As filed with the Securities and Registration No. _____
Exchange Commission on May 29, 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.
ASSOCIATE STOCK PURCHASE 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
securities Amount offering aggregate Amount of
to be to be price offering registra-
registered registered* per unit** price** tion fee**
- ------------------------------------------------------------------
Common Stock, 60,000 $15.9375 $956,250 $329.74
$.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. Associate
Stock Purchase 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 23, 1996.
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. Article Tenth of the registrant's Certificate of Incorpora-
tion also permits the exculpation of a director for monetary
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 Associate Stock Purchase 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 28, 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 28, 1996
R. Randolph Devening President, Chief Executive
Officer and Director
(Principal Executive Officer)
/s/ Horst O. Sieben Senior Vice President and May 28, 1996
Horst O. Sieben Chief Financial Officer
(Principal Financial Officer)
/s/ William L. Brady Vice President and May 28, 1996
William L. Brady Controller (Principal
Accounting Officer)
/s/ Theodore Ammon Director May 28, 1996
Theodore Ammon
/s/ Dort A. Cameron III Director May 28, 1996
Dort A. Cameron III
___________________ Director __________, 1996
Richard T. Berg
/s/ Terry M. Grimm Director May 28, 1996
Terry M. Grimm
___________________ Director __________, 1996
Paul S. Levy
/s/ Angus C. Littlejohn, Jr. Director May 28, 1996
Angus C. Littlejohn, Jr.
/s/ Paul W. Marshall Director May 28, 1996
Paul W. Marshall
/s/ Peter A. Joseph Director May 28, 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 - Associate Stock Purchase 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. Associate Stock Purchase
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 60,000 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 (Associate Stock Purchase
Plan 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. ASSOCIATE STOCK PURCHASE PLAN
Effective Date: July 1, 1996
<PAGE>
FOODBRANDS AMERICA, INC. ASSOCIATE STOCK PURCHASE PLAN
Table of Contents
Page
ARTICLE I
NAME AND PURPOSE OF PLAN . . . . . . . . . . . . . . . . . . . 1
1.1 Name of Plan . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . .1
2.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Construction . . . . . . . . . . . . . . . . . . . . . . ..3
ARTICLE III
FUNDING AND EARLY WITHDRAWAL OF ACCOUNTS . . . . . . . . . . ..3
3.1 Stock Purchase Accounts. . . . . . . . . . . . . . . . . .3
3.2 Participant's Contributions. . . . . .. . . . . . . . . . .3
3.3 Continued Participation; Voluntary Withdrawal from Plan. ..4
3.4 Withdrawal by Terminating Participant. . . . . . . . . . ..4
3.5 Reparticipation. . . . . . . . . . . . . . . . . . . . . .4
3.6 Interest Accrual . . . . . . . . . . . . . . . . . . . . ..4
ARTICLE IV
EXERCISE OF STOCK OPTION . . . . . . . . . . . . . . . . . ....5
4.1 Exercise . . . . . . . . . . . . . . . . . . . . . . . . .5
4.2 Amount of Shares of Stock. . . . . . . . . . . . . . . . ..5
4.3 Distribution . . . . . . . . . . . . . . . . . . . . . . ..5
4.4 Issuance of Shares; Stock Certificates . . . . . . . . . . 5
ARTICLE V
MAXIMUM SHARES OF STOCK AVAILABLE. . . . . . . . . . . . . . . 6
5.1 Maximum Number of Shares Available to Participants . . . . 6
5.2 Maximum Authorized Shares. . . . . . . . . . . . . . . . . 6
5.3 Termination of Offering for the Second and Subsequent
Purchase Periods . . . . . . . . . . . . . . . . . . . . .6
ARTICLE VI
ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . 6
6.1 Appointment of Committee . . . . . . . . . . . . . . . . . 6
6.2 Committee Powers and Duties. . . . . . . . . . . . . . . . 6
6.3 Committee to Make Rules and Interpret Plan . . . . . . . . 6
ARTICLE VII
AMENDMENT OF THE PLAN. . . . . . . .. . . . . . . . . . . . . .6
ARTICLE VIII
RECAPITALIZATION AND EFFECT OF CERTAIN TRANSACTIONS. . . . . . 7
8.1 Stock Adjustments. . . . . . . . . . . . . . . . . . . . .7
8.2 Effect of Certain Transactions . . . . . . . . . . . . . . 7
ARTICLE IX
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 8
