As filed with the Securities and Registration No. _____
Exchange Commission on May 31, 1996
FORM S-8
Registration Statement under the Securities Act of 1933
FOODBRANDS AMERICA, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-2535513
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1601 N.W. Expressway, Suite 1700
Oklahoma City, Oklahoma 73118
(Address of Principal Executive Office) (Zip Code)
FOODBRANDS AMERICA, INC. NON-EMPLOYEE
DIRECTORS' DEFERRED STOCK COMPENSATION PLAN
(Full title of the plan)
Copies to:
Mr. Bryant P. Bynum W. Chris Coleman, Esq.
Foodbrands America, Inc. McAfee & Taft
1601 N.W. Expressway, Suite 1700 A Professional Corporation
Oklahoma City, Oklahoma 73118 Tenth Floor
(Name and address of agent Two Leadership Square
for service) Oklahoma City, Oklahoma 73102
405/879-4100
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
- ------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum Amount
securities Amount offering aggregate of
to be to be price offering registra-
registered registered* per unit**price** tion fee**
- ------------------------------------------------------------------
Common Stock, 150,000 $15.9375 $2,390,625 $824.35
$.01 par value
- ------------------------------------------------------------------
* In addition, pursuant to Rule 416(a) under the Securities Act
of 1933, this Registration Statement also covers an
indeterminate number of shares which by reason of certain
events specified in the Foodbrands America, Inc. Non-Employee
Directors' Deferred Stock Compensation Plan (the "Plan") may
become subject to the Plan.
** Estimated pursuant to Rule 457(h) of the Securities Act of
1933 solely for the purpose of calculating the registration
fee and based upon the average of the high and low prices of
Foodbrands America, Inc. common stock as reported by the New
York Stock Exchange on May 29, 1996.
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant incorporates herein by reference the fol-
lowing documents filed with the Securities and Exchange Commission
(the "Commission"):
(a) The registrant's Annual Report on Form 10-K for the
fiscal year ended December 30, 1995 filed with the Commission on
February 26, 1996, and as amended on Form 10-K/A on February 29,
1996 and May 10, 1996.
(b) The registrant's Quarterly Report on Form 10-Q for
the period ended March 30, 1996 filed with the Commission on April
29, 1996.
(c) The registrant's Current Report on Form 8-K filed
with the Commission on April 25, 1996, and Amendments One, Two and
Three on Form 8-K/A (filed on February 26 and 29, 1996, and April
25, 1996, respectively) to registrant's Current Report on Form 8-K
dated December 11, 1995.
(d) The description of the Common Stock set forth in
the registrant's Registration Statement on Form 8-A filed with the
Commission on January 22, 1996.
All reports hereafter filed by the registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, prior to the filing of a post-effective amendment
which indicates that all of the shares of the registrant's Common
Stock covered by this registration statement have been sold or
which deregisters all such shares then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law,
under which act the registrant is incorporated, authorizes the
indemnification of officers and directors in certain
circumstances. Article Ninth and Tenth of the registrant's
Certificate of Incorporation, as well as Article 8 of the
registrant's Bylaws, provide indemnification of directors,
officers and agents to the extent permitted by Delaware General
Corporation Law. These provisions may be sufficiently broad to
indemnify such persons for liabilities under the Securities Act of
1933. In addition, Article Tenth of the registrant's Certificate
of Incorporation permits the exculpation of a director for mone-
tary damages for breach of fiduciary duty as a director. In
addition, the registrant maintains insurance policies which insure
its officers and directors against certain liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Amended and Restated Certificate of Incorporation of the
registrant (incorporated by reference to Exhibit 3.1 to
Registration Statement on Form 8-B filed by the regis-
trant on May 17, 1995).
4.2 Amended and Restated Bylaws of registrant (incorporated
by reference to Exhibit 3.2 to Registration Statement on
Form 8-B filed by the registrant on May 17, 1995).
4.3 Specimen certificate for Foodbrands America, Inc. Common
Stock, par value $.01 per share (incorporated by refer-
ence to Exhibit 4.1 to Registration Statement on Form 8-
B filed by registrant on May 17, 1995).
5 Opinion of McAfee & Taft A Professional Corporation.
15 Letter of Coopers & Lybrand L.L.P. regarding unaudited
interim financial information.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of McAfee & Taft A Professional Corporation
(contained in Exhibit 5).
