As filed with the Securities and Exchange Commission on February 4, 1997
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
DELTA AND PINE LAND COMPANY
(Exact name of registrant as specified in its charter)
Delaware 62-1040440
(State of Incorporation) (I.R.S. Employer Identification No.)
One Cotton Row
Scott, Mississippi 38772
(Address of principal executive offices)
DELTA AND PINE LAND COMPANY 1995
LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
W. THOMAS JAGODINSKI
Vice President - Finance
Delta and Pine Land Company
One Cotton Row
Scott, Mississippi 38772
(601) 742-4000
(Name, address and telephone number of agent for service)
(with copies to:)
SAMUEL D. CHAFETZ, Esq.
Waring Cox, PLC
50 N. Front Street
Suite 1300
Memphis, Tennessee 38103
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
<S> <C> <C> <C> <C>
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered(1) share(2) price registration fee
Options, and Shares,
Common Stock, 1,440,000 shares $ 38.375 $55,260,000 $16,746
$0.10 par value
<FN>
(1) Shares to be registered reflect effect of 3 for 2 stock split declared after
the adoption of the Delta and Pine Land Company 1995 Long-Term Incentive Plan.
(2) Estimated solely for the purpose of calculating the registration in
accordance with Rule 457(c) under the Securities Act of 1933, based upon the
average of the high and low prices for the Company's Common Stock as quoted on
the New York Stock Exchange on January 28, 1997.
</FN>
</TABLE>
<PAGE>
PART II
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference:
1. The Registrant's latest annual report on Form 10-K for the year
ended August 31, 1996 and filed with the Commission on November 27, 1996.
2. All reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "1934 Act") since the end of
the fiscal year ended August 31, 1996.
3. The description of the Registrant's Common Stock contained in its
Registration Statement on Form 8-A filed with the Commission on May 18, 1993 and
amended by Amendment No. 1 to the Registration Statement on Form 8-A filed with
the Commission on June 24, 1993.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part thereof from the date of
filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
No response is required to this item.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
No response is required to this item.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation law provides for
indemnification of a corporation's officers and directors under certain
circumstances. Section 145 of the Delaware General Corporation Law also provides
that a corporation has the power to purchase and maintain insurance on behalf of
its officers and directors against any liability asserted against such person
and incurred by him or her in such capacity, or arising out of his or her status
as such, whether or not the corporation would have the power to indemnify him or
her against such liability under the provisions of Section 145 of the Delaware
General Corporation Law. Section 6.7 of the Bylaws of the Company and the Ninth
Article of the Company's Restated Certificate of Incorporation also provide for
indemnification of officers and directors, as authorized by Section 145.
Section 102(b)(7) of the Delaware General Corporation Law enables a
corporation in its certificate of incorporation to limit the personal liability
of members of its board of directors for violations of a director's fiduciary
duty of care. The Section does not, however, limit the liability of a director
for breaching his or her duty of loyalty, failing to act in good faith, engaging
in intentional misconduct or knowingly violating a law, or from any transaction
in which the director derived an improper personal benefit. The Section also
will have no effect on claims arising under the federal securities laws. The
Certificate of Incorporation of the Company limits the liability of its
directors as authorized by Section 102(b)(7).
The Ninth Article of Restated Certificate of Incorporation of the Company
provides:
A. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involved intentional misconduct or a
knowing violation of law, (iii) for any transaction from which the director
derived an improper personal benefit, or (iv) under Section 174 of the General
Corporation Law of the State of Delaware. If the General Corporation Law of the
State of Delaware is amended to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended. Any repeal or modification of this Section A by the stockholders of the
Corporation shall not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification.
B. (1) Each person who was or is made a party or is threatened to be
made a party to or is involved in any action, suit, or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding", by
reason of the fact that he or she or a person of whom he or she is the legal
representative is or was a director, officer or employee of the Corporation or
is or was serving at the request of the Corporation as a director, officer,
employee, agent or in any other capacity of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the General Corporation Law of the State of Delaware as the
same exists or may hereafter he amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights
than said law permitted the Corporation to provide prior to such amendment),
against all expense, liability and loss (including attorney's fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith if 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
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, and such indemnification
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of his or her heirs, executors and
administrators; provided, further, that except as provided in paragraph (2) of
this Section B with respect to proceedings seeking to enforce rights to
indemnification, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation by a majority vote of a quorum of the
directors who were not parties to such action, suit or proceeding, or if such
quorum is not obtainable, by the stockholders. The right to indemnification
conferred in this Section B shall be a contract right and shall include the
right to be paid by the Corporation and the expenses incurred in defending any
such proceeding in advance of its final disposition; provided, however, that if
the General Corporation Law of the State of Delaware requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Section B or otherwise.
(2) If a claim under paragraph (1) of this Section B is not paid in full by the
corporation within thirty days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the General
Corporation Law of the State of Delaware for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the General Corporation Law of the
State of Delaware, nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel or stockholders) that the claimant
has not met such applicable standard of conduct shall be a defense to the action
or create a presumption that the claimant has not met the applicable standard of
conduct.
(3) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Section B shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the certificate or
incorporation, By-Law, agreement, vote of stockholders or disinterested
directors or otherwise.
