<PAGE> 1
As filed with the Securities and Exchange Commission on April 2, 1999
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
AGCO CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 58-1960019
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4205 River Green Parkway
Duluth, Georgia 30096
(Address, including zip code, of registrant's principal executive offices)
AGCO Corporation 1991 Stock Option Plan, as amended
(Full title of plan)
Michael F. Swick, Esq.
Vice President-General Counsel
AGCO Corporation
4205 River Green Parkway
Duluth, Georgia 30096
(Name and address of agent for service)
(770) 813-9200
(Telephone number, including area code, of agent for service)
Copies to:
John J. Kelley III
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
(404) 572-4600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered Per Share Offering Price Fee
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 per share.. 1,600,000 shares (1) $6.53 (2) $10,448,000 (2) $2,905
- ----------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of additional
shares which may be offered and issued to prevent dilution resulting from
stock splits, stock dividends or similar transactions as provided in the
AGCO Corporation 1991 Stock Option Plan, as amended.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(h) on the basis of the average of the high and low sales prices
per share of Common Stock of AGCO Corporation as reported on the New York
Stock Exchange on March 31, 1999.
<PAGE> 2
PART II
This Registration Statement on Form S-8 relates to 1,600,000 shares of
Common Stock, par value $.01 per share ("Common Stock"), of AGCO Corporation
("AGCO" or the "Company") to be issued to employees of the Company pursuant to
the Company's 1991 Stock Option Plan, as amended.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents have been previously filed by the Company with the
Securities and Exchange Commission and are hereby incorporated by reference into
this Registration Statement as of their respective dates:
(a) Annual Report on Form 10-K for the year ended December 31, 1998;
(b) All reports filed by the Company pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since December 31, 1998; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated March 17, 1992,
including any amendment or report filed for the purpose of updating
such description.
All documents filed by the Company subsequent to the date of this
Registration Statement pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act and prior to the filing of a post-effective amendment to this
Registration Statement that indicates that all securities offered hereunder have
been sold or that deregisters all such securities then remaining unsold shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law, as amended, provides
in regard to indemnification of directors and officers as follows:
SECTION 145. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS;
INSURANCE
(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation)
<PAGE> 3
by reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) A corporation shall have power 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 the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) 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 present or
former director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or
(4) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
corporation as authorized in
<PAGE> 4
this section. Such expenses (including attorneys' fees) incurred by former
directors and officers or other employees and agents may be so paid upon such
terms and conditions, if any, as the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person against such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" 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 such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligations to advance expenses (including attorneys'
fees).
Article XI of the Company's Bylaws provides in regard to
indemnification of directors and officers as follows:
<PAGE> 5
1. Definitions. As used in this article, the term "person" means any
past, present or future director or officer of the corporation or a
designated officer of an operating division of the corporation.
2. Indemnification Granted. The corporation shall indemnify, defend,
and hold harmless against all liability, loss and expenses (including
attorneys' fees reasonably incurred), to the full extent and under the
circumstances permitted by the Delaware General Corporation Law of the
State of Delaware in effect from time to time, any person as defined above,
made or threatened to be made a party to any threatened, pending or
completed action, suit or proceeding whether civil, criminal,
administrative or investigative by reason of the fact that he is or was a
director, officer of the corporation or designated officer of an operating
division of the corporation, or is or was an employee or agent of the
corporation acting as a director, officer, employee or agent of another
company or other enterprise in which the corporation owns, directly or
indirectly, an equity or other interest or of which it may be a creditor.
If a person indemnified herein must retain an attorney directly, the
corporation may, in its discretion, pay the expenses (including attorneys'
fees) incurred in defending any proceeding in advance of its final
disposition, provided, however, that the payment of expenses incurred by a
director or officer in advance of the final disposition of the proceeding
shall be made only upon receipt of an undertaking by the director or
officer to repay all amounts advanced if it should be ultimately determined
that the director or officer is not entitled to be indemnified under this
article or otherwise.
This right of indemnification shall not be deemed exclusive of any
other rights to which a person indemnified herein may be entitled by
By-law, agreement, vote of stockholders or disinterested directors or
otherwise, and shall continue as to a person who has ceased to be a
director, officer, designated officer, employee or agent and shall inure to
the benefit of the heirs, executors, administrators and other legal
representatives of such person. It is not intended that the provisions of
this article be applicable to, and they are not to be construed as granting
indemnity with respect to, matters as to which indemnification would be in
contravention of the laws of Delaware or of the United States of America
whether as a matter of public policy or pursuant to statutory provision.
3. Miscellaneous. The board of directors may also on behalf of the
corporation grant indemnification to any individual other than a person
defined herein to such extent and in such manner as the board in its sole
discretion may from time to time and at any time determine.