99 Non-Employee Directors' Deferred Stock Compensation
Plan.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration state-
ment (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the high or low end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registra-
tion statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purposes of determining any liability
under the Securities Act of 1933, each such post-effective amend-
ment 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.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the fore-
going 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 Act
and is, therefor, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
THE REGISTRANT. 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 require-
ments 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 Oklahoma City, State of Oklahoma
on May 30, 1996.
FOODBRANDS AMERICA, INC.
By /s/ R. Randolph Devening
R. Randolph Devening, Chairman
of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ R. Randolph Devening Chairman of the Board, May 30, 1996
R. Randolph Devening President, Chief Executive
Officer and Director
(Principal Executive Officer)
/s/ Horst O. Sieben Senior Vice President May 30, 1996
Horst O. Sieben and Chief Financial Officer
(Principal Financial Officer)
/s/ William L. Brady Vice President and May 30, 1996
William L. Brady Controller (Principal
Accounting Officer)
/s/ Theodore Ammon Director May 28, 1996
Theodore Ammon
/s/ Dort A. Cameron III Director May 30, 1996
Dort A. Cameron III
/s/ Richard T. Berg Director May 30, 1996
Richard T. Berg
/s/ Terry M. Grimm Director May 30, 1996
Terry M. Grimm
________________ Director _________, 1996
Paul S. Levy
/s/ Angus C. Littlejohn, Jr. Director May 30, 1996
Angus C. Littlejohn, Jr.
/s/ Paul W. Marshall Director May 30, 1996
Paul W. Marshall
/s/ Peter A. Joseph Director May 30, 1996
Peter A. Joseph
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Page
5 - Opinion of McAfee & Taft A Professional
Corporation
15 - Letter of Coopers & Lybrand L.L.P. regarding
unaudited interim financial information.
23.1 - Consent of Coopers & Lybrand L.L.P.
23.2 - Consent of Arthur Andersen LLP
23.3 - Consent of Deloitte & Touche LLP
99 - Non-Employee Directors' Deferred Stock
Compensation Plan
Exhibit 5
May 28, 1996
R. Randolph Devening
Chairman of the Board, President
and Chief Executive Officer
Foodbrands America, Inc.
1601 N.W. Expressway, Suite 1700
Oklahoma City, OK 73118
Re: Shares of Foodbrands America, Inc. Common Stock,
Par Value $.01, to be issued pursuant to the
Foodbrands America, Inc. Non-Employee Directors'
Deferred Stock Compensation Plan (the "Plan")
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to
be filed by you with the Securities and Exchange Commission in
connection with the Plan, which Registration Statement covers the
offer and sale of up to 150,000 shares of common stock, par value
$.01 per share, of Foodbrands America, Inc. (the "Corporation").
We also examined your minute books and other corporate records,
and made such other investigation as we deemed necessary in order
to render the opinions expressed herein.
Based on the foregoing, we are of the opinion that the
shares to be purchased pursuant to the Plan, when issued in
accordance with the Plan, will be legally issued, fully paid and
nonassessable in accordance with the Delaware General Corporation
Law.
Consent is hereby given for the inclusion of this opinion as
part of the Registration Statement.
Very truly yours,
McAfee & Taft A Professional Corporation
Exhibit 15
May 28, 1996
Securities and Exchange Commission
450 Fifth Street, NW
Washington, D.C. 10549
Re: Foodbrands America, Inc.
Registration Statement on Form S-8 (Non-Employee Directors'
Deferred Stock Compensation Plan)
Gentlemen:
We are aware that our report dated April 29, 1996 on our review
of interim financial information of Foodbrands America, Inc. for
the periods ended March 30, 1996 and April 1, 1995, and included
in the Company's quarterly report on Form 10-Q for the quarter
ended March 30, 1996 is incorporated by reference in this
registration statement. Pursuant to Rule 436(c) under the
Securities Act of 1933, this report should not be considered a
part of the Registration Statement prepared or certified by us
within the meaning of Sections 7 and 11 of that Act.
COOPERS & LYBRAND L.L.P.
