-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MIZh5h/15xJEDVGE1l8GmIVzhY8k1BQD7GWGsWvMa3HeuME/o2PTXJ9m4G3BriJ7 vOkL/vTY/lDK5PfUEIQ/cw== 0000891092-99-000448.txt : 19990811 0000891092-99-000448.hdr.sgml : 19990811 ACCESSION NUMBER: 0000891092-99-000448 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990803 EFFECTIVENESS DATE: 19990803 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OMNICOM GROUP INC CENTRAL INDEX KEY: 0000029989 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ADVERTISING AGENCIES [7311] IRS NUMBER: 131514814 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-84349 FILM NUMBER: 99676854 BUSINESS ADDRESS: STREET 1: 437 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2124153700 MAIL ADDRESS: STREET 1: 437 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10022 FORMER COMPANY: FORMER CONFORMED NAME: DOYLE DANE BERNBACH GROUP INC DATE OF NAME CHANGE: 19861117 FORMER COMPANY: FORMER CONFORMED NAME: DOYLE DANE BERNBACH INTERNATIONAL INC DATE OF NAME CHANGE: 19850604 FORMER COMPANY: FORMER CONFORMED NAME: DOYLE DANE BERNBACH INC DATE OF NAME CHANGE: 19781226 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on August 3, 1999 Registration Number 333-_____ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------- OMNICOM GROUP INC. (Exact name of registrant as specified in its charter) New York 13-1514814 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification Number) 437 Madison Avenue New York, New York 10022 (Address of Principal Executive Offices) (Zip Code) OMNICOM GROUP INC. EMPLOYEE STOCK PURCHASE PLAN (Full title of the plan) Barry J. Wagner, Esq. Secretary and General Counsel Omnicom Group Inc. 437 Madison Avenue New York, New York 10022 (212) 415-3600 (Name, address and telephone number, including area code, of agent for service) ---------- Copies to: Linda E. Ransom, Esq. Dewey Ballantine LLP 1301 Avenue of the Americas New York, New York 10019 (212) 259-6570 ----------
CALCULATION OF REGISTRATION FEE =================================================================================================================== Title of Proposed Maximum Proposed Maximum Securities to Amount to be Offering Price Per Aggregate Offering Amount of be Registered Registered (1) Share (2) Price (2) Registration Fee (2) - ------------------------------------------------------------------------------------------------------------------- Common Stock of Omnicom Group Inc., par value $.50 per share ................ 3,000,000 $71.25 $213,750,000 $59,422.50 =================================================================================================================== (1) This Registration Statement shall also cover any additional shares of common stock of the registrant which become issuable under the Omnicom Group Inc. Employee Stock Purchase Plan by reason of any merger, consolidation, spin off, reorganization, recapitalization, reclassification, stock dividend, stock split or similar transactions of or by the registrant which results in an increase in the number of the registrant's outstanding shares of common stock. (2) Estimated for the sole purpose of computing the registration fee. Pursuant to Securities Act Rules 457(c) and (h), the proposed maximum offering price per share is calculated as the average of the high and low prices, reported by the New York Stock Exchange, Inc., of the common stock of the registrant as of July 29, 1999.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents have been filed by Omnicom Group Inc. (the "Company") (File No. 1-10551) with the Securities and Exchange Commission (the "Commission") and are incorporated herein by reference: (a) the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998; (b) the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1999; and (c) the description of the Company's Common Stock contained in the Registration Statement filed pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any amendment or report filed for purposes of updating that description. All documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to 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 part hereof from the date of filing of such documents. Any statement contained in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as modified or superseded, to constitute a part of this Registration Statement. The consolidated financial statements and financial statement schedules of the Company and its subsidiaries included in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998 have been incorporated herein by reference in reliance on the reports, also incorporated herein by reference, of Arthur Andersen LLP, independent certified public accountants, given on their authority as experts in auditing and accounting. Item 4. Description of Securities. Not applicable. II-1 Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. The Company's Certificate of Incorporation contains a provision limiting the liability of directors (except for approving statutorily prohibited dividends, share repurchases or redemptions, distributions of assets on dissolution or loans to directors) to acts or omissions in bad faith, involving intentional misconduct or a knowing violation of the law, or resulting in personal gain to which the director was not legally entitled. The Company's By-Laws provide that an officer or director