-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, h1JmxVJIAP6cPwnBx1hhvIDFOcoMPDHcpZ8YVM+KWZdUKj2bxPWa9jn68+LBivGm kmk7DoNmy/LpldQMFu3jNw== 0000109758-95-000012.txt : 199507140000109758-95-000012.hdr.sgml : 19950714 ACCESSION NUMBER: 0000109758-95-000012 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19950713 EFFECTIVENESS DATE: 19950801 SROS: CSE SROS: NYSE SROS: PSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: CERIDIAN CORP CENTRAL INDEX KEY: 0000109758 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER & OFFICE EQUIPMENT [3570] IRS NUMBER: 520278528 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-61001 FILM NUMBER: 95553652 BUSINESS ADDRESS: STREET 1: 8100 34TH AVE S CITY: MINNEAPOLIS STATE: MN ZIP: 55425 BUSINESS PHONE: 6128538100 FORMER COMPANY: FORMER CONFORMED NAME: CONTROL DATA CORP /DE/ DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: COMMERCIAL CREDIT CO DATE OF NAME CHANGE: 19680910 S-8 1 As filed with the Securities and Exchange Commission on July 13, 1995 Registration Number 33- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 CERIDIAN CORPORATION (Exact name of registrant as specified in its charter) DELAWARE 52-0278528 (State of incorporation) (I.R.S. Employer Identification Number) 8100 34th Avenue South Minneapolis, Minnesota 55425 (Address of principal executive offices) CERIDIAN CORPORATION EMPLOYEE STOCK PURCHASE PLAN (Full title of the plan) John A. Haveman Vice President and Secretary Ceridian Corporation 8100 34th Avenue South Minneapolis, Minnesota 55425 (612) 853-7425 (Name, address and telephone number of agent for service) Calculation of Registration Fee Proposed Proposed maximum maximum Title of Amount offering aggregate Amount of Securities to be price per offering Registration to be registered registered (1) share(2) price (2) fee Common Stock, $.50 par value 500,000 shares $38.375 $19,187,500 $6,616.38 (1) In addition, pursuant to Rule 416 under the Securities Act of 1933 (the "Act"), this Registration Statement also covers an indeterminate number of additional shares as may be issuable as a result of the anti-dilution provisions of the employee benefit plan which is the subject of this Registration Statement. (2) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and 457(h)(1) under the Act, based on the average high and low sale prices reported for the Registrant's Common Stock on the New York Stock Exchange on July 10, 1995. Part II Information Required in the Registration Statement Item 3. Incorporation of Documents by Reference The following documents filed with the Securities and Exchange Commission (the "Commission") by Ceridian Corporation (the "Company") are incorporated in this Registration Statement by reference: (1) The Company's Annual Report on Form 10-K for the year ended December 31, 1994; (2) The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1995; (3) The Company's Current Report on Form 8-K dated January 19, 1995; (4) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 ("Exchange Act") since December 31, 1994; and (5) The description of the Company's Common Stock, par value $.50 per share, contained in the Company's Registration Statement on Form S-8, File No. 33-56351. All documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities The Company's Common Stock is registered under Section 12 of the Exchange Act. Item 5. Interests of Named Experts and Counsel John A. Haveman, Vice President, Secretary and Associate General Counsel for the Company, has provided an opinion as to the legality of the securities being registered hereby. Mr. Haveman holds options granted under the Company's stock based compensation plans to acquire 16,800 shares of the Company's Common Stock, holds 13,000 shares of the Company's Common Stock that are subject to restrictions on transferability and possible forfeiture, and is eligible to participate in the Company's Employee Stock Purchase Plan. -1- The consolidated financial statements and financial statement schedules of the Company for each of the years in the three-year period ended December 31, 1994 have been incorporated by reference in this registration statement in reliance upon the reports of KPMG Peat Marwick LLP, independent certified public accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. To the extent that KPMG Peat Marwick LLP examines and reports on financial statements of the Company issued at future dates, and consents to the use of their reports thereon, such financial statements also will be incorporated by reference in this registration statement in reliance upon their reports and said authority. Item 6. Indemnification of Directors and Officers Section 145 of the General Corporation Law of the State of Delaware ("DGCL") grants each corporation organized thereunder, such as the Company, the power to indemnify its directors and officers against liability for certain of their acts. Section 102(b)(7) of the DGCL permits a provision