As filed with the
Securities and Exchange Commission on October 31, 1995
Registration No. 33-
============================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
AMERICAN STORES COMPANY
(Exact name of issuer as specified in its charter)
DELAWARE 87-0207226
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
-------------------------
709 E. South Temple
Salt Lake City, UT 84102
(Address of principal executive offices) (Zip Code)
--------------------------
AMERICAN STORES COMPANY
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
--------------------------
KATHLEEN E. McDERMOTT
CHIEF LEGAL OFFICER
AMERICAN STORES COMPANY
709 E. SOUTH TEMPLE
SALT LAKE CITY, UT 84102
(Name and address of agent for service)
--------------------------
(801) 539-0112
(Telephone number, including area code, of agent for service)
This Registration Statement shall become effective
immediately upon filing with the Securities and
Exchange Commission, and sales of the registered
securities will begin as soon as reasonably
practicable after such effective date.
CALCULATION OF REGISTRATION FEE
<TABLE>
=====================================================================================
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered<F1> per Share Price Fee
<S> <C> <C> <C> <C>
Common Stock 7,000,000 shares $30.125<F2> $210,875,000 $72,716.03
(Pursuant to 1995
Employee Stock
Purchase Plan)
=====================================================================================
<FN>
<F1>
This Registration Statement shall also cover any additional
shares of Common Stock which become issuable under the
Employee Stock Purchase Plan by reason of any stock dividend,
stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results
in an increase in the number of the Registrant's outstanding
shares of Common Stock.
<F2>
Calculated solely for purposes of this offering under Rule
457(h) of the 1933 Act, on the basis of the average of the
high and low selling prices per share of Common Stock of
American Stores Company on October 26, 1995, as reported by
the New York Stock Exchange.
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
-----------------------------------------------
American Stores Company (the "Registrant") hereby
incorporates by reference into this Registration Statement
the following documents previously filed with the Securities
and Exchange Commission (the "Commission"):
a. The Registrant's Annual Report on Form 10-K,
Commission File No. 1-5392 for the fiscal year ending
January 28, 1995;
b. The Registrant's Quarterly Report on Form 10-Q,
Commission File No. 1-5392 for the quarter ended April 29,
1995;
c. The Registrant's Quarterly Report on Form 10-Q,
Commission File No. 1-5392 for the quarter ended July 29,
1995;
d. The Registrant's Registration Statement on Form
8-A Commission File No. 1-5392, filed with the Commission on
May 17, 1994, in which there is described the terms, rights
and provisions applicable to the Registrant's outstanding
Common Stock; and
e. Any similar report filed subsequently with the
Commission and distributed to the Registrant's stockholders.
All reports and definitive proxy or information
statements filed pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended
(the "1934 Act") after the date of this Registration
Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby
have been sold or which deregisters all 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.
Item 4. Description of Capital Stock
----------------------------
Inapplicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Inapplicable.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Reference is made to Section 145 of the
Delaware General Corporation Law which provides for
indemnification of directors and officers in certain
circumstances. Article Nine of the Restated Certificate of
Incorporation of the Registrant provides the following:
9.01 Elimination of Certain Liability of
Directors. A Director of the Corporation shall not be
personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a Director,
except for liability (i) for any breach of the Director's
duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the Director derived an
improper personal benefit. If
II-1.
<PAGE>
the Delaware General Corporation Law is amended after
approval by the stockholders of this Article 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 Delaware General Corporation
Law, as so amended.
Any repeal or modification of the foregoing
paragraph 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.
9.02 Indemnification and Insurance.
(a) Right to Indemnification. Each
person who was or is made 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 or officer of the
Corporation or while serving as a Director or officer of the
Corporation is or was also serving at the request of
the Corporation as a director, officer, employee or agent of
another Corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect
to employee benefit plans, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized
by the Delaware General Corporation Law, as the same exists
or may hereafter be 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 attorneys' 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 and such indemnification shall
continue as to a person who has ceased to be a Director or
officer, and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except
as provided in paragraph (b) hereof, 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.
The right to indemnification conferred in this Section shall
be a contract right (which may not be reduced or limited
by any repeal or modification of this Section 9.02) and
shall include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that,
if the Delaware General Corporation Law 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
II-2.