Article 7 of the Company's Certificate of Incorporation provides in regard
to the limitation of liability of directors and officers as follows:
A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except 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
Delaware General Corporation Law as the same exists or hereafter may be
amended or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law
hereafter is amended to authorize the further elimination or limitation of
the liability of directors, then, in addition to the limitation or personal
liability provided
<PAGE> 6
herein, the liability of a director of the corporation shall be limited
to the fullest extent permitted by the amended Delaware General
Corporation Law. Any repeal or modification of this paragraph by the
stockholders of the corporation shall be prospective only, and shall
not adversely affect any limitation on the personal liability of a
director of the corporation existing at the time of such repeal or
modification.
The Company's directors and officers are also insured against claims
arising out of the performance of their duties in such capacities.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following Exhibits are filed as part of this Registration
Statement:
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
<S> <C>
4.1 -- Certificate of Incorporation of the Company, incorporated
by reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1996.
4.2 -- Bylaws of the Company, incorporated by reference to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1997.
5.1 -- Opinion of King & Spalding regarding the validity of the
securities being registered.
23.1 -- Consent of King & Spalding (included as part of Exhibit
5.1).
23.2 -- Consent of Arthur Andersen LLP, independent public
accountants.
24.1 -- Power of Attorney (included on signature page).
99.1 -- AGCO Corporation 1991 Stock Option Plan, as amended.
</TABLE>
<PAGE> 7
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities
Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in
the effective 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)(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
Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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
<PAGE> 8
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
EXPERTS
The consolidated balance sheets of the Company and subsidiaries as of
December 31, 1998 and 1997 and the related consolidated statements of income,
stockholders' equity and cash flows for each of the three years in the period
ended December 31, 1998 and incorporated by reference in this Registration
Statement from the Company's Annual Report on Form 10-K dated December 31, 1998
have been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto.
<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Duluth, State of Georgia on the 2nd day of April,
1999.
AGCO Corporation
By: /s/ John M. Shumejda
--------------------------------
John M. Shumejda
President
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Chris E. Perkins and Michael F. Swick and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for such person and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same 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 and to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, and any of them, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
<PAGE> 10
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
as of the 2nd day of April, 1999:
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Robert J. Ratliff Chairman of the Board of Directors April 2, 1999
- --------------------------
Robert J. Ratliff
/s/ John M. Shumejda President and Chief Executive April 2, 1999
- -------------------------- Officer, Director
John M. Shumejda
/s/ Patrick S. Shannon Vice President and Chief Financial April 2, 1999
- -------------------------- Officer (Principal Financial Officer
Patrick S. Shannon and Principal Accounting Officer)
/s/ Henry J. Claycamp Director April 2, 1999
- --------------------------
Henry J. Claycamp
/s/ William H. Fike Director April 2, 1999
- --------------------------
William H. Fike
/s/ Gerald B. Johanneson Director April 2, 1999
- --------------------------
Gerald B. Johanneson
/s/ Richard P. Johnston Director April 2, 1999
- --------------------------
Richard P. Johnston
/s/ Anthony D. Loehnis Director April 2, 1999
- --------------------------
Anthony D. Loehnis
/s/ Alan S. McDowell Director April 2, 1999
- --------------------------
Alan S. McDowell
/s/ Hamilton Robinson, Jr. Director April 2, 1999
- --------------------------
Hamilton Robinson, Jr.
/s/ Wolfgang Sauer Director April 2, 1999
- --------------------------
Wolfgang Sauer
Director
- --------------------------
Wolfgang Deml
</TABLE>
<PAGE> 11
INDEX TO EXHIBITS
Exhibit No.
4.1 -- Certificate of Incorporation of the Company, incorporated by
reference to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1996.
4.2 -- Bylaws of the Company, incorporated by reference to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1997.
5.1 -- Opinion of King & Spalding regarding the validity of the
securities being registered.
23.1 -- Consent of King & Spalding (included as part of Exhibit 5.1).
23.2 -- Consent of Arthur Andersen LLP, independent public
accountants.
24.1 -- Power of Attorney (included on signature page).
99.1 -- AGCO Corporation 1991 Stock Option Plan, as amended.
<PAGE> 1
EXHIBIT 5.1
KING & SPALDING
191 Peachtree Street
Atlanta, Georgia 30303-1763
April 2, 1999
AGCO Corporation
4205 River Green Parkway
Duluth, Georgia 30096
Re: AGCO Corporation -- Registration Statement on
Form S-8 relating to 1,600,000 shares of Common Stock
Ladies and Gentlemen:
We have acted as counsel for AGCO Corporation, a Delaware corporation (the
"Company"), in connection with the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
registration of an additional 1,600,000 shares of the Company's Common Stock,
par value $.01 per share (the "Shares"), issuable by the Company upon the
exercise of options (the "Options") granted pursuant to the AGCO Corporation
1991 Stock Option Plan, as amended (the "Option Plan").
In connection with this opinion, we have examined and relied upon such
records, documents, certificates and other instruments as in our judgment are
necessary or appropriate to form the basis for the opinions hereinafter set
forth. In all such examinations, we have assumed the genuineness of signatures
on original documents and the conformity to such original documents of all
copies submitted to us as certified, conformed or photographic copies, and as to
certificates of public officials, we have assumed the same to have been properly
given and to be accurate. As to matters of fact material to this opinion, we
have relied upon statements and representations of representatives of the
Company and of public officials.
