<PAGE>
As filed with the Securities and Exchange Commission on July 3, 1996.
Registration No. 33-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CATALINA MARKETING CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 33-0499007
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
11300 9TH STREET NORTH 33716-2329
ST. PETERSBURG, FLORIDA (Zip Code)
(Address of Principal Executive Offices)
CATALINA MARKETING CORPORATION
DEFERRED COMPENSATION PLAN
(Full Title of Plan)
Philip B. Livingston Please address a copy of all communications to:
Chief Financial Officer
Catalina Marketing Corporation Barry A. Brooks
11300 9th Street North Paul, Hastings, Janofsky & Walker
St. Petersburg, Florida 33716 Thirty-First Floor
(Name and address of agent for service) 399 Park Avenue
New York, NY 10022-4697
Telephone: (212) 318-6000
(813) 579-5000
(Telephone number, including area code,
of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: By Catalina
Marketing Corporation in accordance with the terms of the Deferred Compensation
Plan after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
<PAGE>
CALCULATION OF REGISTRATION FEE
-------------------------------
===============================================================================
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(3) PER SHARE (3) PRICE (3) FEE
- -------------------------------------------------------------------------------
DEFERRED COMPENSATION
PLAN OBLIGATIONS (1) $20,000,000 100% $20,000,000 $6,897
COMMON STOCK
$0.01 PAR VALUE
PER SHARE (2) 350,000
===============================================================================
(1) The Registrant's Deferred Compensation Plan (the "Plan") Obligations are
unsecured obligations of the Registrant to pay benefits in the future in
accordance with the terms of the Plan to a select group of eligible
employees and directors.
(2) Represents the presumed maximum number of shares of the Registrant's common
stock, $0.01 par value per share (the "Common Stock"), that may be issued
and sold by the Registrant under the Plan. These shares will be issued for
no additional consideration and, therefore, no additional fee is required.
In accordance with Rule 416(a) under the Securities Act of 1933, as amended,
this Registration Statement also covers such indeterminable number of
additional shares as may become issuable to prevent dilution in the event of
stock splits, stock dividends or similar transactions pursuant to the terms
of the Plan.
(3) Estimated solely for the purpose of determining the registration fee.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the registration statement in accordance with
Rule 428 under the Securities Act of 1933 and the Note to Part I of Form S-
8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated herein by reference:
(a) The Registrant's annual report on Form 10-K for the fiscal year
ended March 31, 1996 filed pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act");
(b) The Registrant's current report on Form 8-K dated April 25, 1996
and Amendment No. 1 thereto filed pursuant to the Exchange Act;
(c) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Registrant's annual
report referred to in (a) above; and
(d) The description of the Registrant's common stock, $0.01 par value
per share (the "Common Stock"), contained in its registration statement on Form
8-A filed under Section 12 of the Exchange Act, including any amendments or
reports filed for the purpose of updating such description.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which de-registers all
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 filing of such documents. Any statement contained in the documents
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 statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Common Stock
------------
The shares of the Registrant's Common Stock being offered pursuant to
the Deferred Compensation Plan (the "Plan") have been registered under Section
12 of the Exchange Act.
<PAGE>
Deferred Compensation Plan Obligations
--------------------------------------
Pursuant to the terms of the Plan, eligible employees and directors (each a
"Participant") of the Registrant may defer a specified percentage of their
salary, bonus, commissions, director's fees, Option Profit (as defined in the
Plan) and stock grants received under the 1992 Director Grant Plan. Such
amounts deferred under the Plan are referred to herein as "Deferred Compensation
Plan Obligations". Deferred Compensation Plan Obligations of the Registrant
under the Plan will be unsecured general obligations of the Registrant to pay
the deferred compensation in the future in accordance with the terms of the Plan
and will rank equally with other unsecured and unsubordinated indebtedness of
the Registrant from time to time outstanding. Other than deferred amounts
invested in Common Stock unit accounts created under the Plan, the amounts of
salary, bonus, commissions and directors fees to be deferred by a Participant,
together with any matching contributions made by the Registrant, will be
invested in one or more investment alternatives selected by the deferring
Participant in accordance with the terms of the Plan. Investment alternatives
include a variety of stock and bond funds. Upon a payment event, amounts
deferred together with vested matching contributions will be denominated and
paid in United States dollars.
All stock grants and Option Profit deferred pursuant to the Plan will be
invested in Common Stock unit accounts maintained under the Plan. Further, a
Participant may elect to deposit fifty percent of any deferred bonus and
commissions into a Common Stock unit account. Directors may also elect to
invest deferred directors fees in Common Stock unit accounts. All such amounts
invested in Common Stock unit accounts will be credited with an amount equal to
each dividend declared and paid on shares of the Registrant's Common Stock,
which amount shall be deemed invested in Common Stock units. Such accounts
shall also be adjusted to take into account any stock dividend, stock split or
other similar transaction relating to the Registrant's Common Stock. Common
Stock unit accounts will not entitle Participants to vote on matters presented
to the stockholders of the Registrant. Upon a payment event under the Plan,
amounts invested in a Common Stock unit account will be paid in shares of Common
Stock of the Registrant.
Generally, the Deferred Compensation Plan Obligations are not subject to
withdrawal, in whole or in part, by Participants except upon certain specified
events, including termination of employment, retirement, disability or death.
The Deferred Compensation Plan Obligations are not subject to redemption by the
Registrant at its option, or through operation of any mandatory or optional
sinking fund or analogous provisions. The Registrant reserves the right to
amend or terminate the Plan at any time, except that no such event or
termination may adversely affect the right of a Participant to the balance of
his or her accounts as of the date of such amendment or termination.
Generally, a Participant's right or the right of any other person to
receive payment of the Deferred Compensation Plan Obligations cannot be
assigned, alienated, sold, garnished, transferred, pledged or encumbered except
by a written designation by a beneficiary under the Plan. However, if a
Participant is terminated for certain reasons as designated under the Plan, such
Participant will forfeit all matching contributions made by the Registrant under
the Plan which have not fully vested as of such time.
The Deferred Compensation Plan Obligations are not convertible into another
security of the Company; provided that amounts deposited in Common Stock unit
accounts maintained under the Plan will be paid in shares of Common Stock. The
Deferred Compensation Plan Obligations will not have the benefit of a negative
pledge or any other affirmative or negative covenant on the part of the
Registrant. No trustee has been appointed having the authority to take action
with respect to the Deferred Compensation Plan Obligations, and each Participant
will be responsible for acting independently with respect to, among other
things, the giving of notices,
<PAGE>
responding to any requests for consent waivers or amendments pertaining to the
Deferred Compensation Plan Obligations, enforcing covenants and taking action
upon a default.
The Registrant has established a "rabbi trust" to assist the
Registrant with its obligations to make payments under the Plan. Participants in
the Plan have no rights to any assets held by the rabbi trust, except as general
creditors of the Registrant. Assets of the rabbi trust will at all times be
subject to the claims of the Registrant's general creditors.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Restated Certificate of Incorporation and Restated
Bylaws include provisions to (i) eliminate the personal liability of its
directors for monetary damages resulting from breaches of their fiduciary duty
to the extent permitted by the General Corporation Law of Delaware (the
"Delaware Law") and (ii) require the Registrant to indemnify its directors and
officers to the fullest extent permitted by the Delaware Law, including under
circumstances in which indemnification is otherwise discretionary. The
Registrant believes that these provisions are necessary to attract and retain
qualified persons as directors and officers.
These provisions do not eliminate the directors' duty of care, and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief remain available under the Delaware Law. In addition,
each director is subject to liability for breach of the director's duty of
loyalty to the Registrant, for acts or omissions not in good faith or involving
intentional misconduct, for knowing violations of law, for actions leading to
improper personal benefit to the director and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful under the
Delaware Law. These provisions also do not affect a director's responsibilities
under any other laws, such as the federal securities laws or state or federal
environmental laws.
As permitted by its Restated Bylaws, the Registrant has entered into
agreements with its directors and officers that require the Registrant to
indemnify such persons against expenses, judgments, fines, settlements and other
amounts incurred (including expenses of a derivative action) in connection with
any proceeding to which any such person may be made a party by reason of the
fact that such person is or was a director or officer of the Registrant,
provided such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The exhibits filed as part of this Registration Statement are as
follows:
Exhibit Number Description of Exhibit
- -------------- ----------------------
4 The Catalina Marketing Corporation Deferred Compensation Plan.
5 Opinion of Paul, Hastings, Janofsky & Walker as to the legality of the
securities registered hereunder.
<PAGE>
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants,
relating to the use of their report contained in Registrant's Annual
Report on Form 10-K for the fiscal year ended March 31, 1996.
23.2 Consent of Paul, Hastings, Janofsky & Walker to the filing and use of
their opinion relating to the legality of the securities. Such
consent is contained in their opinion filed as Exhibit 5 to this
Registration Statement.
24 Power of Attorney authorizing Philip B. Livingston and George W. Off
to sign amendments to this Registration Statement on behalf of
officers and directors of the Registrant (contained on signature page
of Registration Statement).
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 to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to provisions pursuant to which the
directors, officers or controlling persons may be indemnified by the registrant
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of St. Petersburg, State of Florida, on this 1st day of
July, 1996.
