-----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, R4lCIHe4ukbPaz95+wz42kw+8oVLWJIHTLofWvZZhA9FUzDnwfMHBq/lFT89Ux9q bP3JcxHNJ6tX0IHUPnyqkA== 0000950123-01-501397.txt : 20010501 0000950123-01-501397.hdr.sgml : 20010501 ACCESSION NUMBER: 0000950123-01-501397 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010430 EFFECTIVENESS DATE: 20010430 FILER: COMPANY DATA: COMPANY CONFORMED NAME: R H DONNELLEY CORP CENTRAL INDEX KEY: 0000030419 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ADVERTISING [7310] IRS NUMBER: 132740040 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-59790 FILM NUMBER: 1615399 BUSINESS ADDRESS: STREET 1: ONE MANHATTANVILLE ROAD CITY: PURCHASE STATE: NY ZIP: 10577 BUSINESS PHONE: 9149336800 MAIL ADDRESS: STREET 1: 1 DIAMOND HILL RD CITY: MURRAY HILL STATE: NJ ZIP: 07974 FORMER COMPANY: FORMER CONFORMED NAME: DUN & BRADSTREET CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: DUN & BRADSTREET COMPANIES INC DATE OF NAME CHANGE: 19790429 S-8 1 y48334s-8.txt FORM S-8 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 30, 2001 REGISTRATION NO. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 R.H. DONNELLEY CORPORATION (Exact name of registrant as specified in its charter) (Formerly named The Dun & Bradstreet Corporation) DELAWARE 2741 13-2740040 (State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer of Incorporation or Organization) Classification Code Number) Identification No.)
ONE MANHATTANVILLE ROAD PURCHASE, NEW YORK 10577 (914) 933-6400 (Address of Principal Executive Offices) R.H. DONNELLEY CORPORATION 2001 PARTNERSHARE PLAN (Full Title of the Plan) ROBERT J. BUSH, ESQ. VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY R.H. DONNELLEY CORPORATION PURCHASE, NEW YORK 10577 (Name and Address of Agent for Service) Telephone Number, Including Area Code, of Agent for Service: (914) 933-6400 CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED AMOUNT OFFERING MAXIMUM AMOUNT OF TITLE OF SECURITIES TO BE PRICE PER AGGREGATE OFFERING REGISTRATION TO BE REGISTERED REGISTERED SHARE (2) PRICE(2) FEE ---------------- ---------- --------- -------- --- Common Stock (par value $1.00 per share) (1)........................ 140,000 shares $26.45 $3,703,000 $926
(1) Plus an indeterminate amount of additional shares that may be offered and issued to prevent dilution resulting from stock splits, stock dividends and similar transactions. (2) As of the date hereof, all options to purchase shares under the 2001 PartnerShare Plan were outstanding at an exercise price of $26.45 per share. In accordance with Rule 457(h) under the Securities Act of 1933, the registration fee for these shares is based upon this exercise price. THIS REGISTRATION STATEMENT INCLUDES A TOTAL OF 16 PAGES. EXHIBIT INDEX ON PAGE 7. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT R.H. Donnelley Corporation, formerly known as The Dun & Bradstreet Corporation (the "Registrant"), hereby files this Registration Statement on Form S-8 with the Securities and Exchange Commission (the "Commission") to register 140,000 shares of the Registrant's Common Stock, par value $1.00 per share ("Common Stock"), for issuance pursuant to the Registrant's 2001 PartnerShare Plan (the "Plan"), as well as such indeterminate number of shares of Common Stock as may be offered and issued pursuant to the Plan to prevent dilution resulting from stock splits, stock dividends and similar transactions. ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents of the Registrant filed with the Commission pursuant to the Securities and Exchange Act of 1934, as amended (the "1934 Act"), (Commission 1934 Act File Number 001-07155) are incorporated by reference herein: (1) Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2000. (2) Registrant's Current Report on Form 8-K dated January 11, 2001. (3) All other reports filed with the Commission by the Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the 1934 Act subsequent to the date hereof (and prior to the filing of a post-effective amendment which indicates that all securities offered herein have been sold or which deregisters all securities then remaining unsold). (4) The description of the Registrant's Common Stock contained in the following documents: Registrant's Registration Statement on Form S-3 (Registration No. 33-10462) dated November 28, 1986, including any amendment thereto or report filed for the purpose of updating such description; and the Registrant's Form 8-A filed with the Securities and Exchange Commission on November 5, 1998 with respect to a rights plan adopted by the Registrant on October 27, 1998. Any statement contained herein or made in a 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 is also incorporated or 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 so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. 2 3 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Reference is made to section 102(b)(7) of the Delaware General Corporation Law (the "DGCL"), which enables a corporation in its certificate of incorporation to eliminate or limit the personal liability of a director for violations of the director's fiduciary duty, except (i) for breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions) or (iv) for any transaction from which a director derived an improper personal benefit. The Registrant's certificate of incorporation eliminates the liability of directors to the fullest extent permitted by Delaware Law. Reference is made to section 145 of the DGCL which provides that a corporation may indemnify directors and officers as well as other employees and agents against expenses (including attorney's fees), judgments, fines and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation (a "derivative action")) if they act in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorney's fees) incurred in connection with defense or settlement of such action, and the statute requires court approval before there can be indemnification that may be granted by a corporation's charter, by-laws, disinterested director vote, stockholder vote, agreement or otherwise. The Registrant's certificate of incorporation provides for indemnification of its directors, officers, employees and agents to the fullest extent permitted by Delaware Law. In addition, the Registrant has purchased and maintains directors' and officers' liability insurance. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS
