As filed with the Securities and Exchange Commission on July 25,
1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
Illinois Central Corporation
(Exact name of registrant as specified in its charter)
Delaware 13-3545405
(State or other (IRS Employer
jurisdiction Identification
of incorporation Number)
or organization)
455 North Cityfront Plaza Drive, Chicago, Illinois 60611-5504
(Address of Principal Executive Offices including Zip Code)
Illinois Central Corporation Management Employee Discounted
Stock Purchase Plan
(Full title of plan)
Ronald A. Lane, 455 North Cityfront Plaza Drive, Chicago,
Illinois 60611-5504
(312) 755-7500
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
(1) (2)
Common Stock 1,000,000 $30.12 $30,125,000 $10,388
$.001 par shares
value
(1) Includes an indeterminate number of shares of Common Stock
that may be issuable by reason of stock splits, stock
dividends or similar transactions.
(2) The amounts are based upon the average of the high and low
sale prices for the Common Stock as reported on The Wall
Street Journal - Midwest Edition for July 21, 1994 and are
used solely for the purpose of calculating the registration
fee pursuant to Rule 457 (c) under the Securities Act of
1933.
<PAGE>
PART I
INFORMATION REQUIRED IN PROSPECTUS
The information called for in Part I of Form S-8 is
currently included in a prospectus for the Illinois Central
Corporation Management Employee Discounted Stock Purchase Plan
(the "Plan") and in a Supplement to the such Prospectus, and is
not being filed with or included in this Form S-8 in accordance
with the rules and regulations of the Securities and Exchange
Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the SEC are incorporated in
this Registration Statement by reference:
1. Illinois Central Corporation's (the "Company") Annual
Report on Form 10-K for the year ended December 31, 1993, SEC
File No. 1-10720.
2. The Company's Quarterly Reports on Form 10-Q for the
quarter ended March 31, 1994, SEC File No. 1-10720.
3. The description of the Company's Common Stock, contained in
the Company's Restated Articles of Incorporation filed as
Exhibit 4.2 herein.
4. The Company's Form 8-K dated July 20, 1994, SEC File No. 1-
10720.
5. Any and all other reports filed by the Company pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") since December 31, 1993.
In addition, all documents filed by the Company or the Plan
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
the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which
deregisters all such securities then remaining unsold, shall be
deemed to be incorporated in this registration statement by
reference and to be a part hereof from the date of filing of
such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of
this registration statement to the extent that a statement
contained herein or in any subsequently filed document which
also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement.
The Company hereby undertakes to provide without charge to
each person who has received a copy of the prospectus to which
this registration statement relates, upon the written or oral
request of any such person, a copy of the Company's Annual
Report to Stockholders for its last fiscal year and a copy of
any or all the documents that have been or may be incorporated
by reference into this registration statement, other than
exhibits to such documents (unless such exhibits are
incorporated by reference). The Company hereby further
undertakes to deliver or cause to be delivered to all
participants who do not otherwise receive such material, copies
of all reports, proxy statements and other communications
distributed by the Company to its stockholders generally, no
later than the time such materials are first sent to its
stockholders.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests Named Experts and Counsel.
The legality of the shares offered hereby have been passed
upon by Ronald A. Lane, Vice President, General Counsel and
Secretary of the Company. As of July 1, 1994, Mr. Lane
beneficially owned 101,790 shares of Company Common Stock and
has options to purchase 11,000 shares of Company Common Stock.
None of the Options are exercisable at July 1, 1994.
The consolidated financial statements and schedules of the
Company for the three years ended December 31, 1993, included in
the Company's annual report on Form 10-K for the year ended
December 31, 1993, which have been incorporated in this
Registration Statement on Form S-8 by reference, have been
audited by Arthur Andersen & Co., independent public
accountants, as indicated in their reports with respect thereto,
and are incorporated herein in reliance upon the authority of
such firm as expert in accounting and auditing.
Item 6. Indemnification of Directors and Officers.
Article Seven ("Article Seven") of the Company's Restated
Certificate of Incorporation (the "Company Certificate") limits
the scope of personal liability of the Company's directors to
the Company or its stockholders for monetary damages for breach
of fiduciary duty as a director and, along with Article VIII of
the By-Laws of the Company ("Article VIII"), defines the rights
of the Company directors and officers to indemnification by the
Company in the event of personal liability or expenses incurred
by them as a result of certain litigation against them. Set
forth below are descriptions of Article Seven and Article VIII.
<PAGE>
Elimination of Liability in Certain Circumstances:
Indemnification and Insurance.
The Delaware General Corporation Law (the "GCL") empowers
the Company to indemnify, subject to the standards therein
prescribed, any person in connection with any action, suit or
proceeding brought or threatened by reason of the fact that such
person is or was a director, officer, employee or agent of the
Company or is or was serving as such with respect to another
corporation or other entity at the request of the Company.
Article Seven of the Company Certificate requires the Company to
indemnify directors and officers, or any other person with such
right as may be determined by the Company, to the fullest extent
permitted by the GCL.
In addition, the GCL authorizes corporations to limit or
eliminate the personal liability of directors to corporations
and their stockholders for monetary damages for breach of
directors' fiduciary duty of care. Article Seven of the Company
Certificate limits the liability of the directors to the Company
or its stockholders (in their capacity as directors but not in
their capacity as officers) to the fullest extent permitted by
the GCL. Specifically, directors of the Company will not be
personally liable for monetary damages for breach of a
director's fiduciary duty as a director, except, as provided in
the GCL, for liability (a) for any breach of the director's duty
of loyalty to the Company or its stockholders, (b) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (c) for unlawful
payments of dividends or unlawful stock repurchases or
redemptions, or (d) for any transaction from which the director
derived an improper personal benefit. The Company Certificate
also provides that if the GCL is amended after the effective
date of such Company Certificate to authorize corporate action
further eliminating or limiting the personal liability of
directors, then the liability of a director of the Company will
be eliminated or limited to the fullest extent permitted by the
GCL, as so amended.
The directors and officers of the Company, and certain other
employees or agents as determined by the Company, are covered by
an insurance policy, indemnifying them against certain civil
liabilities, including liabilities under the federal securities
laws, which might be incurred by them in such capacity.
The Plan states that, to the extent permitted by law, the
Company shall indemnify and hold harmless each member of the
Committee, the chief executive officer and each other officer or
employee of the Company or an Employer (as defined in the Plan),
to whom are delegated duties, responsibilities and authority
with respect to the Plan, against any and all liabilities,
losses, costs or expenses (including legal fees and expenses) of
whatever nature, which may be imposed on, incurred by, or
against him at any time by reason of his service under the Plan,
if he did not act dishonestly with gross negligence or otherwise
in knowing violation of the law under which such liability,
loss, cost or expense arises.
<PAGE>
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Form of the Illinois Central Corporation Management
Employee Discounted Stock Purchase Plan.
4.2 Restated Articles of Incorporation of the Company.
4.3 By-Laws of the Company, as amended. (Incorporated by
reference to Exhibit 3.4 to the Registration Statement, as
amended, of Illinois Central Corporation and Illinois
Central Railroad Company on Form S-1. (SEC File Nos. 33-
36321 and 33-36321-01))
5 Opinion re: Legality.
23.1 Consent of Arthur Andersen & Co.
23.2 Consent of Ronald A. Lane (See Exhibit 5).
24 Power of Attorney (included on the signature page of this
Registration Statement).
Item 9. Undertakings.
1. The Company hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually, or in the aggregate,
represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(i) and (a)(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 by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(b) 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.
(c) 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.
2. The Company hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each
such post-effective amendment and each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in 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.
3. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors and
officers of the Company and subsidiary companies pursuant to the
foregoing provisions, or otherwise, the Company has been
informed that in the opinion of the SEC 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 Company
of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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.
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 Chicago, State of Illinois, on July 25, 1994.
ILLINOIS CENTRAL CORPORATION
By:/S/ DALE W. PHILLIPS
Dale W. Phillips, Vice President
& Chief Financial Officer
The Registrant and each person whose signature appears
below constitutes and appoints E. Hunter Harrison, Dale W.
Phillips and Ronald A. Lane, and any agent for service named in
this Registration Statement and each of them, his, her or its
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his,
her, or its name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective
amendments) to this Registration Statement, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this registration statement has been signed by the
following persons in the capacities and on the dates indicated.
/S/GILBERT H. LAMPHERE Chairman of the Board and Director July 25, 1994
Gilbert H. Lamphere
/S/E. HUNTER HARRISON President and Chief Executive Officer July 25, 1994
E. Hunter Harrison (principal executive officer) and Director
/S/THOMAS A. BARRON Director July 25, 1994
Thomas A. Barron
/S/GEORGE D. GOULD Director July 25, 1994
George D. Gould
/S/WILLIAM B. JOHNSON Director July 25, 1994
William B. Johnson
/S/ALEXANDER P. LYNCH Director July 25, 1994
Alexander P. Lynch
Director
Samuel F. Pryor, IV
/S/F. JAY TAYLOR Director July 25, 1994
F. Jay Taylor
/S/JOHN V. TUNNEY Director July 25, 1994
John V. Tunney
/S/ALAN H. WASHKOWITZ Director July 25, 1994
Alan H. Washkowitz
/S/DALE W. PHILLIPS Vice President and Chief Financial July 25, 1994
Dale W. Phillips Officer
(principal financial officer)
/S/JOHN V. MULVANEY Controller July 25, 1994
John V. Mulvaney (principal accounting officer)
<PAGE>
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the Plan has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois, on the 25th day of July 1994.
ILLINOIS CENTRAL CORPORATION
MANAGEMENT EMPLOYEE DISCOUNTED STOCK PURCHASE PLAN
By: /S/ JAMES M. HARRELL
Member, Benefits Administration Committee
ILLINOIS CENTRAL CORPORATION
AND SUBSIDIARIES
Exhibit Index
Sequential
Exhibit No. Descriptions Page No.
4.1 Form of the Illinois Central Corporation
Management Employee Discounted Stock
Purchase Plan (A)
4.2 Restated Articles of Incorporation of
the Company (A)
4.3 By-Laws of the Company, as amended.
(Incorporated by reference to Exhibit 3.4
to the Registration Statement, as amended,
of Illinois Central Corporation and Illinois
Central Railroad Company on Form S-1.
(SEC File Nos. 33-36321 and 33-36321-01)
5. Opinion re: Legality E2
23.1 Consent of Arthur Anderson & Co. (A)
23.2 Consent of Ronald A. Lane (See Exhibit 5).
24 Power of Attorney (included on the
signature page of this Registration
Statement, see II-7).
(A) Included herein but not reproduced<PAGE>
Exhibit 5
July 19, 1994
ILLINOIS CENTRAL CORPORATION
455 N. Cityfront Plaza Drive
Chicago, Illinois 60611-5504
Gentlemen:
I have examined the corporate and plan records and proceedings
of Illinois Central Corporation (the "Company") and the Illinois
Central Corporation Management Employee Discounted Stock
Purchase Plan (the "Plan") with respect to the shares of common
stock of the Company (the "Shares") being registered with the
Securities and Exchange Commission pursuant to the Company's
registration statement on Form S-8 (the "Registration
Statement").
I am of the opinion that the Shares, when issued under and in
accordance with the Plan, will be legally issued, fully paid and
non-assessable.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the references to this
opinion contained in the Registration Statement.
Very truly yours,
/s/Ronald A. Lane
Vice President and General
Counsel of the Company
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our
report dated January 19, 1994, included in Illinois Central
Corporation's Form 10-K for the year ended December 31, 1993,
and to all references to our Firm included in this Registration
Statement.
Chicago, Illinois
July 22, 1994
ILLINOIS CENTRAL CORPORATION
MANAGEMENT EMPLOYEE DISCOUNTED STOCK PURCHASE PLAN
WHEREAS, Illinois Central Corporation desires
to establish an employee stock purchase plan
providing the opportunity to purchase Common Stock
of the Company at a discount to permanent, full
time, salaried employees of the Company and its
Subsidiaries;
NOW THEREFORE, the Company establishes the
Plan, effective May 1, 1994, the terms of which
shall be as follows:
1. Purpose. The purpose of the Plan is to
give Eligible Employees of the Company and its
Subsidiaries an opportunity to acquire shares of
its Common Stock at a discount, and to promote the
best interests and enhance the long-term
performance of the Company and its Subsidiaries.
2. Definitions. Wherever used herein, the
following words and phrases shall have the meaning
stated below unless a different meaning is plainly
required by the context:
(a) "Administrator" means the Company's
agent for administering the Plan which is
First Chicago Trust Company of New York, or
such successor Administrator appointed by the
Committee from time to time;
(b) "Board" means the Board of Directors
of the Company;
(c) "Change In Control" of the Company
shall be deemed to have occurred if (A) any
"person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the
"Exchange Act") is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the
Exchange Act, except that a person shall be
deemed to be the "beneficial owner" of all
shares that any such person has the right to
acquire pursuant to any agreement or
arrangement or upon exercise of conversion
rights, warrants, options or otherwise,
without regard to the sixty day period
referred to in such Rule), directly or
indirectly, of securities representing 25% or
more of the combined voting power of the
Company's then outstanding securities;
provided, however, that the following
acquisitions shall not constitute a Change in
Control: (a) any acquisition directly from the
Company, (ii) any acquisition by the Company
or (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or
maintained by the Company; or (b) at any time
during any period of two consecutive years
(not including any period prior to May 1,
1994) individuals who at the beginning of such
period constituted the Board (the "Incumbent
Board") cease for any reason to constitute at
least a majority of the Board; provided,
however, that any individual becoming a
director subsequent to such date whose
election, or nomination for election by the
Company's shareholders, was approved by a vote
of at least a majority of the directors then
comprising the Incumbent Board shall be
considered as though such individual were a
member of the Incumbent Board, but excluding,
for this purpose, any such individual whose
initial assumption of office occurs as a
result of either an actual or threatened
election contest (as such terms are used in
Rule 14a-11 or Regulation 14A promulgated
under the Exchange Act) or other actual or
threatened solicitation of proxies or consents
by or on behalf of a person other than the
Board.
(d) "Code" means the Internal Revenue
Code of 1986, as amended;
(e) "Committee" means either (i) the
Compensation Committee of the Board to which
the Board has delegated its powers with
respect to the management, operation and
administration of the Plan pursuant to Section
3 hereof; or (ii) the Benefits Administration
Committee of the Company to which the
Compensation Committee has delegated a portion
of such powers pursuant to Section 3 hereof.
(f) "Common Stock" means shares of the
common stock of the Company, $.001 par value;
(g) "Company" means Illinois Central
Corporation, a Delaware corporation, or any
successor corporation by merger,
consolidation, purchase or otherwise, and any
Subsidiaries, direct or indirect, of the
Company;
(h) "Compensation" means regular salary
only paid to an Eligible Employee by the
Company prior to deductions for income or
employment taxes or any other withholdings;
(i) "Earliest Retirement Age" means age
62.