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 (File No. __________) of our report, which
includes an explanatory paragraph relating to the Company's
adoption of new methods of accounting for income taxes and
postretirement benefits other than pensions, dated February 12,
1996, except as to the information presented in Note 13 for which
the date is May 9, 1996, on our audits of the consolidated
financial statements and our report dated February 12, 1996, on
our audit of the related financial statement schedule of
Foodbrands America, Inc. as of December 30, 1995 and December 31,
1994, and for the years ended December 30, 1995, December 31,
1994 and January 1, 1994. We also consent to the incorporation
by reference in this registration statement of our report dated
September 23, 1994, on our audits of the financial statements of
TNT Crust, Inc. as of August 31, 1994 and 1993, and for the years
then ended, which report is included in Foodbrands America,
Inc.'s Amendments One, Two and Three on Form 8-K/A (filed on
February 26 and 29, and April 25, 1996, respectively) to the
Current Report on Form 8-K dated December 11, 1995, which Form
8-K/A is incorporated by reference in this registration
statement.
COOPERS & LYBRAND L.L.P.
Oklahoma City, Oklahoma
May 28, 1996
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we consent to the
incorporation by reference in this Form S-8 registration
statement of Foodbrands America, Inc. of our report dated
September 22, 1995, on our audit of the financial statements of
TNT Crust, Inc. as of August 31, 1995, and for the year then
ended, which report is included in Foodbrands America, Inc.'s
Amendments One, Two and Three on Form 8-K/A (filed on February 26
and 29, and April 25, 1996, respectively) to the Current Report
on Form 8-K dated December 11, 1995.
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
May 28, 1996
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
registration statement of Foodbrands America, Inc. on Form S-8
(File No. ) of our report dated January 6, 1996, on our
audits of the financial statements of KPR Holdings, L.P. as of
December 10, 1995 and Decemebr 31, 1994, and for the period ended
December 10, 1995 and the fiscal years ended December 31, 1994
and January 1, 1994, which report is included in Foodbrands
America, Inc.'s Form 8-K, as amended through April 25, 1996.
DELOITTE & TOUCHE LLP
Fort Worth, Texas
May 28, 1996
Exhibit 99
FOODBRANDS AMERICA, INC.
NON-EMPLOYEE DIRECTORS'
DEFERRED STOCK COMPENSATION PLAN
ARTICLE I
PURPOSE AND EFFECTIVE DATE
1.1 Purpose. The Foodbrands America, Inc. Non-Employee
Directors' Deferred Stock Compensation Plan (the "Plan") is
intended to advance the interests of the Company and its
shareholders by providing a means to attract and retain highly-
qualified persons to serve as non-employee Directors and to promote
ownership by non-employee Directors of a greater proprietary
interest in the Company, thereby aligning such Directors' interests
more closely with the interests of shareholders of the Company.
1.2 Effective Date. This Plan shall become effective
April 27, 1995 subject to approval of the shareholders of the
Company by the affirmative vote of a majority of Shares present, or
represented, and entitled to vote on the subject matter, at the
1996 Annual Meeting of Shareholders of the Company at which a
quorum is present or by a written consent of the holders of a
majority of the Company's then outstanding Shares.
ARTICLE II
DEFINITIONS
The following terms shall be defined as set forth below:
2.1 "Board" means the Board of Directors of the Company.
2.2 "Committee" means the Compensation Committee of the
Board.
2.3 "Company" means Foodbrands America, Inc., a Delaware
corporation, or any successor thereto.
2.4 "Deferral Date" means the date Fees would otherwise
have been paid to the Participant.
2.5 "Director" means any individual who is a member of
the Board.
2.6 "Exchange Act" means the Securities Exchange Act of
1934, as amended. References to any provision of the Exchange Act
include rules thereunder and successor provisions and rules
thereto.
2.7 "Fair Market Value" means the closing sales price
for the Shares on the relevant date, or (if there were no sales on
such date) the closing sales price on the nearest day before or the
nearest day after the relevant date, as reported in The Wall Street
Journal or a similar publication selected by the Committee.
2.8 "Fees" means all or part of any retainer and/or fees
payable to a non-employee Director in his or her capacity as a
Director.
2.9 "Participant" means a non-employee Director who
defers Fees under Article VI of this Plan.
2.10 "Reconciliation Events" means certain events which
cause the amount of Fees actually paid during a Plan year to differ
from the amount of Fees credited pursuant to Section 6.4,
including, but not limited to, the following: an increase or
decrease in Fees paid, additional meetings held, missed attendance
at certain meetings, newly elected directors and Terminations of
Service which occur prior to the end of the Plan year.
2.11 "Secretary" means the Corporate Secretary or any
Assistant Corporate Secretary of Foodbrands America, Inc.