in the certificate of incorporation of each corporation organized thereunder eliminating or limiting, with certain exceptions, the personal liability of a director to the corporation or its stockholders for monetary changes for breach of fiduciary duty as a director. The Company's certificate of incorporation contains such a provision. The foregoing statements are subject to the detailed provisions of Sections 145 and 102(b)(7) of the DGCL. Article VI of the Company's Bylaws provides that the Company shall indemnify its officers, directors and employees to the fullest extent permitted by the DGCL in connection with proceedings with which any such person is involved by virtue of his or her status as an officer, director or employee. The Company has also by contract agreed to indemnify its directors against damages, judgments, settlements and costs arising out of any actions against the directors brought by reason of the fact that they are or were directors. The Company maintains directors' and officers' liability insurance, including a reimbursement policy in favor of the Company. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits The following is a complete list of Exhibits filed or incorporated by reference as part of this registration statement: -2- Exhibit Description 4.1 Restated Certificate of Incorporation of Ceridian Corporation (incorporated by reference to Exhibit 4.01 to the Company's Registration Statement on Form S-8 (File No. 33-54379)) 4.2 Bylaws of Ceridian Corporation, as amended (incorporated on Form S-8 by reference to Exhibit 3.01 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1993 (File No. 1-1969)) 5.1 Opinion and Consent of John A. Haveman 23.1 Consent of KPMG Peat Marwick LLP 23.2 Consent of John A. Haveman (included in Exhibit 5.1) 24.1 Power of Attorney (included on page 5 of this Registration Statement) 99.1 Ceridian Corporation 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 Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the 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 the Registration 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 (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed 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. -3- (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for 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. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue. -4- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Minneapolis, State of Minnesota, on July 13, 1995. CERIDIAN CORPORATION By: /s/John R. Eickhoff John R. Eickhoff Executive Vice President and Chief Financial Officer POWER OF ATTORNEY We, the undersigned officers and directors of Ceridian Corporation, hereby severally constitute John R. Eickhoff and John A. Haveman, and either of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our name in the capacities indicated below any and all amendments to this Registration Statement on Form S-8 filed by Ceridian Corporation with the Securities and Exchange Commission, and generally to do all such things in our name and behalf in such capacities as may be necessary to enable Ceridian Corporation to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, and we hereby ratify and confirm our signatures as they may be signed by our said attorneys, or either of them, to any and all such amendments. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed as of July 13, 1995 by the following persons in the capacities indicated. /s/Lawrence Perlman /s/Ruth M. Davis Lawrence Perlman Ruth M. Davis, Director Chairman, President and Chief Executive Officer /s/Allen W. Dawson (Principal Executive Allen W. Dawson, Director Officer and Director) /s/Ronald James Ronald James, Director /s/John R. Eickhoff John R. Eickhoff /s/Richard G. Lareau Executive Vice President Richard G. Lareau, Director and Chief Financial Officer (Principal /s/George R. Lewis Financial Officer) George R. Lewis, Director /s/Charles Marshall /s/Loren D. Gross Charles Marshall, Director Loren D. Gross Vice President and Corporate /s/Carole J. Uhrich Controller (Principal Carole J. Uhrich, Director Accounting Officer) /s/Richard W. Vieser Richard W. Vieser, Director /s/Paul S. Walsh Paul S. Walsh, Director -5- EXHIBIT INDEX Exhibit Description Code 4.1 Restated Certificate of Incorporation of IBR Ceridian Corporation (incorporated by reference to Exhibit 4.01 to the Company's Registration Statement on Form S-8 (File No. 33-54379)) 4.2 Bylaws of Ceridian Corporation, as amended IBR (incorporated on Form S-8 by reference to Exhibit 3.01 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1993 (File No. 1-1969)) 5.1 Opinion and Consent of John A. Haveman E 23.1 Consent of KPMG Peat Marwick LLP E 23.2 Consent of John A. Haveman (included in Exhibit 5.1) 24.1 Power of Attorney (included on page 5 of this Registration Statement) 99.1 Ceridian Corporation Employee Stock E Purchase Plan Legend: E Electronic