9.1 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 8
9.2 Application of the Funds . . . . . . . . . . . . . . . . . 8
9.3 Repurchase of Stock. . . . . . . . . . . . . . . . . . . . 8
9.4 Alternate Contribution Methods . . . . . . . . . . . . . . 8
9.5 Nonassignability . . . . . . . . . . . . . . . . . . . . . 8
9.6 Government Regulation. . . . . . . . . . . . . . . . . . . 8
9.7 Effective Date of Plan . . . . . . . . . . . . . . . . . . 8
9.8 Termination of Plan. . . . . . . . . . . . . . . . . . . . 8
9.9 No Obligations to Exercise Stock Option. . . . . . . . . . 8
9.10 Right to Continued Employment. . . . . . . . . . . . . . .8
9.11 Reliance on Reports. . . . . . . . . . . . . . . . . . . .8
9.12 Applicable Law . . . . . . . . . . . . . . . . . . . . . .9
9.13 Construction . . . . . . . . . . . . . . . . . . . . . . .9
<PAGE>
FOODBRANDS AMERICA, INC. ASSOCIATE STOCK PURCHASE PLAN
ARTICLE I
NAME AND PURPOSE OF PLAN
1.1 Name of Plan. This Plan shall be known as: Foodbrands America, Inc.
Associate Stock Purchase Plan.
1.2 Purpose. The Foodbrands America, Inc. Associate Stock Purchase Plan, by
offering Associates the opportunity to purchase the Company's Stock through
payroll deductions, is intended to encourage participation in the ownership
and economic progress of the Company. Associates may only be granted Stock
Options to purchase Stock. Except as otherwise provided in the Plan, by reason
of their employment relationship with the Company and/or the Employer, all
Associates of all Employers will be eligible to participate in the Plan.
ARTICLE II
DEFINITIONS
2.1 Definitions. Where the following capitalized words and phrases appear in
either a singular or plural form in this instrument, they shall have the
respective meanings set forth below unless a different context is clearly
expressed herein.
(a) Account and Account Balance:
(i) The word "Account" shall mean the record established and maintained
to record the interest in the Plan of each Participant in accordance with
Article III.
(ii) The words "Account Balance" shall mean the credited balance standing
in a Participant's Account from time to time.
(b) Associate: The word "Associate" shall mean any person employed by
the Employer on the basis of an employer-employee relationship who receives
remuneration for personal services rendered to the Employer.
(c) Board: The word "Board" shall mean the Board of Directors of the
Company.
(d) Code: The word "Code" shall mean the Internal Revenue Code of 1986,
as amended from time to time.
(e) Committee: The word "Committee" shall mean the Compensation
Committee of the Board referred to in Article VI.
(f) Company: The word "Company" shall mean Foodbrands America, Inc., a
Delaware corporation.
(g) Employer: The word "Employer" shall mean the Company and any
Subsidiary of the Company.
(h) Exercise Date: The words "Exercise Date" shall mean June 30 of any
year during which the Plan is in existence, being June 30, 1997, 1998, 1999,
2000 and 2001.
(i) Fair Market Value: The words "Fair Market Value" shall mean (A)
during such time as the Stock is listed upon the New York Stock Exchange or
other exchanges or the NASDAQ/National Market System, the closing price of the
Stock on such stock exchange or exchanges or the NASDAQ/National Market System
on the day for which such value is to be determined, or if no sale of the
Stock shall have been made on any such stock exchange or the NASDAQ/National
Market System that day, on the next preceding day on which there was a sale of
such Stock or (B) during any such time as the Stock is not listed upon an
established stock exchange or the NASDAQ/National Market System, the mean
between dealer "bid" and "ask" prices of the Stock in the over-the-counter
market on the day for which such value is to be determined, as reported by the
National Association of Securities Dealers, Inc.
(j) Granting Date: The words "Granting Date" shall mean the beginning
of each applicable Purchase Period, being July 1, 1996, 1997, 1998, 1999 and
2000.
(k) Option Agreement: The words "Option Agreement" shall mean an
agreement to be executed by the Participant and the Company, which shall
comply with the terms of the Plan and shall be in such form as the Committee
agrees upon from time to time.