(j) "Eligible Employee" means each
person who, on or after May 1, 1994, is
employed by the Company on a permanent, full-
time, salaried basis; provided however, that
the term Eligible Employee shall not include
any individual covered by a collective
bargaining agreement between employee
representatives and the Company;
(k) "Election Form" means a form
delivered by an Eligible Employee to the
Committee with respect to participation in the
Plan as set forth in Section 5.
(l) "Fair Market Value" of the Common
Stock as of a given Investment Date shall mean
the price (or the weighted average price) at
which the Common Stock is purchased or sold by
the Administrator on the New York Stock
Exchange (or other market in which the Common
Stock is traded) with respect to such
Investment Date.
(m) "Investment Date" means the date or
dates selected by the Administrator on which
purchases or sales of Common Stock occur
pursuant to an Investment Direction;
(n) "Investment Direction" means a
written instruction from a Participant to the
Administrator to do one or more of the
following financial transactions:
(i) purchase shares of Common
Stock, including a continuing direction
to purchase shares with respect to future
payroll deductions or lump sum payments;
(ii) sell shares of Common Stock and
distribute the net cash proceeds or to
withdraw cash from the Participant's Plan
Account;
(iii) reinvest dividends on all
or a designated number of shares of
Common Stock; and
(iv) distribute dividends on all or
a designated number of shares of Common
Stock.
(o) "Participant" means an Eligible
Employee who elects to participate in the Plan
pursuant to Section 5 hereof;
(p) "Plan Account" means the record of a
Participant's full and fractional shares of
Common Stock and cash held by the
Administrator. A Participant's Plan Account
and the shares of Common Stock held therein
shall be fully vested in and nonforfeitable by
the Participant.
(q) "Purchase Price" means 85% of the
Fair Market Value per share of Common Stock on
an applicable Investment Date;
(r) "Plan" means the Illinois Central
Corporation Management Employee Discounted
Stock Purchase Plan, as set forth herein, and
as hereinafter may be amended from time to
time; and
(s) "Subsidiary" or "Subsidiaries" means
a corporation or corporations of which stock
possessing at least 80% of the total combined
voting power of all classes of stock entitled
to vote is owned by the Company or by any
other Subsidiary or Subsidiaries;
3. Administration.
(a) The Plan shall be administered by the
Committee. No member of the Committee shall have
been granted or awarded stock, restricted stock,
stock options, stock appreciation rights, limited
rights or any other derivative security of the
Company or an affiliate thereof under this Plan, or
any similar plan of the Company or an affiliate,
during his tenure on the Committee or during the 12
month period prior to commencing service on the
Committee, except as permitted in Rule 16b-
3(c)(2)(i)(A) through (D), or any successor
provision, under the Securities Exchange Act of
1934. Members of the Committee shall be subject to
any additional restrictions necessary to satisfy
the requirements of disinterested administration of
the Plan as set forth in Rule 16b-3 as it may be
amended from time to time. A member of the
Committee shall only be liable for any action or
determination made in bad faith.
(b) The Committee may delegate its duties,
authorities and responsibilities under the Plan to
the Benefits Administration Committee of the
Company to the extent applicable to Eligible
Employees and Participants who are not subject to
Section 16 of the Securities Exchange Act of 1934
and to the extent of such delegation all references
herein to the Committee shall be deemed references
to the Benefits Administration Committee.
(c) The action of the Committee shall be
determined by the vote or other affirmative
expression of a majority of its members. The
members of the Committee shall serve without
compensation for their services as such.
(d) Unless otherwise specifically provided in
the Plan, the Committee shall have full and
complete authority, responsibility and control over
the management, administration, and operation of
the Plan, including, but not limited to, the
authority and discretion to:
(i) formulate, adopt, issue and apply
procedures and rules, including such rules as
may be necessary for transactions by Eligible
Employees and Participants who are subject to
Section 16 of the Securities Exchange Act of
1934, to satisfy the requirements of Rule 16b-
3 under such Act, and change, alter or amend
such procedures and rules, as may be
consistent with the terms of the Plan;
(ii) exercise such discretion as may be
required to construe and apply the provisions
of the Plan, subject only to the terms and
conditions of the Plan;
(iii) determine the effective dates
for various transactions; and
(iv) take all necessary and proper acts
as are required for the Committee to fulfill
its duties and obligations under the Plan.
(e) The Company shall supply to the Committee
and the Administrator, within a reasonable time of
its request, the names of all Eligible Employees,
their age, the amount of Compensation paid to each
Eligible Employee, and the names and dates of all
Eligible Employees who incurred a termination of
employment. The Company shall provide to the
Committee and the Administrator, or its delegate,
such other information as it shall from time to
time need in the discharge of its duties. The
Committee and the Administrator may rely
conclusively on the information certified to it by
the Company.
(f) The decision of the Committee in matters
within its jurisdiction shall be final, binding,
and conclusive upon the Company and upon each
Eligible Employee, Participant, spouse,
beneficiary, the Administrator and every other
person or party interested or concerned.
(g) If an Eligible Employee decides to
participate in the Plan, the Administrator will
keep a continuous record of his participation and
send him a statement of his account under the Plan
for each calendar quarter in which a purchase or
sale of Common Stock for his Plan Account takes
place, as set forth in Section 17 below. The
Administrator will hold and act as custodian of
shares of Common Stock purchased under the Plan.
Except as provided in Section 12, certificates for
shares of Common Stock purchased under the Plan
will not be issued to Participants. The number of
shares of Common Stock credited to a Participant's
Plan Account will be shown on his quarterly
statement of account. However, pursuant to Section
12, certificates for any number of whole shares
credited to a Participant's Plan Account will be
issued to him upon his written request to the
Administrator, upon his payment to the
Administrator of a distribution fee in an amount
from time to time determined by the Committee. Any
remaining shares will continue to be credited to
the Participant's Plan Account.
(h) Shares of Common Stock purchased pursuant
to the Plan shall be acquired by the Administrator
on the open market.
4. Eligibility to Participate. Any
individual who is or becomes an Eligible Employee
(other than an individual on an authorized leave of
absence) at any time on or after May 1, 1994 shall
be eligible to become a Participant pursuant to
Section 5.
5. Election to Participate. An Eligible
Employee may elect to become a Participant in the
Plan by completing an appropriate Election Form
provided by the Committee and returned to the
Committee at least 14 calendar days prior to the
next scheduled A and/or B payroll period on which
his participation is to commence. Such Election
Form shall include (1) an election, if applicable,
to reduce his Compensation by payroll deductions on
each scheduled A and/or B payroll period as
designated by the Participant by the amount set
forth therein, (ii) an Investment Direction, and
(iii) a designation of a beneficiary to receive the
Common Stock and cash held in his Plan Account on
the date of his death. An election made by a
Participant to reduce his Compensation pursuant to
his Election Form shall be cancelled if: (a) a
Participant's wages are subject to a tax levy,
until the levy is removed, and (b) a Participant's
wages are subject to a wage assignment and/or
garnishment to the extent there is insufficient
remaining Compensation to deduct the entire amount
specified in the Election Form.
6. Payroll Deductions.
(a) If a Participant's Election Form
authorizes payroll deductions, his employer shall
withhold from his Compensation the amount
authorized by him. The amount to be withheld from
each paycheck shall be no less than $10.00 and no
more than 15% of his Compensation for his last
payroll period for which payment has been made (or
if he is a new Eligible Employee with no previous
Compensation, 15% of his anticipated Compensation).
The amounts withheld from all Participants'
paychecks will be pooled and forwarded to the
Administrator and will be used by the Administrator
to buy shares of Common Stock on the open market
for the Plan Accounts of all such Participants on
the next Investment Date selected by the
Administrator or as soon thereafter as is
reasonably practicable.