Filing IBR Incorporated by Reference EX-99 2 EXHIBIT 5.1 Exhibit 5.1 Minneapolis, Minnesota July 13, 1995 Ceridian Corporation 8100 34th Avenue South Minneapolis, MN 55425 Re: Ceridian Corporation Registration Statement on Form S-8 Gentlemen: I have acted as counsel to Ceridian Corporation, a Delaware corporation (the "Company"), in connection with the registration by the Company of 500,000 shares of the Company's Common Stock, $.50 par value (the "Shares"), pursuant to the Company's registration statement on Form S-8 which refers to the Company's Employee Stock Purchase Plan and which is to be filed with the Securities and Exchange Commission on July 13, 1995 (the "Registration Statement"). In this connection, I have examined originals or copies, certified or otherwise identified to my satisfaction, of such corporate records, certificates, and written and oral statements of officers and accountants of the Company and of public officials, and other documents that I have considered necessary and appropriate for this opinion and, based thereon, I advise you that, in my opinion: 1. The Company has been duly incorporated and is validly existing under the laws of the State of Delaware. 2. The Company has corporate authority to issue the Shares in the manner and under the terms set forth in the Registration Statement. 3. The Shares have been duly authorized and, when issued in accordance with the Plan referred to in the Registration Statement, will be validly issued, fully paid and nonassessable. I hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to its use as part of the Registration Statement. Very truly yours, /s/John A. Haveman John A. Haveman Associate General Counsel EX-23 3 EXHIBIT 23.1 EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT The Board of Directors Ceridian Corporation: We consent to the use of our reports incorporated herein by reference and to the reference to our firm in Part II, Item 5 hereof. KPM Peat Marwick LLP Minneapolis, Minnesota July 11, 1995 EX-99 4 EXHIBIT 99.1 EXHIBIT 99.1 CERIDIAN CORPORATION EMPLOYEE STOCK PURCHASE PLAN 1. Purpose. The purpose of the Ceridian Corporation Employee Stock Purchase Plan (the "Plan") is to advance the interests of Ceridian Corporation (the "Company") and its shareholders by providing employees of the Company and certain of its subsidiaries with an opportunity to acquire an ownership interest in the Company through the purchase of common stock of the Company on favorable terms through payroll deductions. It is the intention of the Company that the Plan qualify as an employee ''stock purchase plan'' under Section 423 of the Internal Revenue Code of 1986, as amended (the ''Code"), and provisions of the Plan shall be construed consistent with such intention. 2. Definitions. (a) "Agent" means the party or parties designated by the Company to provide Share Accounts and certain administrative services in connection with the Plan. (b) "Board" means the Board of Directors of the Company or any committee thereof to which the Board of Directors has delegated authority with respect to the Plan. (c) "Common Stock" means the common stock, par value $.50 per share, of the Company, or the number and kind of shares of stock or other securities into which such common stock may be changed in accordance with Section 11 of the Plan. (d) "Committee" means the Compensation and Human Resources Committee of the Board, or such successor committee that meets the criteria specified in Section 3. (e) "Contribution Account" means an account established for each Participant to which payroll deductions under the Plan are credited in accordance with Section 7. (f) "Designated Subsidiary'' means a Subsidiary that has been designated by the Board from time to time as eligible to participate in the Plan. (g) "Employee" means any person, including an officer, who is employed on a full-time or part-time basis by a Participating Employer. (h) "Ending Date'' means the last day of each Offering Period. (i) "Exchange Act" means the Securities Exchange Act of 1934, as amended. 1 (j) "Fair Market Value'' means, with respect to the Common Stock, as of any date: (1) if the Common Stock is listed on the New York Stock Exchange, the closing price per share of the Common Stock as reported on the New York Stock Exchange Composite Tape on that date (or, if no shares were traded on such day, as of the first day prior thereto on which there was such a trade); or (2) if the Common Stock is not so listed, such price as is determined in the manner specified by the Committee in its sole discretion, such manner to be acceptable under Section 423 of the Code. (k) "Grant Date'' means the first day of each Offering Period. (l) "Insider'' means any Employee who is subject to Section 16 of the Exchange Act. (m) "Offering Period'' means each three-month period beginning on March 16 and ending on June 15, or beginning on June 16 and ending on September 15, or beginning on