2.12 "Shares" means shares of the common stock of
Foodbrands America, Inc., par value $.01 per share, or of any
successor corporation or other legal entity adopting this Plan.
2.13 "Stock Units" means the credits to a Participant's
Stock Unit Account under Article VI of this Plan, each of which
represents the right to receive one Share upon settlement of the
Stock Unit Account.
2.14 "Stock Unit Account" means the bookkeeping account
established by the Company pursuant to Section 6.4.
2.15 "Termination Date" means the date the Plan
terminates pursuant to Section 12.8.
2.16 "Termination of Service" means termination of
service as a Director in any of the following circumstances:
(a) Where the Participant voluntarily resigns or
retires;
(b) Where the Participant is not re-elected (or
elected in the case of an appointed Director) to the Board by the
shareholders; or
(c) Where the Participant dies.
ARTICLE III
SHARES AVAILABLE UNDER THE PLAN
Subject to adjustment as provided in Article X, the
maximum number of Shares that may be distributed in settlement of
Stock Unit Accounts under this Plan shall not exceed 150,000. Such
Shares may include authorized but unissued Shares or treasury
Shares.
ARTICLE IV
ADMINISTRATION
4.1 This Plan shall be administered by the Board's
Compensation Committee, or such other committee or individual as
may be designated by the Board. Notwithstanding the foregoing, no
Director who is a Participant under this Plan shall participate in
any determination relating solely or primarily to his or her own
Shares, Stock Units or Stock Unit Account.
4.2 It shall be the duty of the Committee to administer
this Plan in accordance with its provisions and to make such
recommendations of amendments or otherwise as it deems necessary or
appropriate.
4.3 The Committee shall have the authority to make all
determinations it deems necessary or advisable for administering
this Plan, subject to the limitations in Section 4.1 and other
explicit provisions of this Plan.
ARTICLE V
ELIGIBILITY
5.1 Each Director who is not an employee of the Company
shall be eligible to defer Fees under Article VI of this Plan.
5.2 If such Director subsequently becomes an employee of
the Company (or any of its subsidiaries), but does not incur a
Termination of Service, such Director shall (a) continue as a
Participant with respect to Fees previously deferred and (b) cease
eligibility with respect to all future Fees, if any, earned while
an employee.
ARTICLE VI
DEFERRAL ELECTIONS IN LIEU OF CASH PAYMENTS
6.1 General Rule. Each Director may, in lieu of receipt
of Fees, defer such Fees in accordance with this Article VI,
provided that such Director is eligible under Article V of this
Plan to defer such Fees at the date any such Fees are otherwise
payable.
6.2 Timing of Election. Each eligible Director who
wishes to defer Fees under this Plan must make an irrevocable
written election at least six (6) months prior to the start of the
calendar year for which the Fees would otherwise be paid; provided,
however, that with respect to (a) any election made by a newly-
elected or appointed Director ("New Director Elections") and (b)
any elections made by Directors with respect to Fees paid in 1995
("1995 Elections"), the following special rules shall apply: (i)
with respect to any New Director Elections, the Company shall hold
such deferred Fees (without interest) and credit them pursuant to
Section 6.4 on or as of the date which follows by six months such
deferral election and (ii) with respect to any 1995 Elections, such
elections shall be effective for any Fees paid on the date the
election was made and the Company shall hold such deferred Fees
(without interest) and credit them pursuant to Section 6.4 on or as
of the date on which the shareholders of the Company approve the
Plan in accordance with Section 1.2; provided, however, the Fair
Market Value used to determine the number of Stock Units to be
credited shall be the Fair Market Value as of the date the election
was made. An election by a Director shall be deemed to be
continuing and therefore applicable to Fees to be paid in future
years unless the Director revokes or changes such election by
filing a new election form by the due date for such form specified
in this Section 6.2.
6.3 Form of Election. An election shall be made in a
manner satisfactory to the Secretary. Generally, an election shall
be made by completing and filing the specified election form with
the Secretary of the Company within the period described in Section
6.2. At minimum, the form shall require the Director to specify
the following:
(a) a percentage (in 25% increments), not to exceed
an aggregate of 100% of the Fees to be deferred under this Plan;
and
(b) the manner of settlement in accordance with
Section 7.2.