<PAGE>
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 or
otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of
the Corporation with the same scope and effect as the
foregoing indemnification of Directors and officers.
(b) Right of Claimant to Bring Suit.
If a claim under paragraph (a) of this Section 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 being 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 a 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
Delaware General Corporation Law 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 its 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 Delaware General
Corporation Law nor an actual determination by the
Corporation (including its Board of Directors, independent
legal counsel, or its 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.
(c) Non-Exclusivity of Rights. The
right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition
conferred in this Section shall not be exclusive of any other
right which any person may have or hereafter acquire under
any statute, provision of the Certificate of Incorporation,
by-law, agreement, vote of stockholders or disinterested
Directors or otherwise.
(d) Insurance. 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 such expense, liability or loss
whether
II-3.
<PAGE>
or not the Corporation would have the power to indemnify
such person against such expense, liability to or loss under
the Delaware General Corporation Law.
In addition, the Registrant maintains a directors' and
officers' liability insurance policy.
Item 7. Exemption from Registration Claimed
-----------------------------------
Inapplicable.
Item 8. Exhibits
--------
Exhibit Number Exhibit
- -------------- -------
5. Opinion of Brobeck, Phleger & Harrison.
23.1 Independent Accountants Consent -
Ernst & Young LLP
23.2 Consent of Brobeck, Phleger & Harrison is
contained in Exhibit 5.
24. Power of Attorney. Reference is made to
page II-5 of this Registration Statement.
99 American Stores Company Employee Stock
Purchase Plan.
Item 9. Undertakings
------------
A. The undersigned Registrant hereby
undertakes: (1) to file, during any period in which offers
or sales are being made, a post-effective amendment to this
Registration Statement (i) to include any prospectus required
by Section 10(a)(3) of the 1933 Act, (ii) to reflect in the
prospectus any facts or events arising after the effective
date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in this Registration Statement, and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement; provided,
however, that clauses (1)(i) and (1)(ii) shall not apply if
the information required by those clauses to be included in a
post-effective amendment is contained in the periodic reports
filed by the Registrant pursuant to Section 13 or Section
15(d) of the 1934 Act that are incorporated by reference into
this Registration Statement; (2) that, for the purpose of
determining any liability under 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;
and (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
Registrant's Employee Stock Purchase Plan.
B. The undersigned Registrant hereby
undertakes that, for 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 that is incorporated by reference into this
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 or controlling persons of the Registrant pursuant
to the provisions and agreements summarized in Item 6 above
or otherwise, the Registrant has been advised that in the
opinion of the 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.
II-4.
<PAGE>
SIGNATURES
Pursuant to the requirements of the 1933 Act,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on
Form S-8 and has duly caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Salt Lake City, State of Utah, on
this 17th day of October, 1995.
AMERICAN STORES COMPANY
By /s/ VICTOR L. LUND
------------------------
Victor L. Lund
Chairman of the Board,
Chief Executive Officer,
and Director
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of
American Stores Company, a Delaware corporation, do hereby
constitute and appoint Victor L. Lund and Teresa Beck, and
each one of them, the lawful attorneys and agents, with full
power and authority to do any and all acts and things and to
execute any and all instruments which said attorneys and
agents, and any one of them, determine may be necessary or
advisable or required to enable said corporation to comply
with the 1933 Act, and any rules or regulations or
requirements of the Commission in connection with this
Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include
the power and authority to sign the names of the undersigned
officers and directors in the capacities indicated below to
this Registration Statement, to any and all amendments, both
pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or
documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof,
and each of the undersigned hereby ratifies and confirms
all that said attorneys and agents, or any of them, shall do
or cause to be done by virtue hereof. This Power of Attorney
may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has
executed this Power of Attorney as of the date indicated.
Pursuant to the requirements of the 1933 Act, this
Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
<S> <C> <C>
/s/ VICTOR L. LUND Chairman of the Board, Chief Executive October 30, 1995
- ------------------------ Officer and Director (Principal Executive Officer)
Victor L. Lund
/s/ TERESA BECK Chief Financial Officer October 30, 1995
- ------------------------ (Principal Financial and Accounting Officer)
Teresa Beck
II-5.