September 16 and ending on December 15, or beginning on December 16 and ending on March 15. (n) "Participant'' means an eligible Employee who elects to participate in the Plan in accordance with Section 6. (o) "Participating Employer'' means the Company and any Designated Subsidiary that has elected to participate in the Plan. (p) "Share Account'' means the brokerage account established by the Agent for each Participant to which shares of Common Stock purchased under the Plan are credited in accordance with Section 9. The Share Account will be established pursuant to a separate agreement between each Participant and the Agent. (q) "Subsidiary'' means any subsidiary corporation of the Company within the meaning of Section 424(f) of the Code. 3. Administration. The Plan shall be administered by the Committee (or any successor thereto appointed by the Board consisting of not less than three members, all of whom must be members of the Board who are ''disinterested persons" as defined in Rule 16b-3 under the Exchange Act). Members of the Committee shall be appointed from time to time by the Board, shall serve at the pleasure of the Board, and may resign at any time upon written notice to the Board. A majority of the members of the Committee shall constitute a quorum. The Committee shall act by majority approval of the members, but action may be taken by the Committee without a meeting if unanimous written consent is 2 given. In accordance with and subject to the provisions of the Plan, the Committee shall have authority to interpret the Plan, to make, amend and rescind rules and regulations regarding the Plan (including rules and regulations intended to insure that operation of the Plan complies with Section 16 of the Exchange Act), and to make all other determinations necessary or advisable in administering the Plan, all of which determinations shall be final and binding upon all persons. No member of the Committee shall be liable for any action or determination made in good faith with respect to the Plan or any option granted under it. To the extent consistent with corporate law, the Committee may delegate to any directors or officers of the Company the duties, power and authority of the Committee under the Plan pursuant to such conditions or limitations as the Committee may establish; provided, however, that only the Committee may exercise such duties, power and authority with respect to Insiders. The Committee may request advice or assistance or retain the services of such other persons as are necessary for the proper administration of the Plan. 4. Eligibility. Any person who is (i) an Employee on the last day of the calendar month immediately preceding a Grant Date, (ii) is not on long-term disability or unpaid leave status at that time, and (iii) has reached the age of majority in the state or province in which he or she resides shall be eligible to participate in the Plan for the Offering Period beginning on such Grant Date, subject to the limitations imposed by Section 423(b) of the Code. Notwithstanding the foregoing, no Insider shall be eligible to participate in the Plan for any Offering Period whose Ending Date occurs prior to the annual meeting of the Company's stockholders on May 8, 1996. 5. Offering Periods. Options to purchase shares of Common Stock shall be granted to Participants under the Plan through a series of consecutive Offering Periods. The first Offering Period under the Plan shall have a Grant Date of September 16, 1995 and an Ending Date of December 15, 1995. Offering Periods under the Plan shall continue until either (a) the Committee decides, in its sole discretion, to cancel future Offering Periods because the Common Stock remaining available under the Plan is insufficient to grant options to all eligible Employees, or (b) the Plan is terminated in accordance with its provisions. 6. Participation. Participation in the Plan is voluntary. An eligible Employee may become a Participant in the Plan by completing an enrollment form provided by the Company authorizing payroll deductions and the establishment of a Share Account, and filing the enrollment form with the Company's Human Resources Department not later than the last business day of the month immediately preceding the Grant Date of the first Offering Period in which the Participant wishes to participate. 7. Payroll Deductions. 