(l) Option Price: The words "Option Price" shall mean the price which
shall be paid by the Participant from his Account for any Stock purchased on
an applicable Exercise Date pursuant to any Stock Option granted to such
Participant; provided, such option price shall be the lesser of:
(i) 90% of the per share Fair Market Value on the Granting Date of
the Purchase Period applicable to such Participant; or
(ii) 90% of the per share Fair Market Value on the Exercise Date of
the Purchase Period applicable to such Participant.
Provided, in no event shall the Option Price per share be less than the par
value of the Stock.
(m) Participant: The word "Participant" shall mean an Associate (i) who
executes with the Company an Option Agreement on or prior to a Granting Date,
(ii) who on such Granting Date has been continuously employed by the Employer
for at least six months, and (iii) whose customary employment is more than 20
hours per week and more than five months in any calendar year. Provided, for
purposes of calculating the foregoing six month service requirement for an
Associate, all employment service with the Company and its subsidiaries will
be recognized. The word "Participant" shall also include the legal
representative of a deceased Participant, and a Participant who, within three
months prior to the end of the applicable Purchase Period for which he is a
Participant, terminates his employment with the Employer on account
of (i) retirement on or after age 55, (ii) retirement because of disability,
(iii) lay off by the Employer, or (iv) an authorized leave of absence granted
by the Employer. "Disability" for purposes of this Subsection (m) shall mean a
physical or mental condition which, in the judgment of the Committee, totally
and permanently prevents a Participant from engaging in any substantial
gainful employment with the Employer. A determination that disability exists
shall be based upon independent medical evidence satisfactory to the
Committee. In the event that any Employer ceases to be a Subsidiary of the
Company, the Associates of such Employer will be deemed to have terminated
employment as of such date.
(n) Plan: The word "Plan" shall mean this Foodbrands America, Inc.
Associate Stock Purchase Plan, and any amendments thereto.
(o) Purchase Period: The words "Purchase Period" shall mean any one
year period commencing on July 1 and ending on June 30 of each year during
which the Plan is in existence, as follows:
(i) "First Purchase Period" July 1, 1996 through June 30, 1997.
(ii) "Second Purchase Period" July 1, 1997 through June 30, 1998.
(iii) "Third Purchase Period" July 1, 1998 through June 30, 1999.
(iv) "Fourth Purchase Period" July 1, 1999 through June 30, 2000.
(v) "Fifth Purchase Period" July 1, 2000 through June 30, 2001.
(p) Stock: The word "Stock" shall mean any of the total number of
shares of common stock of the Company being authorized for issuance pursuant
to the terms of the Plan in accordance with Article V.
(q) Stock Option: The words "Stock Option" shall mean the right of a
Participant on an applicable Exercise Date to purchase the number of whole
shares of Stock as provided in Article IV.
(r) Subsidiary: The word "Subsidiary" shall mean any present or future
subsidiary corporation of the Company as defined in Section 424 of the Code.
(s) Terminating Participant: The words "Terminating Participant" shall
mean a Participant who terminates his employment for reasons other than those
set forth in Subsection 2.1(m).
2.2 Construction. The masculine gender, where appearing in the Plan, shall
be deemed to include the feminine gender, unless the context clearly indicates
to the contrary. Any word appearing herein in the plural shall include the
singular, where appropriate, and likewise the singular shall include the
plural, unless the context clearly indicates to the contrary.
ARTICLE III
FUNDING AND EARLY WITHDRAWAL OF ACCOUNTS
3.1 Stock Purchase Accounts. As of the applicable Granting Date, there shall
be established and maintained under the Plan in the name of each Participant
(who is a Participant with respect to the Purchase Period pertaining to such
Granting Date) an Account which shall be debited and credited in accordance
with the following Sections of this Article III.
3.2 Participant's Contributions. By becoming a Participant, authorization
shall be deemed to be automatically given by the Participant for his periodic
contributions which shall be credited to his Account calculated as follows:
FIRST: The Participant's basic compensation rate (excluding any
form of extraordinary compensation such as overtime, prizes, bonuses,
commissions, reimbursed relocation expenses and the like), as of the date
("Determination Date") which is three months prior to the applicable Granting
Date, shall be determined and annualized ("Annual Compensation"). Increases in
such basic compensation rate after such Determination Date shall be
disregarded for that Purchase Period. Decreases in such basic compensation
rate shall be adjusted as provided hereinafter.
