As filed with the Securities and Exchange Commission on April 27, 2000
Post-Effective Amendment No. 1 to Registration Statement No. 333-85485
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Form S-8
POST-EFFECTIVE AMENDMENT
under
THE SECURITIES ACT OF 1933
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The Seagram Company Ltd.--La Compagnie Seagram Ltee
(Exact name of Registrant as specified in its charter)
Canada None
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1430 Peel Street
Montreal, Quebec, Canada H3A 1S9
(Address, including zip code, of Registrant's principal executive office)
PolyGram Holding, Inc. Deferred Savings and Investment Plan for Employees
The Seagram Company Ltd. 1996 Stock Incentive Plan
(Full title of the Plans)
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Robert W. Matschullat
Joseph E. Seagram & Sons, Inc.
375 Park Avenue
New York, New York 10152
(212) 572-7000
(Name, address, including zip code, and telephone number, including area
code, of Registrant's agent for service and authorized representative of
Registrant in the United States)
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Copies to:
George R. Krouse, Jr, Esq.
Sarah E. Cogan, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
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PART I
Item 1. Plan Information.
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission by the Company are hereby incorporated in this Registration
Statement by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1999.
(2) The Company's Quarterly Report on Form 10-Q for the quarterly
periods ended September 30, 1999 and December 31, 1999.
(3) The Company's Current Report on Form 8-K dated September 20,
1999.
(4) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act, since June 30, 1999.
(5) The PolyGram Holding, Inc. Deferred Savings and Investment
Plan for Employees Annual Report for the fiscal year ended
December 31, 1998.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing 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 other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
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modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 124, Subsections (1) through (4), of the Canada Business
Corporations Act (the "Act") provides as follows:
"124. Indemnification.--(1) Except in respect of an action by or on
behalf of the corporation or body corporate to procure a judgment
in its favour, a corporation may indemnify a director or officer of
the corporation, a former director or officer of the corporation or
a person who acts or acted at the corporation's request as a
director or officer of a body corporate of which the corporation is
or was a shareholder or creditor, and his heirs and legal
representatives, against all costs, charges and expenses, including
an amount paid to settle an action or satisfy a judgment,
reasonably incurred by him in respect of any civil, criminal or
administrative action or proceeding to which he is made a party by
reason of being or having been a director or officer of such
corporation or body corporate, if
(a) he acted honestly and in good faith with a view to the
best interests of the corporation; and
(b) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, he had
reasonable grounds for believing that his conduct was
lawful.
(2) Indemnification in derivative actions.--A corporation may with
the approval of a court indemnify a person referred to in
subsection (1) in respect of an action by or on behalf of the
corporation or body corporate to procure a judgment in its favour,
to which he is made a party by reason of being or having been a
director or an officer of the corporation or body corporate,
against all costs, charges and expenses reasonably incurred by him
in connection with such action if he fulfills the conditions set
out in paragraphs (1)(a) and (b).
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(3) Indemnity as of right.--Notwithstanding anything in this
section, a person referred to in subsection (1) is entitled to
indemnity from the corporation in respect of all costs, charges and
expenses reasonably incurred by him in connection with the defence
of any civil, criminal or administrative action or proceeding to
which he is made a party by reason of being or having been a
director or officer of the corporation or body corporate, if the
person seeking indemnity
(a) was substantially successful on the merits in his defence
of the action or proceeding; and
(b) fulfills the conditions set out in paragraphs (1)(a) and
(b).
(4) Directors' and officers' insurance.--A corporation may
purchase and maintain insurance for the benefit of any person
referred to in subsection (1) against any liability incurred by him
(a) in his capacity as a director or officer of the
corporation, except where the liability relates to his
failure to act honestly and in good faith with a view to
the best interests of the corporation, or
(b) in his capacity as director or officer of another body
corporate where he acts or acted in that capacity at the
corporation's request, except where the liability relates
to his failure to act honestly and in good faith with a
view to the best interests of the body corporate."
Sections 7.02 and 7.03 of the General By-Laws of the Company provide as
follows:
"Section 7.02--Indemnity. Without in any manner derogating from or
limiting the mandatory provisions of the Act but subject to the
conditions contained therein, the Corporation shall indemnify a
director or officer of the Corporation, a former director or
officer of the Corporation, or a person who acts or acted at the
Corporation's request as a director or officer of a body corporate
of which the Corporation is or was a shareholder or creditor, and
his heirs and legal representatives, against all costs, charges and
expenses, including an amount paid to settle an action or satisfy a
judgment, reasonably incurred by him in respect of any civil,
criminal or administrative action or proceeding to which he is made
a party by reason of being or having been a director or officer of
the Corporation or such body corporate, if
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(a) he acted honestly and in good faith with a view to the
best interests of the Corporation; and
(b) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, he has
reasonable grounds for believing that his conduct was
lawful.
Section 7.03--Insurance. Subject to the limitations contained in
the Act, the Corporation may purchase and maintain such insurance
for the benefit of the persons mentioned in Section 7.02, as the
board may from time to time determine."