CATALINA MARKETING CORPORATION
(REGISTRANT)
BY: /S/ PHILIP B. LIVINGSTON
-----------------------------------------
Philip B. Livingston,
Senior Vice President and Chief Financial
Officer
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Philip B. Livingston and George W. Off, jointly
and severally, his or her attorneys-in-fact, each with power of substitution for
him or her in any and all capacities, to sign any amendments to this
Registration Statement, and to file the same, with the exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission hereby ratifying and confirming all that each of said attorneys-in-
fact, or his substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
- ---------------------------- ------------------------------- ------------
/s/ Tommy D. Greer Chairman of the Board July 1, 1996
- ----------------------------
Tommy D. Greer
/s/ George W. Off Chief Executive Officer, July 1, 1996
- ---------------------------- President and Director
George W. Off (Principal Executive and
Operating Officer)
/s/ Phillip B. Livingston Senior Vice President and July 1, 1996
- ---------------------------- Chief
Philip B. Livingston Financial Officer
/s/ Robert A. Busch Corporate Controller and July 1, 1996
- ---------------------------- Principal Accounting Officer
Robert A. Busch
/s/ Frank H. Barker Director July 1, 1996
- ----------------------------
Frank H. Barker
/s/ Frederick W. Beinecke Director July 1, 1996
- ----------------------------
Frederick W. Beinecke
/s/ Patrick W. Collins Director July 1, 1996
- ----------------------------
Patrick W. Collins
<PAGE>
/s/ Stephen I. D'Agostino Director July 1, 1996
- ----------------------------
Stephen I. D'Agostino
Director , 1996
- ---------------------------- ------
Thomas G. Mendell
/s/ Helene Monat Director July 1, 1996
- ----------------------------
Helene Monat
Director , 1996
- ---------------------------- ------
Thomas W. Smith
/s/ Michael B. Wilson Director July 1, 1996
- ----------------------------
Michael B. Wilson
<PAGE>
EXHIBIT INDEX
--------------
Exhibit Description
------- -----------
4 The Catalina Marketing Corporation Deferred Compensation Plan.
5 Opinion of Paul, Hastings, Janofsky & Walker as to the legality of the
Securities registered hereunder.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants,
relating to the use of their report contained in Registrant's Annual
Report on Form 10-K for the fiscal year ended March 31, 1996.
23.2 Consent of Paul, Hastings, Janofsky & Walker to the filing and use of
their opinion relating to the legality of the securities. Such
consent is contained in their opinion filed as Exhibit 5 to this
Registration Statement.
24 Power of Attorney authorizing Philip B. Livingston and George W. Off
to sign amendments to this Registration Statement on behalf of
officers and directors of the Registrant (contained on signature page
of Registration Statement).
<PAGE>
CATALINA MARKETING CORPORATION
DEFERRED COMPENSATION PLAN
EFFECTIVE JULY 1, 1996
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I Definitions............................. 3
1.1 "Account or Accounts"................... 3
1.2 "Annual Meeting"........................ 3
1.3 "Annual Meeting Year"................... 3
1.4 "Beneficiary"........................... 3
1.5 "Beneficiary Designation Form".......... 4
1.6 "Board"................................. 4
1.7 "Bonus"................................. 4
1.8 "Cause"................................. 4
1.9 "Change in Control"..................... 4
1.10 "Claimant".............................. 5
1.11 "Code".................................. 5
1.12 "Common Stock".......................... 5
1.13 "Committee"............................. 5
1.14 "Company"............................... 5
1.15 "Deferral".............................. 5
1.16 "Director".............................. 6
1.17 "Director Fees"......................... 6
1.18 "Disability"............................ 6
1.19 "Dividend".............................. 6
1.20 "Earnings".............................. 6
1.21 "Effective Date"........................ 6
1.22 "Election Form"......................... 6
1.23 "Employee".............................. 7
1.24 "ERISA"................................. 7
1.25 "Exchange Act".......................... 7
1.26 "Fair Market Value"..................... 7
1.27 "Non-Qualified Stock Option"............ 7
1.28 "Normal Retirement Date"................ 7
1.29 "Option Profit"......................... 7
1.30 "Participant"........................... 7
1.31 "Plan".................................. 8
1.32 "Plan Administrator".................... 8
1.33 "Plan Agreement"........................ 8
1.34 "Plan Rules"............................ 8
1.35 "Plan Year"............................. 8
1.36 "Related Employer"...................... 8
1.37 "Rule 16b-3"............................ 8
1.38 "Salary"................................ 8
1.39 "Stock Grants".......................... 8
1.40 "Stock Units"........................... 9
1.41 "Termination of Employment"............. 9
1.42 "Trust"................................. 9
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Page
----
1.43 "Unforeseeable Financial Emergency"..... 9
1.44 "Valuation Date"........................ 9
1.45 "Vested"................................ 9
1.46 "Year of Service"....................... 9
ARTICLE II Eligibility and Participation........... 9
2.1 Selection............................... 9
2.2 Participation........................... 10
ARTICLE III Deferral Elections...................... 10
3.1 Cash Deferral Amount.................... 10
3.2 Elections to Defer Cash................. 10
3.3 Stock Grants Deferrals.................. 11
3.4 Stock Grants Elections.................. 11
3.5 Option Profit Deferrals................. 11
3.6 Option Profit Elections................. 11
3.7 Withholding of Deferral Amounts......... 11
3.8 Irrevocable Elections................... 12
3.9 Unforeseeable Financial Emergency....... 12
3.10 Election Forms.......................... 12
ARTICLE IV Common Stock Account.................... 12
4.1 Deferral Amounts........................ 12
4.2 Credited Amounts........................ 12
4.3 Irrevocable Choice...................... 13
4.4 Elections by Certain Officers
and Directors........................... 13
ARTICLE V Company Matching Contributions.......... 13
5.1 Matching Contributions.................. 13
5.2 Discretionary Contributions............. 14
5.3 Limitations............................. 14
ARTICLE VI Participant Accounts and Investment of
Deferred Amounts........................ 14
6.1 Deferred Compensation Account........... 14
6.2 Common Stock Account.................... 14
6.3 Matching Contribution Account........... 15
6.4 Discretionary Contribution Account...... 15
6.5 Earnings................................ 15
6.6 Investment.............................. 15
6.7 Valuation of Accounts................... 16
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Page
----
6.8 Statement of Accounts.................. 16
ARTICLE VII In Service Distributions............... 17
7.1 Distributions for Unforeseeable
Financial Emergencies................... 17
7.2 Withdrawal Election..................... 17
ARTICLE VIII Loans................................... 16
8.1 Loans to Participants................... 16
ARTICLE IX Distributions Following Termination of
Employment.............................. 19
9.1 Distribution............................ 19
9.2 Elections............................... 19
9.3 Time for Payment........................ 19
9.4 Small Payments.......................... 19
9.5 Cashout of Installment Payments......... 20
9.6 Form of Payment......................... 20
9.7 Restrictions on Common Stock............ 20
ARTICLE X Distributions Following Death........... 20
10.1 Death While Employed by Employer Group.. 20
10.2 Death After Termination of Employment... 21
10.3 Lump Sum Election....................... 21
10.4 Form of Payment......................... 21
10.5 Restrictions on Common Stock............ 21
ARTICLE XI Beneficiary Designation................. 22
11.1 Beneficiary............................. 22
11.2 Beneficiary Designation; Change;
Spousal Consent......................... 22
11.3 No Beneficiary Designation.............. 22
11.4 Doubt as to Beneficiary................. 22
ARTICLE XII Vesting................................. 23
12.1 Vesting Schedules....................... 23
12.2 Deferred Compensation Account........... 23
12.3 Vesting Schedule for Pre-January
1, 1997 Additions to the
Matching Contribution and
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<PAGE>
Page
----
Discretionary Contribution Accounts.............. 23
12.4 Vesting Schedule for Additions to the Matching
Contribution and Discretionary Contribution
Accounts on or after January 1, 1997............. 23
12.5 Accelerated Vesting.............................. 23
12.6 Forfeitures Upon Termination of Employment....... 24
ARTICLE XIII Administration................................... 24
13.1 Plan Administrator............................... 24
13.2 Committee........................................ 25
13.3 Plan Administrator's Authority................... 25
ARTICLE XIV Amendment and Termination........................ 25
14.1 Amendments....................................... 25
14.2 Termination of Plan.............................. 25
14.3 Following a Change in Control.................... 26
ARTICLE XV Claims Procedures................................ 26
15.1 Presentation of Claim............................ 26
15.2 Notification of Decision......................... 26
15.3 Review of a Denied Claim......................... 27
15.4 Arbitration...................................... 27
15.5 Legal Action..................................... 28
15.6 Following a Change in Control.................... 28
ARTICLE XVI Trust............................................ 28
16.1 Establishment of Trust........................... 28
16.2 Interrelationship of the Plan and the Trust...... 28
ARTICLE XVII Miscellaneous.................................... 28
17.1 Unsecured General Creditor/Unfunded Plan......... 28
17.2 Payments to Minors and Incompetents.............. 29
17.3 Plan Not a Contract of Employment................ 29
17.4 No Interest In Assets............................ 29
17.5 Recordkeeping.................................... 29
17.6 Notice........................................... 29
-iv-
<PAGE>
Page
----
17.7 Successors............................................ 30
17.8 Spouse's Interest..................................... 30
17.9 Taxes and Withholding................................. 30
17.10 Legal Fees to Enforce Rights After Change in Control.. 30
17.11 Court Order........................................... 31
17.12 Furnishing Information................................ 31
17.13 Non-Alienation of Benefits............................ 31
17.14 Governing Law......................................... 31
17.15 Section 16............................................ 31
17.16 Liability Limited..................................... 32
-v-
<PAGE>
CATALINA MARKETING CORPORATION
DEFERRED COMPENSATION PLAN
EFFECTIVE JULY 1, 1996
PURPOSE
Catalina Marketing Corporation (the "Company") hereby amends and
restates the Catalina Marketing Corporation Deferred Compensation Plan (the
"Plan") effective as of July 1, 1996. The Plan was originally effective as of
January 1, 1992. The Plan has been established for the benefit of a select
group of management personnel and directors to ensure that the overall
effectiveness of the Company's and its Related Employers' compensation program
will attract, retain and motivate qualified individuals. The Plan is intended
to provide certain key employees and directors who substantially contribute to
the success of the Company and its Related Employers the opportunity to defer
the receipt of compensation.