will be indemnified against any costs or liabilities, including attorneys fees and amounts paid in settlement with the consent of the Company in connection with any claim, action or proceeding to the fullest extent permitted by the New York Business Corporation Law. Section 722(a) of the New York Business Corporation Law provides that a corporation may indemnify any officer or director made, or threatened to be made, a party to an action other than one by or in the right of the corporation, including an action by or in the right of any other corporation or other enterprise which any director or officer of the corporation served in any capacity at the request of the corporation, because he was a director or officer of the corporation, or served such other corporation or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorney's fees actually and necessarily incurred as a result of such action, or any appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or in the case of service for any other corporation or other enterprise, not opposed to, the best interests of the corporation and, in criminal actions, in addition, had no reasonable cause to believe that his conduct was unlawful. Section 722(c) of the New York Business Corporation Law provides that a corporation may indemnify any officer or director made, or threatened to be made, a party to an action by or in the right of the corporation by reason of the fact that he is or was an officer or director of the corporation, or is or was serving at the request of the corporation as a director or officer of any other corporation, or other enterprise, against amounts paid in settlement and reasonable expenses, including attorneys' fees, actually and necessarily incurred by him in connection with the defense or settlement of such action, or in connection with an appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for another corporation or other enterprise, not opposed to, the best interests of the corporation. The corporation may not, however, indemnify any officer or director pursuant to Section 722(c) in respect of (1) a threatened action, or a pending action which is settled or otherwise disposed of, or (2) any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action was brought or, if no action was brought, any court of competent jurisdiction, determines in its discretion, that the person is fairly and II-2 reasonably entitled to indemnity for such portion of the settlement and expenses as the court deems proper. Section 723 of the New York Business Corporation Law provides that an officer or director who has been successful on the merits or otherwise in the defense of a civil or criminal action of the character set forth in Section 722 is entitled to indemnification as permitted in such section. Section 724 of the New York Business Corporation Law permits a court to award the indemnification required by Section 722. The Company has entered into agreements with its directors to indemnify them for liabilities or costs arising out of any alleged or actual breach of duty, neglect, errors or omissions while serving as a director. The Company also maintains and pays premiums for directors' and officers' liability insurance policies. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Exhibit Number Description -------------- ----------- 5 Opinion and Consent of Dewey Ballantine LLP. 23.1 Consent of Dewey Ballantine LLP (included in Exhibit 5 hereto). 23.2 Consent of Arthur Andersen LLP. 24 Power of Attorney (included on Signature Page). 99 Omnicom Group Inc. 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; and II-3 (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 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 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 this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, 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. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, 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 New York, State of New York, on August 3, 1999. OMNICOM GROUP INC. By: /s/ John Wren --------------------------------------- John Wren President, Chief Executive Officer and Director Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated. Each person whose signature appears below does hereby constitute and appoint John Wren and Barry J. Wagner, and each of them, with full powers of substitution, his or her true and lawful attorneys-in-fact and agents to do any and all acts and things and to execute any and all instruments which said attorneys-in-fact and agents may deem necessary or advisable to enable the registrant to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission in respect thereof, in connection with the registration under said Act of shares of Common Stock registered pursuant hereto, including specifically, but without limitation thereof, power and authority to sign his or her name, in any and all capacities set forth beneath his name, to any amendment to this Registration Statement in respect of said shares and to any documents filed as part of or in connection with said Registration Statement or amendments; and the undersigned does hereby ratify and confirm all that said attorneys-in-fact and agents shall do or cause to be done by virtue hereof. Date: August 3, 1999 By: /s/ John Wren -------------------------------------- John