6.4 Establishment of Stock Unit Account. The Company
will establish a Stock Unit Account for each Participant. All Fees
deferred pursuant to this Article VI shall be credited to the
Participant's Stock Unit Account as of the Deferral Date and
converted to Stock Units as follows: The number of Stock Units
shall equal the deferred Fees divided by the Fair Market Value of
a Share on the Deferral Date, with fractional units calculated to
three (3) decimal places.
6.5 Credit of Dividend Equivalents. As of each dividend
payment date with respect to Shares, each Participant shall have
credited to his or her Stock Unit Account an additional number of
Stock Units equal to: the per-share cash dividend payable with
respect to a Share on such dividend payment date multiplied by the
number of Stock Units held in the Stock Unit Account as of the
close of business on the record date for such dividend divided by
the Fair Market Value of a Share on such dividend payment date. If
dividends are paid on Shares in a form other than cash, then such
dividends shall be notionally converted to cash, if their value is
readily determinable, and credited in a manner consistent with the
foregoing and, if their value is not readily determinable, shall be
credited "in kind" to the Participant's Stock Unit Account.
6.6 Reconciliations. Since the Company will pay Fees in
advance as of January 1 for each Plan year, except for 1995 Fees,
the remainder of which will be paid as of the effective date of the
Plan, Reconciliation Events may occur. The Company shall record
all Reconciliation Events and, as soon as reasonably practicable
after the end of each Plan year or after a Termination of Service,
make appropriate adjustments to each Participant's Stock Unit
Account to reflect such Reconciliation Events; provided, however,
the Fair Market Value used to determine such adjustments shall be
the same Fair Market Value used to determine the number of Stock
Units credited to such Participant's Stock Unit Account at the
beginning of the Plan year in which such Reconciliation Events
occurred.
ARTICLE VII
SETTLEMENT OF STOCK UNITS
7.1 Settlement of Account. The Company will settle a
Participant's Stock Unit Account in the manner described in Section
7.2 as soon as administratively feasible following the earlier of
(i) notification of such Participant's Termination of Service or
(ii) the Termination Date.
7.2 Payment Options. An election filed under Article VI
shall specify whether the Participant's Stock Unit Account is to be
settled by delivering to the Participant (or his or her
beneficiary) the number of Shares equal to the number of whole
Stock Units then credited to the Participant's Stock Unit Accounts,
in (a) a lump sum, or (b) substantially equal annual installments
over a period not to exceed ten (10) years. If, upon lump sum
distribution or final distribution of an installment, less than one
whole Stock Unit is credited to a Participant's Stock Unit Account,
cash will be paid in lieu of fractional shares on the date of such
distribution.
7.3 Continuation of Dividend Equivalents. If payment of
Stock Units is deferred and paid in installments, the Participant's
Stock Unit Account shall continue to be credited with dividend
equivalents as provided in Section 6.5.
7.4 In Kind Dividends. If any "in kind" dividends were
credited to the Participant's Stock Unit Account under Section 6.5,
such dividends shall be payable to the Participant in full on the
date of the first distribution of Shares under Section 7.2.
ARTICLE VIII
UNFUNDED STATUS
The interest of each Participant in any Fees deferred
under this Plan (and any Stock Units or Stock Unit Account relating
thereto) shall be that of a general creditor of the Company. Stock
Unit Accounts, and Stock Units (and, if any, "in kind" dividends)
credited thereto, shall at all times be maintained by the Company
as bookkeeping entries evidencing unfunded and unsecured general
obligations of the Company.
ARTICLE IX
DESIGNATION OF BENEFICIARY
Each Participant may designate, on a form provided by the
Committee, one or more beneficiaries to receive the Shares
described in Section 7.2 in the event of such Participant's death.
The Company may rely upon the beneficiary designation last filed
with the Committee, provided that such form was executed by the
Participant or his or her legal representative and filed with the
Committee prior to the Participant's death.
ARTICLE X
ADJUSTMENT PROVISIONS
In the event any recapitalization, reorganization,
merger, consolidation, spin-off, combination, repurchase, exchange
of shares or other securities of the Company, stock split or
reverse split, or similar corporate transaction or event affects
Shares such that an adjustment is determined by the Board or
Committee to be appropriate to prevent dilution or enlargement of
Participants' rights under this Plan, then the Board or Committee
will, in a manner that is proportionate to the change to the Shares
and is otherwise equitable, adjust the number or kind of Shares to
be delivered upon settlement of Stock Unit Accounts under Article
VII.