<PAGE>
Signatures Title Date
/s/ HENRY BRYANT Director October 30, 1995
- -----------------------
Henry Bryant
/s/ LOUIS H. CALLISTER Director October 30, 1995
- -----------------------
Louis H. Callister
/s/ ARDEN B. ENGEBRETSEN Director October 30, 1995
- ------------------------
Arden B. Engebretsen
/s/ JAMES B. FISHER Director October 30, 1995
- -----------------------
James B. Fisher
/s/ F. R. GUMUCIO Director October 30, 1995
- -----------------------
F. R. Gumucio
/s/ LEON G. HARMON Director October 30, 1995
- -----------------------
Leon G. Harmon
/s/ DONALD B. HOLBROOK Director October 30, 1995
- -----------------------
Donald B. Holbrook
/s/ VICTOR L. LUND Director October 30, 1995
- -----------------------
Victor L. Lund
/s/ JOHN E. MASLINE Director October 30, 1995
- -----------------------
John E. Masline
/s/ MICHAEL T. MILLER Director October 30, 1995
- -----------------------
Michael T. Miller
II-6.
<PAGE>
Signatures Title Date
/s/ L. TOM PERRY Director October 30, 1995
- -----------------------
L. Tom Perry
/s/ BARBARA S. PREISKEL Director October 30, 1995
- -----------------------
Barbara S. Preiskel
/s/ J.L. SCOTT Director October 30, 1995
- -----------------------
J.L. Scott
/s/ DON L. SKAGGS Director October 30, 1995
- -----------------------
Don L. Skaggs
/s/ L.S. SKAGGS Director October 30, 1995
- -----------------------
L.S. Skaggs
/s/ ARTHUR K. SMITH Director October 30, 1995
- -----------------------
Arthur K. Smith
</TABLE>
II-7.
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
AMERICAN STORES COMPANY
<PAGE>
EXHIBIT INDEX
Exhibit Number Exhibit
- -------------- -------
5. Opinion of Brobeck, Phleger & Harrison.
23.1 Independent Accountants' Consent - Ernst &
Young LLP
23.2 Consent of Brobeck, Phleger & Harrison is
contained in Exhibit 5.
24. Power of Attorney. Reference is made to
page II-5 of this Registration Statement.
99. American Stores Company Employee Stock
Purchase Plan.
<PAGE>
EXHIBIT 5
Opinion of Brobeck, Phleger & Harrison
October 25, 1995
American Stores Company
P.O. Box 27447
Salt Lake City, UT 84127-0447
Re: American Stores Company
Registration Statement for Offering
of 7,000,000 Shares of Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the
"Registration Statement") under the Securities Act of 1933,
as amended, of 7,000,000 shares of Common Stock under the
Company's Employee Stock Purchase Plan (the "Plan").
We advise you that, in our opinion, when such shares
have been issued and sold pursuant to the applicable
provisions of the Company's Plan and in accordance with
the Registration Statement, such shares will be validly
issued, fully paid and nonassessable shares of the Company's
Common Stock.
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement.
Very truly yours,
/s/ BROBECK, PHLEGER & HARRISON
BROBECK, PHLEGER & HARRISON
EXHIBIT 23.1
Independent Accountants' Consent - Ernst & Young LLP
We consent to the incorporation by reference in the
Registration Statement (Form S-8) pertaining to the
Employee Stock Purchase Plan of American Stores Company
of our report dated March 16, 1995, with respect to the
consolidated financial statements of American Stores
Company included in the Annual Report (Form 10-K) for
the fiscal year ended January 28, 1995, filed with
the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Salt Lake City, Utah
October 30, 1995
<PAGE>
EXHIBIT 23.2
Consent of Brobeck, Phleger & Harrison is contained in
Exhibit 5
<PAGE>
EXHIBIT 24
Power of Attorney. Reference is made to page II-5 of this
Registration Statement
<PAGE>
EXHIBIT 99
American Stores Company
Employee Stock Purchase Plan
AMERICAN STORES COMPANY
-----------------------
EMPLOYEE STOCK PURCHASE PLAN
----------------------------
1. Purpose
-------
The American Stores Company Employee Stock Purchase Plan
(the "Plan") is intended to provide an opportunity to
participate in the ownership of American Stores Company (the
"Company") for eligible union and non-union employees of the
Company and such other companies ("Participating Companies")
as the Board of Directors of the Company (the "Board") shall
from time to time designate; provided that each such company
shall qualify as a "parent corporation" or "subsidiary
corporation" as defined in Section 424(e) and (f) of the
Internal Revenue Code of 1986 (the "Code"), (a "Corporate
Affiliate") on the first day of the relevant Offering Period.