(4) The Corporation may maintain insurance, at its expense, to protect itself
and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the
General Corporation Law of the State of Delaware.
(5) The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification, and rights to be paid by
the Corporation the expenses incurred in defending any proceeding in advance of
its final disposition, to any agent of the Corporation to the fullest extent of
the provisions of this Section B with respect to the indemnification and
advancement of expenses of directors, officers, and employees of the
Corporation.
The Company has a liability insurance policy in effect which covers
certain claims against any officer or director of the Company by reason of
certain breaches of duty, neglect, errors or omissions committed by such person
in his or her capacity as an officer or director.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
No response is required to this item.
Item 8. EXHIBITS
Exhibit Number Description
5 Opinion and Consent of Waring Cox
10.28 Delta and Pine Land Company 1995 Long-Term Incentive
Plan
23.1 Consent of Waring Cox (contained in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
5 Power of Attorney (included on the Signature pages)
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 the purpose of determining any liability under the
Securities Act of 1933 (the "1933 Act"), each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for the purposes
of determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 1933 Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 1933 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 Scott, State of Mississippi, on the 3rd day of
February, 1997.
DELTA AND PINE LAND COMPANY
By: /s/ W. Thomas Jagodinski
W. Thomas Jagodinski
Vice President-Finance
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officers and
Directors of Delta and Pine Land Company, a Delaware corporation, hereby
constitute and appoint Roger D. Malkin and W. Thomas Jagodinski and each of
them, the true and lawful agents and attorneys-in-fact, and in any one or more
of them, to sign for the undersigned, in their respective names as Officers and
Directors of the Corporation, one or more Registration Statements on Form S-8
(or other appropriate form) to be filed with the Securities and Exchange
Commission, Washington, D.C., under the Securities Act of 1933, as amended, and
any amendment or supplement to such Registration Statement, relating to the 1995
Long-Term Incentive Plan: hereby ratifying and confirming all acts taken by such
agents and attorneys-in-fact, or any one or more of them, as herein authorized.
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/ Roger D. Chairman of the Board January 31, 1997
Roger D. Malkin and Chief Executive Officer
(Principal Executive Officer)
/s/ W. Thomas Jagodinski Vice President - Finance January 31, 1997
W. Thomas Jagodinski (Principal Financial and
Accounting Officer)
/s/ Nam-Hai Chua Director January 31, 1997
Nam-Hai Chua
/s/ Jon E.M. Jacoby Director February 3, 1997
Jon E. M. Jacoby
/s/ Joseph M. Murphy Director February 1, 1997
Joseph M. Murphy
Director
- ---------------------
Stanley P. Roth
/s/ Rudi E. Scheidt Director January 31, 1997
Rudi E. Scheidt
<PAGE>
EXHIBIT 5
Opinion and Consent of Waring Cox
<PAGE>
(Company Letterhead)
January 30, 1997
Delta and Pine Land Company
One Cotton Row
Scott, MS 38772
Re: 1995 Long-term Incentive Plan
Gentlemen:
We have acted as counsel to Delta and Pine Land Company, a Delaware
Corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-8 (the "Registration Statement"), pursuant to the Securities
Act of 1933, as amended, relating to the Company's 1995 Long-term Incentive Plan
(the "Plan"). This opinion is being furnished in response to Item 601 of
Regulation S-K and the instructions to Form S-8.
We are familiar with the proceedings to date with respect to the
proposed offering and have examined such records, documents and matters of law
and satisfied ourselves as to such matters of fact as we have considered
relevant for purposes of this opinion.
On the basis of the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and existing under the
laws of the State of Delaware and is duly authorized to carry on the business in
which it is engaged.
2. The Plan has been duly and validly authorized and adopted, and the
1,440,000 shares of Common Stock of the Company, $.10 par value (the "Shares")
that may be issued and sold from time to time upon the exercise of options
granted in accordance with the Plan have been duly authorized for issuance and
will when issued, sold and paid for in accordance with the Plan, be validly
issued, fully paid and non-assessable.
We do not purport to cover herein the application of the securities
laws of various states to sales of the Shares.
We hereby consent to the use of the opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Waring Cox, PLC
Waring Cox, PLC
<PAGE>
EXHIBIT 10.28
DELTA AND PINE LAND COMPANY
1995 LONG-TERM INCENTIVE PLAN
1. Purpose.
The purpose of the DELTA AND PINE LAND COMPANY 1995 LONG-TERM INCENTIVE
PLAN (the "Plan") is to further the earnings of DELTA AND PINE LAND COMPANY, a
Delaware corporation, and its subsidiaries (collectively, the "Company") by
assisting the Company in attracting, retaining and motivating management
employees and directors of high caliber and potential. The Plan provides for the
award of long-term incentives to those officers, other key employees and
directors who make substantial contributions to the Company by their loyalty,
industry and invention.