3 (a) Each Employee electing to participate in the Plan shall designate on the enrollment form the amount of money which he or she wishes to have deducted from his or her paycheck each pay day to purchase Common Stock pursuant to the Plan. The aggregate amount of such payroll deductions shall not be less than $25.00 per month, and shall not be more than $5,312.50 (85% of $6,250) per Offering Period, pro-rated equally over the number of pay days applicable to a Participant during each such Offering Period. Deductions for Plan purposes will not be withheld from compensation amounts, such as annual bonus or gain sharing payments, that are not part of a Participant's normal and recurring compensation each pay day. (b) Payroll deductions for a Participant shall commence on the first pay day on or after the Grant Date of the applicable Offering Period and shall continue until the termination date of the Plan, unless participation in the Plan is sooner terminated as provided in Section 10, the deduction amount is increased or decreased by the Participant as provided in Section 7(d), or deductions are suspended as provided in Section 7(d). Except for a Participant's rights to change the amount of, suspend or discontinue deductions pursuant to Sections 7(d) and 10, the same deduction amount shall be utilized for each pay day during subsequent Offering Periods, whether or not the Participant's compensation level increases or decreases. If the pay period of any Participant changes, such as from weekly to semi-monthly, an appropriate adjustment shall be made to the deduction amount for each pay day corresponding to the new pay period, if necessary, so as to ensure the deduction of the proper amount as specified by the Participant in his or her enrollment form for that Offering Period. (c) All payroll deductions authorized by a Participant shall be credited to the Participant's Contribution Account. A Participant may not make any separate cash payment or contribution to such Contribution Account. Contribution Accounts shall be solely for bookkeeping purposes, and no separate fund or trust shall be established for payroll deductions. Until utilized to purchase shares of Common Stock, funds from payroll deductions shall be held as part of the Participating Employers' general assets, and the Participating Employers shall not be obligated to segregate such funds. No interest shall accrue on a Participant's payroll deductions under the Plan. (d) No increases or decreases in the amount of payroll deductions for a Participant may be made during an Offering Period. A Participant may increase or decrease the amount of his or her payroll deductions under the Plan, or may suspend such payroll deductions, for subsequent Offering Periods by completing a change form and filing it with the Company's Human Resources Department not later than the last business day of the month immediately preceding the Grant Date for the Offering Period as of which such increase, decrease or suspension is to be effective. 4 (e) Payroll deductions which are authorized by Participants who are paid other than in U.S. currency shall be withheld in Contribution Accounts in the country in which such Participant is employed until exercise of an option granted hereunder. Upon exercise of the option granted to such Participant, the amount so withheld shall be converted into U.S. dollars on the basis of the rate of exchange published in the Wall Street Journal for such currency into U.S. dollars as of the business day immediately preceding the Ending Date for such Offering Period. The purchase price shall thereupon be paid to the Company in U.S. dollars following such conversion, the extent to which the Participant may exercise an option therefore being dependent, in part, upon the applicable rate of currency exchange. If, as a result of fluctuations in the exchange rate between the U.S. dollar and a foreign currency during an Offering Period, a Participant who is paid in such foreign currency has less than the minimum permitted amount deducted during an Offering Period, the amount deducted will, nevertheless, be used to purchase Common Stock in accordance with the Plan. 8. Grant of Option. (a) Subject to Section 8(b), on each Grant Date, each eligible Employee who is then a Participant shall be granted (by operation of the Plan) an option to purchase the number of whole and fractional shares (computed to the fourth decimal place) of Common Stock equal to the lesser of (i) the amount determined by dividing the amount of payroll deductions credited to his or her Contribution Account during the Offering Period beginning on such Grant Date by the Purchase Price specified in the following sentence, or (ii) the amount determined by dividing $6,250.00 by the Fair Market Value of one share of Common Stock on the applicable Grant Date. The purchase price per share of such shares (the "Purchase Price'') shall be the lesser of (i) 85% of the Fair Market Value of one share of Common Stock on the applicable Grant Date, or (ii) 85% of the Fair Market Value of one share of Common Stock on the applicable Ending Date. (b) Despite any provisions of the Plan that may provide or suggest otherwise, no Employee shall be granted an option under the Plan to the extent that: (i) immediately after the grant, such Employee (or any other person whose stock ownership would be attributed to such Employee pursuant to Section 424(d) of the Code) would own shares of Common Stock and/or hold outstanding options to purchase shares of