Wren President, Chief Executive Officer and Director (Principal Executive Officer) Date: August 3, 1999 By: /s/ Randall Weisenburger -------------------------------------- Randall Weisenburger Chief Financial Officer (Principal Financial Officer) Date: August 3, 1999 By: /s/ Philip J. Angelastro -------------------------------------- Philip J. Angelastro Controller (Principal Accounting Officer) Date: August 3, 1999 By: /s/ Bernard Brochand -------------------------------------- Bernard Brochand Director Date: August 3, 1999 By: /s/ Robert J. Callander -------------------------------------- Robert J. Callander Director Date: August 3, 1999 By: /s/ James A. Cannon -------------------------------------- James A. Cannon Director Date: August 3, 1999 By: /s/ Leonard S. Coleman, Jr. -------------------------------------- Leonard S. Coleman, Jr. Director Date: August 3, 1999 By: /s/ Bruce Crawford -------------------------------------- Bruce Crawford Director Date: August 3, 1999 By: /s/ Susan S. Denison -------------------------------------- Susan S. Denison Director Date: August 3, 1999 By: /s/ Peter Foy -------------------------------------- Peter Foy Director Date: August 3, 1999 By: /s/ Thomas L. Harrison -------------------------------------- Thomas L. Harrison Director Date: August 3, 1999 By: /s/ John R. Murphy -------------------------------------- John R. Murphy Director Date: August 3, 1999 By: /s/ John R. Purcell -------------------------------------- John R. Purcell Director Date: August 3, 1999 By: /s/ Keith L. Reinhard -------------------------------------- Keith L. Reinhard Director Date: August 3, 1999 By: /s/ Allen Rosenshine -------------------------------------- Allen Rosenshine Director Date: August 3, 1999 By: /s/ Gary L. Roubos -------------------------------------- Gary L. Roubos Director Date: August 3, 1999 By: /s/ Quentin I. Smith, Jr. -------------------------------------- Quentin I. Smith, Jr. Director Date: August 3, 1999 By: /s/ Egon P.S. Zehnder -------------------------------------- Egon P.S. Zehnder Director INDEX TO EXHIBITS Exhibit Number Description - -------------- ----------- 5 Opinion and Consent of Dewey Ballantine LLP. 23.1 Consent of Dewey Ballantine LLP (included in Exhibit 5 hereto). 23.2 Consent of Arthur Andersen LLP. 24 Power of Attorney (included on Signature Page). 99 Omnicom Group Inc. Employee Stock Purchase Plan. EX-5 2 OPINION AND CONSENT OF DEWEY BALLLANTINE LLP Exhibit 5 DEWEY BALLANTINE LLP 1301 AVENUE OF THE AMERICAS NEW YORK 10019-6092 TEL 212 259-8000 FAX 212 259-6333 August 3, 1999 Omnicom Group Inc. 437 Madison Avenue New York, New York 10022 Re: Registration Statement on Form S-8 Filed with the Securities and Exchange Commission on August 3, 1999 Gentlemen: We are acting as counsel for Omnicom Group Inc., a New York corporation ("Omnicom"), in connection with the registration by Omnicom under the Securities Act of 1933, as amended (the "Act"), of 3,000,000 shares of common stock, par value $.50 per share (the "Shares"), to be offered pursuant to the Omnicom Group Inc. Employee Stock Purchase Plan (the "Plan") under the Registration Statement on Form S-8 filed with the Securities and Exchange Commission on August 3, 1999 (the "Registration Statement"). We are familiar with the proceedings of Omnicom relating to the authorization and issuance of the Shares. In addition, we have made such further examinations of law and fact as we have deemed appropriate in connection with the opinion hereinafter set forth. We express no opinion as to the law of any jurisdiction other than the laws of the State of New York. Based upon the foregoing, we are of the opinion that the Shares offered pursuant to the Plan have been duly authorized and, when issued in accordance with the resolutions of the Board of Directors of Omnicom authorizing such issuance, will be validly issued, fully paid and nonassessable. Omnicom Group Inc. August 3, 1999 Page 2 We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Act, or under the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, /s/ Dewey Ballantine LLP EX-23.2 3 CONSENT OF ARTHUR ANDERSEN LLP Exhibit 23.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated February 16, 1999 included in Omnicom Group Inc.'s Form 10-K for the year ended December 31, 1998 and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP Arthur Andersen LLP New York, New York August 2, 1999 EX-99 4 EMPLOYEE STOCK PURCHASE PLAN Exhibit 99 OMNICOM GROUP INC. EMPLOYEE STOCK PURCHASE PLAN ARTICLE I PURPOSE AND COMMENCEMENT 1.01 Purpose. The purpose of the Plan is to provide the employees of Omnicom Group Inc., a New York corporation (the "Company"), and its Subsidiaries with a vehicle for investing in the growth potential of the Company, to allow the Company to be competitive in attracting new employees, and to promote positive parent company recognition and visibility. The Plan is intended to qualify as an employee stock purchase plan under Section 423 of the Code and shall be interpreted and construed in accordance with such purpose. 