EXHIBIT NUMBER EXHIBIT 4.01. Certificate of Incorporation of the Registrant (incorporated herein by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q for the three months ended March 31, 1999, Commission File No. 001-07155).* 4.02. Amended and Restated Bylaws of the Registrant (incorporated herein by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q for the three months ended March 31, 1999, Commission File No. 001-07155).* 4.03. Rights Agreement, dated as of October 27, 1998 between R.H. Donnelley Corporation and First Chicago Trust Company (incorporated by reference to Exhibit 4 to the Registration Statement on Form 8-A, filed with the Securities and Exchange Commission on November 5, 1998, Registration No. 001-07155).* 4.04. Amendment No. 1 to Rights Agreement dated as of February 26, 2001 by and among the Registrant, First Chicago Trust Company of New York and The Bank of New York (incorporated by reference to Exhibit 4.5 to the Registrant's Annual Report on Form 10-K for the year ended December 31, 2000).*
- ------------------ * Incorporated by reference. 3 4 5.01. Opinion of Robert J. Bush, Esq. 23.01. Consent of Independent Public Accountants - PricewaterhouseCoopers LLP. 23.02. Consent of Robert J. Bush, Esq. (contained in his opinion filed as Exhibit 5.01) 24.01. Powers of Attorney (included on the signature page of this Registration Statement). 99.01. 2001 PartnerShare 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 to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; (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; and (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the 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 or 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 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue. 4 5 SIGNATURES The Registrant, pursuant to the requirements of the Securities Act of 1933, 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 Purchase, State of New York, on this 30th day of April 2001. R.H. DONNELLEY CORPORATION By /s/ Robert J. Bush -------------------------------------------- Robert J. Bush Vice President and General Counsel 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 date indicated. POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, constitutes and appoints Frank R. Noonan, Philip C. Danford and Robert J. Bush and each of them, our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to do any and all acts and things and execute, in the name of the undersigned, any and all instruments which said attorneys-in-fact and agents may deem necessary or advisable in order to enable R. H. Donnelley Corporation to comply with the Securities Act of 1933 and any requirements of the Securities and Exchange Commission in respect thereof, in connection with the filing with the Securities and Exchange Commission of the Registration Statement on Form S-8 under the Securities Act of 1933, including specifically but without limitation, power and authority to sign the name of the undersigned to such Registration Statement, and any amendments to such Registration Statement (including post-effective amendments), and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with applicable state securities laws, and to file the same, together with other documents in connection therewith with the appropriate state securities authorities, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and to perform each and every act and thing requisite or necessary to be done in and about the premises, as fully and to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, and any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. 5 6 SIGNATURES /s/ Frank R. Noonan Chairman of the Board and April 30, 2001 - ------------------------------- Chief Executive Officer (Frank R. Noonan) /s/ Philip C. Danford Senior Vice President and April 30, 2001 - ------------------------------- Chief Financial Officer (Philip C. Danford) /s/ William C. Drexler Vice President and Controller April 30, 2001 - ------------------------------- (William C. Drexler) Director April __, 2001 - ------------------------------- (Diane P. Baker) /s/ Kenneth G. Campbell Director April 30, 2001 - ------------------------------- (Kenneth G. Campbell) /s/ Darius W. Gaskins Jr. Director April 30, 2001 - ------------------------------- (Darius W. Gaskins Jr.) /s/ William G. Jacobi Director April 30, 2001 - ------------------------------- (William G. Jacobi) /s/ Robert Kamerschen Director April 30, 2001 - ------------------------------- (Robert Kamerschen) /s/ Carol J. Parry Director April 30, 2001 - ------------------------------- (Carol J. Parry) /s/ Barry Lawson Williams Director April 30, 2001 - ------------------------------- (Barry Lawson Williams)
6 7 INDEX TO EXHIBITS
EXHIBIT NUMBER EXHIBIT 4.01. Certificate of Incorporation of the Registrant (incorporated herein by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q for the three months ended March 31, 1999, Commission File No. 001-07155).* 4.02. Amended and Restated Bylaws of the Registrant (incorporated herein by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q for the three months ended March 31, 1999, Commission File No. 001-07155).* 4.03. Rights Agreement, dated as of October 27, 1998 between R.H. Donnelley Corporation and First Chicago Trust Company (incorporated by reference to Exhibit 4 to the Registration Statement on Form 8-A, filed with the Securities and Exchange Commission on November 5, 1998, Registration No. 001-07155).* 4.04. Amendment No. 1 to Rights Agreement dated as of February 26, 2001 by and among the Registrant, First Chicago Trust Company of New York and The Bank of New York (incorporated by reference to Exhibit 4.5 to the Registrant's Annual Report on Form 10-K for the year ended December 31, 2000).* 5.01. Opinion of Robert J. Bush, Esq. 23.01. Consent of Independent Public Accountants - PricewaterhouseCoopers LLP. 23.02. Consent of Robert J. Bush, Esq. (contained in his opinion filed as Exhibit 5.01) 24.01. Powers of Attorney (included on the signature page of this Registration Statement). 99.01. 2001 PartnerShare Plan