(b) A Participant's payroll deduction
authorizations on his Election Form shall become
effective with respect to the next scheduled A
and/or B payroll period applicable to him that is
at least 14 calendar days after the date the
Election Form is received by the Committee, and
shall continue in effect until the earliest of the
date (1) his election is changed in accordance with
paragraph 6(c) or (d) hereof; (2) he ceases to be
an Eligible Employee, or (3) his payroll deduction
authorization is cancelled in accordance with
Section 5 or paragraph 6(c) hereof.
(c) A Participant may increase or decrease
the amount of his payroll deductions (subject to
the dollar and percentage limits stated in
paragraph 6(a) above) by delivering to the
Committee a new Election Form on which is specified
the new amount of payroll deductions. The new
Election Form shall become effective with respect
to the next scheduled A and/or B payroll period
applicable to him that is at least 14 calendar days
after the date the new Election Form is received by
the Committee. Any Election Form which has not
been properly completed will be deemed not to have
been received by the Committee.
(d) A Participant desiring to cancel his
existing payroll deduction authorization and reduce
the amount thereof to zero must deliver to the
Committee a new Election Form. Such new Election
Form shall become effective with respect to the
next scheduled A and/or B payroll period applicable
to him that is at least 14 calendar days after the
date the new Election Form is received by the
Committee. Payroll deductions held by the Company
with respect to an A and/or B payroll period
payment date before such new Election Form becomes
effective, or held by the Administrator pending
investment, shall not be affected by such new
Election Form. Any Participant who has improperly
completed a new Election Form will be deemed not to
have made such new election. A Participant who
cancels his existing payroll deductions need not
withdraw the shares of Common Stock in his Plan
Account prior to the earlier of (i) the date he
ceases to be employed by the Company, and (ii) the
date of termination of the Plan.
(e) If an individual ceases to be an Eligible
Employee but continues to be employed by the
Company, his payroll deduction authorization shall
be cancelled and no further shares of Common Stock
shall be purchased for his Plan Account while he
continues in such status. Any cash then held in
his Plan Account shall be paid to him as soon as
practicable after such status commences, and any
shares then in his Plan Account shall be retained
until the first to occur of (i) a withdrawal
pursuant to Section 12, (ii) the date of his
termination of employment with the Company, and
(iii) the date of termination of the Plan. An
individual continuing employment in such status
shall continue to be entitled to direct the sale of
shares of Common Stock in his Plan Account pursuant
to his Investment Direction and the procedures set
forth in Section 10.
(f) The Company will transfer funds withheld
pursuant to payroll deduction authorizations to the
Administrator once during each calendar month on or
prior to the date or dates on which transactions
from the most recent Investment Date are settled.
No interest will be paid on payroll deduction
amounts held by the Company pending transfer to the
Administrator.
7. Lump Sum Payments. To the extent a
Participant does not authorize payroll deductions
on his Election Form, he shall deliver payment of
the balance of the Purchase Price of the shares of
Common Stock to be purchased for his Plan Account
on any Investment Date in full, in cash or by
personal check, to the Administrator prior to the
date on which transactions from the applicable
Investment Date are settled. Such payment,
together with all payroll deductions accumulated
for him hereunder and not previously expended or
returned, will be used to purchase shares of Common
Stock for his Plan Account with respect to the
applicable Investment Date.
8. Maximum Purchase. A Participant may not
authorize the purchase of Common Stock with respect
to any Investment Date with a Purchase Price in
excess of 15% of his Compensation earned from the
Company and all Subsidiaries during the A and/or B
payroll period applicable to him immediately
preceding such Investment Date. In addition, the
aggregate amount of payroll deductions made
pursuant to Section 6, and lump sum payments made
pursuant to Section 7, by or on behalf of a
Participant, shall not exceed 15% of the
Participant's Compensation for any calendar year.
9. Company Payments. On or prior to the
date on which the transactions from an Investment
Date are settled, the Company shall pay to the
Administrator an amount equal to the 15% discount
with respect to the Common Stock purchased for the
Plan Accounts of Participants with respect to such
Investment Date.
10. Purchase and Sale of Shares of Common
Stock.
(a) With respect to each Investment Date, (i)
accumulated payroll deductions and lump sum amounts
received from or on behalf of all Participants
pursuant to Sections 6 and 7, and amounts received
from the Company pursuant to Section 9, will be
pooled and used by the Administrator to purchase
shares of Common Stock on the open market for the
Plan Accounts of the applicable Participants, and
(ii) shares of Common Stock will be sold by the
Administrator on the open market from the Plan
Accounts of Participants who have delivered
Investment Directions directing the sale of Common
Stock, and the net proceeds of sale shall be
credited to the Plan Accounts of the applicable
Participants. Notwithstanding the foregoing,
aggregate purchases and sales on any Investment
Date may be offset by the Administrator, which
shall then purchase or sell the net number of
shares of Common Stock.
(b) For any transaction to be processed as of
an Investment Date, the Administrator must receive
an Investment Direction from the applicable
Participant at least two days prior to the
Investment Date and such Investment Direction shall
apply only to accumulated payroll deductions and
lump sum amounts received from or on behalf of all
Participants pursuant to Section 6 and 7, and
shares of Common Stock held in Plan Accounts as of
the Investment Date. Purchases and sales of Common
Stock shall be posted to a Participant's Plan
Account as of the date on which transactions for
that Investment Date are settled, and shall be
based upon the Fair Market Value of Common Stock as
of such Investment Date as determined by the
Administrator.
(c) Any payroll deductions remaining after
purchase of such maximum number of shares will be
retained in the Plan Account of each applicable
Participant and applied to the purchase of shares
of Common Stock for him with respect to the next
Investment Date. Any lump sum payments so
remaining shall be returned to the applicable
Participants. Each Participant's Plan Account will
be credited with the shares (computed to three
decimal places) of Common Stock purchased for him
on each Investment Date, and with the net sale
proceeds of the shares of Common Stock sold for him
with respect to each Investment Date. The net
proceeds of any such sale shall be distributed to a
Participant from his Plan Account as soon as
possible after the applicable Investment Date. The
number of shares of Common Stock credited to each
Participant's Plan Account will depend on the
aggregate amount of his payroll deductions and lump
sum payments and Company contributions, and the
Fair Market Value of Common Stock determined on the
applicable Investment Date.
(d) Any direction to sell shares of Common
Stock shall be subject to satisfaction of the
conditions set forth in Section 13 to the extent
applicable.
11. Fees and Expenses. Participants will
incur no brokerage commissions or service charges
for purchases or sales of Common Stock under the
Plan. Certain administrative charges, as
determined by the Committee, may be incurred by a
Participant upon his withdrawal from the Plan, upon
receipt of a distribution of certificates
representing Common Stock pursuant to Section 3, or
upon termination of the Plan.
12. Withdrawals. A Participant may cause the
Administrator to make a withdrawal from his Plan
Account as authorized pursuant to Section 3 above.
The withdrawal shall come only from shares of
Common Stock and cash posted to his Plan Account.
There is no restriction on the number of times a
Participant may withdraw from his Plan Account, nor
is there a minimum amount for any type of
withdrawal. The Administrator shall make
distribution of shares of Common Stock to the
Participant as soon as is administratively feasible
after receiving a written withdrawal request, and
shall make payment of cash in his Plan Account as
soon as is administratively feasible after the date
for settlement of transactions from the most recent
Investment Date preceding the date of delivery of
the withdrawal request. The Committee shall
receive a copy of each withdrawal request from a
Participant. The medium for payment for
withdrawals is either cash or whole shares of
Common Stock. If shares of Common Stock are to be
distributed, the Participant must indicate in his
withdrawal request in what name or names the
certificates are to be issued. If no instructions
are received, the certificates will be issued only
in the name of the Participant. The form of
payment for cash withdrawals shall be a single sum.