For purposes of this opinion, we have assumed the following: (i) the Shares
that may be issued upon exercise of the Options granted pursuant to the Option
Plan will continue to be duly authorized on the dates of such issuance and
(ii) on the date on which any Option is exercised, such Option will have been
duly issued and delivered by the Company and will constitute the legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms subject, as to enforceability, to applicable
bankruptcy, reorganization, moratorium or similar laws affecting creditors'
rights generally, general equitable principles and the discretion of courts in
granting equitable remedies.
The opinions expressed herein are limited in all respects to the federal
laws of the United States of America and the laws of the State of Delaware, and
no opinion is expressed with respect to the laws of any other jurisdiction or
any effect which such laws may have on the opinions expressed herein. This
opinion is limited to the matters stated herein, and no opinion is implied or
may be inferred beyond the matters expressly stated herein.
<PAGE> 2
Based upon the foregoing and subject to the limitations, qualifications
and assumptions set forth herein, we are of the opinion that:
(i) The Shares are duly authorized.
(ii) When the Shares are issued upon exercise of Options against payment
therefor, as provided in the Option Plan, such Shares will be validly
issued, fully paid and nonassessable.
This opinion is given as of the date hereof, and we assume no obligation to
advise you after the date hereof of facts or circumstances that come to our
attention or changes in law that occur which could affect the opinions contained
herein. This letter is being rendered solely for the benefit of the Company in
connection with the matters addressed herein. This opinion may not be furnished
to or relied upon by any person or entity for any purpose without our prior
written consent.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
King & Spalding
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our reports dated
February 3, 1999 included (or incorporated by reference) in AGCO Corporation's
Annual Report on Form 10-K for the year ended December 31, 1998.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
March 29, 1999
<PAGE> 1
EXHIBIT 99.1
AGCO CORPORATION
1991 STOCK OPTION PLAN, as amended
April 29, 1998
<PAGE> 2
AGCO Corporation
1991 STOCK OPTION PLAN
<TABLE>
<S> <C> <C>
I. Purposes.............................................................2
II. Amount of Stock Subject to the Plan..................................2
III. Administration.......................................................3
IV. Eligibility..........................................................4
V. Maximum Allotment of Incentive Options...............................4
VI. Option Price and Payment.............................................5
VII. Use of Proceeds......................................................6
VIII. Loans, Loan Guarantees and Installment Payments......................6
IX. Term of Options and Limitations on the Right of Exercise.............6
X. Exercise of Options..................................................6
XI. Nontransferability of Options........................................7
XII. Termination of Employment............................................7
XIII. Adjustment of Shares; Effect of Certain Transactions.................9
XIV. Right to Terminate Employment.......................................10
XV. Purchase for Investment.............................................10
XVI. Issuance of Certificates; Legends; Payment of Expenses..............10
XVII. Withholding Taxes...................................................11
XVIII. Listing of Shares and Related Matters...............................11
XIX. Amendment of the Plan...............................................11
XX. Termination or Suspension of the Plan...............................12
XXI. Governing Law.......................................................12
XXII. Partial Invalidity..................................................12
XXIII. Effective Date......................................................12
</TABLE>
<PAGE> 3
AGCO Corporation
1991 STOCK OPTION PLAN
I. PURPOSES
AGCO Corporation (the "Company") desires to afford certain directors,
key employees and consultants of the Company and its subsidiaries who are
responsible for the continued growth of the Company an opportunity to acquire a
proprietary interest in the Company, and thus to create in such persons interest
in and a greater concern for the welfare of the Company.
The stock options offered pursuant to this 1991 Stock Option Plan (the
"Plan") are a matter of separate inducement and are not in lieu of any salary or
other compensation for services.
The Company, by means of the Plan, seeks to retain the services of
persons now holding key positions and to secure the services of persons capable
of filling such positions.
The options granted under the Plan may be designated as either
incentive stock options ("Incentive Options") within the meaning of Section 422
of the Internal Revenue Code of 1986, as amended (the "Code"), or options that
do not meet the requirements for Incentive Options ("Non-Qualified Options") but
the Company makes no warranty as to the qualification of any option as an
Incentive Option. Only key employees may be granted Incentive Options under the
Plan.