SECOND: Prior to the applicable Granting Date, the Participant
shall elect in his Option Agreement filed with the Committee a percentage of
either 1%, 2% or 3% ("Contribution Rate"); provided, an election, once
effective, with respect to the first Purchase Period applicable to such
Participant following such election, cannot thereafter be changed; and
provided, a Participant may elect to change his Contribution Rate for
succeeding Purchase Periods by notifying the Committee within 10 days of any
succeeding Granting Date. If a Participant receives a "hardship withdrawal"
from a cash or deferred arrangement established by the Employer under Code
Section 401(k), he shall be prohibited from making contributions to his
Account under this Plan for a period of 12 months after receipt of such
hardship distribution.
THIRD: The Participant's Annual Compensation for the applicable
Purchase Period shall be multiplied by his Contribution Rate, and the product
thereof shall equal his aggregate maximum contributions ("Aggregate
Contributions") to be made under the Plan for the applicable Purchase Period.
FOURTH: A Participant's Aggregate Contributions shall be divided by
the number of his payroll payment dates falling within the applicable Purchase
Period to determine the dollar amount of equal periodic contributions which
shall be withheld by the Employer by payroll deduction. If a Participant's
number of payroll payment dates thereafter shall be changed, appropriate
adjustment shall be made so that equal periodic contributions shall be
made. Provided, in the event that a Participant incurs a decrease in his basic
compensation during any Purchase Period, and such Participant is not a
Terminating Participant or has not voluntarily withdrawn from the Plan, then,
in such event, and if requested by the Participant, appropriate adjustments
will be made by the Committee to reduce the maximum amount of periodic
contributions which such Participant would otherwise make pursuant to the Plan
to his Stock Purchase Account. The reduction shall occur by determining the
Participant's reduced basic compensation rate and then multiplying such rate
by the Contribution Rate which such Participant had previously elected for
that Purchase Period. This reduced amount thereafter will be credited to the
Stock Purchase Account of such Participant for the balance of the applicable
Purchase Period.
3.3 Continued Participation; Voluntary Withdrawal from Plan. Once a
Participant elects to participate in the Plan, he shall thereafter remain as a
Participant until expiration or termination of the Plan, unless he otherwise
withdraws from, or otherwise becomes ineligible to participate in the Plan. A
legal representative of a deceased participant and a Participant who
terminates employment for any reasons specified in Subsection 2.1(m) within
three months prior to the end of the applicable Purchase Period will continue
to be a Participant in the Plan until the next succeeding Exercise Date unless
such Participant or his representative (in the event of the Participant's
death) elects to withdraw from the Plan pursuant to this Section 3.3. A
Participant may withdraw from the Plan at any time by filing a written notice
with the Committee of withdrawal prior to the next applicable Exercise Date.
Upon a Participant's withdrawal, his entire Account Balance, if any, on the
date of withdrawal shall be refunded to him.
3.4 Withdrawal by Terminating Participant. A Terminating Participant shall
be deemed to have made an election to withdraw from the Plan on the date his
employment terminates. Upon such withdrawal, his entire Account Balance, if
any, on the date of withdrawal, shall be refunded to him.
3.5 Reparticipation. A Participant who withdraws under Section 3.3 within
any Purchase Period shall not be eligible to reenter the Plan with respect to
the same Purchase Period; provided, a Participant who withdraws from the Plan
under Section 3.3 prior to the end of any Purchase Period shall not be
precluded from becoming a Participant with respect to any succeeding Purchase
Period if he satisfies the eligibility requirements of the Plan.
3.6 Interest Accrual. With respect to the refund or distribution of an
Account Balance under either of Sections 3.3 or 3.4, no interest shall be paid
or payable. If the Plan is terminated under either of Sections 8.2 or 9.8, the
refund of an Account Balance shall be with interest at a per annum rate of 5%
and shall be computed upon the average balance in such Participant's Account
for the period of time following the Granting Date applicable to such
Participant and ending on the day of the withdrawal or distribution.
ARTICLE IV
EXERCISE OF STOCK OPTION
4.1 Exercise. If a Participant has not made an earlier election to withdraw
pursuant to either of Sections 3.3 or 3.4, he shall be deemed to have elected
to exercise his Stock Option as of each Exercise Date with respect to the
applicable Purchase Periods.