Common Stock that would in the aggregate represent 5% or more of the total combined voting power or value of all classes of shares of the Company or of any Subsidiary; or (ii) the Employee's rights to purchase shares of Common Stock under all "employee stock purchase plans'' 5 (within the meaning of Section 423 of the Code) of the Company and its Subsidiaries would accrue (i.e., become exercisable) at a rate that exceeds $25,000 of Fair Market Value of such shares of Common Stock (determined at the time such option is granted, which is the Grant Date) for each calendar year in which such option is outstanding at any time. 9. Exercise of Option. (a) Unless a Participant withdraws from the Plan pursuant to Section 10, his or her option for the purchase of shares of Common Stock granted for an Offering Period will be exercised automatically and in full at the applicable Purchase Price as soon as practicable following the Ending Date of such Offering Period. If the full amount credited to a Participant's Contribution Account during an Offering Period is not required to exercise such Participant's option for that Offering Period in full (due to the applicability of clause (ii) of Section 8(a) and/or fluctuations in the exchange rate between the U.S. dollar and the foreign currency in which such Participant is paid), the amount not required to exercise such option shall promptly be refunded to the Participant following the Ending Date of such Offering Period. (b) No Participant (or any person claiming through such Participant) shall have any interest in any Common Stock subject to an option under the Plan until such option has been exercised and the shares of Common Stock purchased, at which point such Participant shall have all of the rights and privileges of a stockholder of the Company with respect to shares purchased under the Plan. During his or her lifetime, a Participant's option to purchase shares of Common Stock under the Plan is exercisable only by the Participant. (c) Shares of Common Stock purchased pursuant to the exercise of options hereunder shall be held in Share Accounts maintained for and in the name of each Participant by the Agent, such Agent or its nominee to be the record holder of such shares for the benefit of the Participant. The Agent shall provide each Participant with a quarterly statement of his or her Share Account. (d) Dividends paid with respect to shares credited to each Share Account will be themselves credited to such Account and automatically reinvested in whole and fractional shares of Common Stock. (e) A Participant may request that the Agent cause a stock certificate representing some or all of the number of whole shares of Common Stock credited to the Participant's Share Account be issued in the name of the Participant. The Agent shall cause such certificate to be issued as soon as practicable after its receipt of such request and the payment by the 6 Participant of any applicable issuance fees. From and after the date of the issuance of any such certificate, the number of shares credited to the Participant's Share Account shall be reduced by the number of shares represented by such certificate, and the Participant shall thereafter be the record holder of the shares represented by such certificate. 10. Withdrawal; Termination of Employment. (a) A Participant may terminate his or her participation in the Plan and withdraw all, but not less than all, the payroll deductions credited to his Contribution Account under the Plan at any time on or before the last business day of an Offering Period by giving written notice to the Company. Such notice shall (i) state that the Participant wishes to terminate participation in the Plan, (ii) specify the withdrawal date, and (iii) request the withdrawal of all of the Participant's payroll deductions held under the Plan. All of the Participant's payroll deductions credited to his or her Contribution Account will be paid to the Participant as soon as practicable after the withdrawal date specified in the notice of withdrawal (or, if no such date is specified, as soon as practicable after receipt of the notice of withdrawal), the Participant's option for such Offering Period will be automatically canceled, and no further payroll deductions for the purchase of shares of Common Stock will be made for such Offering Period or for any subsequent Offering Period, except pursuant to a re-enrollment in the Plan as provided in Section 10(d). (b) If a Participant's suspension of payroll deductions under the Plan pursuant to Section 7(d) continues for four consecutive Offering Periods, such suspension shall be deemed an election by the Participant to terminate his or her participation in the Plan, and such termination shall be effective as of the Ending Date of the fourth consecutive Offering Period during which no payroll deductions occurred. If, for any reason, a Participant's net pay after withholding taxes and other