II. AMOUNT OF STOCK SUBJECT TO THE PLAN
The total number of shares of common stock of the Company which may be
purchased pursuant to the exercise of options granted under the Plan shall not
exceed, in the aggregate, 4,000,000 shares of the authorized common stock, $0.01
par value, per share, of the Company (the "Shares").
Shares which may be acquired under the Plan may be either authorized
but unissued Shares or Shares of issued stock held in the Company's treasury, or
both, at the discretion of the Company. If and to the extent that options
granted under the Plan expire or terminate without having been exercised, new
options may be granted with respect to the Shares covered by such expired or
terminated options, provided that the grant and the terms of such new options
shall in all respects comply with the provisions of the Plan.
Except as provided in Article XX, the Company may, from time to time
during the period beginning September 18, 1991 (the "Effective Date") and ending
September 17, 2001 (the "Termination Date") grant options to certain directors,
key employees and consultants under the terms hereinafter set forth.
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No individual shall be granted options to purchase in the aggregate
more than 250,000 shares.
III. ADMINISTRATION
The Board of Directors of the Company (the "Board of Directors") shall
designate from among its members an option committee (the "Committee") to
administer the Plan. The Committee shall consist of no fewer than three (3)
members of the Board of Directors, each of whom shall be a "nonemployee
director" within the meaning of Rule 16b-3 (or any successor rule or regulation)
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and an "outside director" within the meaning of Section 162(m)(4)(C)(i)
of the Code. A majority of the members of the Committee shall constitute a
quorum, and the act of a majority of the members of the Committee shall be the
act of the Committee. Any member of the Committee may be removed at any time,
either with or without cause, by resolution adopted by a majority of the Board
of Directors, and any vacancy on the Committee may at any time be filled by
resolution adopted by a majority of the Board of Directors.
Any or all powers and functions of the Committee may at any time and
from time to time be exercised by the Board of Directors; provided, however,
that, with respect to the participation in the Plan by persons who are members
of the Board of Directors, such powers and functions of the Committee may be
exercised by the Board of Directors only if, at the time of such exercise, all
of the members of the Board of Directors acting in the particular matter are
"nonemployee directors" within the meaning of Rule 16b-3 (or any successor rule
or regulation) promulgated under the Exchange Act and "outside directors" within
the meaning of Section 162(m)(4)(C)(i) of the Code.
Subject to the express provisions of the Plan, the Board of Directors
or the Committee, as the case may be, shall have authority, in its discretion,
to determine the persons to whom options shall be granted, the time when such
options shall be granted, the number of Shares which shall be subject to each
option, the purchase price of each Share which shall be subject to each option,
the period(s) during which such options shall be exercisable (whether in whole
or in part) and the other terms and provisions thereof. In determining the
employees to whom options shall be granted and the number of Shares for which
options shall be granted to each person, the Board of Directors or the
Committee, as the case may be, shall consider the length of service, the amount
of earnings, and the responsibilities and duties of such person.
Subject to the express provisions of the Plan, the Board of Directors
or the Committee, as the case may be, also shall have authority to construe the
Plan and options granted thereunder, to amend the Plan and options granted
thereunder, to prescribe, amend and rescind rules and regulations relating to
the Plan, to determine the terms and provisions of the respective options (which
need not be identical) and to make all other determinations necessary or
advisable for administering the Plan; provided, however, that neither the Board
of Directors nor the Committee shall issue any new option in exchange for the
cancellation of an existing option if such new option
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would have an exercise price lower than the exercise price of the cancelled
option. The Board of Directors or the Committee, as the case may be, also shall
have the authority to require, in its discretion, as a condition of the granting
of any such option, that the optionee agree (i) not to sell or otherwise dispose
of Shares acquired pursuant to the option for a period of six (6) months
following the date of acquisition of such Shares and (ii) that in the event of
termination of service of the optionee with the Company or any subsidiary of the
Company, other than as a result of dismissal without cause, such optionee will
not, for a period to be fixed at the time of the grant of the option, enter into
any other employment or participate directly or indirectly in any other business
or enterprise which is competitive with the business of the Company or any
subsidiary of the Company, or enter into any employment in which such optionee
will be called upon to utilize special knowledge obtained through service with
the Company or any subsidiary of the Company.
The determination of the Board of Directors or the Committee, as the
case may be, on matters referred to in this Article III shall be conclusive.
The Board of Directors or the Committee, as the case may be, may
employ such legal counsel, consultants and agents as it may deem desirable for
the administration of the Plan and may rely upon any opinion received from any
such counsel or consultant and any computation received from any such consultant
or agent. Expenses incurred by the Board of Directors or the Committee in the
engagement of such counsel, consultant or agent shall be paid by the Company. No
member or former member of the Committee or of the Board of Directors shall be
liable for any action or determination made in good faith with respect to the
Plan or any option granted hereunder.
IV. ELIGIBILITY
Options may be granted only to directors, key employees and
consultants of the Company and its subsidiaries who are not members of the
Committee.
