by the option holder or the Company of any
provisions of any such law or regulation.
<PAGE> 16
(b) The Company, in its discretion, may postpone the issuance and
delivery of Common Shares upon any exercise of an option until
completion of any stock exchange listing or registration or other
qualification of such Common Shares under any state or federal law,
rule or regulation as the Company may consider appropriate; and may
require any person exercising an option to make such representations
and furnish such information as it may consider appropriate in
connection with the issuance of the Common Shares in compliance with
applicable law. Under such circumstances, the Company shall proceed
with reasonable promptness to complete any such listing,
registration or other qualification.
(c) Common Shares issued and delivered upon exercise of an option shall
be subject to such restrictions on trading, including appropriate
legending of certificates to that effect, as the Company, in its
discretion, shall determine are necessary to satisfy applicable
legal requirements and obligations.
20. Use of Proceeds
---------------
The proceeds received by the Company from the sale of Common Shares
pursuant to the options granted under this Plan shall be used for general
corporate purposes.
21. Expenses
--------
The expenses of the Plan shall be borne by the Company.
22. No Right to Options
-------------------
No employee shall have any claim to be granted an option under this Plan,
and there is no obligation for uniformity of treatment of employees or
holders or beneficiaries of options. The terms and conditions of option
grants need not be the same with respect to each recipient.
23. No Right to Employment
----------------------
Eligibility for participation in this Plan or the grant of an option shall
not be construed as giving an employee the right to be retained in the
employ of the Company or any subsidiary of the Company. Further, the
Company or any
<PAGE> 17
subsidiary of the Company may at any time dismiss the holder of an option
from employment, free from any liability or claim under the Plan, unless
otherwise expressly provided in the Plan in any Agreement.
24. No Rights as Shareholders
-------------------------
Subject to the provisions of the Plan and/or the applicable Agreement, no
holder of an option granted under this Plan shall have any rights as a
shareholder with respect to any Common Shares to be distributed under this
Plan until he or she has become the holder of such Common Shares.
25. Governing Law
-------------
The validity, construction and effect of the Plan and any rules and
regulations relating to the Plan and any Agreement shall be determined in
accordance with the laws of the State of Ohio.
26. No Trust or Fund Created
------------------------
Neither the Plan nor any option shall create or be construed to create a
trust or separate fund of any kind or a fiduciary relationship between the
Company or any subsidiary of the Company and any option holder or any other
person.
27. Rule 16b-3 Compliance
---------------------
With respect to persons subject to Section 16 of the Exchange Act,
transactions under this Plan are intended to comply with all applicable
terms and conditions of Rule 16b-3 and any successor provisions. To the
extent that any provision of the Plan or action by the Committee fails to
so comply, it shall be deemed null and void, to the extent permitted by law
and deemed advisable by the Committee.
28. Severability
------------
If any provisions of the Plan or any Agreement is or becomes or is deemed
to be invalid, illegal or unenforceable in any jurisdiction or as to any
person or any option, or would disqualify the Plan or any option under law
deemed applicable by the Committee, such provision shall be construed or
deemed amended to conform to the applicable
<PAGE> 18
laws, or if it cannot be construed or deemed amended without, in the
determination of the Committee, materially altering the intent of the Plan
or the option, such provision shall be stricken as to such jurisdiction,
person or option and the remainder of the Plan and any such option shall
remain in full force and effect.
<PAGE> 1
Exhibit 23(a)
-------------
Consent of Ernst & Young LLP,
Independent Auditors to Registrant
<PAGE> 2
Consent of Independent Auditors
-------------------------------
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Worthington Foods, Inc. Amended and Restated 1995 Stock
Option Plan of our reports dated February 3, 1999, with respect to the
consolidated financial statements of Worthington Foods, Inc. incorporated by
reference in its Annual Report (Form 10-K) for the year ended December 31, 1998,
and the related financial statement schedule included therein, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Columbus, Ohio
July 30, 1999
<PAGE> 1
Exhibit 24
----------
Powers of Attorney
<PAGE> 2
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of WORTHINGTON FOODS, INC., an Ohio corporation, which is about to file
with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-8 for the registration of certain of its securities for offering and
sale pursuant to the Worthington Foods, Inc. Amended and Restated 1995 Stock
Option Plan, hereby constitutes and appoints Dale E. Twomley and William T.