The Plan is a non-qualified deferred compensation plan and is designed
to permit select employees and directors of the Company to defer a portion of
their compensation to provide retirement, death and disability benefits. The
Company intends to match participants' contributions.
The Company intends to make contributions to the Catalina Marketing
Corporation Deferred Compensation Trust (the "Trust") in amounts necessary to
fund the benefits provided in the Plan. The assets of the Trust shall be
general assets of the Company and shall be subject to the claims of the general
creditors of the Company.
While the Company intends to continue the Plan, it reserves the right
to terminate the Plan, in whole or in part, at any time. Benefits under the
Plan shall at all times be subject to the claims of the Company's general
creditors. Therefore, neither participation in the Plan nor eligibility
therefore shall entitle any employee or director to have the Plan or any of its
provisions continued for his or her benefit in the future.
The Plan systematically operates to defer the income of employees and
directors for periods extending to
-2-
<PAGE>
termination of employment or beyond, and therefore, is subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). Accordingly,
federal law shall govern this Plan. However, the Plan is not intended to
qualify under Section 401(a) of the Internal Revenue Code and similar provisions
of state law. Finally, the Plan is unfunded and is maintained by the Company
primarily for the purpose of providing deferred compensation for a select group
of management or highly compensated employees, and therefore, is exempt from the
participation, vesting, funding and fiduciary responsibility requirements of
parts 2, 3 and 4 of Title I of ERISA.
ARTICLE I
---------
DEFINITIONS
-----------
For purposes hereof, unless otherwise clearly apparent from the
context, the following phrases or terms shall have the following indicated
meanings:
1.1 "ACCOUNT OR ACCOUNTS" shall mean, with respect to a Participant
other than a Director, the (i) the Deferred Compensation Account, (ii) Common
Stock Account, (iii) Matching Contribution Account and (iv) Discretionary
Contribution Account established pursuant to Article VI and, with respect to a
Participant who is a Director, the (i) Deferred Compensation Account and (ii)
Common Stock Account. These Accounts shall be bookkeeping entries only and
shall be utilized solely as a device for the measurement and determination of
the amounts to be paid to a Participant pursuant to this Plan. The Deferred
Compensation and Common Stock Accounts shall be fully vested at all times and
the Matching Contribution Account and the Discretionary Contribution Account
shall vest in accordance with Article XII.
1.2 "ANNUAL MEETING" shall mean the annual meeting of the Company's
stockholders.
1.3 "ANNUAL MEETING YEAR" shall mean the one year period beginning
on the date of an Annual Meeting.
1.4 "BENEFICIARY" shall mean one or more persons, trusts, estates
or other entities, designated in accordance with Article XI to receive benefits
under this Plan upon the death of a Participant.
-3-
<PAGE>
1.5 "BENEFICIARY DESIGNATION FORM" shall mean the form established
from time to time by the Plan Administrator that a Participant completes, signs
and returns to the Plan Administrator to designate one or more Beneficiaries,
which shall be substantially in the form set forth in Exhibit "A".
1.6 "BOARD" shall mean the Board of Directors of the Company.
1.7 "BONUS" shall mean bonuses and commissions paid in the calendar
year in question to a Participant for employment services rendered to the
Company, before reduction for compensation contributed to or deferred under any
Company benefit plan.
1.8 "CAUSE" shall mean the following (i) the Participant's refusal
to follow written, lawful directions or his or her material failure to perform
his or her duties, in either case, after the Participant has been given notice
and a reasonable opportunity to cure his or her default; (ii) the Participant's
material failure to comply with Company policies, such as those set forth in the
Catalina Marketing Corporation Handbook, as amended from time to time, and any
confidentiality agreement executed by the Participant and the Company; or (iii)
the Participant's engaging in conduct which is or may be unlawful or
disreputable, to the possible detriment of the Company, any of its affiliates,
or the Participant's own reputation.
1.9 "CHANGE IN CONTROL" shall mean a change in control of the
Company, which shall be deemed to have occurred if the conditions set forth in
any one of the following four paragraphs shall have been satisfied:
(i) any corporation, person, other entity or group, (other than
the trustee of any qualified retirement plan maintained by the Company)
becomes the "beneficial owner" (as defined in Rule 13(d)-3 of the Exchange
Act), directly or indirectly, of securities representing twenty five
percent (25%) or more of the combined voting power of the Company's then
outstanding securities; or
(ii) during any period of twenty-four consecutive months,
individuals who at the beginning of such consecutive twenty-four month
period constitute the Board cease for any reason (other than retirement
upon reaching normal retirement age, disability or
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death) to constitute at least a majority thereof, unless the election or
the nomination for election by the Company's shareholders of each new
director was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of such twenty-
four month period;
(iii) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least 80% of the combined voting
power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the
shareholders of the Company approve a plan or complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all
or substantially all the Company's assets;
(iv) there shall occur a transaction or series of transactions
which the Board shall determine to have the effect of a Change in Control.
1.10 "CLAIMANT" shall have the meaning set forth in Section 15.1,
below.
1.11 "CODE" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
1.12 "COMMON STOCK" shall mean the Common Stock, par value $0.01 of
the Company or any security of the Company issued in substitution, exchange or
lieu thereof.
1.13 "COMMITTEE" shall mean the administrative committee appointed
to manage and administer the Plan in accordance with the provisions of Article
XIII.
1.14 "COMPANY" shall mean Catalina Marketing Corporation and its
successors.
1.15 "DEFERRAL" shall mean the Salary, Bonus and Director Fees that
a Participant defers in accordance with Article III for the deferral period in
question.
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<PAGE>
1.16 "DIRECTOR" shall mean a member of the Board.
1.17 "DIRECTOR FEES" shall mean cash meeting fees paid to Directors
for services to the Company.
1.18 "DISABILITY" shall mean a period of disability that commences
while a Participant is employed by the Company or a Related Employer and during
which the Participant qualifies for benefits under a long-term disability plan
of the Company or the Related Employer, or, if the Participant does not
participate in such a plan, a period of disability during which the Participant
would have qualified for benefits under such a plan, as determined in the sole
discretion of the Plan Administrator, had the Participant been a participant in
such a plan. A Disability shall be deemed to have occurred on the date on which
it is determined that the Participant qualifies (or would have qualified) for
such benefits. The significance under this Plan of a Participant suffering a
Disability is that the Participant (i) shall be deemed to have had a Termination
of Employment, which shall cause his or her Account to be distributed pursuant
to Article IX and (ii) the Participant's Account shall become fully Vested
pursuant to Article XII.
1.19 "DIVIDEND" shall mean a dividend declared and paid by the
Company on the Common Stock.
1.20 "EARNINGS" shall mean the amount credited to a Participant's
Account based on the earnings attained by the Trustee on the investment of the
amounts held by the Trust, and any amount credited to the Common Stock Account
pursuant to Section 6.2 which is attributable to a Dividend. Until distributed
to the Participant, Earnings are solely the property of the Company and shall be
subject to the rights of the Company's general creditors.
1.21 "EFFECTIVE DATE" of the Plan shall mean, as amended and
restated, July 1, 1996, and with respect to Article IV and Sections 3.3, 3.4,
3.5 and 3.6, July 1, 1996 subject to approval by the Company's shareholders at
the 1996 Annual Meeting.
1.22 "ELECTION FORM" shall mean the form established from time to time
by the Plan Administrator that a Participant completes, signs and returns to the
Plan Administrator to make a deferral election under the Plan, which shall be
substantially in the form of the Agreement
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set forth in Exhibit "B" for an Employee and Exhibit "C" for a Director.
1.23 "EMPLOYEE" shall mean an individual who renders services to the
Company or a Related Employer as a common law employee (I.E., a person whose
----
wages from the Company are subject to federal income tax withholding).
1.24 "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
1.25 "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended and in effect from time to time, or any successor statute.
1.26 "FAIR MARKET VALUE" shall mean the closing price on the New
York Stock Exchange - Composite Tape of the Common Stock on the date(s) in
question, or, if the Common Stock shall not have been traded on any such
date(s), the closing price on the New York Stock Exchange - Composite Tape on
the first day prior thereto on which the Common Stock was so traded or if the
Common Stock is not traded on the New York Stock Exchange, such other amount as
may be determined by the Committee by any fair and reasonable means. Fair
Market Value determined by the Committee in good faith shall be final, binding
and conclusive on all parties.
1.27 "NON-QUALIFIED STOCK OPTION" shall mean an award to purchase
shares of Common Stock that is not an incentive stock option under Section 422
of the Code and is granted pursuant to the provisions of any of the Company's
stock option plans which grant the optionee the ability to elect to defer the
Spread under this Plan.
1.28 "NORMAL RETIREMENT DATE" shall mean the date a Participant
attains age 65.
1.29 "OPTION PROFIT" shall mean the amount (not less than zero) by
which the Fair Market Value of a share of Common Stock subject to the Non-
Qualified Stock Option on the date of the Participant's exercise of the Non-
Qualified Stock Option exceeds the exercise price of a Non-Qualified Stock
Option.