2. Administration.
The Plan shall be administered by a committee (the "Committee")
selected by the Board of Directors of the Company (the "Board of Directors")
consisting solely of two or more members who are "outside directors" as
described in Section 162(m) of the Internal Revenue Code of 1986, as amended
(the "Code"). Except to the extent permitted under Rule 16b-3 under the
Securities Exchange Act of 1934, as amended (the "1934 Act") (or any successor
rule of similar import), each Committee member shall be ineligible to receive,
and shall not have been, during the one-year period prior to appointment
thereto, granted or awarded stock options, stock appreciation rights,
performance units, or restricted stock pursuant to this Plan or any other
similar plan of the Company or any affiliate of the Company. Without limiting
the foregoing, the Committee shall have full and final authority in its
discretion to interpret the provisions of the Plan and to decide all questions
of fact arising in its application. Subject to the provisions hereof, the
Committee shall have full and final authority in its discretion to determine the
employees and directors to whom awards shall be made under the Plan; to
determine the type of awards to be made and the amount, size and terms and
conditions of each such award; to determine the time when awards shall be
granted; to determine the provisions of each agreement evidencing an award; and
to make all other determinations necessary or advisable for the administration
of the Plan.
3. Stock Subject to the Plan.
The Company may grant awards under the Plan with respect to not more
than a total of 960,000 shares of $.10 par value common stock of the Company
(the "Shares") (subject, however, to adjustment as provided in paragraph 20,
below). Such Shares may be authorized and unissued Shares or treasury Shares.
Except as otherwise provided herein, any Shares subject to an option or right
which for any reason is surrendered before exercise or expires or is terminated
unexercised as to such Shares shall again be available for the granting of
awards under the Plan. Similarly, if any Shares granted pursuant to restricted
stock awards are forfeited, such forfeited Shares shall again be available for
the granting of awards under the Plan.
<PAGE>
4. Eligibility to Receive Awards.
Persons eligible to receive awards under the Plan shall be limited to
those officers, other key employees and directors of the Company who are in
positions in which their decisions, actions and counsel have a significant
impact upon the profitability and success of the Company (but excluding members
of the Committee, except as provided in paragraph 6(h)).
5. Form of Awards.
Awards may be made from time to time by the Committee in the form of
stock options to purchase Shares, stock appreciation rights, performance units,
restricted stock, or any combination of the above. Stock options may be options
which are intended to qualify as incentive stock options ("Incentive Stock
Options") within the meaning of Section 422(b) of the Code, or options which are
not intended to so qualify ("Nonqualified Stock Options").
6. Stock Options.
Stock options for the purchase of Shares shall be evidenced by written
agreements in such form not inconsistent with the Plan as the Committee shall
approve from time to time; provided that the maximum number of options which may
be granted to any one grantee during any twelve-month period is 75,000 (as
adjusted pursuant to paragraph 20, below). Such agreement shall contain the
terms and conditions applicable to the options, including in substance the
following terms and conditions:
(a) Type of Option. Each option agreement shall identify the
options represented thereby as Incentive Stock Options or
Nonqualified Stock Options, as the case may be, and shall set
forth the number of Shares subject to the options.
(b) Option Price. The option exercise price to be paid by the
optionee to the Company for each Share purchased upon the
exercise of an option shall be determined by the Committee,
but shall in no event be less than the par value ofa Share.
(c) Exercise Term. Each option agreement shall state the period or
periods of time within which the option may be exercised, in
whole or in part, as determined by the Committee and subject
to such terms and conditions as are prescribed for such
purpose by the Committee, provided that no option shall be
exercisable after ten years from the date of grant thereof.
The Committee, in its discretion, may provide in the option
agreement circumstances under which the option shall become
immediately exercisable, in whole or in part, and,
notwithstanding the foregoing, may accelerate the
exercisability of any option, in whole or in part, at any
time.
(d) Payment for Shares. The purchase price of the Shares with respect to
which an option is exercised shall be payable in full at the time of exercise in
cash, Shares at fair market value, or a combination thereof, as the Committee
may determine and subject to such terms and conditions as may be prescribed by
the Committee for such purpose. Payment may also be made, in the discretion of
the Committee, by delivery (including by facsimile transmission) to the Company
or its designated agent of an executed irrevocable option exercise form,
together with irrevocable instructions to a broker-dealer to sell (or margin) a
sufficient portion of the Shares, and deliver the sale (or margin loan) proceeds
directly to the Company to pay for the purchase price. If the purchase price is
paid by tendering Shares, the Committee in its discretion may grant the optionee
a new stock option for the number of Shares used to pay the purchase price.
(e) Rights Upon Termination. In the event of Termination (as defined below)
of an optionee's status as an employee or director of the Company for any cause
other than Retirement (as defined below), death or Disability (as defined
below), the optionee shall have the right to exercise the option during its term
within a period of three months after such Termination to the extent that the
option was exercisable at the time of Termination, or within such other period,
and subject to such terms and conditions, as may be specified by the Committee.