applicable deductions not related to the Plan (such as for health and welfare benefits) each pay day becomes less than the amount the Participant has designated be deducted each pay day for contribution to the Plan, such occurrence shall be deemed an election by the Participant to terminate his or her participation in the Plan, and such termination shall be effective immediately. Following such termination, all of the Participant's payroll deductions credited to his or her Contribution Account will be paid to the Participant as soon as practicable, the Participant's option for such Offering Period will be automatically canceled, and no further payroll deductions for the purchase of shares of Common Stock will be made for such Offering Period or for any subsequent Offering Period, except pursuant to a re-enrollment in the Plan as provided in Section 10(d). (c) Upon termination of a Participant's employment with all Participating Employers for any reason, including retirement or 7 death, his or her participation in the Plan will automatically cease and the payroll deductions accumulated in his or her Contribution Account will be returned to the Participant as soon as practicable after such employment termination or, in the case of death, to the person or persons entitled thereto under Section 12 below, and the Participant's option for the current Offering Period will be automatically canceled. For purposes of the Plan, the termination date of employment shall be the Participant's last date of actual employment and shall not include any period during which such Participant receives any severance payments. A transfer of employment between the Company and a Designated Subsidiary or between one Designated Subsidiary and another Designated Subsidiary, or leave of absence approved by the Participating Employer, shall not be deemed a termination of employment under this Section 10(c). (d) A Participant's termination of participation in the Plan pursuant to Section 10(a) or 10(b) will not have any effect upon his or her eligibility to participate in a subsequent Offering Period by completing and filing a new enrollment form in accordance with Section 6 or in any similar plan that may hereafter be adopted by the Company. 11. Stock Subject to the Plan. (a) The maximum number of shares of Common Stock that shall be reserved for sale under the Plan shall be 500,000 shares, subject to adjustment as provided in Sections 11(b) and 11(c). The shares to be sold to Participants under the Plan may be, at the election of the Company, either treasury shares or shares authorized but unissued. If the total number of shares of Common Stock that would otherwise be subject to options granted pursuant to Section 8 on any Ending Date exceeds the number of shares then available under the Plan (after deduction of all shares for which options have been exercised or are then outstanding), the Committee shall make a pro rata allocation of the shares of Common Stock remaining available for issuance in as uniform and equitable a manner as is practicable. In such event, the Company shall give written notice of such reduction of the number of shares subject to the option to each Participant affected thereby and shall return any excess funds accumulated in each Participant's Contribution Account as soon as practicable after the Ending Date of such Offering Period. (b) If there is (i) an increase or decrease in the number of issued and outstanding shares of Common Stock resulting from a subdivision or consolidation of shares or other capital adjustment, or (ii) the payment of a stock dividend (utilizing either Common Stock or the stock of a Subsidiary), in either case effected without receipt of consideration by the Company, the number of shares of Common Stock subject to each outstanding option under the Plan and the Purchase Price thereof and the number of such shares remaining reserved for grant under the Plan 8 shall be equitably adjusted by the Committee to reflect such change. (c) Subject to the following provisions of this Section 11(c), if the Company is the surviving corporation in any reorganization, merger or consolidation with or involving one or more other corporations, each outstanding option under the Plan shall apply to the amount and kind of securities to which a holder of the number of shares of Common Stock subject to such option would have been entitled immediately following such reorganization, merger or consolidation, with a corresponding proportionate adjustment of the Purchase Price. If there is a (i) dissolution or liquidation of the Company, (ii) merger, consolidation or reorganization of the Company with one or more other corporations in which the Company is not the surviving corporation, (iii) sale of all or substantially all of the assets of the Company to another person or entity, (iv) transaction (including a merger or reorganization in which the Company is the surviving corporation) approved