1.30 "PARTICIPANT" shall mean any Employee or Director who is
covered by this Plan as provided in Article II.
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<PAGE>
1.31 "PLAN" shall mean the Catalina Marketing Corporation Deferred
Compensation Plan hereby created and as it may be amended form time to time.
1.32 "PLAN ADMINISTRATOR" shall mean the Committee or Plan
Administrator, if appointed pursuant to Section 13.2.
1.33 "PLAN AGREEMENT" shall mean a written agreement, as amended
from time to time, which is entered into by and between the Company and a
Participant, which shall be substantially in the form of the Agreement set forth
in Exhibit "D". Each such Agreement incorporates the Plan by reference and each
such Agreement is hereby incorporated into the Plan by reference with respect to
the Participant who is a party thereto.
1.34 "PLAN RULES" shall mean rules adopted by the Company in
accordance with Section 13.1(g) for the administration, interpretation or
application of the Plan. See Exhibit "E" for details on Plan Rules.
1.35 "PLAN YEAR" shall mean the 12-month period ending on December
31.
1.36 "RELATED EMPLOYER" shall mean an affiliate (and its successors)
of the Company, related to the Company in the manner described in Sections
414(b) or (c) of the Code, that the Plan Administrator in its sole discretion
allows to participate in the Plan.
1.37 "RULE 16B-3" shall mean Rule 16b-3 of the General Rules and
Regulations of the Exchange Act (or any successor rule or regulation).
1.38 "SALARY" shall mean base salary paid in the calendar year in
question to a Participant for services rendered to the Company, before reduction
for compensation contributed to or deferred under any Company benefit plan. In
no event shall severance benefits of any type be taken into account in computing
a Participant's Salary.
1.39 "STOCK GRANTS" shall mean an award of Common Stock granted to a
Director pursuant to the 1992 Director Stock Grant Plan or any successor plan
that allows the Director to elect to defer the receipt of the stock grant under
this Plan.
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<PAGE>
1.40 "STOCK UNITS" shall mean units in the Plan each of which
represent a share of Common Stock.
1.41 "TERMINATION OF EMPLOYMENT" shall mean a Participant's
cessation of employment or service with the Company or a Related Employer
voluntarily or involuntarily, for any reason other than death.
1.42 "TRUST" shall mean the one (1) or more grantor, or "rabbi",
trusts, within the meaning of Code Section 671 that may be established between
the Company and the trustee (or trustees) named therein. Despite the existence
of such a trust, this Plan is technically an unfunded plan for tax purposes and
for purposes of Title I of ERISA.
1.43 "UNFORESEEABLE FINANCIAL EMERGENCY" shall mean an unanticipated
emergency that is caused by an event beyond the control of the Participant that
would result in severe financial hardship to the Participant resulting from (i)
a sudden and unexpected illness or accident of the Participant or a dependent of
the Participant, (ii) a loss of the Participant's property due to casualty, or
(iii) other such extraordinary and unforeseeable circumstances, all as
determined in the sole discretion of the Plan Administrator.
1.44 "VALUATION DATE" shall mean any date for which the balance to
the credit of the Account maintained for a Participant is determined.
1.45 "VESTED" shall mean nonforfeitable.
1.46 "YEAR OF SERVICE" shall mean the 12-consecutive month period
beginning with a Participant's date of hire by the Company or a Related
Employer, or in the case of a Director, the date he or she was appointed to the
Board, and each 12-consecutive month period that begins with the anniversary
date of the Participant's date of hire or Board appointment.
ARTICLE II
----------
ELIGIBILITY AND PARTICIPATION
-----------------------------
2.1 SELECTION. Participation in the Plan shall be limited to (i) a
---------
select group of management or highly compensated Employees and (ii) the
Directors. From the
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<PAGE>
select group of Employees, the Plan Administrator, in its sole discretion, shall
determine those Employees eligible to participate in the Plan. Accordingly, an
Employee who, in the opinion of the Plan Administrator based upon its then
current guidelines, has contributed significantly to the growth and successful
operations of the Company or a Related Employer and who meets any additional
criteria for eligibility that the Plan Administrator, in its sole discretion,
may adopt from time to time, will be eligible to become a Participant.
2.2 PARTICIPATION. Once a selected Employee or Director has filed
-------------
with the Plan Administrator (within the time it requires) an executed copy of
the Plan Agreement prescribed by the Plan Administrator, the Employee or
Director shall become a Participant on the latest of the date set forth in the
Plan Agreement, the date on which his or her Plan Agreement is filed with the
Plan Administrator or the date upon which a deferral is first credited to his or
her Account.
ARTICLE III
-----------
DEFERRAL ELECTIONS
------------------
3.1 CASH DEFERRAL AMOUNT. A Participant may elect to defer all or
--------------------
any part of his or her anticipated Salary, Bonus and Director Fees.
3.2 ELECTIONS TO DEFER CASH. In connection with a Participant's
-----------------------
commencement of participation in the Plan, the Participant may make a deferral
election by delivering to the Plan Administrator a completed and signed Election
Form at the same time the Participant files his or her completed and signed Plan
Agreement with the Plan Administrator. Thereafter, if the Participant wishes to
commence or discontinue making a Deferral, or to change the amount of his or her
Deferral, the Participant must file a new Election Form with the Plan
Administrator 30 days before the beginning of the (a) Plan Year for changes to
the Deferral of a Participant's Bonus, (b) calendar quarter (i.e. January 1,
April 1, July 1 or October 1) for changes to the Deferral of a Participant's
Salary, or (c) Board meeting or Board committee meeting with respect to which
the election is made for changes to the Deferral of Director Fees, which shall
supersede any prior Election Form.
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<PAGE>
3.3 STOCK GRANTS DEFERRALS. A Director may elect to defer all or any
----------------------
part of his or her anticipated Stock Grants.
3.4 STOCK GRANTS ELECTIONS. A Director may commence or discontinue
----------------------
making a Stock Grants deferral, or change the amount of his or her deferral by
filing an Election Form with the Plan Administrator prior to any Annual Meeting
at which his or her election or reelection to the Board will be considered (at
which the Stock Grant would be made), which shall supersede any prior Election
Form. Elections to defer Stock Grants shall be effective only with respect to
Stock Grants made to a Director following the Effective Date. Notwithstanding
anything to the contrary contained in this Section, a Stock Grants deferral and
election shall be subject to any additional requirements, such as vesting,
imposed by the plan under which the Stock Grant is granted to the Director.
3.5 OPTION PROFIT DEFERRALS. A Participant may elect to defer all
-----------------------
or any part of his or her Option Profit on the exercise of a Non-Qualified Stock
Option, but only if the Participant paid the exercise price of the Non-Qualified
Stock Option with Common Stock that, as of the date of exercise, the Participant
had held for at least six months.
3.6 OPTION PROFIT ELECTIONS. A Participant may make an Option
-----------------------
Profit deferral by filing an Election Form with the Plan Administrator at least
one year prior to the date the Non-Qualified Stock Option vests. With respect
to Non-Qualified Stock Options that are vested as of the Effective Date or will
become vested within one year after the Effective Date, a Participant may make
an Option Profit deferral within sixty days of the Effective Date.
Notwithstanding anything to the contrary contained in this Section, an Option
Profit deferral and election shall be subject to any additional requirements
imposed by the plan under which the Non-Qualified Stock Option is granted to the
Participant.
3.7 WITHHOLDING OF DEFERRAL AMOUNTS. A Participant's deferrals
-------------------------------
shall be withheld as specified in the Participant's Election Form, subject to
any rules established by the Plan Administrator limiting or prescribing how
deferrals are to be withheld, such as rules requiring that deferrals first be
made out of commission or incentive compensation.
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<PAGE>
3.8 IRREVOCABLE ELECTIONS. Except as provided in Section 3.9, any
---------------------
election by a Participant pursuant to Section 3.1 shall be irrevocable for any
Plan Year or Annual Meeting Year once the Plan Year or Annual Meeting Year has
begun. Any deferral election will continue until revoked or modified in a
writing delivered by the Participant to the Plan Administrator, which revocation
or modification shall only apply to compensation payable to the Participant
after the end of the Plan Year or Annual Meeting Year in which such election is
delivered to the Plan Administrator. Except as provided in Section 3.9, any
election by a Participant made pursuant to Sections 3.3 and 3.5 shall be
irrevocable.
3.9 UNFORESEEABLE FINANCIAL EMERGENCY. If a Participant suffers an
---------------------------------
Unforeseeable Financial Emergency, the Participant will be permitted to revoke
his deferral election for the remainder of the Plan Year in which it is
determined by the Plan Administrator that the Unforeseeable Financial Emergency
has occurred.
3.10 ELECTION FORMS. Any election by a Participant under this
--------------
Article shall be made on an Election Form (the terms of which are incorporated
herein by reference).
ARTICLE IV
----------
COMMON STOCK ACCOUNT
--------------------
4.1 DEFERRAL AMOUNTS. The amount of deferrals made pursuant to
----------------
Article III which may be credited to the Common Stock Account will be determined
in the sole discretion of the Plan Administrator in accordance with Plan Rules
it establishes. Unless modified by subsequent Plan Rules, a Participant may
elect to defer up to 50% of his or her Bonus (not to exceed $100,000 in any Plan
Year) and a Director may elect to defer up to 100% of his or her Director Fees
into the Common Stock Account. Unless modified by subsequent Plan Rules, the
entire amount of the Stock Grants and the Option Profit subject to a
Participant's deferral election shall be credited to the Common Stock Account.