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to
directors, officers or 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 against the
Registrant 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 policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
The directors and officers of the Registrant are covered by insurance
policies indemnifying against certain liabilities, including liabilities
arising under the Securities Act, which might be incurred by them in such
capacities and against which they cannot be indemnified by the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4(a) Articles of Amalgamation dated February 1, 1995 between the
Company and Centenary Distillers Ltd. (incorporated by
reference to Exhibit 3(a) of the Company's Annual Report on
Form 10-K for the fiscal year ended January 31, 1995), as
amended by Certificate and Articles of Amendment dated May 31,
1995 (incorporated by reference to Exhibit 3(a) of the
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Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended April 30, 1995)
4(b) General By-Laws of the Company, as amended (incorporated by
reference to Exhibit 3(b) to the Company's Quarterly Report on
Form 10-Q for the fiscal quarter ended April 30, 1996)
4(c) PolyGram Holding, Inc. Deferred Savings and Investment Plan
for Employees
4(d) The Seagram Company Ltd. 1996 Stock Incentive Plan
5 Opinion of Goodman Phillips & Vineberg
23(a) Consent of PricewaterhouseCoopers LLP, independent
accountants, with respect to the financial statements of The
Seagram Company Ltd.
23(b) Consent of Goodman Phillips & Vineberg (included in Exhibit 5)
24 Power of Attorney
Item 9. Undertakings.
The Company 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
set forth in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above 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)
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of the Exchange Act that are incorporated by reference in this
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.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and each filing
of each plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person
of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, The Seagram
Company Ltd. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on the
27th day of April, 2000.
THE SEAGRAM COMPANY LTD.
(Registrant)
By *
----------------------------------------
Edgar Bronfman, Jr.
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities at The Seagram Company Ltd. indicated on the 27th day of April,
2000.
Principal Executive Officer:
* Director, President and Chief
----------------------------------- Executive Officer
(Edgar Bronfman, Jr.)
Principal Financial Officer:
/s/ Brian C. Mulligan Executive Vice President and Chief
------------------------------------ Financial Officer
(Brian C. Mulligan)
Principal Accounting Officer:
/s/ Frank Mergenthaler Vice President, Controller and Chief
----------------------------------- Accounting Officer
(Frank Mergenthaler)
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Authorized Representative in the
United States:
*
-----------------------------------
(Robert W. Matschullat)
Directors:
Edgar M. Bronfman*
Charles R. Bronfman*
Edgar Bronfman, Jr.*
Samuel Bronfman II*
Stephen R. Bronfman
Matthew W. Barrett*
Laurent Beaudoin*
Cornelis Boonstra*
Richard H. Brown*
Andre Desmarais*
Barry Diller*
Michele J. Hooper*
David L. Johnston*
Marie-Josee Kravis*
Robert W. Matschullat*
Samuel Minzberg*
John S. Weinberg*
* By signing his name hereto, Daniel R. Paladino signs this
Registration Statement on behalf of each of the persons indicated above
pursuant to a power of attorney duly executed by such persons and filed with
the Securities and Exchange Commission.
By /s/ Daniel R. Paladino
-------------------------------------------
(Daniel R. Paladino, Attorney-in-fact)
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Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on the 27th day of April, 2000.
POLYGRAM HOLDING, INC. DEFERRED SAVINGS
AND INVESTMENT PLAN FOR EMPLOYEES
By /s/ Kelly DeMasi
----------------------------------------
Kelly DeMasi
Member of Administrative Committee
By /s/ Eric Scoones
----------------------------------------
Eric Scoones
Member of Administrative Committee
By /s/ Kevin McNeil
----------------------------------------
Kevin McNeil
Member of Administrative Committee
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
4(a) Articles of Amalgamation dated February 1, 1995 between
the Company and Centenary Distillers Ltd. (incorporated by
reference to Exhibit 3(a) of the Company's Annual Report
on Form 10-K for the fiscal year ended January 31, 1995),
as amended by Certificate and Articles of Amendment dated
May 31, 1995 (incorporated by reference to Exhibit 3(a) of
the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended April 30, 1995)
4(b) General By-Laws of the Company, as amended (incorporated
by reference to Exhibit 3(b) to the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended April 30,
1996)
4(c)** PolyGram Holding, Inc. Deferred Savings and Investment
Plan for Employees
4(d)* The Seagram Company Ltd. 1996 Stock Incentive Plan
5** Opinion of Goodman Phillips & Vineberg
23(a)* Consent of PricewaterhouseCoopers LLP, independent
accountants, with respect to the financial statements of
The Seagram Company Ltd.
23(b)** Consent of Goodman Phillips & Vineberg (included in
Exhibit 5)
24** Power of Attorney
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*Filed herewith
**Previously filed
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Exhibit 4(d)
THE SEAGRAM COMPANY LTD.
1996 STOCK INCENTIVE PLAN
ARTICLE I
Purpose
The purpose of The Seagram Company Ltd. 1996 Stock Incentive Plan
is to provide selected key employees of The Seagram Company Ltd. and its
subsidiaries an opportunity to benefit from the appreciation in the value of
the common shares of The Seagram Company Ltd., thus providing an increased
incentive for such employees to contribute to the future success and
prosperity of The Seagram Company Ltd., enhancing the value of the common
shares for the benefit of the shareholders and increasing the ability of The
Seagram Company Ltd. and its subsidiaries to attract and retain individuals
of exceptional skill.
ARTICLE II
Definitions
The following capitalized terms used in the Plan have the
respective meanings set forth in this Article:
2.1 Act: The United States Securities Exchange Act of 1934, as
amended.