It is further intended that the Plan shall qualify as an
"employee stock purchase plan" as defined in Section 423 of
the Code.
2. Administration
--------------
(a) Administrative Body. The Plan shall be
administered by the Compensation and Stock Option Committee
of the Board of Directors of the Company (the "Board"), or
its designee (the "Committee"). The Committee or its
designee shall have full authority to interpret and construe
any provision of the Plan and to adopt such rules and
regulations for administering the Plan as it may deem
necessary. Decisions of the Committee or its designee shall
be final and binding on all parties who have an interest in
the Plan.
(b) Rule 16b-3 Limitations. Notwithstanding the
provisions of Subparagraph 2(a), in the event that Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as
amended, or any successor provision ("Rule 16b-3") provides
specific requirements for the administrators of plans of this
type, the Plan shall be only administered by such a body and
in such a manner as shall comply with the applicable
requirements of Rule 16b-3.
3. Effective Date and Term of Plan
-------------------------------
(a) Effective Date. The Plan was approved by the
Board on March 21, 1995, and by the Executive Committee on
April 1, 1995 and shall become effective on January 1, 1996,
subject to approval by the holders of at least a majority of
the Company's voting stock represented and voting at a
duly-held meeting at which a quorum is present. If such
shareholder approval is not obtained, then the Plan shall
terminate and no purchase rights shall be granted.
(b) Termination of Plan. The Plan shall continue
in effect until the date on which all shares available for
issuance under the Plan shall have been issued unless earlier
terminated pursuant to Paragraph 9.
4. Stock Subject to the Plan
-------------------------
(a) Number of Shares. The stock subject to the
Plan shall be shares of the common stock of the Company which
are authorized but unissued or which have been reacquired
("Common Stock"). In connection with the sale of shares
under the Plan, the Company may repurchase shares of Common
Stock in the open market or otherwise. The aggregate amount
of Common Stock which may be issued pursuant to the Plan
shall not exceed 7,000,000 shares (subject to adjustment as
provided in Subparagraph 4(b)).
(b) Adjustment. If any change is made in the
Common Stock subject to the Plan, or subject to any purchase
right granted under the Plan (through merger,
<PAGE>
consolidation, reorganization, recapitalization, stock
dividend, split-up, combination of shares, exchange of
shares, change in corporate structure, or otherwise),
appropriate adjustments shall be made as to (i) the class
and maximum number of shares subject to the Plan, (ii) the
class of shares purchasable by each participant, and (iii)
the class and number of shares and price per share of stock
subject to outstanding purchase rights in order to prevent
the dilution or enlargement of benefits thereunder.
5. Offering Periods
----------------
Common Stock shall be offered for purchase under the Plan
through a series of successive Offering Periods. Each
Offering Period shall have a maximum duration of twenty-seven
(27) months. Unless otherwise designated by the Committee,
each Offering Period shall begin on the first Wednesday of
January, April, July and October ("Grant Date"), and end on
the first Wednesday of the next succeeding three month period
("Exercise Date").
6. Eligibility and Participation
-----------------------------
(a) General Rules. Unless excluded pursuant to
Subparagraph 6(b), each employee of the Company or any of the
Participating Companies who is employed on a part-time or
full-time basis shall be an eligible employee on any date if,
on that date he or she has completed one year of service
for the Company or any of the Participating Companies.
An employee who has become an eligible employee before the
first day of an Offering Period shall be eligible to
participate in the Plan during that Offering Period. Each
eligible employee may become a participant with respect to an
Offering Period by executing such instruments as the
Committee may specify and delivering them to such persons and
at such time prior to the first day of the Offering Period
as the Committee may specify.