A withdrawal request will not include (1)
uninvested amounts held by the Company with respect
to the Participant, or (2) uninvested cash
dividends unless the Administrator receives the
withdrawal request by the record date for cash
dividend payments. Any withdrawal request shall be
subject to satisfaction of the conditions set forth
in Section 13 to the extent applicable.
13. Restriction on Shares.
(a) Notwithstanding anything elsewhere
contained in the Plan, a Participant may not direct
a sale of, or withdraw, shares of Common Stock from
his Plan Account prior to the expiration of the
Restriction Period or Restriction Periods
(hereinafter defined) applicable to such shares
unless one of the following conditions is
satisfied:
1. Prior to the date of any such sale
or withdrawal, the Participant shall tender to
the Company, in cash or by personal check, an
amount equal to 15% of the Fair Market Value
of such shares of Common Stock, determined as
of the Investment Date on which such shares
were purchased for his Plan Account; or
2. The Participant, in his Investment
Direction delivered pursuant to Section 10, or
his withdrawal request delivered pursuant to
Section 12, directs the Administrator to
transfer to the Company a number of shares of
Common Stock held in his Plan Account, and
subject to such Restriction Period or Periods,
with a Fair Market Value determined on the
date of the sale or withdrawal equal to 15% of
the Fair Market Value of such shares of Common
Stock, determined as of the Investment Date on
which such shares were purchased for his Plan
Account.
(b) The Restriction Period applicable to any
shares of Common Stock purchased pursuant to the
Plan shall commence on the Investment Date with
respect to which such shares are purchased, and
shall expire on the first to occur of (i) the date
24 months from such Investment Date, (ii) the date
on which the Participant retires from employment
with the Company and its Subsidiaries on or after
attaining the Earliest Retirement Age specified in
Section 2(i), (iii) the date of his death, (iv) the
date of his disability (as defined in the long term
disability plan then maintained by the Company),
and (v) the date of a Change In Control of the
Company.
(c) Except as otherwise provided in Section
20 below, any withdrawal or any attempted sale,
transfer or other disposition, of shares of Common
Stock within an applicable Restriction Period shall
be invalid and of no effect until the date on which
the provisions of clause 1 or clause 2 of paragraph
(a) of this Section are satisfied by or with
respect to the applicable Participant.
14. Termination of Employment.
(a) A Participant shall cease to participate
in the Plan upon his termination of employment with
the Company and its Subsidiaries for any reason,
including death, and no purchase or sale of shares
of Common Stock shall be made hereunder for him as
of any Investment Date following the date of such
termination of employment. All cash held in his
Plan Account, all of his payroll deductions and
cash contributions not allocated to his Plan
Account, and certificates representing all shares
of Common Stock held in his Plan Account, as of the
date of such termination of employment, shall be
distributed or otherwise transferred to him (or to
his beneficiary in the event of his death pursuant
to Section 23) as soon as possible following the
date of such termination of employment.
(b) Notwithstanding the preceding provisions
of this Section, no distribution of certificates
representing shares of Common Stock held in a
Participant's Plan Account shall be made pursuant
to this Section prior to the expiration of the
Restriction Period applicable to such shares until
the requirements of clause 1 or clause 2 of
paragraph (a) of Section 13 have been satisfied
with respect to such shares.
(c) Notwithstanding any other provisions of
Sections 13 or 14, any shares of Common Stock
purchased for a Participant under the Plan within
180 days prior to the date of his retirement on or
after attaining the Earliest Retirement Age
specified in Section 2(i), shall be deemed to be
subject to a Restriction Period and shall not be
sold or withdrawn from the Plan Account of the
Participant following his termination of employment
with the Company until the requirements of clause 1
or clause 2 of paragraph (a) of Section 13 have
been satisfied with respect to such shares.
15. Dividends.
(a) A Participant may direct the
Administrator to reinvest cash dividends paid on
whole shares of Common Stock held in his Plan
Account into additional full or fractional shares
of Common Stock, or to distribute such cash
dividends directly to the Participant. To be
effective with respect to the record date for a
cash dividend payment, an election pursuant to the
preceding sentence to reinvest or distribute such
cash dividend must be received by the Administrator
at least two days prior to such record date. Cash
dividends will be distributed only with respect to
the whole number of shares of Common Stock, or
reinvested with respect to the full and fractional
shares of Common Stock, as designated by the
Participant respectively. If a Participant has not
given a timely election pursuant to the preceding
sentences of this paragraph, cash dividends shall
be reinvested into additional full and fractional
shares of Common Stock held in the Participant's
Plan Account.
(b) Non-cash dividends of Common Stock will
be held in the Plan Account of the Participant.
Non-cash dividends, other than of Common Stock,
shall be sold and reinvested in Common Stock and
held in the Plan Account of the Participant.
16. Withholding. Whenever the Company or the
Administrator proposes or is required to allocate
or transfer shares of Common Stock to the Plan
Account of a Participant, or directly to a
Participant, the Committee shall have the right to
require the Participant to remit to the Company an
amount sufficient to satisfy all federal, state and
local withholding tax requirements, prior to the
allocation of any shares of Common Stock to his
Plan Account, or to the delivery to him of any
certificate or certificates for such shares. If
such certificates already have been delivered prior
to the time a withholding obligation arises, the
Committee shall have the right to require the
Participant to remit to the Company an amount
sufficient to satisfy all federal, state or local
withholding tax requirements, and to withhold such
other amounts payable to the Participant, as
compensation or otherwise, as necessary. A
Participant may elect to satisfy his tax
withholding obligation incurred with respect to the
Taxable Date of the purchase of shares of Common
Stock for him hereunder by (a) directing the
Committee to withhold a portion of the shares of
Common Stock otherwise to be credited to his Plan
Account or distributable to him, or (b) by
transferring to the Company a number of shares of
Common Stock previously acquired, such shares being
valued at the Fair Market Value thereof on the
Taxable Date. Notwithstanding any provisions of
the Plan to the contrary, a Participant's election
pursuant to the preceding sentence: (a) must be
made on or prior to the Taxable Date with respect
to the shares of Common Stock being purchased, (b)
must be irrevocable, and (c) if the election is
made by a Participant who is subject to the
restrictions of Section 16(b) of the Securities
Exchange Act of 1934, must be made in writing (i)
within the 10 business days beginning on the third
business day following the release of the Company's
quarterly or annual summary of earnings and ending
on the 12th business day following such day, or
(ii) at least 6 months prior to the date that is 24
months from the Investment Date on which such
shares of Common Stock were purchased for him.
Taxable Date means the date a Participant
recognizes income with respect to a purchase of
shares of Common Stock under the Plan pursuant to
the terms of the Code or any applicable state or
local income tax law.
17. Statements. Each Participant will
receive a statement of his Plan Account for each
calendar quarter in which a purchase or sale of
Common Stock for his Plan Account takes place.
Participants will also receive the annual report
for the Plan and communications sent to other
shareholders of the Company, including the annual
report of the Company and its notice of annual
meeting of shareholders and proxy statement.
Participants will receive such information as is
necessary for reporting income realized by them
under the Plan to the Internal Revenue Service.