4.2 Amount of Shares of Stock.
(a) Subject to the Subsection (b) following, the whole number of shares
of Stock to which a Participant shall be entitled ("Total Stock Entitlement")
upon the applicable Exercise Date shall be determined under the following
formula:
Account Balance
__________________ = Total Stock Entitlement
Option Price
Provided, the Account Balance for purposes of this Section 4.2 shall be
determined without crediting any interest thereon.
(b) The Total Stock Entitlement computed for each Participant shall be
reduced to the extent that any of the following Subsections shall apply:
(i) No Participant shall be entitled to participate in the Plan to a
greater extent than that permitted under Section 423(b)(3) of the Code. Thus,
no Associate may be granted a Stock Option if such Associate, immediately
after the Stock Option is granted, owns stock possessing five percent or more
of the total combined voting power or value of all classes of stock of the
Company or of its parent or any Subsidiary (if applicable). For purposes of
this Subsection, the rules of Section 424(d) of the Code shall apply in
determining the stock ownership of an individual, and stock which the
Associate may purchase under all outstanding stock options shall be treated as
stock owned by the Associate.
(ii) No Participant shall be entitled to participate in the Plan to
a greater extent than that permitted under Section 423(b)(8) of the Code.
Thus, no Associate may be granted a Stock Option which permits his rights to
purchase stock under all such "employee stock ownership plans" of the Company
and its parent or any Subsidiary (if applicable) intended to qualify under
Section 423 of the Code to accrue at a rate which exceeds $25,000 of fair
market value of such stock (determined at the time such Stock Option is
granted) for each calendar year in which such Stock Option is outstanding at
any time. For purposes of this Subsection, (1) the right to purchase stock
under an option accrues when the option (or any portion thereof) first becomes
exercisable during the calendar year; (2) the right to purchase stock under an
option accrues at the rate provided in the option, but in no case may such
rate exceed $25,000 of fair market value of such stock (determined at the time
such stock option is granted) for any one calendar year; and (3) a right to
purchase stock which has accrued under one option granted pursuant to any such
plan may not be carried over to any other such stock option.
4.3 Distribution. A Participant's Total Stock Entitlement as determined
under Section 4.2 shall be distributed to him pursuant to Section 4.4(b)
together with any cash which is not applied toward the purchase of whole
shares of Stock. No interest shall be payable upon such refunded Account
Balance.
4.4 Issuance of Shares; Stock Certificates.
(a) The shares of Stock purchased by a Participant on the applicable
Exercise Date shall for all purposes, be deemed to have been issued and sold
at the close of business on such Exercise Date. Prior to that time, none of
the rights or privileges of a stockholder of the Company shall exist with
respect to such shares.
(b) As soon as practicable after each Exercise Date, the Company shall
issue and deliver a certificate, registered in the Participant's name, for the
number of shares of Stock purchased.
ARTICLE V
MAXIMUM SHARES OF STOCK AVAILABLE
5.1 Maximum Number of Shares Available to Participants. If on the Exercise
Date of any Purchase Period the Total Stock Entitlement for all Participants,
determined under Section 4.2 hereof exceeds the number of shares of Stock
available for issuance under the Plan, there shall be a proportionate
reduction for the ensuing applicable Purchase Period of each Participant's
Total Stock Entitlement in order to eliminate such excess. Notwithstanding
any provision herein to the contrary, the maximum number of shares a
Participant will be allowed to purchase during any Purchase Period is 1,000
shares of Stock.
5.2 Maximum Authorized Shares. Subject to adjustment under Article VIII, the
maximum number of shares of Stock which may be issued under the Plan shall not
in the aggregate exceed 60,000 shares of Stock.
5.3 Termination of Offering for the Second and Subsequent Purchase Periods.
If in the opinion of the Committee, there is insufficient Stock available for
Stock Options at any Granting Date after the July 1, 1996 Granting Date, the
Committee may terminate the offering contemplated for any or all succeeding
Purchase Periods.
ARTICLE VI
ADMINISTRATION
6.1 Appointment of Committee. The Plan shall be administered by the
Committee appointed by the Board and consisting of not less than two members
from the Board none of whom shall be associates of the Company or a subsidiary
of the Company while serving on the Committee. The members of the Committee
shall serve at the pleasure of the Board and shall be ineligible to
participate under the Plan. Any member may serve concurrently as a member of
any other administrative committee of any other plan of the Company or its
affiliates entitling participants therein to acquire stock, stock options or
deferred compensation rights including stock appreciation rights.