2.2 Affiliate: A person or entity controlling, controlled by,
or under common control with The Seagram Company Ltd.
2.3 Approval Date: The later of the date of approval of the
Plan (a) by the shareholders of The Seagram Company Ltd. and (b) by the
applicable regulatory authorities and stock exchanges, each as contemplated
by Article XVIII of the Plan.
2.4 Award: An Option, Stock Appreciation Right or other award
granted under the Plan.
2.5 Board: The Board of Directors of The Seagram Company Ltd.
2.6 Code: The United States Internal Revenue Code of 1986, as
amended.
2.7 Committee: The Seagram Company Ltd. Human Resources
Committee or such other persons designated by the Board.
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2.8 Common Shares: The common shares without nominal or par
value of The Seagram Company Ltd.
2.9 Company: The Seagram Company Ltd., any of its Subsidiaries
or any other Affiliate designated by the Board.
2.10 Disability: Inability to engage in any substantial gainful
activity by reason of a medically determinable physical or mental impairment
which constitutes a permanent and total disability, as defined in Section
22(e)(3) of the Code. The determination whether a Participant has suffered a
Disability shall be made by the Committee based upon such evidence as it
deems necessary and appropriate.
2.11 Disinterested Persons: Members of the Board who are not
full time employees of the Company and who are eligible to serve as Plan
administrators or to approve Awards under the provisions of Rule 16b-3
promulgated under the Act. The preceding sentence shall have no effect if any
specification of such persons is eliminated from the rules promulgated under
Section 16 of the Act. This Section 2.11 shall apply only to the Plan and
not to any other employee benefit plan of the Company.
2.12 Employer: The Company that employs the employee or
Participant.
2.13 Fair Market Value: The mean between high and low prices of
the Common Shares as reported on the composite tape for securities traded on
the New York Stock Exchange (or, if such exchange is not open on such date,
the immediately preceding date on which such exchange is open), or, if the
Common Shares are not so listed or traded, the average trading price for the
day of the Common Shares as reported on The Toronto Stock Exchange (or, if
such exchange is not open on such date, the immediately preceding date on
which such exchange is open) or, if the Common Shares are not listed or
traded, the mean between high and low prices of the Common Shares as reported
on the principal United States national securities exchange on which such
shares are listed or admitted to trading (or, if such exchange is not open on
such date, the immediately preceding date on which such exchange is open),
or, if the Common Shares are not so listed or traded, the mean between the
closing bid price and the closing asked price as quoted on the National
Association of Securities Dealers Automated Quotation System, or such other
market in which such prices are regularly quoted, or, if there have been no
published bid or asked quotations with respect to the Common Shares, the Fair
Market Value shall be the value established by the Committee in good faith
and, in the case of an ISO, in accordance with Section 422 of the Code.
2.14 ISO: An incentive stock option within the meaning of
Section 422 of the Code.
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2.15 Non-ISO: A stock option that is not an ISO.
2.16 Option: A stock option (whether ISO or Non-ISO) granted
under the Plan.
2.17 Option Price: The purchase price of one Common Share under
an Option.
2.18 Participant: A key employee of the Company who has been
selected by the Committee to receive an Award under the Plan.
2.19 Parent Corporation: A parent corporation, as defined in
Section 424(e) of the Code.
2.20 Plan: The Seagram Company Ltd. 1996 Stock Incentive Plan,
as from time to time amended.
2.21 Retirement: Separation from service with the Company on or
after attainment of age 65 or, with the prior written consent of the Company,
retirement at an earlier age.
2.22 Stock Appreciation Right: A stock appreciation right
granted under the Plan.
2.23 Subsidiary: A subsidiary corporation, as defined in Section
424(f) of the Code.
2.24 Termination Date: With respect to each Award, a date fixed
by the Committee; provided that with respect to an Option, such date shall
not be later than the day preceding the tenth anniversary of its date of
grant.
2.25 Termination For Cause: A Participant's termination of
employment with the Company due to insubordination, willful misconduct,
willful failure to implement corrective actions, misappropriation of any
funds or property of the Company, unreasonable neglect or refusal to perform
duties assigned during employment or the conviction of a felony.
ARTICLE III
Administration
3.1 Except as otherwise provided in the Plan, the Committee (or
any subcommittee thereof) shall administer the Plan and shall have full power
to grant Awards, construe and interpret the Plan, establish and amend rules
and regulations for its administration, and perform all other acts relating
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to the Plan, including the delegation of administrative responsibilities,
that it believes reasonable and proper.
3.2 The Committee shall consist of not less than three persons,
(a) all of whom shall be (i) Disinterested Persons or (ii) if applicable,
"non-employee directors" as defined in the rules promulgated under Section 16
of the Act and (b) at least two of whom shall be "outside directors" as
defined in Section 162(m) of the Code and the regulations promulgated
thereunder.
3.3 Subject to the provisions of the Plan, the Committee (or any
Subcommittee thereof) or the Board shall, in its discretion, determine which
employees shall be granted Awards and the terms and conditions of Awards.
3.4 Any decision made, or action taken, by the Committee, any
Subcommittee thereof or the Board arising out of or in connection with the
interpretation and administration of the Plan shall be final and conclusive.