An Incentive Option shall not be granted to any person who, at the
time the option is granted, owns stock of the Company or any subsidiary or
parent of the Company possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or of any
subsidiary or parent of the Company unless (i) the option price is at least one
hundred ten percent (110%) of the fair market value per share (as defined in
Article VI) of the stock subject to the option and (ii) the option is not
exercisable after the fifth anniversary of the date of grant of the option. In
determining stock ownership of an employee, the rules of Section 424 (d) of the
Code shall be applied, and the Board of Directors or the Committee, as the case
may be, may rely on representations of fact made to it by the employee and
believed by it to be true.
V. MAXIMUM ALLOTMENT OF INCENTIVE OPTIONS
If the aggregate fair market value of stock with respect to which
Incentive Options are exercisable for the first time by an employee during any
calendar year (under all stock option plans of the Company and any parent or any
subsidiary of the Company) exceeds $100,000, any options
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which otherwise qualify as Incentive Options, to the extent of the excess, will
be treated as NonQualified Options.
VI. OPTION PRICE AND PAYMENT
The price per Share under any option granted hereunder shall be such
amount as the Board of Directors or the Committee, as the case may be, shall
determine but, in the case of an Incentive Option, such price shall not be less
than one hundred percent (100%) of the fair market value of the Shares subject
to such option, as determined in good faith by the Board of Directors or the
Committee, as the case may be, at the date the option is granted.
If the Shares are listed on a national securities exchange in the
United States on the date any option is granted, the fair market value per Share
shall be deemed to be the average of the high and low quotations at which such
Shares are sold on such national securities exchange in the United States on the
date next preceding the date upon which the option is granted, but if the Shares
are not traded on such date, or such national securities exchange is not open
for business on such date, the fair market value per Share shall be determined
as of the closest preceding date on which such exchange shall have been open for
business and the Shares were traded. If the Shares are listed on more than one
national securities exchange in the United States on the date any such option is
granted, the Committee shall determine which national securities exchange shall
be used for the purpose of determining the fair market value per Share. If the
Shares are not listed on a national securities exchange but are reported on the
National Association of Securities Dealers Automated Quotation System
("NASDAQ"), the fair market value per share shall be deemed to be the average of
the high bid and low asked prices on the date next preceding the date upon which
the option is granted as reported by NASDAQ.
For purposes of this Plan, the determination by the Board of Directors
or the Committee, as the case may be, of the fair market value of a Share shall
be conclusive.
Upon the exercise of an option granted hereunder, the Company shall
cause the purchased Shares to be issued only when it shall have received the
full purchase price for the Shares in cash; provided, however, that in lieu of
cash, the holder of an option may, if and to the extent the terms of such option
so provide and to the extent permitted by applicable law, exercise an option in
whole or in part, by delivering to the Company shares of common stock of the
Company (in proper form for transfer and accompanied by all requisite stock
transfer tax stamps or cash in lieu thereof) owned by such holder having a fair
market value equal to the cash exercise price applicable to that portion of the
option being exercised by the delivery of such Shares. The fair market value of
the stock so delivered shall be determined as of the date immediately preceding
the date on which the option is exercised, or as may be required in order to
comply with or to conform to the requirements of any applicable laws or
regulations.
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VII. USE OF PROCEEDS
The cash proceeds of the sale of Shares subject to the options granted
hereunder are to be added to the general funds of the Company and used for its
general corporate purposes as the Board of Directors shall determine.
VIII. LOANS, LOAN GUARANTEES AND INSTALLMENT PAYMENTS
In order to assist an optionee (including an optionee who is an
officer or director of the Company or any subsidiary of the Company) in the
acquisition of shares of Common Stock pursuant to an option granted under the
Plan, the Board of Directors or the Committee, as the case may be, may
authorize, at either the time of the grant of an option or the time of the
acquisition of Common Stock pursuant to the option, (i) the extension of a loan
to the optionee by the Company, (ii) the payment by the optionee of the purchase
price, if any, for the Common Stock in installments, or (iii) the guarantee by
the Company or a subsidiary of the Company of a loan obtained by the optionee
from a third party. The terms of any loans, guarantees or installment payments,
including the interest rate and terms of repayment, will be subject to the
discretion of the Board of Directors or the Committee, as the case may be.
Loans, installment payments and guarantees may be granted without security, the
maximum credit available being the purchase price, if any, of the Common Stock
acquired plus the maximum federal and state income and employment tax liability
which may be incurred in connection with the acquisition. In no event, however,
may the amount of any loan exceed the amounts allowable to the loan to such
individual for the purposes stated hereunder as provided by any regulation of
the United States Treasury or other State or Federal statute.