6.2 Committee Powers and Duties. The Committee shall have all the powers and
authorities which are reasonably appropriate and necessary to discharge its
duties under the Plan.
6.3 Committee to Make Rules and Interpret Plan. The Committee, in its sole
discretion, shall have the authority, subject to the provisions of the Plan,
to establish, adopt, or revise rules and regulations with respect to the
administration of the Plan and to make all such determinations relating to the
Plan as it may deem necessary or advisable for the administration of the Plan.
The Committee's interpretation of the Plan and all decisions and
determinations by the Committee with respect to the Plan shall be final,
binding, and conclusive on all parties unless otherwise determined by the
Board.
ARTICLE VII
AMENDMENT OF THE PLAN
The Board may at any time, or from time to time, amend the Plan in any
respect consistent with Sections 421 and 423 of the Code, except that, without
approval of the stockholders, no amendment shall (i) increase the maximum
number of shares reserved under the Plan other than as provided in Article
VIII, or (ii) make the Plan available to any person who is not a Participant.
ARTICLE VIII
RECAPITALIZATION AND EFFECT OF CERTAIN TRANSACTIONS
8.1 Stock Adjustments. In the event that the shares of Stock, as presently
constituted, shall be changed into or exchanged for a different number or kind
of shares of stock or other securities of the Company or of another
corporation (whether by reason of merger, consolidation, recapitalization,
reclassification, stock split, combination of shares or otherwise), or if the
number of such shares of Stock shall be increased through the payment of a
stock dividend, then there shall be substituted for or added to each share
available under and subject to the Plan as provided in Section 5.3 hereof, and
each share theretofore appropriated or thereafter subject or which may become
subject to Stock Options under the Plan, the number and kind of shares of
stock or other securities into which each outstanding share of Stock shall be
so changed or for which each such share shall be exchanged or to which each
such share shall be entitled, as the case may be, on a fair and equivalent
basis in accordance with the applicable provisions of Section 424 of the Code;
provided, in no such event will such adjustment result in a modification of
any Stock Option as defined in Section 424(h) of the Code. In the event there
shall be any other change in the number or kind of the outstanding shares of
Stock, or any stock or other securities into which the Stock shall have been
changed or for which it shall have been exchanged, then if the Committee
shall, in its sole discretion, determine that such change equitably requires
an adjustment in the shares available under and subject to the Plan, or in any
Stock Option theretofore granted or which may be granted under the Plan, such
adjustments shall be made in accordance with such determination, except that
no adjustment of the number of shares of Stock available under the Plan or to
which any Stock Option relates that would otherwise be required shall be made
unless and until such adjustment either by itself or with other adjustments
not previously made would require an increase or decrease of at least 1% in
the number of shares of Stock available under the Plan or to which any Stock
Option relates immediately prior to the making of such adjustment (the
"Minimum Adjustment"). Any adjustment representing a change of less than such
minimum amount shall be carried forward and made as soon as such adjustment
together with other adjustments required by this Section 8.1 and not
previously made would result in a Minimum Adjustment. Notwithstanding the
foregoing, any adjustment required by this Section 8.1 which otherwise would
not result in a Minimum Adjustment shall be made with respect to shares of
Stock relating to any Stock Option immediately prior to exercise, payment or
settlement of such Stock Option.
No fractional shares of Stock or units of other securities shall be
issued pursuant to any such adjustment, and any fractions resulting from any
such adjustment shall be eliminated in each case by rounding downward to the
nearest whole share. Any adjustments under this Section 8.1 shall be made
according to the sole discretion of the Company, and its decision shall be
binding and conclusive.
8.2 Effect of Certain Transactions. Subject to any required action by the
stockholders, if the Company shall be the surviving or resulting corporation
in any merger or consolidation, any Stock Option hereunder shall pertain to
and apply to the shares of stock of the Company; but a dissolution or
liquidation of the Company or merger or consolidation in which the Company is
not the surviving or the resulting corporation shall cause the Plan and any
Stock Option hereunder to terminate upon the effective date of such
dissolution, liquidation, merger or consolidation, and the Account Balance of
each Participant shall be refunded to him. Provided, that for the purpose of
this Section 8.2, if any merger, consolidation or combination occurs in which
the Company is not the surviving corporation and is the result of a mere
change in the identity, form or place of organization of the Company
accomplished in accordance with Section 368(a)(1)(F) of the Code, then, such
event shall not cause a termination.