1.02 Commencement. The Plan shall become effective on September 1, 1999 (the "Effective Date"). The Plan was adopted by the Board of Directors on February 1, 1999 and was approved by the Company's shareholders on May 17, 1999. The Plan, as set forth herein, reflects amendments to the Plan through July 27, 1999. ARTICLE II DEFINITIONS 2.01 Definitions. As used in the Plan, the following terms and phrases shall have the following meanings: (a) "Board of Directors" shall mean the Board of Directors of the Company. (b) "Code" shall mean the Internal Revenue Code of 1986, as amended. (c) "Commencement Date" shall mean the first day of a Plan Quarter. (d) "Committee" shall mean the Compensation Committee of the Board of Directors, or such other committee of the Board of Directors designated by it for purposes of administering the Plan. (e) "Common Stock" means the common stock of the Company. (f) "Company" shall mean Omnicom Group Inc., a New York corporation. (g) "Contribution Account" shall mean the bookkeeping account established on behalf of a Participant pursuant to Article IV hereof to which shall be credited his or her Participant Contributions. (h) "Contribution Rate" shall be a percentage of a Participant's Covered Compensation during each payroll period designated by each Participant to be contributed by regular payroll deductions to his or her Contribution Account as set forth in Section 3.03 hereof. (i) "Covered Compensation" shall mean the base salary or hourly wages received by an Employee from any Participating Employer, or commissions received from any Participating Employer (in the case of an Employee who is primarily compensated on a commission-basis), before tax withholdings and other payroll deductions (such as deductions under Section 401(k) or 125 of the Code), and excluding any overtime, cash bonus compensation, fringe benefits and other irregular or special forms of compensation. (j) "Effective Date" shall have the meaning set forth in Section 1.02 hereof. (k) "Election Date" shall mean the number of days prior to the Commencement Date of each Plan Quarter selected by each Participating Employer and approved by the Committee as the date by which its Employees must elect to participate in the Plan pursuant to Section 3.03(a) hereof. (l) "Election Form" shall mean such form as shall be approved by the Committee for Employees to elect participation in the Plan. (m) "Employee" shall mean each employee of a Participating Employer other than an Excluded Employee. For purposes of the Plan, the terms "employee", "employment" and similar terms shall be determined in accordance with the provisions of Section 1.421-7(h) of the Treasury Regulations (or any successor regulations). (n) "Excluded Employee" means any employee of a Participating Employer whose customary employment is 20 hours per week or less or whose customary employment is for not more than 5 months in any calendar year. (o) "Fair Market Value" shall mean the average of the high and low price reported by the applicable composite transactions report on the date of any determination hereunder or, if the Common Stock is not traded on such date, the average of the high and low price so reported on the immediately preceding date on which the Common Stock was traded on such exchange. (p) "Participant" shall mean any Employee of a Participating Employer who has met the conditions and provisions for becoming a Participant set forth in Article III hereof. 2 (q) "Participant Contributions" shall be the aggregate dollars actually contributed by each Participant to his or her Contribution Account for a Plan Quarter. (r) "Participating Employers" shall mean the Company and each Subsidiary that (i) has been designated by the Committee as a Participating Employer under the Plan, and (ii) has adopted the Plan for its Employees by action of its Board of Directors. A Subsidiary shall become a Participating Employer effective only upon a Commencement Date. (s) "Plan" shall mean the Omnicom Group Inc. Employee Stock Purchase Plan as set forth herein, as it may be amended from time to time. (t) "Plan Quarter" shall mean each quarter during the term of the Plan defined for purposes hereof as September 1 through November 30, December 1 through February 28, March 1 through May 31 and June 1 through August 31. The first Plan Quarter shall be the Plan Quarter commencing on the Effective Date and ending on November 30, 1999. (u) "Purchase Date" shall mean the last business day of a Plan Quarter on which the Common Stock publicly trades. (v) "Purchase Price" shall mean the purchase price for a share of Common Stock to be paid by a Participant on a Purchase Date, as determined under Section 4.02 hereof. (w) "Subsidiary" shall mean a subsidiary of the Company which is treated as a subsidiary corporation under Section 424(f) of the Code. ARTICLE III ELIGIBILITY AND PARTICIPATION 3.01 Eligibility. (a) Each Employee shall become eligible to be a Participant of the Plan and may participate therein as of the Commencement Date coincident with or next following the date he or she has completed six consecutive months of continuous employment with the Participating Employer. (b) In the event any person becomes an Employee on account of a stock purchase, asset purchase or similar acquisition by the Company, such Employee shall have any continuous period of employment with the predecessor company applied towards the satisfaction of the six-month waiting period set forth in paragraph (a) above, and such Employee shall be eligible to participate in the Plan on the Commencement 3 Date coincident with or next following the date he has satisfied