(b) Highly Compensated Employee. The Compensation
and Stock Option Committee may exclude from participation in
any Offering Period, all or a class of highly compensated
employees within the meaning of Code Section 414(q) (or
successor provision). If the Compensation and Stock Option
Committee determines that a participant has become a member
of an excluded class of employees, payroll deductions will
cease for that participant, and payroll deductions collected
and not applied to the purchase of stock will be held for
the purchase of stock at the end of the Offering Period
unless the participant elects to have the funds returned as
soon as practicable.
(c) Five Percent Owner. Under no circumstances
shall purchase rights be granted under the Plan to any
employee if such individual would, immediately after the
grant, own (within the meaning of Code Section 424(d)), or
hold outstanding options or other rights to purchase, stock
possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company
or any Corporate Affiliate.
7. Purchase Rights
---------------
Each participant shall be granted a separate purchase
right for each Offering Period in which the individual
participates. The purchase right shall be granted on the
date on which such individual first joins the Offering
Period and shall be automatically exercised on the
Exercise Date.
Purchase rights shall be evidenced by instruments in such
form as the Committee may from time to time approve, and
shall conform to the following terms and conditions:
2.
<PAGE>
(a) Exercise of Purchase Rights. Payroll
deductions will be collected during each Offering Period and
applied to the purchase of whole and fractional shares of
Common Stock on the Exercise Date. A new Grant Date for
the successive Offering Period will be fixed on the same day.
(b) Purchase Price. The Purchase Price of each
share purchased on any date within an Offering Period shall
be the lower of (i) eighty-five percent (85%) of the fair
market value per share of the Company's Common Stock on the
Grant Date, or (ii) eighty-five percent (85%) of the fair
market value per share of the Company's Common Stock on the
Exercise Date.
(c) Fair Market Value. For purposes of the Plan,
the fair market value per share of the Company's Common Stock
on any relevant day shall be the average of the highest and
lowest quoted sales prices per share of Common Stock on the
date in question as such price is officially quoted on the
New York Stock Exchange Composite Transactions Tape. If
there is no reported sale of Common Stock on such exchange
on the date in question, then the fair market value shall
be the average of the highest and lowest quoted sales
prices per share as reported on the next preceding date for
which such quotation exists.
(d) Payroll Deductions. Payroll deductions shall
begin with the first pay day following the participant's
entry date into the Offering Period and shall (unless sooner
terminated by the participant) remain in effect for
successive Offering Periods. A participant may authorize
payroll deductions of not less than a minimum amount
specified by the Committee (initially five dollars ($5.00)
per week), and not more than the participant's compensation
paid during the payroll period, subject to the limitation in
Subparagraph 7(k), to be contributed to the Plan.
Compensation for this purpose will include straight time
gross earnings, overtime pay, and bonuses paid to the
participant during the pay period all before reduction for
elective contributions under a 401(k) plan or cafeteria plan
qualified under Section 125 (or a successor provision) of
the Code, and will exclude severance payments, moving
allowance and reimbursement of expenses or any other
additional compensation paid to the participant during the
pay period.
(e) Termination of or Changes to Payroll
Deductions. Unless a participant has irrevocably elected
otherwise, the participant may terminate payroll deductions
at any time by filing the appropriate form with the Committee
subject to such advance notice as the Committee may require.
All further payroll deductions will cease, and any payroll
deductions previously collected from the participant shall
be held for the purchase of shares on the next Exercise Date
immediately following such termination, unless the participant
elects to have the funds refunded as soon as practicable.
A participant may increase or decrease the rate of payroll
deductions as determined by the Committee. The Committee
shall determine, in its discretion, when such rate change
shall become effective.
(f) Termination of Employment. If a participant
ceases to be employed by the Company or a Participating
Company for any reason, including death or disability, prior
to the end of an Offering Period, the participant's purchase
right shall terminate and any payroll deductions previously
collected from the participant shall be held for the purchase
of shares on the next Exercise Date immediately following
such termination, unless the participant or the deceased
participant's estate, elects to have the funds refunded as
soon as practicable. The Committee may provide, on a uniform
basis with respect to any Offering Period, that an employee
who is on a leave of absence will be deemed to have
terminated employment after a specified period.