by the Board that results in any person or entity owning more than 50% of the combined voting power of all classes of stock of the Company, then the Plan and all options outstanding thereunder shall terminate, except as provided in the following sentence. If provision is made in writing in connection with such transaction for the continuation of the Plan and either the assumption of the options theretofore granted or the substitution for such options of new options covering the stock of a successor corporation (or a parent or subsidiary thereof), in either case with appropriate adjustments as to the number and kinds of shares and exercise prices, then the Plan shall continue in the manner and under the terms provided. If the Plan is terminated as provided in this Section 11(c), the current Offering Period shall be deemed to have ended on the last trading day prior to such termination, and the options of each Participant then outstanding shall be deemed to have been automatically exercised in accordance with Section 9(a) on such last trading day. The Committee shall cause written notice to be sent of an event that will result in such a termination to all Participants not later than the time the Company gives notice thereof to its shareholders. Adjustments under this Section 11(c) shall be made by the Committee, whose determination in that respect shall be final, binding and conclusive. 12. Designation of Beneficiary. (a) A Participant may file a written designation of a beneficiary who is to receive a cash refund of the amount, if any, from the Participant's Contribution Account under the Plan in the event of such Participant's death at a time when cash is held for his or her account. Disposition of shares of Common Stock in a Participant's Share Account upon the Participant's death shall be in accordance with the agreement governing the Share Account. 9 (b) A designation of beneficiary pursuant to Section 12(a) may be changed by the Participant at any time by written notice. In the event of the death of a Participant in the absence of a valid designation of a beneficiary who is living at the time of such Participant's death, the Company shall deliver such cash to the executor or administrator of the estate of the Participant; or, if no such executor or administrator has been appointed (to the knowledge of the Company), the Company in its discretion, may deliver such cash to the spouse or to any one or more dependents or relatives of the Participant; or, if no spouse, dependent or relative is known to the Company, then to such other person as the Company may designate. 13. Transferability. Neither payroll deductions credited to a Participant's Contribution Account nor any rights with regard to the exercise of an option or to receive shares of Common Stock under the Plan may be assigned, transferred, pledged or otherwise disposed of in any way (other than by will or the laws of descent and distribution) by the Participant. Any such attempt at assignment, transfer, pledge or other disposition shall be without effect 14. Amendment or Termination. The Plan may be amended by the Board from time to time to the extent that the Board deems necessary or appropriate in light of, and consistent with, Section 423 of the Code; provided, however, that no such amendment shall be effective without approval of the shareholders of the Company, if shareholder approval of the amendment is then required pursuant to Rule 16b-3 under the Exchange Act or any successor rule or Section 423 of the Code. The Board also may terminate the Plan or the granting of options pursuant to the Plan at any time; provided, however, that the Board shall not have the right to modify, cancel, or amend any outstanding option granted pursuant to the Plan before such termination unless each Participant consents in writing to such modification, amendment or cancellation. 15. Notices. All notices or other communications by a Participant to the Company in connection with the Plan shall be deemed to have been duly given when received by the Vice President, Human Resource Services of the Company or by any other person designated by the Company for the receipt of such notices or other communications, in the form and at the location specified by the Company. 16. Effective Date of Plan. The Plan shall be effective as of June 29, 1995, the date it was adopted by the Board. The Plan has been adopted subject to shareholder approval, and prior to shareholder approval shares of Common Stock may be issued under the Plan subject to such approval. 17. Miscellaneous. The headings to sections of the Plan have been included for convenience of reference only. The Plan shall be interpreted and construed in accordance with the laws of the 10 State of Minnesota. References in the Plan to "$" or "dollars" shall be deemed to refer to United States dollars unless the context clearly indicates otherwise. 11 -----END PRIVACY-ENHANCED MESSAGE-----