ARTICLE XI
COMPLIANCE WITH RULE 16b-3
Subject to Section 6.2, it is the intent of the Company
that this Plan comply in all respects with applicable provisions of
Rule 16b-3 under the Exchange Act in connection with the deferral
of Fees. Thus, other provisions of this Plan notwithstanding, if
any deferral of Fees would occur less than six (6) months after the
Participant filed an irrevocable election which would result in
such deferral and at a time that the Company's employee benefit
plans are being operated in conformity with Rule 16b-3 as adopted
and in effect, such deferral election may be modified in a manner
consistent with the special rule described in Section 6.2 or in any
other manner consistent with Rule 16b-3 as then applicable to any
transaction by a Participant subject to Section 16 of the Exchange
Act, or would cause any Participant or Director to no longer be
deemed a "disinterested person" within the meaning of Rule 16b-3,
such provision will be construed or deemed amended to the extent
necessary to conform to such requirements with respect to such
Participant or Director.
ARTICLE XII
GENERAL PROVISIONS
12.1 No Right to Continue as a Director. Nothing
contained in this Plan will confer upon any Participant any right
to continue to serve as a Director.
12.2 No Shareholder Rights Conferred. Nothing contained
in this Plan will confer upon any Participant any rights of a
shareholder of the Company unless and until Shares are in fact
issued or transferred to such Participant in accordance with
Article VII.
12.3 Change to the Plan. The Board may amend, alter,
suspend, discontinue, extend, or terminate the Plan without the
consent of shareholders or Participants, except that any such
action will be subject to the approval of the Company's
shareholders at the next annual meeting of shareholders having a
record date after the date such action was taken if such
stockholder approval is required by any federal or state law or
regulation or the rules of any stock exchange or automated
quotation system on which the Shares may then be listed or quoted,
or if the Board determines in its discretion to seek such
shareholder approval; provided, however, that, without the consent
of an affected Participant, no such action may materially impair
the rights of such Participant with respect to any Stock Units
credited to his or her Stock Unit Account; and provided, however,
that any "plan provision" referred to in Rule 16b-3(c)(2)(ii)(B)
under the Exchange Act, shall not be amended more than once every
six months, other than to comport with changes in the Internal
Revenue Code or the Exchange Act or the rules thereunder.
12.4 Consideration; Agreements. The consideration for
Shares issued or delivered in lieu of payment of Fees will be the
Director's service during the period to which the Fees paid in the
form of Shares related.
12.5 Compliance with Laws and Obligations. The Company
will not be obligated to issue or deliver Shares in connection with
this Plan in a transaction subject to the registration requirements
of the Securities Act of 1933, as amended, or any other federal or
state securities law, any requirement under any listing agreement
between the Company and any national securities exchange or
automated quotation system or any other laws, regulations, or
contractual obligations of the Company, until the Company is
satisfied that such laws, regulations, and other obligations of the
Company have been complied with in full. Certificates representing
Shares delivered under the Plan will be subject to such stop-
transfer orders and other restrictions as may be applicable under
such laws, regulations, and other obligations of the Company,
including any requirement that a legend or legends be placed
thereon.
12.6 Limitations on Transferability. Stock Units and any
other right under the Plan that may constitute a "derivative
security" as generally defined in Rule 16a-1(c) under the Exchange
Act will not be transferable by a Participant except by will or the
laws of descent and distribution (or to a designated beneficiary in
the event of a Participant's death); provided, however, that such
rights may be transferred to one or more trusts or other
beneficiaries during the lifetime of the Participant in connection
with the Participant's estate planning, but only if and to the
extent then permitted under Rule 16b-3 and consistent with the
registration of the offer and sale of Shares on Form S-8 or a
successor registration form of the Securities and Exchange
Commission. Stock Units and other rights under the Plan may not be
pledged, mortgaged, hypothecated, or otherwise encumbered, and
shall not be subject to the claims of creditors.
12.7 Governing Law. The validity, construction, and
effect of the Plan and any agreement hereunder will be determined
in accordance with the Delaware General Corporation Law, to the
extent applicable, other laws (including those governing contracts)
of the State of Oklahoma, without giving effect to principles of
conflicts of laws, and applicable federal law.
12.8 Plan Termination. Unless earlier terminated by
action of the Board or Executive Committee of the Board, the Plan
will remain in effect until the earlier of (i) such time as no
Shares remain available for delivery under the Plan and the Company
has no further rights or obligations under the Plan or (ii) April
26, 2000.