Kirkwood, and each of them, as his 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 such Registration Statement
and any and all amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission and The Nasdaq Stock Market, granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of
this 20th day of July, 1999.
/s/ Dale E. Twomley
-------------------------------
Dale E. Twomley
<PAGE> 3
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of WORTHINGTON FOODS, INC., an Ohio corporation, which is about to file
with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-8 for the registration of certain of its securities for offering and
sale pursuant to the Worthington Foods, Inc. Amended and Restated 1995 Stock
Option Plan, hereby constitutes and appoints Dale E. Twomley and William T.
Kirkwood, and each of them, as his 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 such Registration Statement
and any and all amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission and The Nasdaq Stock Market, granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of
this 27th day of July, 1999.
/s/ William T. Kirkwood
-------------------------------
William T. Kirkwood
<PAGE> 4
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of WORTHINGTON FOODS, INC., an Ohio corporation, which is about to file
with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-8 for the registration of certain of its securities for offering and
sale pursuant to the Worthington Foods, Inc. Amended and Restated 1995 Stock
Option Plan, hereby constitutes and appoints Dale E. Twomley and William T.
Kirkwood, and each of them, as his 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 such Registration Statement
and any and all amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission and The Nasdaq Stock Market, granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of
this 20th day of July, 1999.
/s/ Roger D. Blackwell
-------------------------------
Roger D. Blackwell
<PAGE> 5
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of WORTHINGTON FOODS, INC., an Ohio corporation, which is about to file
with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-8 for the registration of certain of its securities for offering and
sale pursuant to the Worthington Foods, Inc. Amended and Restated 1995 Stock
Option Plan, hereby constitutes and appoints Dale E. Twomley and William T.
Kirkwood, and each of them, as his 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 such Registration Statement
and any and all amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission and The Nasdaq Stock Market, granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of
this 20th day of July, 1999.
/s/ Emil J. Brolick
-------------------------------
Emil J. Brolick
<PAGE> 6
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of WORTHINGTON FOODS, INC., an Ohio corporation, which is about to file
with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-8 for the registration of certain of its securities for offering and
sale pursuant to the Worthington Foods, Inc. Amended and Restated 1995 Stock
Option Plan, hereby constitutes and appoints Dale E. Twomley and William T.
Kirkwood, and each of them, as his 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 such Registration Statement
and any and all amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission and The Nasdaq Stock Market, granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of
this 20th day of July, 1999.
/s/ Donald G. Orrick
-------------------------------
Donald G. Orrick
<PAGE> 7
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of WORTHINGTON FOODS, INC., an Ohio corporation, which is about to file
with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-8 for the registration of certain of its securities for offering and
sale pursuant to the Worthington Foods, Inc. Amended and Restated 1995 Stock
Option Plan, hereby constitutes and appoints Dale E. Twomley and William T.
Kirkwood, and each of them, as his 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 such Registration Statement
and any and all amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission and The Nasdaq Stock Market, granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of
this 20th day of July, 1999.
/s/ William D. Parker
-------------------------------
William D. Parker
<PAGE> 8
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of WORTHINGTON FOODS, INC., an Ohio corporation, which is about to file
with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-8 for the registration of certain of its securities for offering and
sale pursuant to the Worthington Foods, Inc. Amended and Restated 1995 Stock
Option Plan, hereby constitutes and appoints Dale E. Twomley and William T.
Kirkwood, and each of them, as his 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 such Registration Statement
and any and all amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission and The Nasdaq Stock Market, granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of
this 20th day of July, 1999.
/s/ Francisco J. Perez
-------------------------------
Francisco J. Perez