(As used herein, "Termination" means, (i) in the case of an employee, the
cessation of the grantee's employment by the Company for any reason, and (ii) in
the case of a director, the cessation of the grantee's service as a director of
the Company; and "Terminates" has the corresponding meaning. As used herein,
"Retirement" means retirement from active employment (in the case of an
employee), or active service (in the case of a director), with the Company on or
after age 65, or such earlier age with the express written consent for purposes
of the Plan of the Company at or before the time of such retirement, and
"Retires" has the corresponding meaning. As used herein, "Disability" means a
condition that, in the judgment of the Committee, has rendered a grantee
completely and presumably permanently unable to perform any and every duty of
his regular occupation, and "Disabled" has the corresponding meaning). In the
event that an optionee Retires, dies or becomes Disabled prior to the expiration
of his option and without having fully exercised his option, the optionee or his
Beneficiary (as defined below) shall have the right to exercise the option
during its term within a period of (i) one year after Termination due to
Retirement, death or Disability, or (ii) one year after death if death occurs
either within one year after Termination due to Retirement or Disability or
within three months after Termination for other reasons, to the extent that the
option was exercisable at the time of death or Termination, or within such other
period, and subject to such terms and conditions, as may be specified by the
Committee. (As used herein, "Beneficiary" means the person or persons designated
in writing by the grantee as his Beneficiary with respect to an award under the
Plan; or, in the absence of an effective designation or if the designated person
or persons predecease the grantee, the grantee's Beneficiary shall be the person
or persons who acquire by bequest or inheritance the grantee's rights in respect
of an award). In order to be effective, a grantee's designation of a Beneficiary
must be on file with the Committee before the grantee's death, but any such
designation may be revoked and a new designation substituted therefor at any
time before the grantee's death.
(f) Nontransferability. Options granted under the Plan shall not
be sold, assigned, transferred, exchanged, pledged,
hypothecated, or otherwise encumbered, other than by will or
by the laws of descent and distribution. During the lifetime
of the optionee the option is exercisable only by the
optionee.
(g) Incentive Stock Options. In the case of an Incentive Stock
Option, each option shall be subject to such other terms
conditions and provisions as the Committee determines
necessary or desirable in order to qualify such option as an
incentive stock option within the meaning of Section 422(b) of
the Code (or any amendment or substitute or successor thereto
or regulation thereunder), including in substance, without
limitation, the following:
(i) The purchase price of stock subject to an
Incentive Stock Option shall not be less
than 100 percent of the fair market value of
such stock on the date the option is
granted, as determined by the Committee.
(ii) The aggregate fair market value (determined as of the
time the option is granted) of the stock with respect
to which incentive stock options are exercisable for
the first time by an optionee in any calendar year
(under all plans of the Company and its subsidiary
corporations (which term, as used hereinafter, shall
have the meaning ascribed thereto in Section 424(f)
of the Code (or successor provision of similar
import))) shall not exceed $100,000.
(iii) No Incentive Stock Option shall be granted to any
employee if at the time the option is granted the
individual owns stock possessing more than 10 percent
of the total combined voting power of all classes of
stock of the Company or of a subsidiary corporation
of the Company, unless at the time such option is
granted the option price is at least 110 percent of
the fair market value (as determined by the
Committee) of the stock subject to the option and
such option by its terms is not exercisable after the
expiration of five years from the date of grant.
(iv) Directors who are not employees of the Company shall
not be eligible to receive Incentive Stock Options.
(v) In the event of Termination of employment by
reason of Retirement, if an Incentive Stock
Option is exercised after the expiration of
the exercise periods that apply for purposes
of Section 422 of the Code, the option will
thereafter be treated as a Nonqualified
Stock Option.
(h) Automatic Grant of Options to Nonemployee Directors. Notwithstanding
any other provision of the Plan, the grant of options hereunder to directors who
are not also employees of the Company ("Nonemployee Directors") shall be subject
to the following terms and conditions:
(i) If, during the period beginning on December
1, 1995 and ending with the 2005 annual
meeting of the stockholders of the Company
("Annual Meeting"), a person is first
elected or appointed as a Nonemployee
Director of the Company, such person shall
thereupon be granted a Nonqualified Stock
Option to purchase 20,000 Shares (as
adjusted pursuant to paragraph 20, below).
(ii) The purchase price of stock subject to an option
granted to Nonemployee Directors under this paragraph
6(h) shall be equal to 100 percent of the fair market
value of such stock on the date the option is
granted.
(iii) Except as provided in paragraph 18, each option
granted to Nonemployee Directors under this paragraph
6(h) shall become exercisable in installments as
follows: to the extent of 20 percent of the number of
Shares originally covered by the option, at any time
after the commencement of the second year of the term
of the option, and to the extent of an additional 20
percent of such number of Shares, at any time after
the commencement of each of the third, fourth, fifth
and sixth years of the term of the option; provided,
however, that the stock option agreements for options
granted under this Section 6(h) shall provide that if
the tenure of such Nonemployee Director shall
terminate by reason of Retirement at or after age 65,
such options shall be fully exercisable with respect
to all Shares not previously purchased, commencing on
the date of retirement of such Director and
continuing for a period of three months.
(iv) Unless otherwise provided in the Plan, all provisions
with respect to the terms of Nonqualified Stock
Options hereunder shall be applicable to options
granted to Nonemployee Directors under this paragraph
6(h).
(v) The automatic grants described in this paragraph 6(h)
shall constitute the only awards under the Plan
permitted to be made to Nonemployee Directors of the
Company.