IX. TERM OF OPTIONS AND LIMITATIONS ON THE RIGHT OF EXERCISE
Unless the Board of Directors or the Committee, as the case may be,
shall determine otherwise (in which event the instrument evidencing the option
granted hereunder shall so specify), any option granted hereunder shall be
exercisable during a period of not more than ten (10) years from the date of
grant of such option.
The Board of Directors or the Committee, as the case may be, shall
have the right to accelerate, in whole or in part, from time to time,
conditionally or unconditionally, rights to exercise any option granted
hereunder.
To the extent that an option is not exercised within the period of
exercisability specified therein, it shall expire as to the then unexercised
part.
X. EXERCISE OF OPTIONS
Options granted under the Plan shall be exercised by the optionee as
to all or part of the Shares covered thereby by the giving of written notice of
the exercise thereof to the Corporate Secretary of the Company and the stock
transfer agent for the Company at the principal business
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<PAGE> 8
office of the Company, specifying the number of Shares to be purchased and
specifying a business day not more than fifteen (15) days from the date such
notice is given, for the payment of the purchase price against delivery of the
Shares being purchased. Subject to the terms of Articles XV, XVI, XVII and
XVIII, the Company shall cause certificates for the Shares so purchased to be
delivered to the optionee, against payment of the full purchase price, on the
date specified in the notice of exercise.
XI. NONTRANSFERABILITY OF OPTIONS
An option granted hereunder shall not be transferable, whether by
operation of law or otherwise, other than by will or the laws of descent and
distribution, and any option granted hereunder shall be exercisable, during the
lifetime of the holder, only by such holder.
XII. TERMINATION OF EMPLOYMENT
Upon termination of employment of any employee with the Company or any
subsidiary of the Company any option previously granted to such employee, unless
otherwise specified by the Board of Directors or the Committee, as the case may
be, shall, to the extent not theretofore exercised, terminate and become null
and void, provided that:
(a) if the employee shall die while in the employ of the Company or
any subsidiary of the Company or during either the three (3) month or
one (1) year period, whichever is applicable, specified in clause (b)
below and at a time when such employee was entitled to exercise an
option as herein provided, the legal representative of such employee,
or such person who acquired such option by bequest or inheritance or
by reason of the death of the employee, may, not later than one (1)
year from the date of death, exercise such option, to the extent not
theretofore exercised, in respect of any or all of such number of
Shares as specified by the Board of Directors or the Committee, as the
case may be, in such option grant; and
(b) if the employment of any employee to whom such option shall have
been granted shall terminate by reason of the employee's retirement
(at such age or upon such conditions as shall be specified by the
Board of Directors or the Committee, as the case may be), disability
(as described in Section 22(e) (3) of the Code) or dismissal by the
employer other than for cause (as defined below), and while such
employee is entitled to exercise such option as herein provided, such
employee shall have the right to exercise such option so granted, to
the extent not theretofore exercised, in respect of any or all of such
number of Shares as specified by the Board of Directors or the
Committee, as the case may be, in such option at any time up to and
including (i) three (3) months after the date of such termination of
employment in the case of termination by reason of retirement or
dismissal other than for cause and (ii) one (1) year after the date of
termination of employment in the case of termination by reason of
disability.
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In no event, however, shall any person be entitled to exercise any
option after the expiration of the period of exercisability of such option as
specified therein.
If an employee voluntarily terminates his or her employment, or is
discharged for cause, any option granted hereunder shall, unless otherwise
specified by the Board of Directors or the Committee, as the case may be, in the
option, forthwith terminate with respect to any unexercised portion thereof.
Notwithstanding any other provision of this Article XII, if the
employment of any employee with the Company or any subsidiary of the Company is
terminated, whether voluntarily or involuntarily, within a one-year period
following a change in the ownership or effective control of the Company (within
the meaning of Section 280G(b)(2)(A)(i) of the Code) and while such employee is
entitled to exercise an option as herein provided, other than a termination of
such employment by the Company or any subsidiary of the Company for cause, such
employee shall have the right to exercise all or any portion of such option at
any time up to and including three (3) months after the date of such termination
of employment, at which time such option shall cease to be exercisable.
If an option granted hereunder shall be exercised by the legal
representative of a deceased employee or former employee, or by a person who
acquired an option granted hereunder by bequest or inheritance or by reason of
the death of any employee or former employee, written notice of such exercise
shall be accompanied by a certified copy of letters testamentary or equivalent
proof of the right of such legal representative or other person to exercise such
option.