such six-month period. (c) In the event that an Excluded Employee becomes an Employee of a Participating Employer due to a change in his customary employment with a Participating Employer (as described in Section 2.01(n)), such Employee shall have his continuous period of employment with the Participating Employer (as an Excluded Employee) applied toward satisfaction of the six-month waiting period set forth in paragraph (a) above, and such Employee shall be eligible to participate in the Plan on the Commencement Date coincident with or next following the date he has satisfied such six-month period; provided, however, that any such Employee who has more than two years of continuous employment with a Participating Employer shall be eligible to participate in the Plan on the Purchase Date coincident with or next following the date he is an Employee and has satisfied such two-year period (and may elect to make payroll deductions under Section 3.03(d) for payroll periods ending on and after such date). 3.02 Limitations. Notwithstanding anything to the contrary contained in the Plan, no Employee shall acquire the right to purchase shares of Common Stock (i) if immediately after the Purchase Date, such Employee would own 5% or more of the total combined voting power or value of all classes of stock of the Company or any Subsidiary, taking into account in determining stock ownership any stock attributable to such Employee under Section 424(d) of the Code or (ii) which would permit such Employee's right to purchase stock under all employee stock purchase plans (to which Section 423 of the Code applies) of the Company and its Subsidiaries, to accrue at a rate which exceeds $25,000 of the Fair Market Value of such stock (as determined as of each Purchase Date) for each calendar year, all as specified in the manner provided by Section 423(b)(8) of the Code. 3.03 Participation. (a) Each Employee eligible to be a Participant in the Plan shall be furnished a summary of the Plan and an Election Form by such Employee's Participating Employer. If an Employee elects to participate hereunder, such Employee shall complete such form and file it with his or her Participating Employer not later than the Election Date for the next Plan Quarter. The completed Election Form shall indicate the Contribution Rate authorized by the Participant. If any Employee does not elect to participate in the Plan during any given Plan Quarter, such Employee may elect to participate on any future Commencement Date so long as he or she continues to be an eligible Employee. (b) On his or her Election Form, an Employee must authorize his or her Participating Employer to deduct through a payroll deduction the amount of such Employee's Participant Contribution. The payroll deduction specified in an Election Form for each payroll period shall be at a Contribution Rate in whole percentages of not less than 1% and not more than 10% of such Employee's Covered Compensation during such payroll period paid to him or her by his or her Participating Employer. Such deductions shall begin as of the first pay period occurring on or after the Commencement Date of a Plan Quarter. No interest shall accrue to Participants on any amounts withheld 4 under the Plan. (c) The Participant's Contribution Rate, once established, shall remain in effect for all Plan Quarters unless changed by the Participant on a new Election Form filed with his or her Participating Employer not later than the Election Date of the next Plan Quarter. A Participant's Contribution Rate for a Plan Quarter may not be increased, decreased or otherwise modified at any time during the period between the Election Date and the Commencement Date of such Plan Quarter. (d) A Participant may notify his or her Participating Employer of such Participant's desire to discontinue his or her Participant Contributions by delivering to his or her Participating Employer written notice on such forms as may be provided by the Company or such Participant's Participating Employer at least 15 days prior to the Purchase Date of the relevant Plan Quarter. Upon such request, there shall be refunded to such Participant as soon as practicable the entire cash balance in his or her Contribution Account. If a Participant determines to discontinue his or her Participant Contributions pursuant to this paragraph, (i) such Participant shall be terminated from the Plan effective upon the date of receipt of such Participant's notice to his or her Participating Employer and (ii) such Participant shall not be permitted to be a Participant in the Plan until the Participant completes and files a new Election Form with his or her Participating Employer no later than the Election Date of the Plan Quarter the Participant wishes to again participate in the Plan. In the event that a Participant's payroll deductions are prevented by legal process, the Participant will be deemed to have terminated from the Plan. (e) By enrolling in the Plan, each Participant will be deemed to have authorized the establishment of a brokerage account in his or her name at a securities brokerage firm or other financial institution, if approved by the Committee in its discretion. 