7. Stock Appreciation Rights.
Stock appreciation rights (SARs) shall be evidenced by written SAR
agreements in such form not inconsistent with the Plan as the Committee shall
approve from time to time; provided that the maximum number of SARs which may be
granted to any one grantee during any twelve-month period is 75,000 (as adjusted
pursuant to paragraph 20, below). Such SAR agreements shall contain the terms
and conditions applicable to the SARs, including in substance the following
terms and conditions:
(a) Award. SARs may be granted in connection with a previously or
contemporaneously granted stock option, or independently of a stock option. SARs
shall entitle the grantee, subject to such terms and conditions as may be
determined by the Committee, to receive upon exercise thereof all or a portion
of the excess of (i) the fair market value at the time of exercise, as
determined by the Committee, of a specified number of Shares with respect to
which the SAR is exercised, over (ii) a specified price which shall not be less
than 100 percent of the fair market value of the Shares at the time the SAR is
granted, or, if the SAR is granted in connection with a previously issued stock
option, not less than 100 percent of the fair market value of the Shares at the
time such option was granted. Upon exercise of a SAR, the number of Shares
reserved for issuance hereunder shall be reduced by the number of Shares covered
by the SAR. Shares covered by a SAR shall not be used more than once to
calculate the amount to be received pursuant to the exercise of the SAR.
(b) SARs Related to Stock Options. If a SAR is granted in relation to a
stock option, (i) the SAR shall be exercisableonly at such times,
and by such persons, as the related option is exercisable;
(ii) the grantee's right to exercise the related option shall be canceled if and
to the extent that the Shares subject to the option are used to calculate the
amount to be received upon the exercise of the related SAR; (iii) the grantee's
right to exercise the related SAR shall be canceled if and to the extent that
the Shares subject to the SAR are purchased upon the exercise of the related
option; and (iv) the SAR shall not be transferable other than by will or by the
laws of descent and distribution, and shall be exercisable during the lifetime
of the grantee only by him. (c) Term. Each SAR agreement shall state the period
or periods of time within which the SAR may be exercised, in whole or in
part, as determined by the Committee and subject to such terms and conditions as
are prescribed for such purpose by the Committee, provided that no SAR shall be
exercisable earlier than six months after the date of grant or later than ten
years after the date of grant. The Committee may, in its discretion, provide in
the SAR agreement circumstances under which the SARs shall become immediately
exercisable, in whole or in part, and may, notwithstanding the foregoing,
accelerate the exercisability of any SAR, in whole or in part, at any time.
(d) Termination. SARs shall be exercisable only during the
grantee's tenure as an employee or director of the Company,
except that, in the discretion of the Committee, a SAR may be
made exercisable for up to three months after the grantee is
Terminated for any reason other than Retirement, death or
Disability, and for up to one year after the grantee is
Terminated because of Retirement, death or Disability.
(e) Payment. Upon exercise of a SAR, payment shall be made in
cash, in Shares at fair market value on the date of exercise,
or in a combination thereof, as the Committee may determine at
the time of exercise.
(f) Other Terms. SARs shall be granted in such manner and such
form, and subject to such additional terms and conditions, as
the Committee in its sole discretion deems necessary or
desirable, including without limitation: (i) if granted in
connection with an Incentive Stock Option, in order to satisfy
any requirements set forth under Section 422 of the Code; or,
(ii) in order to avoid any insider-trading liability in
connection with a SAR under Section 16(b) of the 1934 Act.
8. Restricted Stock Awards.
Restricted stock awards under the Plan shall consist of Shares free of
any purchase price or for such purchase price as may be established by the
Committee restricted against transfer, subject to forfeiture, and subject to
such other terms and conditions (including attainment of performance objectives)
as may be determined by the Committee; provided that the maximum number of
Shares of restricted stock which may be awarded to any one grantee during any
twelve-month period is 75,000 (as adjusted pursuant to paragraph 20, below).
Restricted stock shall be evidenced by written restricted stock agreements in
such form not inconsistent with the Plan as the Committee shall approve from
time to time, which agreement shall contain the terms and conditions applicable
to such awards, including in substance the following terms and conditions:
(a) Restriction Period. Restrictions shall be imposed for such
period or periods as may be determined by the Committee. The
Committee, in its discretion, may provide in the agreement
circumstances under which the restricted stock shall become
immediately transferable and nonforfeitable, or under which
the restricted stock shall be forfeited, and, notwithstanding
the foregoing, may accelerate the expiration of the
restriction period imposed on any Shares at any time.
(b) Restrictions Upon Transfer. Restricted stock and the right to
vote such Shares and to receive dividends thereon, may not be
sold, assigned, transferred, exchanged, pledged, hypothecated,
or otherwise encumbered, except as herein provided, during the
restriction period applicable to such Shares. Notwithstanding
the foregoing, and except as otherwise provided in the Plan,
the grantee shall have all of the other rights of a
stockholder, including, but not limited to, the right to
receive dividends and the right to vote such Shares.
(c) Certificates. A certificate or certificates representing the
number of restricted Shares granted shall be registered in the
name of the grantee. The Committee, in its sole discretion,
shall determine when the certificate or certificates shall be
delivered to the grantee (or, in the event of the grantee's
death, to his Beneficiary), may provide for the holding of
such certificate or certificates in escrow or in custody by
the Company or its designee pending their delivery to the
grantee or Beneficiary, and may provide for any appropriate
legend to be borne by the certificate or certificates.
(d) Lapse of Restrictions. The restricted stock agreement shall
specify the terms and conditions upon which any restriction
upon restricted stock awarded under the Plan shall expire,
lapse, or be removed, as determined by the Committee. Upon the
expiration, lapse, or removal of such restrictions, Shares
free of the restrictive legend shall be issued to the grantee
of his legal representative.