(g) Proration of Purchase Rights. If the total
number of shares of Common Stock for which purchase rights
are to be granted on any date in accordance with the terms
3.
<PAGE>
of the Plan exceed the number of shares then remaining
available under the Plan (after deduction of all shares for
which purchase rights have been exercised or are then
outstanding), the Committee shall make a pro rata allocation
of the shares remaining available in as near as uniform a
manner as shall be practicable and as it shall deem
equitable. The Committee shall give written notice of such
allocation to each participant affected thereby.
(h) Exercise. Each purchase right shall be
exercised automatically on the Exercise Date for the full
number of purchasable shares, unless the purchase right has
been previously terminated pursuant to Paragraph 7(e) or
7(f). Amounts not applied to the purchase of whole shares
will be held for purchase of shares on the next Exercise
Date.
(i) Assignability. Purchase rights under the Plan
shall not be assignable or transferable by the participant
other than by will or by the laws of descent and distribution
and during the life of the participant shall be exercisable
only by the participant.
(j) Rights as Shareholder. A participant shall
have no rights as a shareholder with respect to shares
covered by any purchase right granted under the Plan until
the purchase right is exercised. No adjustments will be made
for dividends or other rights for which the record date is
prior to the date of exercise.
(k) Accrual Limitations. No purchase right shall
permit the rights of a participant to purchase stock under
all "employee stock purchase plans" (as defined in Section
423 of the Code) of the Company or a Corporate Affiliate to
accrue at a rate that exceeds $25,000 of fair market value of
such stock (determined at the time such purchase right is
granted) for each calendar year in which such purchase right
is outstanding at any time.
(l) Other Provisions. Instruments evidencing
purchase rights may contain such other provisions, not
inconsistent with the Plan, as the Committee deems advisable.
8. Company's Repurchase Right
If a participant offers to sell shares acquired under the
Plan before the expiration of the two-year restrictive
period, the Participant must first offer the shares to the
Company for repurchase at the lesser of (i) the original
purchase price for such shares, or (ii) the fair market value
of such shares at the time of the sale.
9. Amendment and Termination
-------------------------
(a) Amendment. The Board may from time to time
alter, amend, suspend, or discontinue the Plan following the
close of any Offering Period with respect to any shares at
any time not subject to purchase rights; provided that no
such action of the Board may, without the approval of
shareholders of the Company, (i) materially increase the
benefits accruing to participants under the Plan, (ii)
materially increase the number of shares which may be issued
under the Plan, or (iii) make any other change with respect
to which the Board determines that shareholder approval is
required by applicable law or regulatory standards.
(b) Termination. The Board shall have the right,
exercisable in its sole discretion, to terminate the Plan
immediately following any Exercise Date. Should the Board
elect to exercise such right, then no further purchase rights
shall thereafter be granted or exercised, and no further
payroll deductions shall thereafter be collected under the
Plan.
4.
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10. No Employment Obligation
------------------------
Nothing contained in the Plan (or in any purchase right
granted pursuant to the Plan) shall confer upon any employee
any right to continue in the employ of the Company or any
Corporate Affiliate or constitute any contract or agreement
of employment or interfere in any way with the right of the
Company or a Corporate Affiliate to reduce such employee's
compensation from the rate in existence at the time of the
granting of a purchase right or to terminate such employee's
employment at any time, with or without cause. However,
nothing contained herein or in any purchase right shall
affect any contractual rights of an employee pursuant to a
written employment agreement.
11. Use of Proceeds
---------------
The cash proceeds received by the Company from the
issuance of shares pursuant to purchase rights under the Plan
shall be used for general corporate purposes.
12. Regulatory Approval
-------------------
The implementation of the Plan, the granting of any
purchase right under the Plan, and the issuance of Common
Stock upon the exercise of any such purchase right shall
be subject to the Company's compliance with all applicable
requirements of the 1933 Act, all applicable listing
requirements of any securities exchange on which the Common
Stock is listed and all other applicable requirements
established by law or regulation.
13. Governing Law
-------------
To the extent not otherwise governed by federal law, the
Plan and its implementation shall be governed by and
construed in accordance with the laws of the State of Utah.
5.