ARTICLE IV
Limitations on the Amount of Award Grants
4.1 Common Shares Subject to the Plan: The total number of
Common Shares upon which Awards may be based shall be 45,000,000, subject to
adjustment in accordance with Article XIV of the Plan. These Common Shares
shall be authorized but unissued Common Shares. For purposes of this
Section, a Stock Appreciation Right granted pursuant to clause (b) of Section
7.1 shall not be deemed to be an Award separate from the Option, or portion
thereof, to which it relates. For purposes of this Section, an Option, or
portion thereof, exercised through the exercise of such a Stock Appreciation
Right shall be treated, to the extent settled in Common Shares, as though the
Option, or portion thereof, had been exercised through the purchase of Common
Shares, with the result that the Common Shares subject to the Option, or
portion thereof, that was so exercised shall not be available for future
grants of Awards.
4.2 Common Shares to be Granted to a Participant: During the
period from the Approval Date through the sixth anniversary of the Approval
Date, the total number of Common Shares available for grants to any one
Participant of (a) Awards under the Plan and (b) awards under any other plan
of the Company which provides for the grant of Common Shares shall not exceed
the lesser of (i) 5% of the outstanding Common Shares on the date when the
Plan is adopted by the Board and (ii) 5% of the outstanding Common Shares.
4.3 Cash-Only Awards: With respect to any fiscal year of the
Company, the aggregate value (as determined by the Committee) of Awards
granted which are exercisable solely for cash, or which upon maturity are
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payable solely in cash, shall not exceed the aggregate salaries paid or
accrued with respect to such fiscal year to all Participants who receive
grants of any Awards with respect to such fiscal year; provided, however,
that any such Award which may be redeemed or exercised only upon a fixed date
or dates at least six months after grant, or incident to death, Retirement,
Disability or cessation of employment shall not be included in the foregoing
calculation of the aggregate value of Awards granted with respect to any
fiscal year. This Section 4.3 (or any part thereof) shall be effective only
to the extent that it is required under the rules promulgated under Section
16 of the Act or any other law, rule or regulation applicable to the Company.
4.4 Common Shares to be Granted to Insiders: Under the Plan and
any other plan of the Company which provides for the issuance of Common
Shares (i) the total number of Common Shares reserved for issuance to all
Insiders (as defined below) shall not exceed 10% of the then outstanding
Common Shares; (ii) the total number of Common Shares issued to Insiders,
within one-year period, shall not exceed 10% of the then outstanding Common
Shares; and (iii) the total number of Common Shares issued to any one Insider
and to such Insider's associates, within a one-year period, shall not exceed
5% of the then outstanding Common Shares. For purpose hereof, "Insider"
means an insider as defined by applicable laws, rules, by-laws or policies of
regulatory authorities or stock exchanges.
ARTICLE V
Eligibility
Awards may be granted to selected key employees of the Company.
ARTICLE VI
Terms of Options
6.1 Option Price: Except as provided in Section 6.3 of the
Plan, the Option Price shall be no less than the Fair Market Value of a
Common Share on the date the Option is granted, but in no event shall the
Option Price be less than that permitted by applicable laws, rules, by-laws
or policies of regulatory authorities or stock exchanges.
6.2 Period of Exercise: The Committee shall determine the dates
after which Options may be exercised in whole or in part; provided, however,
that an Option shall not be exercised prior to the Approval Date nor later
than its Termination Date. The Committee may amend an Option to accelerate
the date after which such Option may be exercised in whole or in part,
provided that the Company has obtained all applicable approvals, if any, of
regulatory authorities and stock exchanges. An Option which has not been
exercised on or prior to its Termination Date shall be cancelled.
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6.3 Special Rules Regarding ISOs Granted to Certain Employees:
Notwithstanding any contrary provisions of Sections 6.1 and 6.2 of the Plan,
no ISO shall be granted to any employee who, at the time the Option is
granted, owns (directly or within the meaning of Section 424(d) of the Code)
more than 10% of the total combined voting power of all classes of stock of
the Employer or of any Subsidiary or Parent Corporation thereof, unless (a)
the Option Price under such Option is at least 110% of the Fair Market Value
of a Common Share on the date the Option is granted and (b) the Termination
Date of such Option is a date not later than the day preceding the fifth
anniversary of the date on which the Option is granted.
6.4 Manner of Exercise and Payment: Subject to Section 6.2 of
the Plan, an Option, or portion thereof, shall be exercised by delivery of a
written notice of exercise to the Company and payment of the full price of
the Common Shares being purchased pursuant to the Option. A Participant or
his or her legal representative may exercise an Option with respect to less
than the full number of Common Shares for which the Option may then be
exercised, but a Participant must exercise the Option in full Common Shares.
The price of Common Shares purchased pursuant to an Option, or portion
thereof, may be paid:
(a) in United States dollars in cash or by check, bank draft or
money order payable to the order of the Company;
(b) through the delivery of Common Shares with an aggregate Fair
Market Value on the date of exercise equal to the Option
Price;
(c) with the consent of the Committee, through the withholding
of Common Shares issuable upon exercise with an aggregate
Fair Market Value on the date of exercise equal to the
Option Price;
(d) through the delivery of irrevocable instructions to a broker
to deliver promptly to the Company an amount equal to the
Option Price; or
(e) by any combination of the above methods of payment;
provided, however, that the Company shall not be obligated to purchase or
accept the surrender in payment of any such Common Shares if any such action
would be prohibited by the applicable laws governing the Company or the
Committee shall determine that such action is not in the best interests of
the Company. The Committee shall determine acceptable methods for providing
notice of exercise, for tendering Common Shares or for delivering irrevocable
instructions to a broker and may impose such limitations and prohibitions on
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the use of Common Shares or irrevocable instructions to a broker to exercise
an Option as it deems appropriate.