9. Performance Units.
Performance unit awards under the Plan shall entitle grantees to future
payments based upon the achievements of pre-established long-term performance
objectives and shall be evidenced by written performance unit agreements in such
form not inconsistent with this Plan as the Committee shall approve from time to
time. Such agreements shall contain the terms and conditions applicable to the
performance unit awards, including in substance the following terms and
conditions:
(a) Performance Period. The Committee shall establish with respect
to each unit award, a performance period of not fewer than two years.
(b) Unit Value. The Committee shall establish with respect to each
unit award value for each unit which shall not thereafter
change, or which may vary thereafter pursuant to criteria
specified by the Committee.
(c) Performance Targets. The Committee shall establish with
respect to each unit award maximum and minimum performance
targets to be achieved during the applicable performance
period. Achievement of maximum targets shall entitle grantees
to payment with respect to the full value of a unit award.
Grantees shall be entitled to payment with respect to a
portion of a unit award according to the level of achievement
of targets as specified by the Committee for performance which
achieves or exceeds the minimum target but fails to achieve
the maximum target.
(d) Performance Measures. Performance targets established by the
Committee shall relate to corporate, subsidiary, division, or
unit performance and may be established in terms of growth in
gross revenue, earnings per share, ratios of earnings to
equity or assets, or such other measures or standards as may
be determined by the Committee in its discretion. Multiple
targets may be used and may have the same or different
weighting, and they may relate to absolute performance or
relative performance measured against other companies or
businesses.
(e) Adjustments. At any time prior to the payment of a unit award,
the Committee may adjust previously established performance
targets or other terms and conditions, including the Company's
or other corporations' financial performance for Plan
purposes, to reflect major unforeseen events such as changes
in laws, regulations or accounting practices, mergers,
acquisitions or divestitures or other extraordinary unusual or
non-recurring items or events.
(f) Payment of Unit Awards. Following the conclusion of each performance
period, the Committee shall determine the extent to which performance targets
have been attained and any other terms and conditions satisfied for such period.
The Committee shall determine what, if any, payment is due on the unit award and
whether such payment shall be made in cash, Shares, or a combination thereof.
Payment shall be made in a lump sum or installments, as determined by the
Committee, commencing as promptly as practicable following the end of the
performance period unless deferred subject to such terms and conditions and in
such form as may be prescribed by the Committee.
(g) Termination. In the event that a grantee is Terminated as an employee
or director by the Company prior to the end of the performance period by reason
of death, Disability, or Retirement with the consent of the Company, any unit
award, to the extent earned under the applicable performance targets, shall be
payable at the end of the performance period according to the portion of the
performance period during which the grantee was employed by or served as a
director of the Company, provided that the Committee shall have the power to
provide for an appropriate settlement of a unit award before the end of the
performance period. Upon any other Termination, participation shall terminate
forthwith and all outstanding unit awards shall be canceled.
10. Loans and Supplemental Cash.
The Committee, in its sole discretion to further the purpose of the
Plan, may provide for supplemental cash payments or loans to individuals in
connection with all or any part of an award under the Plan. Supplemental cash
payments shall be subject to such terms and conditions as shall be prescribed by
the Committee at the time of grant, provided that in no event shall the amount
of payment exceed:
(a) In the case of an option, the excess fair market value of a
Share on the date of exercise over the option price multiplied
by the number of Shares for which such option is exercised, or
(b) In the case of a SAR, performance unit, or restricted stock
award, the value of the Shares and other consideration issued
in payment of such award.
Any loan shall be evidenced by a written loan agreement or other instrument in
such form and containing such terms and conditions (including, without
limitation, provisions for interest, payment schedules, collateral, forgiveness
or acceleration) as the Committee may prescribe from time to time.
11. General Restrictions.
Each award under the Plan shall be subject to the requirement that if
at any time the Company shall determine that (i) the listing, registration or
qualification of the Shares subject or related thereto upon any securities
exchange or under any state or federal law, or (ii) the consent or approval of
any regulatory body, or (iii) an agreement by the recipient of an award with
respect to the disposition of Shares, or (iv) the satisfaction of withholding
tax or other withholding liabilities is necessary or desirable as a condition of
or in connection with the granting of such award or the issuance or purchase of
Shares thereunder, such award shall not be consummated in whole or in part
unless such listing, registration, qualification, consent, approval, agreement,
or withholding shall have been effected or obtained free of any conditions not
acceptable to the Company. Any such restriction affecting an award shall not
extend the time within which the award may be exercised; and neither the Company
nor its directors or officers nor the Committee shall have any obligation or
liability to the grantee or to a Beneficiary with respect to any Shares with
respect to which an award shall lapse or with respect to which the grant,
issuance or purchase of Shares shall not be effected, because of any such
restriction.
12. Single or Multiple Agreements.
Multiple awards, multiple forms of awards, or combinations thereof may
be evidenced by a single agreement or multiple agreements, as determined by the
Committee.
13. Rights of the Shareholder.
The recipient of any award under the Plan, shall have no rights as a
shareholder with respect thereto unless and until certificates for Shares are
issued to him, and the issuance of Shares shall confer no retroactive right to
dividends.