4.2 CREDITED AMOUNTS. The Participant's Common Stock Account will
----------------
be credited with a number of Stock Units equal to the following amounts:
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Bonus the amount of the Bonus deferral divided by the average
Fair Market Value on the five business days preceding the
date the Participant's Bonus is otherwise payable
Director the amount of the Director Fees
Fees deferral divided by the Fair Market Value on the five
business days preceding the date the Director Fees are
otherwise payable
Stock the number of shares of Common Stock deferred by a
Grants Participant from a Stock Grants award when the shares
are otherwise payable (I.E., on the date of vesting)
----
Option the amount of the Option Profit
Profit deferral divided by the Fair Market Value on the date of
exercise of the Non-Qualified Stock Option
The amounts shall be credited on the date the Bonus, Director Fees, Stock Grants
and Option Profit would otherwise be payable to the Participant.
4.3 IRREVOCABLE CHOICE. Amounts credited to the Common Stock
------------------
Account will remain in this Account until distribution is made to the
Participant or Beneficiary pursuant to this Plan.
4.4 ELECTIONS BY CERTAIN OFFICERS AND DIRECTORS. With respect to
-------------------------------------------
persons subject to Section 16 of the Exchange Act, and to the extent required by
such section, such individuals must make any election under this Article
pursuant to an irrevocable election at least six (6) months in advance of the
effective date of the transaction.
ARTICLE V
---------
COMPANY MATCHING CONTRIBUTIONS
------------------------------
5.1 MATCHING CONTRIBUTIONS. The Company will credit each
----------------------
Participant's Matching Contribution Account with a matching contribution based
upon his Salary and Bonus deferrals, as follows:
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<PAGE>
PERCENTAGE OF COMPENSATION DEFERRED MATCHING PERCENTAGE
----------------------------------- -------------------
The first 2% of Salary and 100%
Bonus
The next 2% of Salary 25%
and Bonus
In no event shall a matching contribution be made with respect to a
Participant's deferral amount that exceeds 4% of his or her Salary and Bonus.
5.2 DISCRETIONARY CONTRIBUTIONS. As of each Plan Year, the Company
---------------------------
may, in its sole discretion, credit a Participant's Discretionary Contribution
Account with a discretionary contribution in an amount to be determined by the
Company in its sole discretion.
5.3 LIMITATIONS. Matching contributions shall not be made on
-----------
deferrals of Option Profit, Stock Grants or Director Fees.
ARTICLE VI
----------
PARTICIPANT ACCOUNTS AND INVESTMENT OF DEFERRED AMOUNTS
-------------------------------------------------------
6.1 DEFERRED COMPENSATION ACCOUNT. Deferrals pursuant to this Plan
-----------------------------
shall be recorded by the Plan Administrator in a Deferred Compensation Account
maintained in the name of the Participant. The Deferred Compensation Account
shall be credited with all amounts that have been deferred by the Participant
during the Plan Year, plus Earnings and such account shall be charged from time
to time with all amounts that are distributed to the Participant.
6.2 COMMON STOCK ACCOUNT.
--------------------
(a) Deferrals made pursuant to Article IV and Sections 3.3, 3.4, 3.5
and 3.6 shall be recorded by the Plan Administrator in the Common Stock Account
which shall be invested solely in Stock Units. The Common Stock Account shall
be credited with all amounts that have been deferred by the Participant and
Earnings thereon. In addition, in the event the Company declares and pays a
Dividend, the Common Stock Account shall be credited with a number of Stock
Units equal to (a) the amount of the Dividend paid on the number of shares of
Common Stock equal to the number of Stock Units in the Participant's Vested
Common Stock
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<PAGE>
Account, divided by (b) the Fair Market Value of the Common Stock on the date
the Dividend is declared. Finally, the Common Stock Account shall be charged
from time to time with all amounts that are distributed to the Participant.
(b) In the event of any change in the outstanding shares of Common
Stock by reason of an issuance of additional shares, recapitalization,
reclassification, reorganization, stock split, reverse stock split, combination
of shares, stock dividend or similar transaction, the Committee shall
proportionately adjust, in an equitable manner, the number of Stock Units in
each Participant's Common Stock Account. The foregoing adjustment shall be made
in a manner that will cause the relationship between the aggregate appreciation
in outstanding Common Stock and earnings per share of the Company and the
increase in value of each Stock Unit in the Common Stock Account to remain
unchanged as a result of the applicable transaction.
6.3 MATCHING CONTRIBUTION ACCOUNT. Company matching contributions
-----------------------------
credited to a Participant pursuant to this Plan shall be recorded by the Plan
Administrator in a Matching Contribution Account maintained in the name of the
Participant. The Matching Contribution Account shall be credited with all
amounts that have been contributed by the Company during the Plan Year and such
account shall be charged from time to time with all amounts that are distributed
to the Participant.
6.4 DISCRETIONARY CONTRIBUTION ACCOUNT. Company discretionary
----------------------------------
contributions, if any, credited to a Participant pursuant to this Plan shall be
recorded by the Plan Administrator in a Discretionary Contribution Account
maintained in the name of the Participant. The Discretionary Contribution
Account shall be credited with all amounts that have been contributed by the
Company during the Plan Year and such account shall be charged from time to time
with all amounts that are distributed to the Participant.
6.5 EARNINGS. A Participant's Account shall be credited with
--------
Earnings daily, except that additional Stock Units credited to the Common Stock
Account attributable to a Dividend (pursuant to Section 6.2) shall be credited
on the date the Dividend is paid.
6.6 INVESTMENT. The Plan Administrator may permit a Participant
----------
(or Beneficiary) to have the right to
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direct the investment of all or any part of the Trust allocable to his or her
Accounts, excluding amounts credited to the Participant's Common Stock Account,
provided that such amounts are currently available for investment purposes
subject to the Plan Administrator's final determination. Such directions to
invest are subject to all of the following:
(a) All directions to invest must be made in writing, or in accordance
with procedures established by the Plan Administrator for telephone direction.
(b) All directions to invest are limited to investment options
selected by the Plan Administrator.
(c) All directions to invest are subject to the approval of the
Plan Administrator.
(d) All interest and other income earned on investments directed by
the Participant shall be accumulated and added to the principal for the
Participant's benefit.
(e) The Plan Administrator and Trustee shall not be responsible for
any loss incurred as the result of the Participant's direction to invest.
6.7 VALUATION OF ACCOUNTS. As of each Valuation Date, a
---------------------
Participant's Account shall consist of the balance of the Participant's Account
as of the last preceding Valuation Date, plus the Participant's deferrals and
contributions by the Company credited to the Account, plus Earnings on the
Account, minus the amount of any distributions made since the immediately
preceding Valuation Date.
6.8 STATEMENT OF ACCOUNTS. The Plan Administrator shall submit to
---------------------
each Participant, within ninety (90) days after the close of each Plan Year and
at such other time as determined by the Plan Administrator, a statement setting
forth the balance to the credit of the Account maintained for a Participant.
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ARTICLE VII
-----------
IN SERVICE DISTRIBUTIONS
------------------------
7.1 DISTRIBUTIONS FOR UNFORESEEABLE FINANCIAL EMERGENCIES. If the
-----------------------------------------------------
Participant experiences an Unforeseeable Financial Emergency, the Participant
may, with the approval of the Plan Administrator, receive a partial or full
distribution from the Plan of the Vested amounts in his or her Accounts. The
distribution shall not exceed the lesser of the Vested balance then credited to
the Participant's Account or the amount reasonably needed to satisfy the
Unforeseeable Financial Emergency.
7.2 WITHDRAWAL ELECTION. A Participant may at any time elect to
-------------------
withdraw all of the balance then credited to his or her Account, less a ten (10)
percent withdrawal penalty. Thereafter, the Participant shall never again be
eligible to participate in the Plan.
ARTICLE VIII
------------
LOANS
-----
8.1 LOANS TO PARTICIPANTS
---------------------
(a) The Plan Administrator shall have the investment management
discretion to direct the Trustee to loan money to Participants. Each such loan
shall be treated as an investment of the borrower's Account. (A former Employee
who still has an Account under the Plan or a Beneficiary who is entitled to
future benefits because of the death of a Participant, shall not be entitled to
borrow from the Plan.)
(b) The Plan Administrator shall establish Plan Rules governing loan
procedures. These Rules may limit the number of loans a Participant may
receive, require payment of loan processing fees by the Participant (either
directly or out of his or her Vested Account) or establish any other
requirements the Plan Administrator determines to be necessary or desirable. A
Participant who wishes to borrow money from the Plan shall file a written loan
application with the Plan Administrator in accordance with these Plan Rules.
The Plan Administrator, in its sole discretion, shall approve or deny the loan.
The Plan Administrator may deny a loan application if it believes that the loan
would not be repaid (e.g., if the borrower has failed to repay a
- -
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prior loan on time) or for any other reason if denial would be in the best
interests of the Plan or the Participant. The Plan Administrator shall exercise
its discretion in a uniform and nondiscriminatory manner. No loan shall be
granted unless the following requirements are met:
(i) No more than two loans shall be outstanding at any
time;
(ii) No loan shall be made if the loan amount, when
aggregated with the amount of any outstanding loan, would exceed the lesser of
$100,000 or fifty percent of the Vested portion of the Participant's Account,
excluding the Participant's Common Stock Account;
(iii) The loan shall bear a reasonable rate of interest not
in excess of that permitted by law;
(iv) Except as otherwise authorized by the Plan
Administrator, interest and principal on a loan must be repaid through payroll
deduction in installments not less frequently than quarterly over a specified
period not to exceed five years (including renewals, extensions and
refinancing); and
(v) The loan shall be documented by such notes, evidences
of indebtedness and other instruments executed by the Participant which the Plan
Administrator in its discretion requires.