6.5 Notification of Sales of Common Shares: Any Participant who
disposes of Common Shares acquired upon the exercise of an ISO either (a)
within two years after the date of the grant of the ISO under which the
Common Shares were acquired or (b) within one year after the transfer of such
Common Shares to the Participant, shall notify the Company of such
disposition and of the amount realized upon such disposition.
ARTICLE VII
Terms of Stock Appreciation Rights
7.1 Grants of Stock Appreciation Rights: A Stock Appreciation
Right may be granted (a) independent of an Option or (b) in conjunction with
an Option, or portion thereof. A Stock Appreciation Right granted pursuant
to clause (b) of the preceding sentence may be granted at the time the
related Option is granted or at any time prior to the exercise or
cancellation of the related Option.
7.2 Exercise Price: The exercise price per Common Share of a
Stock Appreciation Right shall be an amount determined by the Committee but
in no event shall such amount be less than the greater of (a) the Fair Market
Value of a Common Share on the date the Stock Appreciation Right is granted
or, in the case of a Stock Appreciation Right granted in conjunction with an
Option, or portion thereof, the Option Price of the related Option and (b) an
amount permitted by applicable laws, rules, by-laws or policies of regulatory
authorities or stock exchanges.
7.3 Period of Exercise: The Committee shall determine the dates
after which Stock Appreciation Rights may be exercised in whole or in part;
provided, however, that a Stock Appreciation Right shall not be exercised
prior to the Approval Date nor later than its Termination Date. The
Committee may amend a Stock Appreciation Right to accelerate the date after
which it may be exercised in whole or in part, provided that the Company has
obtained all applicable approvals, if any, of regulatory authorities and
stock exchanges. A Stock Appreciation Right which has not been exercised on
or prior to its Termination Date shall be cancelled. A Stock Appreciation
Right granted in conjunction with an Option, or portion thereof, shall not be
exercised unless such Option, or portion thereof, is otherwise exercisable,
and such a Stock Appreciation Right shall be cancelled to the extent the
Option to which it relates has been exercised, or has expired, been
terminated or been cancelled for any reason.
7.4 Exercise of Stock Appreciation Rights: A Stock Appreciation
Right, or portion thereof, shall be exercised in accordance with such
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procedures as may be established by the Committee. Upon the exercise of a
Stock Appreciation Right, the Participant or his or her legal representative
shall be entitled to receive from the Company with respect to each Common
Share to which such Stock Appreciation Right relates an amount equal to the
excess of (a) the Fair Market Value of a Common Share on the date of exercise
over (b) the exercise price of the Stock Appreciation Right. Such amount
shall be paid in cash and/or Common Shares at the discretion of the
Committee. The number of Common Shares, if any, issued as a result of the
exercise of a Stock Appreciation Right shall be based on the Fair Market
Value of such Common Shares on the date of exercise. Upon the exercise of a
Stock Appreciation Right, or portion thereof, granted in conjunction with an
Option, or portion thereof, the Option, or portion thereof, to which such
Stock Appreciation Right relates shall be deemed in the case of a cash
payment to have been cancelled and in the case of a payment in Common Shares
to have been exercised.
ARTICLE VIII
Other Share-Based Awards
8.1 Other Awards of Common Shares and Awards that are valued in
whole or in part by reference to, or are otherwise based on the Fair Market
Value of, Common Shares may be granted under the Plan in the discretion of
the Committee. Such Awards shall be in such form, and dependent on such
conditions, as the Committee shall determine, including, without limitation,
the right to receive one or more Common Shares, or the equivalent cash value
of such Common Shares, upon the completion of a specified period of service,
the occurrence of an event and/or the attainment of performance objectives.
Such Awards may be granted alone or in addition to any other Awards granted
under the Plan. Subject to the provisions of the Plan, the Committee shall
determine to whom and when such Awards will be made, the number of Common
Shares to be awarded under (or otherwise related to) such Awards, whether
such Awards shall be settled in cash, Common Shares or a combination of cash
and Common Shares, and all other terms and conditions of such Awards.
Notwithstanding the foregoing, certain Awards granted under this Section 8.1
of the Plan may be granted in a manner which is deductible by the Company
under Section 162(m) of the Code. Such Awards (the "Performance-Based
Awards") shall be based upon stock price, market share, sales, earnings per
share, return on equity or costs.
ARTICLE IX
Dividend Equivalents
9.1 At or after the grant of an Award, the Committee, in its
discretion, may provide the Participant with dividend equivalents with
respect to such Award.
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ARTICLE X
Award Agreements
10.1 All Awards shall be evidenced by written agreements executed
by the Company and the Participant. Such agreements shall be subject to the
applicable provisions of the Plan, and shall contain such provisions as are
required by the Plan and any other provisions the Committee may prescribe;
provided that with respect to Options, those Options that are intended to be
ISOs shall be so designated and all other Options shall be designated Non-
ISOs. Notwithstanding Section 2.13, an Award agreement may provide that Fair
Market Value shall be determined based on the monetary currency of a
Participant's country of residence. Notwithstanding Section 6.4, an Award
agreement may require that payment of the Option Price shall be made in such
currency and may otherwise restrict the manner of exercise and payment of an
Option.