14. Rights to Terminate.
Nothing in the Plan or in any agreement entered into pursuant to the
Plan shall confer upon any person the right to continue in the employment of the
Company or to serve as a director, or affect any right which the Company may
have to terminate the employment or directorship of such person.
15. Withholding.
(a) Prior to the issuance or transfer of Shares under the Plan, the
recipient shall remit to the Company an amount sufficient to satisfy any
federal, state or local withholding tax requirements. The recipient may satisfy
the withholding requirement in whole or in part by electing to have the Company
withhold Shares having a value equal to the amount required to be withheld. The
value of the Shares to be withheld shall be the fair market value, as determined
by the Committee, of the stock on the date that the amount of tax to be withheld
is determined (the "Tax Date"). Such election must be made prior to the Tax
Date, must comply with all applicable securities law and other legal
requirements, as interpreted by the Committee, and may not be made unless
approved by the Committee, in its discretion.
(b) Whenever payments to a grantee in respect of an award under
the Plan to be made in cash, such payments shall be net of the
amount necessary to satisfy any federal, state or local
withholding tax requirements.
16. Non-Assignability.
No award under the Plan shall be sold, assigned, transferred,
exchanged, pledged, hypothecated, or otherwise encumbered, other than by will or
by the laws of descent and distribution, or by such other means as the Committee
may approve. Except as otherwise provided herein, during the life of the
recipient, such award shall be exercisable only by such person or by such
person's guardian or legal representative.
17. Non-Uniform Determinations.
The Committee's determinations under the Plan (including without
limitation determinations of the persons to receive awards, the form, amount and
timing of such awards, the terms and provisions of such awards and the
agreements evidencing same, and the establishment of values and performance
targets) need not be uniform and may be made selectively among persons who
receive, or are eligible to receive, awards under the Plan, whether or not such
persons are similarly situated.
18. Change In Control Provisions.
(a) In the event of (1) a Change in Control (as defined) or (2) a
Potential Change in Control (as defined), but only if and to the extent so
determined by the Board of Directors at or after grant (subject to any right of
approval expressly reserved by the Board of Directors at the time of such
determination), the following acceleration and valuation provisions shall apply:
(i) Any SARs outstanding for at least six months and any stock
options awarded under the Plan not previously exercisable and
vested shall become fully exercisable and vested.
(ii) Any restrictions and deferral limitations applicable to any
restricted stock, performance units or other Stock-based
awards, in each case to the extent not already vested under
the Plan, shall lapse and such shares, performance units or
other stock-based awards shall be deemed fully vested.
(iii) The value of all outstanding stock options, SARs, restricted
stock, performance units and other stock-based awards, in each
case to the extent vested, shall, unless otherwise determined
by the Committee in its sole discretion at or after grant but
prior to any Change in Control, be cashed out on the basis of
the Change in Control Price (as defined) as of the date such
Change in Control or such Potential Change in Control is
determined to have occurred or such other date as the
Committee may determine prior to the Change in Control.
(b) As used herein, the term "Change in Control" means the happening of any of
the following:
(i) Any person or entity, including a "group" as defined
in Section 13(d)(3) of the 1934 Act, other than the
Company, a subsidiary of the Company, or any employee
benefit plan of the Company or its subsidiaries,
becomes the beneficial owner of the Company's
securities having 20 percent or more of the combined
voting power of the then outstanding securities of
the Company that may be cast for the election for
directors of the Company (other than as a result of
an issuance of securities initiated by the Company in
the ordinary course of business), or
(ii) As the result of, or in connection with, any cash tender or exchange
offer, merger or other business combination, sale of assets or contested
election, or any combination of the foregoing transactions, less than a majority
of the combined voting power of the then outstanding securities of the Company
or any successor corporation or entity entitled to vote generally in the
election of directors of the Company or such other corporation or entity after
such transaction, are held in the aggregate by holders of the Company's
securities entitled to vote generally in the election of directors of the
Company immediately prior to such transactions; or
(iii) During any period of two consecutive years, individuals who at
the beginning of any such period constitute the Board of
Directors cease for any reason to constitute at least a
majority thereof, unless the election, or the nomination for
election by the Company's stockholders, of each director of
the Company first elected during such period was approved by a
vote of at least two-thirds of the directors of the Company
then still in office who were directors of the Company at the
beginning of any such period.
(c) As used herein, the term "Potential Change in Control" means the
happening of any of the following:
(i) The approval by stockholders of an agreement by the Company, the
consummation of which would result in a Change in Control of the
Company; or
(ii) The acquisition of beneficial ownership, directly or
indirectly, by any entity, person or group (other than the
Company, a wholly-owned subsidiary thereof or any employee
benefit plan of the Company or its subsidiaries (including any
trustee of such plan acting as such trustee)) of securities of
the Company representing 5 percent or more of the combined
voting power of the Company's outstanding securities and the
adoption by the Board of Directors of a resolution to the
effect that a Potential Change in Control of the Company has
occurred for purposes of this Plan.