For the purposes of the Plan, the term "for cause" shall mean (i) with
respect to an employee who is a party to a written agreement with, or,
alternatively, participates in a compensation or benefit plan of the Company or
any subsidiary of the Company, which agreement or plan contains a definition of
"for cause or cause" (or words of like import) for purposes of termination of
employment thereunder by the Company or such subsidiary of the Company, "for
cause" or "cause" as defined in the most recent of such agreements or plans, or
(ii) in all other cases, as determined by the Committee or the Board of
Directors, as the case may be, in its sole discretion, (a) the willful
commission by an employee of a criminal or other act that causes or will
probably cause substantial economic damage to the Company or a substantial
injury to the business reputation of the Company; (b) the commission by an
employee of an act of fraud in the performance of such employee's duties on
behalf of the Company or any subsidiary of the Company; or (c) the continuing
willful failure of an employee to perform the duties of such employee to the
Company or any subsidiary of the Company (other than such failure resulting from
the employee's incapacity due to physical or mental illness) after written
notice thereof (specifying the particulars thereof in reasonable detail) and a
reasonable opportunity to be heard and cure such failure are given to the
employee by the Board of Directors or the Committee, as the case may be. For
purposes of the Plan, no act, or failure to act, on the employee's part shall be
considered "willful" unless done or omitted to be done by the
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<PAGE> 10
employee not in good faith and without reasonable belief that the employee's
action or omission was in the best interest of the Company or a subsidiary of
the Company.
For the purposes of the Plan, an employment relationship shall be
deemed to exist between an individual and a corporation if, at the time of the
determination, the individual was an "employee" of such corporation for purposes
of Section 422(a) of the Code. If an individual is on military, sick leave or
other bona fide leave of absence such individual shall be considered an
"employee" for purposes of the exercise of an option and shall be entitled to
exercise such option during such leave if the period of such leave does not
exceed 90 days, or, if longer, so long as the individual's right to reemployment
with the Company is guaranteed either by statute or by contract. If the period
of leave exceeds ninety (90) days, the employment relationship shall be deemed
to have terminated on the ninety-first (91st) day of such leave, unless the
individual's right to re-employment is guaranteed by statute or contract.
A termination of employment shall not be deemed to occur by reason of
(i) the transfer of an employee from employment by the Company to employment by
a subsidiary of the Company or (ii) the transfer of an employee from employment
by a subsidiary of the Company to employment by the Company or by another
subsidiary of the Company.
XIII. ADJUSTMENT OF SHARES; EFFECT OF CERTAIN TRANSACTIONS
In the event of any change in the outstanding Shares through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split,
split-up, split-off, spin-off, combination of shares, exchange of shares, or
other like change in capital structure of the Company, an adjustment shall be
made to each outstanding option such that each such option shall thereafter be
exercisable for such securities, cash and/or other property as would have been
received in respect of the Shares subject to such option had such option been
exercised in full immediately prior to such change, and such an adjustment shall
be made successively each time any such change shall occur. The term "Shares"
shall after any such change refer to the securities, cash and/or property then
receivable upon exercise of an option. In addition, in the event of any such
change, the Board of Directors or the Committee, as the case may be, shall make
any further adjustment as may be appropriate to the maximum number of Shares
subject to the Plan, the maximum number of Shares for which options may be
granted to any one employee, and the number of Shares and price per Share
subject to outstanding options as shall be equitable to prevent dilution or
enlargement of rights under such options, and the determination of the Board of
Directors or the Committee, as the case may be, as to these matters shall be
conclusive. Notwithstanding the foregoing, (i) each such adjustment with respect
to an Incentive Option shall comply with the rules of Section 424(a) of the
Code, and (ii) in no event shall any adjustment be made which would render any
Incentive Option granted hereunder other than an incentive stock option for
purposes of Section 422 of the Code without the consent of the grantee.
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XIV. RIGHT TO TERMINATE EMPLOYMENT
The Plan shall not impose any obligation on the Company or any
subsidiary of the Company to continue the employment of any holder of an option
and it shall not impose any obligation on the part of any holder of an option to
remain in the employ of the Company or of any subsidiary thereof.
XV. PURCHASE FOR INVESTMENT
Except as hereafter provided, the holder of an option granted
hereunder shall, upon any exercise thereof, execute and deliver to the Company a
written statement, in form satisfactory to the Company, in which such holder
represents and warrants that such holder is purchasing or acquiring the Shares
acquired thereunder for such holder's own account, for investment only and not
with a view to the resale or distribution thereof, and agrees that any
subsequent offer for sale or sale or distribution of any of such Shares shall be
made only pursuant to either (a) a Registration Statement on an appropriate form
under the Securities Act of 1933, as amended (the "Securities Act"), which
Registration Statement has become effective and is current with regard to the
Shares being offered or sold, or (b) a specific exemption from the registration
requirements of the Securities Act, but in claiming such exemption the holder
shall, prior to any offer for sale or sale of such Shares, obtain a prior
favorable written opinion, in form and substance satisfactory to the Company,
from counsel for or approved by the Company, as to the applicability of such
exemption thereto. The foregoing restriction shall not apply to (i) issuances by
the Company so long as the Shares being issued are registered under the
Securities Act and a prospectus in respect thereof is current or (ii)
reofferings of Shares by affiliates of the Company (as defined in Rule 405 or
any successor rule or regulation promulgated under the Securities Act) if the
Shares being reoffered are registered under the Securities Act and a prospectus
in respect thereof is current.