ARTICLE XI
Nontransferability of Awards
11.1 Each Award shall, during the Participant's lifetime, be
exercisable only by the Participant, and neither it nor any right hereunder
shall be transferable otherwise than by will, the laws of descent and
distribution or be subject to attachment, execution or other similar process;
provided, however, that to the extent permitted by applicable law, with
respect to any Award, a Participant may designate a beneficiary pursuant to
procedures which may be established by the Committee. In the event of any
attempt by the Participant to alienate, assign, pledge, hypothecate or
otherwise dispose of an Award or of any right hereunder, except as provided
for herein, or in the event of any levy or any attachment, execution or
similar process upon the rights or interest hereby conferred, the Company may
terminate the Award by notice to the Participant and the Award shall
thereupon be cancelled. This Section 11.1 (or any part thereof) may be
altered by the Committee to the extent that it is no longer required under
the rules promulgated under Section 16 of the Act or any other law, rule or
regulation applicable to the Company.
ARTICLE XII
Cessation of Employment of Participant
12.1 Cessation of Employment other than by Reason of Retirement,
Disability, Death or Termination For Cause: If a Participant shall cease to
be employed by the Company other than by reason of Retirement, Disability,
Death or Termination For Cause, each Award other than, to the extent provided
by the Committee, an Award granted under Article VIII of the Plan, held by
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the Participant shall be cancelled to the extent not previously exercised and
all rights hereunder shall terminate at the end of the three-month period
commencing on the last day of the month in which the cessation of employment
occurred.
12.2 Cessation of Employment by Reason of Termination For Cause:
If a Participant shall cease to be employed by the Company by reason of
Termination For Cause, each Award, other than, to the extent provided by the
Committee, an Award granted under Article VIII of the Plan, held by the
Participant shall be cancelled to the extent not previously exercised and all
rights hereunder shall terminate on the date of cessation of employment.
12.3 Cessation of Employment by Reason of Retirement or
Disability: If a Participant shall cease to be employed by the Company by
reason of Retirement or Disability, each Award, other than, to the extent
provided by the Committee, an Award granted under Article VIII of the Plan,
held by the Participant shall be exercisable until the Termination Date set
forth in the Award. Notwithstanding the foregoing, an Award, other than, to
the extent provided by the Committee, an Award granted under Article VIII of
the Plan, shall be cancelled if after Retirement, in the sole determination
of the Committee, the Participant (i) engages in activity which is
competitive with that of the Company or its Affiliates or (ii) at any time,
divulges to any person or entity (other than the Company or any of its
Affiliates) any of the trade secrets, methods, processes or other proprietary
or confidential information of the Company or any of its Affiliates.
12.4 Cessation of Employment by Reason of Death: If a
Participant shall die while employed by the Company, or at any time after
cessation of employment by reason of Retirement or Disability, an Award may
be exercised at any time or from time to time prior to the Termination Date
set forth in the Award, by the person or persons to whom the Participant's
rights under each Award shall pass by will or by the applicable laws of
descent and distribution. Any person or persons to whom a Participant's
rights under an Award have passed by will or by the applicable laws of
descent and distribution shall be subject to all terms and conditions of the
Plan and the Award applicable to the Participant.
ARTICLE XIII
Withholding Taxes
13.1 The Company may, in its discretion, require a Participant to
pay to the Company the amount, or make other arrangements (including, without
limitation, the withholding of Common Shares which would otherwise be
delivered as part of or upon exercise of an Award), at the time of exercise
or thereafter, that the Company deems necessary to satisfy its obligation to
withhold federal, provincial, state or local income or other taxes.
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ARTICLE XIV
Adjustments
14.1 If (a) the Company shall at any time be involved in a
transaction to which Section 424(a) of the Code is applicable, (b) the
Company shall declare a dividend payable in, or shall subdivide or combine,
its Common Shares or (c) any other event shall occur which in the judgment of
the Committee necessitates action by way of adjusting the terms of the
outstanding Awards, the Committee may take any such action as in its judgment
shall be necessary to preserve the Participant's rights substantially
proportionate to the rights existing prior to such event and, to the extent
that such action shall include an increase or decrease in the number of
Awards and/or Common Shares subject to outstanding Awards, the number of
Awards and/or Common Shares available under Article IV above may be increased
or decreased, as the case may be, proportionately. The judgment of the
Committee with respect to any matters referred to in this Article shall be
conclusive and binding upon each Participant. The exercise by the Committee
of its authority under this Article is subject to the approval of the Board
as and when required by applicable laws, rules, by-laws or policies of
regulatory authorities or stock exchanges.
ARTICLE XV
Amendment and Termination of the Plan
15.1 The Board may at any time, or from time to time, suspend or
terminate the Plan in whole or in part or amend it in such respects as the
Board may deem appropriate; provided, however, that no such amendment shall
be made without approval of the shareholders if such approval is required by
Rule 16b-3 under the Act or by any regulatory authorities or stock exchanges.
15.2 No amendment, suspension or termination of the Plan shall,
without the Participant's consent, impair any of the rights or obligations
under any Award theretofore granted to a Participant under the Plan.