18. Adjustment Provisions. The maximum
number of shares of Common Stock available for
purchase hereunder, the aggregate number of shares
of Common Stock with respect to which an election
to purchase is outstanding hereunder, and the
Purchase Price per share of Common Stock, shall all
be appropriately adjusted, as the Committee may
determine, for any increase or decrease in the
number of shares of issued Common Stock resulting
from a subdivision or consolidation of shares,
whether through reorganization, recapitalization,
stock split-up, stock distribution or combination
of shares, or the payment of a share dividend or
other increase or decrease in the number of such
shares of Common Stock outstanding effected without
receipt of consideration by the Company.
Adjustments pursuant to this Section shall be made
according to the sole discretion of the Committee
and its decision shall be binding and conclusive.
19. Transferability. Except as otherwise
provided in Sections 12, 14, 20 and 25, the right
to purchase shares of Common Stock pursuant to the
terms of the Plan, and the cash and shares of
Common Stock in a Participant's Plan Account, may
not be sold, transferred, assigned, pledged,
hypothecated or otherwise disposed of (whether by
operation of law or otherwise) by a Participant or
any other person, and no such right to purchase
shall be subject to execution, attachment or
similar process. Except as otherwise provided in
Sections 12, 14, 20 and 25, any attempt to sell,
transfer, assign, pledge, hypothecate or otherwise
dispose of, a right to purchase shares of Common
Stock hereunder, and the cash and shares of Common
Stock in a Participant's Plan Account, or any levy
of attachment or similar process upon such right,
cash or shares, shall be null and void and without
effect. A right to purchase or sell shares of
Common Stock hereunder may be exercised only by a
Participant during his lifetime.
20. Dissolution, Merger and Consolidation.
In the event of the dissolution or liquidation of
the Company, or the merger or dissolution of the
Company in which the Company is not the surviving
corporation, all future rights to purchase shares
of Common Stock pursuant to the terms of the Plan
shall expire as of the effective date of such
event, and all payroll deductions held for each
Participant, and all shares of Common Stock
purchased prior to the date of such event for each
Participant and not previously distributed to him,
shall be distributed to him at least 30 days prior
to the effective date of such event. In such
event, the restrictions set forth in Section 13
above shall cease to apply with respect to such
event, and the Participant shall be entitled to
transfer or otherwise dispose of his shares of
Common Stock purchased hereunder pursuant to the
terms of such event within the Restriction Period
applicable to such shares of Common Stock.
21. Conditions Subsequent to Effective Date.
The Plan has been adopted by the Board subject to
approval by the holders of a majority of the
outstanding shares of Common Stock of the Company
within 12 months after the date of adoption of the
Plan by the Board. The Plan shall be null and void
and of no effect if the foregoing condition is not
fulfilled.
22. Voting. The Administrator will vote any
shares of Common Stock that it holds for a
Participant's Plan Account in accordance with the
Participant's written directions, provided they are
received in a timely manner in accordance with the
procedures developed for this purpose by the
Administrator. The Administrator will not vote the
shares of Common Stock in the Plan Account of a
Participant from whom no voting directions are
received.
23. Distribution of Plan Accounts on Death.
(a) Each Participant shall complete a
beneficiary designation form indicating the
beneficiary who is to receive the assets in the
Participant's Plan Account at the time of his
death. The Participant may change such designation
of beneficiary from time to time by filing a new
beneficiary designation form with the Committee.
No designation of beneficiary or change of
beneficiary shall be effective until filed with the
Committee.
(b) Upon the death of a Participant, any
assets then held in his Plan Account, plus his
payroll deductions and cash contributions not
allocated to his Plan Account, shall be distributed
in a single sum of whole shares of Common Stock
plus cash to his designated beneficiary. If the
Participant dies and either (1) the Participant
shall have failed to file a valid beneficiary
designation form, or (2) all persons designated on
the beneficiary designation form shall have
predeceased the Participant, the Committee shall
direct the Administrator to distribute the
aforementioned assets in a single distribution of
whole shares of Common Stock plus cash to his
spouse, if then living, or if none, to the legal
representatives of his estate.
(c) On the death of a Participant, his Plan
Account shall be maintained in the name of his
beneficiary or beneficiaries designated by the
Participant until distribution thereof pursuant to
paragraph (b), and his Investment Direction
regarding dividends shall apply to such
beneficiary.
(d) A distribution pursuant to this Section
23 shall not be subject to the restrictions set
forth in Section 13(a).
24. Administrator.
(a) The Administrator shall serve at the will
of the Committee and the Committee may from time to
time remove the Administrator with or without cause
and shall appoint its successor.
(b) The powers, duties and responsibilities
of the Administrator shall be as stated in the
Plan. All payroll deductions and payments by
Participants and the Company shall be paid to the
Administrator, and all Plan Accounts shall be
maintained by the Administrator. Neither the
Company nor any Subsidiary shall have any rights or
claims of any nature in or to the assets of any
Plan Account.
(c) All fees and expenses of the
Administrator agreed upon by the Company and the
Administrator shall be paid by the Company to the
Administrator.
(d) The Administrator shall determine the
appropriate number of Investment Dates for all
funds received by it and for each Investment
Direction; provided however, no Investment Date
shall be required prior to the date funds have been
posted to a Participant's Plan Account or withheld
by the Company.
25. Amendment and Termination.
(a) Amendments.
(i) The Company, or the Committee
as provided in subsection (ii) below, may
amend, modify, change or revise the Plan
by amendment at any time; provided,
however, that no amendment shall:
(A) change the minimum
purchase price or make any other
material change with respect to the
terms and conditions of
participation by officers or
directors of the Company without
stockholder approval consistent with
applicable rules of the Securities
and Exchange Commission.
(B) increase the duties or
liabilities of the Administrator or
the Committee without its written
consent; or
(C) have the effect of vesting
in the Company or any Subsidiary any
interest in any funds, securities or
other property.
(ii) The Committee may amend,
modify, change or revise the Plan by
amendment if such amendment could have
been adopted under paragraph (i) hereof
and it does not materially increase the
duties and obligations of the Company or
any Subsidiary, with respect to the Plan.
(b) Plan Termination. Although it is the
expectation of the Company at the time of adoption
of the Plan by the Board that it will continue the
Plan indefinitely, the continuation of the Plan is
not assumed as a contractual obligation of the
Company or any Subsidiary and the Company reserves
the right, in its sole discretion, to terminate the
Plan at any time. Upon termination of the Plan,
all Plan Accounts, and all assets not allocated to
Plan Accounts, will be distributed as if each
Participant had terminated employment and received
a distribution pursuant to Section 14(a).
26. Miscellaneous Provisions.
(a) Pledging of Common Stock. Shares of
Common Stock credited to the Plan Account of a
Participant may not be encumbered, pledged as
collateral or otherwise hypothecated. A
Participant who has an involuntary transfer imposed
upon him with respect to shares of Common Stock in
his Plan Account will be deemed to have elected to
withdraw such shares.
(b) Plan Does Not Affect Employment Rights.
The Plan does not provide any employment rights to
any Eligible Employee. The Company and its
Subsidiaries expressly reserve the right to
discharge an Eligible Employee at any time, with or
without cause, without regard to the effect such
discharge would have upon the Eligible Employee's
interest in the Plan.
(c) Deduction of Taxes from Amounts Payable.
Subject to Section 16, the Administrator shall have
the power and authority to deduct from the amount
to be distributed to a Participant such amount as
the Administrator deems proper to protect the
Administrator against liability for the payment of
death, succession, inheritance, income, or other
taxes, and out of money so deducted, the
Administrator may discharge any such liability and
pay the amount remaining to the Participant, or the
deceased Participant's beneficiary, as the case may
be.
(d) Source of Benefits. All benefits payable
under the Plan shall be paid or provided for solely
from Plan Accounts, and the Company and its
Subsidiaries assume no liability or responsibility
therefor.