ARTICLE IX
MISCELLANEOUS
9.1 Notices. Any notice which a Participant files pursuant to the Plan shall
be on the form prescribed by the Committee and shall be effective when
received by the Committee.
9.2 Application of the Funds. All funds received by the Company under the
Plan may be used for any corporate purpose.
9.3 Repurchase of Stock. The Company shall not be required to repurchase
from any Participant shares of Stock which he acquired under the Plan.
9.4 Alternate Contribution Methods. If authorized payroll deductions of a
Participant's periodic contributions under Section 3.2 are not permitted by
reason of the provisions of any law applicable to an Employer, the Committee
shall adopt an appropriate alternative method under which affected
Participants may make payment for shares of Stock purchased hereunder which
would otherwise have been made pursuant to Section 3.2.
9.5 Nonassignability. Stock Options are exercisable only by the Participant
during his lifetime, or by his estate or the person who acquires the right to
exercise such Stock Option upon his death by bequest or inheritance, and are
not transferable by him other than by will or the laws of descent and
distribution. No Stock Option shall be subject in any manner to alienation,
anticipation, sale, transfer, assignment, pledge, or encumbrance, except for
transfer by will or the laws of descent and distribution. Any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of, or to subject
to execution, attachment or similar process, any Stock Option contrary to the
provisions hereof, shall be void and ineffective, shall give no right to any
purported transferee, and may, at the sole discretion of the Committee, result
in forfeiture of the Stock Option involved in such attempt.
9.6 Government Regulation. The Company's obligation to sell and deliver the
Stock under the Plan is at all times subject to any and all approvals, rules
and regulations of any governmental authority required in connection with the
authorization, issuance, sale or delivery of such Stock. In addition, the
rights of Participants under the Plan who are subject to Section 16 of the
Securities Exchange Act of 1934, as amended ("Section 16"), are subject to
compliance by such Participants with the applicable provisions of Section 16
and the rules and regulations promulgated thereunder.
9.7 Effective Date of Plan. The Plan shall become effective on July 1, 1996,
if prior to that date the Plan has been approved by the holders of a majority
of the common stock of the Company present, or represented, and entitled to
vote at a meeting called for such purposes.
9.8 Termination of Plan. The Plan shall continue in effect through June 30,
2001, unless terminated pursuant to Section 8.2 or by the Board, which shall
have the right to terminate the Plan at any time. Upon the termination of the
Plan pursuant to this Section 9.8 or Section 8.2, the Account Balance of each
Participant shall be refunded to him.
9.9 No Obligations to Exercise Stock Option. The granting of a Stock Option
shall impose no obligation upon the Participant to exercise his Stock Option.
9.10 Right to Continued Employment. Participation in the Plan shall not give
any Participant any right to remain in the employ of the Employer. The
Employer reserves the right to terminate any Participant at any time. Further,
the adoption of this Plan shall not be deemed to give any Participant or any
other individual any right to be selected as a Participant or to be granted a
Stock Option.
9.11 Reliance on Reports. Each member of the Committee and each member of
the Board shall be fully justified in relying or acting in good faith upon any
report made by the independent public accountants of the Company and upon any
other information furnished in connection with the Plan by any person or
persons other than himself. In no event shall any person who is or shall have
been a member of the Committee or of the Board be liable for any determination
made or other action taken or any omission to act in reliance upon any such
report or information or for any action taken, including the furnishing of
information, or failure to act, if in good faith.
9.12 Applicable Law. This Plan shall be governed by and interpreted in
accordance with the laws of the State of Oklahoma.
9.13 Construction. It is intended that this Plan shall qualify in accordance
with Sections 421 and 423 of the Code, and the provisions of this Plan shall
be interpreted and applied in a manner consistent with such intent. Pursuant
to the terms of the Plan and the applicable provisions of the Code, all
Participants in the Plan will have the same rights and privileges and all
such Participants will be treated in an equal, uniform and nondiscriminatory
manner.