15.3 The Committee may amend the Plan, subject to the limitations
cited above, in such manner as it deems necessary to permit the granting of
Awards meeting the requirements of future amendments or issued regulations,
if any, to the Code, the Act or other applicable laws, rules, by-laws or
policies of regulatory authorities or stock exchanges.
15.4 No amendment shall be effective until all applicable
approvals, if any, of regulatory authorities and stock exchanges have been
obtained.
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ARTICLE XVI
Government and Other Regulations
16.1 The obligation of the Company to issue, or transfer and
deliver, Common Shares for Awards exercised under the Plan shall be subject
to all applicable laws, regulations, rules, orders and approvals which shall
then be in effect and required by regulatory authorities and any stock
exchanges on which Common Shares are traded.
16.2 Notwithstanding any other provision of the Plan, (a) during
any period in which a Participant is subject to Section 16 of the Act, if the
Participant shall exercise any Award or engage in any other transaction
involving an Award or Common Shares received upon the exercise of an Award,
the Participant shall comply with the rules promulgated under Section 16 of
the Act (and any comparable rules of any other U.S. and non-U.S. regulatory
authority), including, without limitation, rules which restrict the exercise
of Awards, which limit the resale of Common Shares obtained upon exercise of
Awards and which require the reporting of transactions and (b) the Committee
may impose any conditions on an Award necessary to render any transaction
involving such Award exempt under the rules promulgated under Section 16 of
the Act.
ARTICLE XVII
Miscellaneous Provisions
17.1 The Plan Does Not Confer Employment or Shareholder Rights:
The right of the Company to terminate at will (whether by dismissal,
discharge or otherwise) the Participant's employment with it at any time is
specifically reserved. Neither the Participant nor any person entitled to
exercise the Participant's rights in the event of the Participant's death
shall have any rights of a shareholder with respect to the Common Shares
subject to each Award, except to the extent that, and until, such Common
Shares shall have been issued upon the exercise or maturity of each Award.
17.2 The Plan Does Not Confer Rights to Assets: Neither the
Participant nor any person entitled to exercise the Participant's rights in
the event of the Participant's death shall have any rights to or interest in
any specific asset of the Company.
17.3 Plan Expenses: Any expenses of administering the Plan shall
be borne by the Company.
17.4 Use of Exercise Proceeds: Cash payments received from
Participants upon the exercise of Options shall be used for the general
corporate purposes of the Company.
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17.5 Indemnification: In addition to such other rights of
indemnification as they may have as members of the Board or the Committee,
the members of the Board and the Committee shall be indemnified by the
Company against all costs and expenses reasonably incurred by them in
connection with any action, suit or proceeding to which they or any of them
may be party by reason of any action taken or failure to act under or in
connection with the Plan or any Award granted thereunder, and 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 a judgment based upon a finding of bad faith; provided that upon the
institution of any such action, suit or proceeding, a Committee or Board
member shall, in writing, give the Company notice thereof and an opportunity,
at its own expense, to handle and defend the same before such Committee or
Board member undertakes to handle and defend it on such member's own behalf.
17.6 Governing Law: The Plan shall be construed and interpreted,
and the rights of the Company and Participants (and all other parties)
determined, in accordance with the internal laws of the State of New York,
without regard to the conflict of law principles thereof.
ARTICLE XVIII
Shareholder Approval and Effective Dates
18.1 The Plan shall become effective when it is adopted by the
Board. However, if (a) the Plan is not approved by the affirmative vote of
the holders of a majority of the Common Shares present, or represented by
proxy, and entitled to vote at the Annual Meeting of Shareholders of The
Seagram Company Ltd. to be held on May 29, 1996, or at any adjournment
thereof or (b) the necessary regulatory and stock exchange approvals are not
obtained within one year after the date the Plan is adopted by the Board, the
Plan and all Awards shall terminate. Awards may not be granted under the
Plan after the sixth anniversary of the Approval Date.
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APPENDIX A
TO
THE SEAGRAM COMPANY LTD.
1996 STOCK INCENTIVE PLAN
ADDITIONAL ARTICLES FOR THE GRANT OF APPROVED OPTIONS TO
UNITED KINGDOM PARTICIPANTS
ARTICLE XIX
Purpose
19.1 The purpose of these additional articles ("Additional
Articles") for UK Participants is to obtain Approved Option status in respect
of Options granted up to the Limit under the Plan to UK Participants. These
Additional Articles are to be read as a continuation of the Plan and only
modify the Plan in respect of the grant of Approved Options under the Plan to
UK Participants. These Additional Articles do not add to or modify the Plan
in respect of any other category of Participant.
19.2 The Committee has adopted these Additional Articles in
accordance with Section 15.3.
ARTICLE XX
Definitions
20.1 The definition of Award contained in Article II of the Plan
shall be modified to include Options only and shall be so construed
throughout the Plan.
20.2 The definition of Fair Market Value contained in Article II
of the Plan shall be modified so that if the Common Shares are not listed or
traded on the New York Stock Exchange, the Fair Market Value of a Common
Share shall be its market value as determined in accordance with Part VIII of
the UK Chargeable Gains Act 1992 and agreed in advance with the Shares
Valuation Division of the UK Board of Inland Revenue.
20.3 The definition of Option shall include "Approved Option"
unless the context otherwise requires.