(e) Limitation on Liability. Neither the
Company nor any Subsidiary, nor any agent or
representative of the Company or any Subsidiary who
is an employee, officer, or director of the Company
or any Subsidiary, in any manner guarantees the
assets of the Plan against loss or depreciation and
none of them shall be liable (except for his own
gross negligence or willful misconduct), for any
act or failure to act, done or omitted in good
faith, with respect to the Plan. The Company and
its Subsidiaries, and the Committee shall have no
responsibility for any act of or failure to act by
the Administrator.
(f) Indemnification of the Board and the
Committee. In addition to such other rights or
indemnification as they may have as members of the
Board, or as members of the Committee, or as its
delegate, the members of the Board and of the
Committee and its delegate, shall be indemnified by
the Company against (a) reasonable expenses (as
such expenses are incurred), including attorneys
fees, actually and necessarily incurred in
connection with the defense of any action, suit or
proceeding (or in connection with any appeal
therein) to which they or any of them may be a
party by reason of any action taken or failure to
act under or in connection with the Plan, and (b)
against all amounts paid by them in settlement
thereof (provided such settlement is approved by
independent legal counsel selected by the Company)
or paid by them in satisfaction of a judgment in
any such action, suit or proceeding, except in
relation to matters as to which it shall be
adjudged in such action, suit or proceeding that
such Board or Committee member or delegate is
liable for gross negligence or willful misconduct
in the performance of his duties. The Company may
elect, at its own expense, to handle and defend any
such action, suit or proceeding.
(g) Gender and Number. Except when the
context indicates to the contrary, when used
herein, masculine terms shall be deemed to include
the feminine, and singular the plural.
(h) Invalidity of Certain Provisions. If any
provision of this Plan shall be held invalid or
unenforceable, such invalidity or unenforceability
shall not affect any other provisions hereof and
the Plan shall be construed and enforced as if such
provisions, to the extent invalid or unenforceable,
had not been included.
(i) Headings. The headings of sections and
paragraphs are included solely for convenience of
reference, and if there is any conflict between
such headings and the text of the Plan, the text
shall control.
(j) Law Governing. The Plan shall be
construed and enforced according to the laws of the
State of Illinois.
(k) Legal and Other Requirements. The
Committee may postpone any stock purchase or sale
under the Plan for such time as the Committee, in
its sole discretion, may deem necessary in order to
permit the Company (i) to effect, amend or maintain
any necessary registration of the Plan or the
shares of Common Stock available for purchase or
sale under the Plan under the Securities Act of
1933, as amended, or the securities laws of any
applicable jurisdiction, (ii) to permit any action
to be taken in order to (A) list such shares of
Common Stock on a stock exchange if shares of
Common Stock are then listed on such exchange or
(B) comply with restrictions or regulations
incident to the maintenance of a public market for
its shares of Common Stock, including any rules or
regulations of any stock exchange on which the
shares of Common Stock are listed, or (iii) to
determine that such shares of Common Stock and the
Plan are exempt from such registration or that no
action of the kind referred to in (ii)(B) above
needs to be taken; and the Company shall not be
obligated by virtue of any provision of the Plan to
purchase or sell shares of Common Stock in
violation of the Securities Act of 1933, as
amended, or the law of any government having
jurisdiction thereof.
(l) Section 16(b) Compliance and Bifurcation
of the Plan. It is the intention of the Company
that the Plan comply in all respects with Rule 16b-
3 under the Securities Exchange Act of 1934 and, if
any Plan provision is later found not to be in
compliance with such Rule, the provision shall be
deemed null and void, and in all events the Plan
shall be construed in favor of its meeting the
requirements of Rule 16b-3. Notwithstanding
anything in the Plan to the contrary, the
Committee, in its sole discretion, may bifurcate
this Plan so as to restrict, limit or condition the
use of any provision of the Plan with respect to
Eligible Employees and Participants who are subject
to Section 16 of the Securities Exchange Act of
1934, without so restricting, limiting or
conditioning the Plan with respect to other
Eligible Employees and Participants.
(m) Rights as Shareholder. A Participant
shall have all rights as a shareholder of the
Company with respect to all shares of Common Stock
purchased for his Plan Account pursuant to the
terms of the Plan.
(n) Leaves of Absence and Disability. The
Committee shall be entitled to make such rules,
regulations and determinations as it deems
appropriate under the Plan with respect to any
leave of absence taken by, or any disability of, a
Participant. Without limiting the generality of
the foregoing, the Committee shall be entitled to
determine (i) whether any such leave of absence
shall constitute a termination of employment within
the meaning of the Plan, and (ii) the impact, if
any, of any such leave of absence on the right to
purchase Common Stock under the Plan by any
Participant who takes such leave of absence.
(o) Notices. Every request, direction,
revocation or notice authorized or required by the
Plan shall be deemed to have been delivered to the
Committee or the Company (i) on the date it is
personally delivered to the General Counsel of the
Company at the principal executive offices of the
Company, or (ii) 3 business days after it is sent
by registered or certified mail, postage prepaid,
addressed to the General Counsel of the Company at
such offices; and shall be deemed delivered to an
Eligible Employee, Participant or beneficiary (1)
on the date it is personally delivered to him, or
(2) 3 business days after it is sent by registered
or certified mail, postage prepaid, addressed to
him at the last address shown for him on the
records of the Company or any Subsidiary.
RESTATED
CERTIFICATE OF INCORPORATION
OF
ILLINOIS CENTRAL CORPORATION
(As amended through April 21, 1994)
ARTICLE ONE
Name. The name of the Corporation is Illinois Central
Corporation.
ARTICLE TWO
Registered Agent.The address of its registered office in
the State of Delaware is Corporation Trust Center, 1209 Orange
Street, City of Wilmington, County of New Castle, Delaware
19801. The name of its registered agent at such address is
The Corporation Trust Company.
ARTICLE THREE
Purpose. The purpose of the Corporation is to engage in
any lawful act or activity for which corporations may now or
hereafter be organized under the General Corporation Law of
the State of Delaware.
ARTICLE FOUR
A. Authorized Shares and Classes of Stock. The total
number of shares which the Corporation shall have the
authority to issue is One Hundred Five Million (105,000,000)
composed of (i) One Hundred Million (100,000,000) shares of
common stock, par value $0.001 per share, and (ii) Five
Million (5,000,000) shares of Preferred Stock, par value one
cent ($0.01) per share.