(c) Each loan from the Plan shall be secured by the borrowing
Participant's interest in the Plan.
(d) A loan shall be in default if the Participant fails to make any
payment when due or if there occurs such other circumstances as may be
prescribed by Plan Rule. A loan which is in default shall, at the Plan
Administrator's election, become immediately due and payable and shall be
subject to the execution provisions of subsection (f).
(e) If a Participant's Employment terminates or the Plan terminates
before he or she has repaid a loan, the loan, at the Plan Administrator's
election, shall become immediately due and shall be repaid out of the
Participant's Vested Account which secures the loan and that Account shall be
reduced accordingly.
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(f) If a Participant's loan is in default for 120 consecutive days
and the Participant's Employment has not terminated, the loan shall be satisfied
to the extent possible from the Participant's Vested Account which secures the
loan and the Account shall be reduced accordingly. In addition, the Participant
shall be assessed a penalty of ten (10) percent of the outstanding balance of
the defaulted loan as of the date the penalty is assessed. Unless the
defaulting Participant satisfies the penalty by paying it directly to the
Company, the defaulting Participant's Vested Account shall be reduced by the
amount of the penalty, in which case the penalty shall be paid to the Company
directly or used to reduce the Company's obligation to make matching
contributions under Section 5.1, at the Company's option.
ARTICLE IX
----------
DISTRIBUTIONS FOLLOWING TERMINATION OF EMPLOYMENT
-------------------------------------------------
9.1 DISTRIBUTION. Upon Termination of Employment, a Participant's
------------
Vested Account shall be distributed in accordance with this Article.
9.2 ELECTIONS. A Participant, on his or her initial Election Form,
---------
shall elect to receive distributions following Termination of Employment in a
lump sum or in installment payments, not more frequently than quarterly, over a
period of not more than ten years. A Participant may change this election on
any subsequent Election Form filed at least one (1) year prior to the
Participant's Termination of Employment; if made within one (1) year of
Termination of Employment, such a new election shall be invalid.
9.3 TIME FOR PAYMENT. The lump sum payment shall be made, or
----------------
installment payments shall commence, no later than sixty (60) days after the
Participant's Termination of Employment and any annual payment thereafter shall
be made during each subsequent January. If installment payments are being made,
the first benefit payment to a Participant shall be prorated by multiplying it
by a fraction, the numerator of which is the number of days which remain in the
calendar year following the Participant's Termination of Employment and the
denominator of which is three hundred sixty-five (365).
9.4 SMALL PAYMENTS. The minimum annual installment payment shall
--------------
be $5,000 (before withholding of
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<PAGE>
taxes). If annual installment payments to a Participant would be less than this
amount, the Participant's Account shall be distributed over the longest
installment period available under Section 9.2 under which the annual payment
would be at least $5,000 (before withholding of taxes) or, if no such period
exists, in a lump sum.
9.5 CASHOUT OF INSTALLMENT PAYMENTS. A Participant who has elected
-------------------------------
to receive installment payments may, at the time installments are to commence or
thereafter, elect to receive, in lieu of any future installment payments, a lump
sum payment of the balance then credited to his or her Account, less a ten (10)
percent early withdrawal penalty. The ten (10) percent early withdrawal penalty
shall be used to reduce the Company's obligation to make matching contributions
under Section 5.1.
9.6 FORM OF PAYMENT. All payments made pursuant to this Article
---------------
shall be made in cash, except that distributions made from the Common Stock
Account shall be made in Common Stock.
9.7 RESTRICTIONS ON COMMON STOCK. Common Stock distributions
----------------------------
pursuant to this Article shall only be distributed to a Participant upon
delivery to the Company of such representations and warranties as the Company
deems necessary or advisable with respect to the investment intent of the
Participant as required by the Securities Act of 1933, as amended, and any other
federal or state securities laws. The Company shall not be required to
distribute shares of Common Stock to a Participant before such shares become
listed for trading on any stock exchange on which the Common Stock may then be
listed, if any, and the completion of such registration or other qualification
of such shares under any state or federal law, rule or regulation, as the Plan
Administrator shall determine to be necessary or advisable.
ARTICLE X
---------
DISTRIBUTIONS FOLLOWING DEATH
-----------------------------
10.1 DEATH WHILE EMPLOYED BY EMPLOYER GROUP. If a Participant dies
--------------------------------------
while employed by the Company or a Related Employer, the Participant's
Beneficiary shall receive the Participant's Account in the form of death benefit
payments elected by the Participant on his or her
-20-
<PAGE>
last Election Form. The Participant may elect to have such payments made in a
lump sum or in installment payments over a period of not more than ten years.
The minimum annual installment payment shall be $5,000 (before withholding of
taxes). If annual installment payments to a Beneficiary would be less than this
amount, the Participant's Account shall be distributed over the longest
installment period available under this Section under which the annual payment
would be at least $5,000 (before withholding of taxes) or, if no such period
exists, in a lump sum. Death benefit payments shall commence within sixty (60)
days after the date the Plan Administrator is provided with proof of the
Participant's death satisfactory to it.
10.2 DEATH AFTER TERMINATION OF EMPLOYMENT. If a Participant dies
-------------------------------------
after Termination of Employment but before his or her Account has been fully
distributed, unpaid amounts due under Article 9 shall be paid to the
Participant's Beneficiary in the same amount and at the same time as they would
have been paid to the Participant.
10.3 LUMP SUM ELECTION. While a Beneficiary may not select the
-----------------
manner of payment, if requested by a Beneficiary and allowed in the sole
discretion of the Plan Administrator, the Beneficiary shall be paid a lump sum
calculated in accordance with Section 9.5 but without the ten (10) percent early
withdrawal penalty.
10.4 FORM OF PAYMENT. All payments made pursuant to this Article
---------------
shall be made in cash, except that distributions made from the Common Stock
Account shall be made in Common Stock.
10.5 RESTRICTIONS ON COMMON STOCK. Common Stock distributions
----------------------------
pursuant to this Article shall only be distributed to a Participant upon
delivery to the Company of such representations and warranties as the Company
deems necessary or advisable with respect to the investment intent of the
Participant as required by the Securities Act of 1933, as amended, and any other
federal or state securities laws. The Company shall not be required to
distribute shares of Common Stock to a Participant before such shares become
listed for trading on any stock exchange on which the Common Stock may then be
listed, if any, and the completion of such registration or other qualification
of such shares under any state or federal law, rule or regulation, as the Plan
Administrator shall determine to be necessary or advisable.
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<PAGE>
ARTICLE XI
----------
BENEFICIARY DESIGNATION
-----------------------
11.1 BENEFICIARY. Each Participant shall have the right, at any
-----------
time, to designate his or her Beneficiary (both primary as well as contingent)
to receive any benefits payable under the Plan to a beneficiary upon the death
of a Participant. The Beneficiary designated under this Plan may be the same as
or different from the beneficiary designated under any other plan in which the
Participant participates.
11.2 BENEFICIARY DESIGNATION; CHANGE; SPOUSAL CONSENT. A
------------------------------------------------
Participant shall designate his or her Beneficiary by completing and signing the
Beneficiary Designation Form, and returning it to the Plan Administrator or its
designated agent. A Participant shall have the right to change a Beneficiary by
completing and signing a new Beneficiary Designation Form, or such other form
approved by the Plan Administrator, and filing it with the Plan Administrator.
If the Participant names someone other than his or her spouse as a Beneficiary,
a spousal consent, in the form designated by the Plan Administrator, must be
signed by that Participant's spouse and returned to the Plan Administrator.
Upon the acceptance by the Plan Administrator of a new Beneficiary Designation
Form, all Beneficiary designations previously filed shall be canceled. The Plan
Administrator shall be entitled to rely on the last Beneficiary Designation Form
filed by the Participant and accepted by the Plan Administrator prior to his or
her death.
11.3 NO BENEFICIARY DESIGNATION. If a Participant fails to
--------------------------
designate a Beneficiary as provided in Sections 11.1 and 11.2 above or, if all
designated Beneficiaries predecease the Participant or die prior to complete
distribution of the Participant's benefits, then the Participant's designated
Beneficiary shall be deemed to be his or her surviving spouse or, if none the
Participant's estate.
11.4 DOUBT AS TO BENEFICIARY. If the Plan Administrator has any
-----------------------
doubt as to the proper Beneficiary to receive payments pursuant to this Plan,
the Plan Administrator shall have the right, exercisable in its discretion, to
withhold such payments until this matter is resolved to the Plan Administrator's
satisfaction.
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<PAGE>
ARTICLE XII
-----------
VESTING
-------
12.1 VESTING SCHEDULES. A Participant shall become vested in his or
-----------------
her Accounts in accordance with the Vesting Schedules described in this Article.
12.2 DEFERRED COMPENSATION ACCOUNT. All Deferred Compensation
-----------------------------
Common Stock Accounts shall be fully Vested at all times.