20.4 The following additional capitalized terms used in the Plan
shall have the respective meanings set forth in this Section:
(a) Approved Option: An Option granted under the Plan up to the
Limit to a UK Participant while the Plan is approved by the
UK Board of Inland Revenue under Schedule 9 to the UK Act.
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(b) Limit: The Limit set out in paragraph 28(1) of Schedule 9
to the UK Act, which, at the time these Additional Articles
were adopted, was (Pound Sterling)30,000, and for purposes
of that paragraph, "market value" shall be construed in
accordance with paragraph 28(3) of Schedule 9 to the UK Act.
(c) UK Act: The United Kingdom Income and Corporation Taxes Act
1988.
(d) UK Participant: A key employee of the Company who has been
selected by the Committee to receive an Award under the Plan
and who is:
(i) resident in the UK for UK income tax purposes; and
(ii) is not ineligible to participate in the Plan by
virtue of paragraph 8 of Schedule 9 to the UK Act
(material interest provisions); and
(iii) if he a director of the Company, is required to work,
under the terms of his employment with the Company as
at the date of grant of the Option, for at least 25
hours per week (excluding meal breaks).
(e) Shares: Common Shares which satisfy the provisions of
paragraphs 10 to 14 inclusive of Schedule 9 to the UK Act.
ARTICLE XXI
Further Limitation on the Amount of Award Grants
21.1 No Approved Option shall be granted to a UK Participant in
excess of the Limit.
ARTICLE XXII
Eligibility
22.1 Section 5.1 shall be modified by inserting "who satisfy the
definition of UK Participant" at the end of that Section.
ARTICLE XXIII
Terms of Options
23.1 The first sentence of Section 6.2 shall be deleted and
replaced with the following:
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"The Committee shall determine, as at the date of grant of Approved Options,
the date after which such Options may be exercised in whole or in part;
provided, however, that an Approved Option shall not be exercised prior to
the Approval Date nor later than its Termination Date".
23.2 The second sentence of Section 6.2 shall not apply to
Approved Options.
23.3 An Approved Option may not be exercised by any person who is
precluded from participation in the Plan by virtue of paragraph 8 of Schedule
9 to the UK Act (material interest provisions).
23.4 The provisions of Section 6.4(b), (c) and (e) of the Plan
shall not apply to Approved Options.
23.5 The provisions of Section 6.4 shall read as follows:
"provided, however, that the Committee shall determine acceptable methods for
providing notice of exercise or for delivering irrevocable instructions to a
broker and may impose such limitations on instructions to a broker as it
deems appropriate."
23.6 The terms of an Approved Option shall not be amended without
the prior approval of the UK Board of Inland Revenue.
23.7 The appropriate number of Common Shares shall be allotted or
transferred (as the case may be) within 30 days following the exercise of an
Approved Option.
ARTICLE XXIV
Terms of Stock Appreciation
24.1 The provisions of Article VII shall not apply to Approved
Options.
ARTICLE XXV
Other Share-Based Awards
25.1 The provisions of Article VIII shall not apply to Approved
Options.
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ARTICLE XXVI
Dividend Equivalents
26.1 The provisions of Article IX shall not apply to Approved
Options.
ARTICLE XXVII
Award Agreements
27.1 The provisions of Section 10.1 shall be modified in relation
to Approved Options as follows:
(i) the word "objective" shall be inserted before
"provisions" in the third line; and
(ii) the last sentence thereof commencing with the words:
"Notwithstanding Section 6.4" shall be omitted
therefrom.
ARTICLE XXVIII
Nontransferability of Awards
28.1 Section 11.1 shall be modified by inserting at the end of
that Section: "provided that, in respect of Approved Options, no such
alternation shall be effective unless and until it is approved by the UK
Board of Inland Revenue".
ARTICLE XXIX
Cessation of Employment of Participant
29.1 The provisions of Section 12.4 shall be modified so that
upon the death of a UK Participant, Approved Options will be exercisable
until the earlier of: -
(i) the expiry of a period of 12 months following such
death; and
(ii) the Termination Date.
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ARTICLE XXX
Adjustments
30.1 Section 14.1 shall be modified so that in respect of
Approved Options:
(i) any adjustments made by the Committee pursuant to
this Section 14.1 shall be made only to the Option
Price and/or to the number of Common Shares subject
to Approved Options and only in the event of a
variation in the Common Stock; and
(ii) any adjustment to be made under this Section 14.1
shall be subject to prior approval of the UK Board of
Inland Revenue.
ARTICLE XXXI
Amendment and Termination of the Plan
31.1 Subject to the provisions of Article XV of the Plan, the
Board and the Committee may amend the Plan, but no such amendments shall
become effective with respect to Approved Options unless and until they are
approved by the UK Board of Inland Revenue.
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Exhibit 23(a)
CONSENT OF THE INDEPENDENT ACCOUNTANTS
OF THE SEAGRAM COMPANY LTD.
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 (No. 333-85485), of our report dated August 18, 1999
relating to the financial statements, which appears in the 1999 Annual Report
to Shareholders of The Seagram Company Ltd., which is incorporated by
reference in The Seagram Company Ltd.'s Annual Report on Form 10-K for the
year ended June 30, 1999. We also consent to the incorporation by reference
of our report dated August 18, 1999 relating to the financial statement
schedule, which appears in such Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
New York, New York
April 25, 2000