B. Designations, Rights and Preferences of Preferred
Stock. Shares of Preferred Stock may be issued in one or more
series as the Board of Directors may determine. Authority is
hereby expressly vested in the Board of Directors to fix from
time to time, by resolution or resolutions providing for the
issue of any series of Preferred Stock, the designation of
such series and the powers, preferences and rights of the
shares of such series, and the qualifications, limitations or
restrictions thereof, including the following:
1. The distinctive designation and number of
shares comprising such series, which number may (except where
otherwise provided by the Board of Directors authorizing such
series) be increased or decreased (but not below the number of
shares then outstanding) from time to time by like action of
the Board of Directors;
2. The dividend rate or rates, if any, on the
shares of such series and the preferences, if any, over any
other series (or of any other series over such series) with
respect to any dividends, the terms and conditions upon which
any dividends shall be payable, whether and upon what
conditions any such dividends shall be cumulative and, if
cumulative, the date or dates from which any dividends shall
accumulate;
3. Whether or not the shares of such series shall
be redeemable, the price or prices, limitations and
restrictions, and any other terms and conditions with respect
to such redemptions;
4. The rights to which the holders of such series
shall be entitled, and the preferences, if any, over any other
series (or of any other series over such series), upon the
voluntary or involuntary liquidation, dissolution or winding
up of the Corporation;
5. Whether or not the shares of such series shall
be subject to the operation of a purchase, retirement or
sinking fund, and, if so, whether and upon what conditions
such purchase, retirement or sinking fund shall be cumulative
or noncumulative, the extent to which and the manner in which
such fund shall be applied to the purchase or redemption of
the shares of such series for retirement or to other corporate
purposes and the terms and provisions relative to the
operation thereof;
6. Whether or not the shares of such series shall
be convertible into or exchangeable for shares of stock of any
other class or classes, or of any other series of the same
class and, if so convertible or exchangeable, the price or
prices or the rate or rates of conversion or exchange and the
method, if any, of adjusting the same, and any other terms and
conditions of such conversion or exchange;
7. The voting powers, if any, of the shares of
such series; and whether or not and under what conditions the
shares of such series shall be entitled to vote separately as
a single class, for the election of one or more additional
directors of the Corporation in case of dividend arrearages
or other specified events, or upon other matters; and
8. Any other preferences, privileges and powers,
and relative, participating, optional or other special rights,
and qualifications, limitations or restrictions of such
series, as the Board of Directors, or any Executive Committee
thereof, may deem advisable and as shall not be inconsistent
with the provisions of this Restated Certificate of
Incorporation. Shares of Preferred Stock which are redeemed or
converted, or which are issued and reacquired in any manner
and retired, shall be retired and restored to the status of
authorized and unissued Preferred Stock and may be reissued by
the Board of Directors as shares of the same or any other
series, unless otherwise provided with respect to any series
in the resolution of the Board of Directors creating such
series.
C. Powers, Preferences and Rights of Common Stock.The
powers, preferences and rights of the shares of common stock
and the qualifications, limitations or restrictions thereof,
are set forth below.
1. Dividends.The holders of outstanding shares of
common stock shall be entitled to share equally and ratable
with all other holder of shares of common stock then
outstanding in any dividends or distributions declared on
outstanding shares of common stock, when, as and if any such
dividends or distributions are declared by the Corporation's
Board of Directors from funds legally available therefor.
2. Liquidation, etc.The holders of outstanding
shares of common stock shall be entitled to share equally and
ratably with all other holders of shares of common stock then
outstanding in the assets of the Corporation to be distributed
among the holders of shares of the common stock upon any
liquidation or winding up of the Corporation, whether
voluntary or involuntary; and
3. Voting Rights. Each holder of common stock
shall be entitled to vote for the election and removal of the
directors of the Corporation and on all other matters on which
stockholders are entitled to vote under the General
Corporation Law of the State of Delaware and shall have one
vote for each share of common stock held of record.
D. Reservation of Shares.The Corporation shall reserve
for issuance such number of shares of Common Stock or
Preferred Stock as may from time to time be required upon
exercise of options or warrants to purchase shares of Common
Stock or Preferred Stock.
ARTICLE FIVE
The Board of Directors shall have the power to adopt,
amend or repeal the by-laws of the Corporation.
<PAGE>
ARTICLE SIX
Election of Directors.A. The number of directors of the
Corporation shall be fixed by, or in the manner provided in,
the by-laws. The directors shall be divided into three
classes. The initial term of office of the first class
("Class I") shall expire at the 1992 annual meeting of
stockholders, the initial term of office of the second class
("Class II") shall expire at the 1993 annual meeting of
stockholders, and the initial term of office of the third
class ("Class III") shall expire at the 1994 annual meeting of
stockholders. At the annual meeting at which the initial
classification occurs, the directors shall be allocated to the
three classes based upon the nominations as made at the
meeting in connection with the election of directors. At each
annual meeting of stockholders following the initial
classification, directors elected to succeed those directors
whose terms expire shall be elected for a term of office to
expire at the third succeeding annual meeting after their
election. The foregoing notwithstanding, each director shall
serve until his successor has been duly elected and qualified,
unless he shall cease to serve by reason of death, resignation
or other cause. Any director elected to a particular class
shall be eligible, upon resignation, to be elected to a
different class.
B. Newly created directorships resulting from any
increase in the number of directors or any vacancies in the
board of Directors resulting from death, resignation or other
cause may be filled only by a majority vote of the directors
then in office, though less than a quorum, or a sole remaining
director. Any director so chosen shall hold office for a
term of office expiring at the annual meeting of stockholders
at which the term of office of the class to which he or she
has been elected expires.
C. The provisions set forth in this Article Six are
subject to the rights of the holders of any class or series of
stock having a preference over the common stock as to
dividends or upon liquidation to elect additional directors
under specified circumstances as specified in this Restated
Certificate of Incorporation or in a resolution providing for
the issuance of such stock adopted by the Board of Directors
pursuant to authority vested in it by this Restated
Certificate of Incorporation.
D. In addition to the voting requirements imposed by
law of by any other provision of this Restated Certificate of
Incorporation, this Article Six may not be amended, altered or
repealed in any respect, nor may any provisions inconsistent
with this Article Six be adopted, unless such action is
approved by the affirmative vote of holders of at least
two-thirds of the total voting power of all shares of stock of
the Corporation entitled to vote in the election of directors
generally, considered for purposes of this Article Six as one
class.
<PAGE>
ARTICLE SEVEN
Liability and Indemnification of Directors.
A. 1. A director of the Corporation shall not be
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty
to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the General Corporation Law of the State
of Delaware, or (iv) for any transaction under which a
director derived an improper personal benefit.
2. If the General Corporation Law of the State of
Delaware is hereafter amended to further eliminate or limit
the liability of a director of a corporation, then a director
of the Corporation, in addition to the circumstances set forth
herein, shall not be liable to the fullest extent permitted by
the General Corporation Law of the State of Delaware as so
amended.
B. 1. Each person who was or is a party or is
threatened to be made a party to, or is involved in any
threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or
was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or
officer of another corporation, partnership, joint venture,
trust or other enterprise, shall be indemnified and held
harmless by the Corporation to the fullest extent permitted by
applicable law. The right to indemnification conferred in
this Article Seven shall also include the right to be paid
by the Corporation the expenses incurred in connection with
any such proceeding in advance of its final disposition to the
fullest extent authorized by applicable law. The right
to indemnification conferred in this Article Seven shall be a
contract right.
2. The Corporation shall determine the right of any
person to receive indemnification as provided hereunder in
accordance with the provisions of applicable law.
3. The Corporation may purchase and maintain
insurance, at its expense, to protect itself and any person
who is or was a director, officer, employee or agent of the
Corporation or who is or was serving at the request of the
Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise, against any expense, liability of loss
incurred by such person in any
such capacity, whether or not the Corporation would have the
power to indemnify such person against such expense, liability
or loss under applicable law.
<PAGE>
C. The rights and authority conferred in this Article
Seven shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute,
provision of this Restated Certificate of Incorporation or the
by-laws of the Corporation, agreement, vote of stockholders or
disinterested directors or otherwise.
D. Neither the amendment nor repeal of this Article
Seven, nor the adoption of any provision of this Restated
Certificate of Incorporation or the by-laws of the Corporation
or of any statute inconsistent with this Article Seven, shall
eliminate or reduce the effect of this Article Seven in
respect of any acts or omissions occurring prior to such
amendment, repeal or adoption of an inconsistent provision.
ARTICLE EIGHT
Reserved Rights.The corporation reserves the right to
further amend this Restated Certificate of Incorporation in
any manner permitted by the General Corporation Law of the
State of Delaware, as amended from time to time, and all
rights and powers conferred herein on stockholders, directors
and officers, if any, are subject to this reserved power.