3.04 Termination of Employment; Re-employment (a) Any Participant (i) whose employment by a Participating Employer is terminated for any reason or (ii) who shall otherwise cease to be an Employee for purposes of the Plan, shall cease being a Participant as of the date of such event. Upon such termination of employment, there shall be refunded to such Participant as soon as practicable the entire cash balance in such Participant's Contribution Account. Section 4.03(b) hereof shall apply to the issuance of certificates to a Participant following termination of employment. (b) Any Employee whose employment by a Participating Employer is terminated after such Employee has completed six consecutive months of continuous employment with a Participating Employer and who is re-employed by a Participating Employer within one year of his or her date of termination shall be eligible to participate in the Plan on the Commencement Date coincident with or next following the date of re-employment. Any employee whose employment is terminated and who is re-employed under circumstances other than as set forth in the foregoing sentence shall be eligible to 5 participate in the plan upon satisfaction of the requirement of Section 3.01(a) following the date of re-employment. ARTICLE IV COMMON STOCK 4.01 Purchase of Common Stock. (a) On each Purchase Date, each Participant's Contribution Account shall be used to purchase the maximum number of whole and fractional shares of Common Stock determined by dividing (i) the Participant's Contribution Account as of such Purchase Date by (ii) the Purchase Price in respect of such Plan Quarter. (b) If, in any Plan Quarter, the total number of shares of Common Stock to be purchased pursuant to the Plan by all Participants exceeds the number of shares authorized under the Plan, then each Participant shall purchase his or her pro rata portion of the shares of Common Stock remaining available under the Plan based on the balances in each Participant's Contribution Account as of the Purchase Date in respect of such Plan Quarter. (c) Any cash dividends paid with respect to shares of Common Stock held for the account of a Participant shall be, as determined by the Participant, (i) distributed to the Participant, or (ii) used to purchase additional shares of Common Stock on the open market, provided that the Participant has made a prior arrangement with the securities brokerage firm described in Section 3.03(e) hereof to apply any cash dividends to make such purchases. 4.02 Purchase Price. For each Plan Quarter, the Purchase Price per share of Common Stock purchased pursuant to the Plan shall be 85% of the Fair Market Value on the Purchase Date of such Plan Quarter. 4.03 Stock Certificates, Voting Rights. (a) Evidence of shares of Common Stock purchased under the Plan shall be maintained under the Plan for the account of each Participant and registered in the manner determined by the Committee. Certificates for the number of whole shares credited to a Participant's account under the Plan will be issued to a Participant at any time promptly upon written request to the Company or its designated agent; provided, however, that the Company may, at its election, issue such certificates at such time or times as the Committee deems appropriate, including, without limitation, following an Employee's termination of employment with a Participating Employer. (b) Whole shares of Common Stock held under the Plan for the 6 account of each Participant or former Participant shall be voted by the holder of record of such shares in accordance with the Participant's instructions. 4.04 Notification of Disposition of Stock. If a Participant or former Participant disposes of a share of Common Stock purchased under the Plan prior to two (2) years after the Purchase Date of the Plan Quarter during which such share was purchased, then such Participant or former Participant shall notify his or her Participating Employer immediately of such disposition in writing. ARTICLE V MISCELLANEOUS PROVISIONS 5.01 Shares Subject to Plan; Adjustments. (a) The maximum number of shares of Common Stock which may be purchased under the Plan is 3,000,000 subject, however, to adjustment as hereinafter set forth. The shares of Common Stock to be purchased under the Plan will be made available, at the discretion of the Board of Directors or the Committee, either from authorized but unissued shares of Common Stock or from previously issued shares of Common Stock reacquired by the Company, including shares purchased on the open market. (b) If the outstanding shares of Common Stock of the Company are increased, decreased, or exchanged for a different number or kind of shares or other securities, or if additional shares or new or different shares or other securities are distributed with respect to such shares of Common Stock or other securities, through merger, consolidation, spin off, sale of all or substantially all the property of the Company, reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other distribution with respect to such shares of Common Stock, or other securities, an appropriate and proportionate adjustment may be made in the maximum number and kind of shares provided in Sections 3.02 and 5.01(a) hereof, subject in the case of certain corporate reorganizations to the requirements of Section 424(a) of the Code. 5.02 Administration of the Plan. (a) Pursuant to the direction of the Board of Directors, the Committee shall be responsible for the administration of the Plan. The