12.3 VESTING SCHEDULE FOR PRE-JANUARY 1, 1997 ADDITIONS TO THE
---------------------------------------------------------
MATCHING CONTRIBUTION AND DISCRETIONARY CONTRIBUTION ACCOUNTS. The Vested
- -------------------------------------------------------------
portion of a Participant's Matching Contribution and Discretionary Contribution
Accounts with respect to additions made to these accounts prior to January 1,
1997 shall be the percentage of such Account shown on the following table:
YEARS OF SERVICE VESTED PERCENTAGE
------------------- ------------------
Less than one year 0%
1 25%
2 (or more) 100%
12.4 VESTING SCHEDULE FOR ADDITIONS TO THE
-------------------------------------
MATCHING CONTRIBUTION AND DISCRETIONARY CONTRIBUTION ACCOUNTS ON OR AFTER
- -------------------------------------------------------------------------
JANUARY 1, 1997. The Vested portion of a Participant's Matching Contribution and
- ----------------
Discretionary Contribution Accounts with respect to additions made to these
accounts on or after January 1, 1997 shall be the percentage of such Account
shown on the following table:
YEARS OF SERVICE VESTED PERCENTAGE
------------------ -----------------
Less than one year 0%
1 20%
2 40%
3 60%
4 80%
5 (or more) 100%
12.5 ACCELERATED VESTING. A Participant's Matching Contribution and
-------------------
Discretionary Contribution Accounts shall become fully Vested upon the earliest
to occur of:
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<PAGE>
(a) the individual's attaining Normal Retirement Age while
employed by the Company or a Related Employer,
(b) the individual's death (or presumed death) while employed
by the Company or a Related Employer,
(c) the individual's suffering a Disability while employed by
the Company or a Related Employer, and
(d) the individual's Termination of Employment other than for
Cause during the two (2) years following a Change in Control.
12.6 FORFEITURES UPON TERMINATION OF EMPLOYMENT. The unvested
------------------------------------------
portion of the Accounts of a Participant whose employment terminates shall be
forfeited on the date of his or her Termination of Employment. Forfeitures
shall be used to reduce the Company's obligation to make matching contributions
under Section 5.1.
ARTICLE XIII
------------
ADMINISTRATION
--------------
13.1 PLAN ADMINISTRATOR. Except as provided in Section 15.6, the
------------------
Plan Administrator shall have complete control and discretion to manage the
operation and administration of the Plan. Not in limitation, but in
amplification of the foregoing, the Plan Administrator shall have the following
powers:
(a) To determine all questions relating to the eligibility of
Employees to participate or continue to participate;
(b) To maintain all records and books of account necessary for
the administration of the Plan;
(c) To interpret the provisions of the Plan and to make and to
publish such interpretive or procedural rules as are not inconsistent with the
Plan and applicable law;
(d) To compute, certify and arrange for the payment of benefits
to which any Participant or beneficiary is entitled;
-24-
<PAGE>
(e) To process claims for benefits under the Plan by
Participants or beneficiaries;
(f) To engage agents and professionals to assist the Plan
Administrator in carrying out its duties under this Plan;
(g) To adopt or modify Plan Rules for the regulation or
application of the Plan (see Exhibit E); such Rules may establish administrative
procedures or requirements which modify the terms of this Plan but Plan Rules
shall not substantially alter significant requirements or provisions of the
Plan; and
(h) To develop and maintain such instruments as may be deemed
necessary from time to time by the Plan Administrator to facilitate payment of
benefits under the Plan.
13.2 COMMITTEE. The Plan Administrator may designate a committee to
---------
administer the Plan and perform the duties required of the Plan Administrator
hereunder.
13.3 PLAN ADMINISTRATOR'S AUTHORITY. The Plan Administrator may
------------------------------
consult with Company officers, legal and financial advisers to the Company and
others, but nevertheless the Plan Administrator shall have the full authority
and discretion to act, and the Plan Administrator's actions shall be final and
conclusive on all parties.
ARTICLE XIV
-----------
AMENDMENT AND TERMINATION
-------------------------
14.1 AMENDMENTS. The Company reserves the right to amend the Plan
----------
prospectively or retroactively, at any time. No amendment shall significantly
reduce the value of a Participant's Vested Account prior to such amendment.
14.2 TERMINATION OF PLAN. The Company shall have the right at any
-------------------
time to declare the Plan terminated completely as to it or as to any of its
divisions, facilities, operational units or job classifications. Upon
termination of the Plan, the Company may, but shall not be required, to
accelerate distribution of the amounts in each Participant's Vested Account.
-25-
<PAGE>
14.3 FOLLOWING A CHANGE IN CONTROL. Upon the occurrence of a Change
-----------------------------
in Control, this Plan no longer shall be subject to alteration, amendment,
change, suspension, substitution, deletion, revocation or termination in any
manner adverse to the Participants and Beneficiaries. In addition, if required
by the terms of a Trust, upon a potential change in control (as defined in such
Trust), the Company shall cause a number of shares of Common Stock to be
registered in the name of the Trust equal to the aggregate number of Stock Units
held in all Participant Accounts under the Plan. Further, for each
Participant's Common Stock Account, the number of Stock Units shall be converted
to an equal number of shares of Common Stock, with fractional Stock Units being
converted to cash.
ARTICLE XV
----------
CLAIMS PROCEDURES
-----------------
15.1 PRESENTATION OF CLAIM. If any person (a "Claimant") does not
---------------------
believe that he or she will receive the benefits to which the person is entitled
or believes that fiduciaries of the Plan have breached their duties or that the
Plan is not being operated properly or that his or her legal rights have been or
are being violated with respect to the Plan, the Claimant must file a formal
claim with the Plan Administrator under the procedures set forth in this
Article. The procedures in this Article shall apply to all claims that any
person has with respect to the Plan, including claims against fiduciaries and
former fiduciaries, unless the Plan Administrator determines, in its sole
discretion, that it does not have the power to grant, in substance, all relief
reasonably being sought by the Claimant. A claims official appointed by the
Plan Administrator shall, within a reasonable time, consider the claim and shall
issue his or her determination thereon in writing. If such a claim relates to
the contents of a notice received by the Claimant, the claim must be made within
sixty (60) days after such notice was received by the Claimant. All other
claims must be made within one hundred-eighty (180) days of the date on which
the event that caused the claim to arise occurred. The claim must state with
particularity the determination desired by the Claimant.
15.2 NOTIFICATION OF DECISION. Written notice of the disposition of
------------------------
a claim shall be furnished to the Claimant within thirty (30) days after the
claim is filed with the Plan Administrator. In the event the claim is
-26-
<PAGE>
denied, the reasons for the denial shall be specifically set forth in writing,
pertinent provisions of the Plan shall be cited and, where appropriate, an
explanation as to how the claim can be perfected will be provided.
15.3 REVIEW OF A DENIED CLAIM. Within ninety (90) days after
------------------------
receiving a notice from the Plan Administrator that a claim has been denied in
whole or in part, a Claimant may appeal the denial of his or her claim by filing
a written statement of the Claimant's position with the review official
designated by the Plan Administrator. The review official shall schedule and
give the Claimant an opportunity for a full and fair hearing before the review
official of the issue within thirty (30) days after the appeal is requested.
The review official's decision following such hearing shall be made within
thirty (30) days and shall be communicated in writing to the Claimant.
15.4 ARBITRATION. If a Claimant's claim described in Section 15.1
-----------
(an "Arbitrable Dispute") is denied pursuant to Section 15.3, the Claimant's
only further recourse shall be to submit the claim to final and binding
arbitration in the County of Pinellas, State of Florida, before an experienced
employment arbitrator selected in accordance with the Employment Dispute
Resolution Rules of the American Arbitration Association. Except as otherwise
provided in Section 16.11, each party shall pay the fees of their respective
attorneys, the expenses of their witnesses and any other expenses connected with
the arbitration, but all other costs of the arbitration, including the fees of
the arbitrator, cost of any record or transcript of the arbitration,
administrative fees and other fees and costs shall be paid in equal shares by
each party (or, if applicable, each group of parties) to the arbitration.
Except as otherwise provided in Section 16.11, in any dispute involving a
Claimant or the trustee of a Trust in which the Claimant or the trustee
prevails, the Company shall reimburse the Claimant's or the trustee's reasonable
attorneys fees and related expenses. Arbitration in this manner shall be the
exclusive remedy for any Arbitrable Dispute. The arbitrator's decision or award
shall be fully enforceable and subject to an entry of judgement by a court of
competent jurisdiction. Should any party attempt to resolve an Arbitrable
Dispute by any method other than arbitration pursuant to this Section, the
responding party shall be entitled to recover from the initiating party all
damages, expenses and attorneys fees incurred as a result.
-27-
<PAGE>
15.5 LEGAL ACTION. Prior to a Change in Control, except to enforce
------------
an arbitrator's award, no actions may be brought by a Claimant in any court with
respect to an Arbitrable Dispute.
15.6 FOLLOWING A CHANGE IN CONTROL. Upon the occurrence of a Change
-----------------------------
in Control, an independent party selected by the Committee prior to a Change in
Control shall assume all duties and responsibilities of the Plan Administrator
under this Article and actions may be brought by a Claimant in any appropriate
court with respect to an Arbitrable Dispute.
ARTICLE XVI
-----------
TRUST
-----
16.1 ESTABLISHMENT OF TRUST. The Company may establish a Trust and
----------------------
shall at least annually transfer over to the Trust such assets, if any, as the
Plan Administrator, in its sole discretion, determines to be appropriate. The
assets of the Trust shall be considered part of the general assets of the
Company subject to the claims of its general creditors.
16.2 INTERRELATIONSHIP OF THE PLAN AND THE TRUST. The provisions of
-------------------------------------------
the Plan and the Plan Agreement shall govern the rights of a Participant to
receive distributions pursuant to the Plan. The provisions of any Trust shall
govern the rights of the Participant and the creditors of the Company to the
assets transferred to such Trust. The Company shall at all times remain liable
to carry out its obligations under the Plan. The Company's obligations under
the Plan shall be deemed satisfied to the extent met with assets distributed
pursuant to the terms of the Trust.