(d) As used herein, the term "Change in Control Price" means the
highest price per share paid in any transaction reported on the National
Association of Securities Dealers Automated Quotation System (or the New York
Stock Exchange or other national securities exchange, as the case may be), or
paid or offered in any bona fide transaction related to a Potential or actual
Change in Control of the Company at any time during the 60 day period
immediately preceding the occurrence of the Change in Control (or, where
applicable, the occurrence of the Potential Change in Control event), in each
case determined by the Committee except that, in the case of Incentive Stock
Options and SARs relating to Incentive Stock Options, such price shall be based
only on transactions reported for the date on which the optionee exercises such
SARs or, where applicable, the date on which a cash out occurs under Section
18(a)(iii).
19. Non-Competition Provision.
Unless the award agreement relating to a stock option, SAR, restricted
stock or performance unit specifies otherwise, a grantee shall forfeit all
unexercised, unearned and/or unpaid awards, including, but not by way of
limitation, awards earned but not yet paid, all unpaid dividends and dividend
equivalents, and all interest, if any, accrued on the foregoing if, (i) in the
opinion of the Committee, the grantee without the written consent of the
Company, engages directly or indirectly in any manner or capacity as principal,
agent, partner, officer, director, employee or otherwise, in any business or
activity competitive with the business conducted by the Company or any of its
subsidiaries; or (ii) the grantee performs any act or engages in any activity
which in the opinion of the Chief Executive Officer of the Company is inimical
to the best interests of the Company.
20. Adjustments.
In the event of any change in the outstanding common stock of the
Company, by reason of a stock dividend or distribution, recapitalization,
merger, consolidation, reorganization, split-up, combination, exchange or Shares
or the like, the Board of Directors, in its discretion, may adjust
proportionately the number of Shares which may be issued under the Plan, the
number of Shares subject to outstanding awards, and the option exercise price of
each outstanding option, and may make such other changes in outstanding options,
SARs, performance units and restricted stock awards, as it deems equitable in
its absolute discretion to prevent dilution or enlargement of the rights of
grantees, provided that any fractional Shares resulting from such adjustments
shall be eliminated.
21. Amendment.
The Board of Directors may terminate, amend, modify or suspend the Plan
at any time, except that the Board shall not, without the authorization of the
holders of a majority of Company's voting securities, increase the maximum
number of Shares which may be issued under the Plan (other than increases
pursuant to paragraph 20 hereof), extend the last date on which awards may be
granted under the Plan, extend the date on which the Plan expires, change the
class of persons eligible to receive awards, or change the minimum option price.
In no event, however, shall the provisions of paragraph 6(h) be amended more
often than once every six months, other than to comport with changes in the
Code, the Employment Retirement Income Security Act of 1974, as amended, or the
rules thereunder. No termination, modification, amendment or suspension of the
Plan shall adversely affect the rights of any grantee or Beneficiary under an
award previously granted, unless the grantee or Beneficiary shall consent; but
it shall be conclusively presumed that any adjustment pursuant to paragraph 20
hereof does not adversely affect any such right.
22. Effect on Other Plans.
Participation in this Plan shall not affect a grantee's eligibility to
participate in any other benefit or incentive plan of the Company. Any awards
made pursuant to this Plan shall not be used in determining the benefits
provided under any other plan of the Company unless specifically provided
therein.
23. Effective Date and Duration of the Plan.
The Plan shall become effective when adopted by the Board of Directors,
provided that the Plan is approved by the holders of a majority of the Company's
voting securities on the date of its adoption by the Board or before the first
anniversary of that date. Unless it is sooner terminated in accordance with
paragraph 21 hereof, the Plan shall remain in effect until all awards under the
Plan have been satisfied by the issuance of Shares or payment of cash or have
expired or otherwise terminated, but no award shall be granted more than ten
years after the earlier of the date the Plan is adopted by the Board of
Directors or is approved by the holders of the Company's voting securities.
24. Unfunded Plan.
The Plan shall be unfunded, except to the extent otherwise provided in
accordance with Section 8 hereof. Neither the Company nor any affiliate shall be
required to segregate any assets that may be represented by stock options, SARs,
or performance units, and neither the Company nor any affiliate shall be deemed
to be a trustee of any amounts to be paid under any stock option, SAR or
performance unit. Any liability of the Company or any affiliate to pay any
grantee or Beneficiary with respect to an option, SAR or performance unit shall
be based solely upon any contractual obligations created pursuant to the
provisions of the Plan; no such obligations will be deemed to be secured by a
pledge or encumbrance on any property of the Company or an affiliate.
25. Governing Law.
The Plan shall be construed and its provisions enforced and
administered in accordance with the laws of the State of Mississippi except to
the extent that such laws may be superseded by any federal law.
ADOPTED BY THE BOARD OF DIRECTORS OF DELTA AND PINE LAND COMPANY ON THE 17TH DAY
OF OCTOBER, 1995 TO BE EFFECTIVE ON DECEMBER 1, 1995 (AFTER THE STOCK SPLIT
EFFECTIVE FOR SHAREHOLDERS OF RECORD ON DECEMBER 1, 1995).
By:
Roger D. Malkin, Chief Executive Officer
<PAGE>
EXHIBIT 23.2
Consent of Independent Public Accountants
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 registration statement of our report dated October
11, 1996 included in Delta and Pine Land Company's Form 10-K for the year ended
August 31, 1996, and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
Memphis, Tennessee,
February 3, 1997