Committee shall have the discretionary authority to interpret the Plan and determine all questions arising in the administration, application and operation of the Plan, including all questions of fact and all questions of interpretation of the provisions of the Plan. All such determinations by the Committee shall be conclusive and binding on all persons. The Committee, from time to time, may adopt, amend and rescind rules and regulations not inconsistent with 7 the Plan for carrying out the Plan, and may approve the forms of any documents or writings provided for in the Plan. The Committee shall have full discretionary authority to delegate ministerial functions of the Plan to employees of the Company and its Subsidiaries. No member of the Board of Directors or the Committee shall be liable for any action, determination or omission taken or made in good faith with respect to the Plan or any right granted hereunder. (b) The Committee may in its discretion engage a bank trust department, securities brokerage firm or other financial institution as agent to perform custodial and record-keeping functions for the Plan, such as holding record title to the Participants' stock certificates, maintaining an individual investment account for each Participant and providing periodic account status reports to Participants. (c) The Committee shall have the authority to adopt and enforce such special rules and restrictions under the Plan to be applicable to Participants who are subject to Section 16 of the Securities Exchange Act of 1934, as amended, as the Committee shall deem are necessary or appropriate to comply with the requirements of such Section 16. (d) The Company shall bear the cost of administering the Plan, including any fees, costs and expenses relating to the purchase of shares of Common Stock under the Plan. Notwithstanding the foregoing, Participants will be responsible for all fees, costs and expenses incurred in connection with (i) the issuance of stock certificates to a Participant in accordance with Section 5.01(a) or (ii) the disposition of shares of Common Stock purchased under the Plan. 5.03 Termination and Amendment of the Plan. (a) The Company may, by action of the Board of Directors, terminate the Plan at any time and for any reason. The Plan shall automatically terminate upon the purchase by Participants of all shares of Common Stock subject to the Plan under Section 5.01 hereof, unless such number of shares shall be increased by the Board of Directors and such increase shall be approved by the shareholders of the Company. Upon termination of the Plan, as soon as practicable, there shall be refunded to each Participant the entire cash balance in his or her Contribution Account, and there shall be forwarded to each Participant certificates for all whole shares of Common Stock held under the Plan for the account of such Participant. (b) The Board of Directors reserves the right to modify, alter or amend the Plan at any time and from time to time to any extent that it may deem advisable, subject to shareholder approval to the extent deemed necessary by the Board of Directors for compliance with Section 423 of the Code. Notwithstanding the foregoing, no amendment of the Plan shall operate to reduce any amounts previously allocated to a Participant's Contribution Account nor to reduce a Participant's rights with respect to shares of Common Stock previously purchased and held on his or her behalf under the Plan. The Board of Directors may suspend operation of the Plan for any period as it may deem advisable. 8 5.04 Governing Law; Compliance With Law. The Plan shall be construed in accordance with the laws of the State of New York. The Company's obligation to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any regulatory or governmental agency as may, in the opinion of counsel for the Company, be required. The Company may make such provisions as it may deem appropriate for the withholding of any taxes or payment of any taxes which it determines it may be required to withhold or pay in connection with a Participant's participation in the Plan. 5.05 No Assignment. The purchase rights granted hereunder are not assignable or transferable by the Participants, other than by will or the laws of descent and distribution, and are exercisable during the Participant's lifetime only by the Participant. Any attempted assignment, transfer or alienation not in compliance with the terms of the Plan shall be null and void for all purposes and respects. 5.06 No Contract of Employment. The Plan will not be deemed to constitute a contract between a Participating Employer and any Participant or to be a consideration or an inducement for the employment of any Participant or Employee. Nothing contained in the Plan shall be deemed to give any Participant or Employee the right to be retained in the service of a Participating Employer or to interfere with the right of a Participating Employer to discharge any Participant or Employee at any time regardless of the effect which such discharge shall have upon him or her as a Participant of the Plan. 5.07 No Rights as Shareholder. No eligible Employee or Participant shall by reason of participation in the Plan have any rights of a shareholder of the Company until he or she acquires shares of Common Stock as herein provided. 9 -----END PRIVACY-ENHANCED MESSAGE-----