ARTICLE XVII
------------
MISCELLANEOUS
-------------
17.1 UNSECURED GENERAL CREDITOR/UNFUNDED PLAN. The Plan constitutes
----------------------------------------
an unsecured promise by the Company or a Related Employer to pay benefits in the
future and the Participants employed by the Company shall have the status of
general unsecured creditors of the Company and Participants employed by a
Related Employer. The Plan is
-28-
<PAGE>
unfunded for Federal tax purposes and for purposes of Title I of ERISA. All
amounts credited to the Participants' accounts will remain the general assets of
the Company and shall remain subject to the claims of the Company's and the
Related Employers' general creditors until such amounts are distributed to the
Participants.
17.2 PAYMENTS TO MINORS AND INCOMPETENTS. If the Plan Administrator
-----------------------------------
receives satisfactory evidence that a person who is entitled to receive any
benefit under the Plan, at the time such benefit becomes available, is a minor
or is physically unable or mentally incompetent to receive such benefit and to
give a valid release therefor, and that another person or an institution is then
maintaining or has custody of such person, and that no guardian committee, or
other representative of the estate of such person shall have been duly
appointed, the Plan Administrator may authorize payment of such benefit
otherwise payable to such person to such other person or institution; and the
release of such other person or institution shall be a valid and complete
discharge for the payment of such benefit.
17.3 PLAN NOT A CONTRACT OF EMPLOYMENT. The Plan shall not be
---------------------------------
deemed to constitute a contract between the Company and any Participant, nor to
be consideration for the employment of any Participant. Nothing in the Plan
shall give a Participant the right to be retained in the employ of the Company;
all Participants shall remain subject to discharge or discipline as Employees to
the same extent as if the Plan had not been adopted.
17.4 NO INTEREST IN ASSETS. Nothing contained in the Plan shall be
---------------------
deemed to give any Participant any equity or other interest in the assets,
business or affairs of the Company or a Related Employer. No Participant in the
Plan shall have a security interest in assets of the Company used to make
contributions or pay benefits.
17.5 RECORDKEEPING. Appropriate records shall be maintained for the
-------------
purpose of the Plan by the officers and Employees of the Company at the
Company's expense and subject to the supervision and control of the Plan
Administrator.
17.6 NOTICE. Any notice or filing required or permitted to be given
------
to the Plan Administrator under this Plan shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail or by telefax (with a
hard copy sent by mail), to the address or telefax number
-29-
<PAGE>
shown below (or such other address or telefax number specified in notice given
pursuant to this Section):
Chief Financial Officer
Catalina Marketing Corporation
11300 9th Street North
St. Petersburg, Florida 33716
Telefax: 813-579-5297
Such notice shall be deemed given as of the date of delivery or, if delivery is
made by mail, as of the date shown on the postmark on the receipt for
registration or certification. Any notice or filing required or permitted to be
given to a Participant under this Plan shall be sufficient if in writing and
hand-delivered, or sent by mail, to the last known address of the Participant.
17.7 SUCCESSORS. The provisions of this Plan shall bind and inure
----------
to the benefit of the Company and its successors and assigns and the
Participant, his or her Beneficiary and their permitted successors and assigns.
17.8 SPOUSE'S INTEREST. The interest in the benefits hereunder of a
-----------------
spouse of a Participant who has predeceased the Participant shall automatically
pass to the Participant and shall not be transferable by such spouse in any
manner, including but not limited to such spouse's will, nor shall such interest
pass under the laws of intestate succession.
17.9 TAXES AND WITHHOLDING. For each Plan Year in which Deferrals
---------------------
are being withheld, the Company shall ratably withhold from that portion of the
Participant's Salary and Bonus that is not being deferred, the Participant's
share of FICA and other employment taxes on the deferral. If necessary, the
Plan Administrator shall reduce a Participant's Deferrals in order to comply
with this Section. The Company (or the trustee of the Trust) shall withhold
from benefits distributed under the Plan all federal, state and local income,
employment and other taxes required to be withheld by applicable law.
17.10 LEGAL FEES TO ENFORCE RIGHTS AFTER CHANGE IN CONTROL. After a
----------------------------------------------------
Change in Control, if any person or entity has failed to comply (or is
threatening not to comply) with any of its obligations under the Plan, any Trust
or any related agreement, or takes or threatens to take any action to deny,
diminish or to recover from any
-30-
<PAGE>
Participant the benefits intended to be provided thereunder, the Company shall
reimburse the Participant for reasonable attorneys fees and related costs
incurred in the successful pursuance or defense of the Participant's rights. If
the Participant does not prevail, attorneys fees shall also be payable under the
preceding sentence to the extent the Participant had reasonable justification
for retaining counsel, but only to the extent that the scope of such
representation was reasonable.
17.11 COURT ORDER. The Plan Administrator is authorized to make any
-----------
payments directed by court order in any action in which the Plan or the Plan
Administrator has been named as a party.
17.12 FURNISHING INFORMATION. A Participant will cooperate with the
----------------------
Company by furnishing any and all information requested by the Company and take
such other actions as may be requested in order to facilitate the administration
of the Plan and the payment of benefits hereunder, including but not limited to
taking such physical examinations as the Company may deem necessary.
17.13 NON-ALIENATION OF BENEFITS. No benefit under the Plan shall be
--------------------------
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or charge, and any attempt to do so shall be void. No
benefit under the Plan shall in any manner be liable for or subject to the
debts, contracts, liabilities, engagements or torts of the person entitled to
any such benefit, except as specifically provided in the Plan, then such
benefits shall cease and terminate at the discretion of the Plan Administrator.
The Plan Administrator may then hold or apply the same or any part thereof to or
for the benefit of such person or any dependent or beneficiary of such person in
such manner and proportions as it shall deem proper.
17.14 GOVERNING LAW. Except to the extent preempted by ERISA, this
-------------
Plan shall be construed in accordance with the laws of Florida without regard to
its conflicts of laws principles.
17.15 SECTION 16. With respect to persons subject to Section 16 of
----------
the Exchange Act, transactions under this Plan are intended to comply with all
applicable conditions of Rule 16b-3 or its successors under the Exchange Act.
To the extent any provision under the Plan or action by the Committee fails to
so comply, it shall be
-31-
<PAGE>
deemed null and void to the extent permitted by law and deemed advisable by the
Committee.
17.16 LIABILITY LIMITED. In administering the Plan neither the Plan
-----------------
Administrator nor any officer, Director or Employee thereof, shall be liable for
any act or omission performed or omitted, as the case may be, by such person
with respect to the Plan; provided, that the foregoing shall not relieve any
person of liability for gross negligence, fraud or bad faith. The Plan
Administrator, its officers, Directors and Employees shall be entitled to rely
conclusively on all tables, valuations, certificates, opinions and reports that
shall be furnished by any actuary, accountant, trustee, insurance company,
consultant, counsel or other expert who shall be employed or engaged by the Plan
Administrator in good faith.
IN WITNESS WHEREOF, the Company has caused this amended and restated
Plan to be executed by its duly authorized officers on this _____ day of
__________________, 1996.
CATALINA MARKETING CORPORATION
By___________________________
-32-
<PAGE>
EXHIBIT 5
PAUL, HASTINGS, JANOFSKY & WALKER
SUITE 2400
600 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30308
(404) 815-2400
July 2, 1996
Catalina Marketing Corporation
11300 Ninth Street North
St. Petersburg, Florida 33716
Re: Catalina Marketing Corporation
Deferred Compensation Plan
Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested our opinion, as counsel for Catalina Marketing
Corporation, a Delaware corporation (the "Company"), in connection with the
preparation and filing with the Securities and Exchange Commission of a
Registration Statement on Form S-8 (the "Registration Statement") relating to an
aggregate of $20,000,000 of obligations ("Deferred Compensation Plan
Obligations") of the Company and an aggregate of 350,000 shares (the "Shares")
of common stock, $.01 par value per share, of the Company, to be offered and
sold by the Company, in each case pursuant to the Catalina Marketing Corporation
Deferred Compensation Plan (the "Plan").
We have examined such records and documents and made such examinations of
law as we have deemed relevant in connection with this opinion. In all such
examinations, we have assumed the genuineness of all signatures on all originals
and copies of documents we have examined, the authenticity of all documents
submitted to us as originals and the conformity to original documents of all
certified, conformed or photostatic copies. As to questions of fact material
and relevant to our opinion, we have relied upon certificates or representations
of Company officials.
Based upon the foregoing, we are of the opinion that:
1. The Plan has been duly adopted by the Board of Directors of the
Company;
2. The Shares have been duly authorized by the Board of Directors of the
Company;
<PAGE>
3. The Deferred Compensation Plan Obligations, when issued by the Company
in the manner provided for in the Plan, will be the valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, subject, as to enforcement, (i) to
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights, and (ii) to general principals of equity,
whether such enforcement is considered in a proceeding in equity or at
law; and
4. Upon the issuance and delivery of the Shares in accordance with the
terms of the Plan, such Shares shall be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
PAUL, HASTINGS, JANOFSKY & WALKER
<PAGE>
Arthur Andersen LLP
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in the Catalina Marketing Corporation Form S-8
related to the Catalina Marketing Corporation Deferred Compensation Plan of our
report dated April 24, 1996, included in Catalina Marketing Corporation's Form
10-K for the year ended March 31, 1996, and to all references to our firm
included in this registration statement.
Arthur Andersen LLP
Tampa, Florida
July 3, 1996