XVI. ISSUANCE OF CERTIFICATES; LEGENDS; PAYMENT OF EXPENSES
Upon any exercise of an option which may be granted hereunder and
payment of the purchase price, a certificate or certificates for the Shares as
to which the option has been exercised shall be issued by the Company in the
name of the person exercising the option and shall be delivered to or upon the
order of such person or persons.
The Company may endorse such legend or legends upon the certificates
for Shares issued upon exercise of an option granted hereunder and may issue
such "stop transfer" instructions to its transfer agent in respect of such
Shares as, in its discretion, it determines to be necessary or appropriate to
(i) prevent a violation of, or to perfect an exemption from, the registration
requirements of the Securities Act, (ii) implement the provisions of the Plan
and any agreement between the Company and the optionee or grantee with respect
to such Shares, or (iii) permit the Company to determine the occurrence of a
disqualifying disposition, as described in Section 421(b) of the Code, of Shares
transferred upon exercise of an Incentive Option granted under the Plan.
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The Company shall pay all issue or transfer taxes with respect to the
issuance or transfer of Shares upon exercise of an option, as well as all fees
and expenses necessarily incurred by the Company in connection with such
issuance or transfer, except fees and expenses which may be necessitated by the
filing or amending of a Registration Statement under the Securities Act, which
fees and expenses shall be borne by the recipient of the Shares unless such
Registration Statement has been filed by the Company for its own corporate
purposes (and the Company so states) in which event the recipient of the Shares
shall bear only such fees and expenses as are attributable solely to the
inclusion of the Shares he or she receives in the Registration Statement,
provided that the Company shall have no obligation to include any shares in any
Registration Statement.
All Shares issued as provided herein shall be fully paid and
non-assessable to the extent permitted by law.
XVII. WITHHOLDING TAXES
The Company may require an employee exercising a Non-Qualified Option
or disposing of Shares acquired pursuant to the exercise of an Incentive Option
in a disqualifying disposition (within the meaning of Section 421(b) of the
Code) to reimburse the corporation that employs such employee for any taxes
required by any government to be withheld or otherwise deducted and paid by such
corporation in respect of the issuance or disposition of Shares. In lieu
thereof, the corporation that employs such employee shall have the right to
withhold the amount of such taxes from any other sums due or to become due from
such corporation to the employee upon such terms and conditions as the Board of
Directors or the Committee, as the case may be, shall prescribe.
XVIII. LISTING OF SHARES AND RELATED MATTERS
If at any time the Board of Directors shall determine in its
discretion that the listing, registration or qualification of the Shares covered
by the Plan upon any national securities exchange or under any state or federal
law or the consent or approval of any governmental regulatory body, is necessary
or desirable as a condition of, or in connection with, the sale or purchase of
Shares under the Plan, no Shares shall be issued unless and until such listing,
registration, qualification, consent or approval shall have been effected or
obtained, or otherwise provided for, free of any conditions not acceptable to
the Board of Directors.
XIX. AMENDMENT OF THE PLAN
The Board of Directors may, from time to time, amend the Plan without
stockholder approval except to the extent that any such amendment fails to
comply with any applicable provision of the Code, the Employee Retirement Income
Security Act of 1974 or the rules of the New York Stock Exchange or causes the
Plan to fail to be treated as qualified performance-based compensation under
applicable Treasury Regulations.
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XX. TERMINATION OR SUSPENSION OF THE PLAN
The Board of Directors may at any time suspend or terminate the Plan.
The Plan, unless sooner terminated by action of the Board of Directors, shall
terminate at the close of business on the Termination Date. An option may not be
granted while the Plan is suspended or after it is terminated. Rights and
obligations under any option granted while the Plan is in effect shall not be
altered or impaired by suspension or termination of the Plan, except upon the
consent of the person to whom the option was granted. The power of the Board of
Directors or the Committee, as the case may be, to construe and administer any
options granted prior to the termination or suspension of the Plan under Article
III nevertheless shall continue after such termination or during such
suspension.
XXI. GOVERNING LAW
The Plan, such options as may be granted thereunder and all related
matters shall be governed by, and construed and enforced in accordance with, the
laws of the State of Delaware.
XXII. PARTIAL INVALIDITY
The invalidity or illegality of any provision herein shall not be
deemed to affect the validity of any other provision.
XXIII. EFFECTIVE DATE
The Plan shall become effective at 5:00 p.m., New York City time, on
the Effective Date; provided, however, that if the Plan is not approved by a
vote of the shareholders of the Company at an annual meeting or any special
meeting or by unanimous written consent within twelve (12) months before or
after the Effective Date, the Plan and any options granted thereunder shall
terminate.
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