- ------------------- *INCORPORATED BY REFERENCE. 7 EX-5.01 2 y48334ex5-01.txt OPINION OF ROBERT J BUSH ESQ 1 Exhibit 5.01 R.H. Donnelley Corporation One Manhattanville Road Purchase, New York 10577 April 30, 2001 Ladies and Gentlemen: I am the General Counsel of R.H. Donnelley Corporation, a Delaware corporation ("Registrant"). This opinion is given in connection with the Registrant's Registration Statement on Form S-8 (the "Registration Statement") filed with the Securities and Exchange Commission in order to register under the Securities Act of 1933, as amended, 140,000 shares (the "Shares") of Common Stock ($1.00 par value) of the Registrant, issuable pursuant to the 2001 PartnerShare Plan (the "Plan") of the Registrant. In connection therewith, I have examined originals or copies, certified or otherwise identified to my satisfaction, of such documents, corporate records, certificates of public officials and other instruments, and have made such investigations, as I have deemed necessary for the purpose of rendering this opinion. Based upon the foregoing, I am of the opinion that the Shares deliverable pursuant to the Plan have been duly authorized and, when and to the extent issued pursuant to the Plan upon receipt by the Registrant of the consideration therefor provided under the Plan, will be validly issued, fully paid and nonassessable. I consent to the filing of this opinion as Exhibit 5.01 to the Registration Statement. Very truly yours, /s/ Robert J. Bush Vice President, General Counsel and Corporate Secretary 8 EX-23.01 3 y48334ex23-01.txt CONSENT OF PRICEWATERHOUSECOOPERS LLP 1 Exhibit 23.01 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this Registration Statement of R.H. Donnelley Corporation on Form S-8 of our report dated February 16, 2001, on our audits of the consolidated financial statements of R. H. Donnelley Corporation as of December 31, 2000 and 1999, and for each of the three years in the period ended December 31, 2000, which report is incorporated by reference in the Annual Report on Form 10-K. By /s/ PricewaterhouseCoopers LLP --------------------------------- PricewaterhouseCoopers LLP New York, New York April 27, 2001 9 EX-99.01 4 y48334ex99-01.txt 2001 PARTNERSHARE PLAN 1 Exhibit 99.01 R.H. DONNELLEY CORPORATION 2001 PARTNERSHARE PLAN 2 R.H. DONNELLEY CORPORATION 2001 PARTNERSHARE PLAN 1. PURPOSE. The purposes of the R.H. Donnelley Corporation 2001 PartnerShare Plan (the "PLAN") are to promote the interests of R.H. Donnelley Corporation (the "COMPANY") and its stockholders by rewarding, retaining and motivating a broad spectrum of employees of the Company and its Subsidiaries by enabling such employees to participate in the long-term growth and financial success of the Company. 2. DEFINITIONS. As used in the Plan, the following terms shall have the meanings set forth below: "BOARD" shall mean the Board of Directors of the Company. "CAUSE" shall mean: (a) At all times other than upon and during the two years immediately following a "Change of Control": (i) Any act or omission by the Participant constituting dishonesty, fraud or other malfeasance at the expense of the Company or any of its subsidiaries; (ii) Commission of a crime classified as a felony under the laws of the United States or any state thereof or any other jurisdiction in which the Company or a subsidiary conducts business which materially impairs the value of the Participant's services to the Company or any of its subsidiaries; or (iii) Substantial failure to observe policies of the Company or the substantial failure of the Participant to perform assigned duties, other than due to physical or mental incapacity. (b) Upon and during the two years immediately following a "Change in Control": (i) The Participant's willful and continued failure substantially to perform the duties of his or her position after notice and opportunity to cure; (ii) Any willful act or omission by the Participant constituting dishonesty, fraud or other malfeasance, which in any such case is demonstrably injurious to the financial condition or business reputation of the Company or any of its affiliates; or (iii) Commission of a crime classified as a felony under the laws of the United States or any state thereof or any other jurisdiction in which the Company or a subsidiary conducts business which materially impairs the value of the Participant's services to the Company or any of its subsidiaries; 3 provided, however, that, for purposes of this definition, no act or failure to act shall be deemed "willful" unless effected by the Participant not in good faith and without a reasonable belief that such action or failure to act was in or not opposed to the Company's best interests, and no act or failure to act shall be deemed "willful" if it results from any incapacity of the Participant due to physical or mental illness. "CHANGE IN CONTROL" shall mean the occurrence of any of the following events after the effective date of the Plan: (i) Any "person," as such term is used in Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than the Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any company owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the combined voting power of the Company's then outstanding securities; (ii) During any period of two consecutive years commencing on the effective date of the Plan, individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person (as defined above) who has entered into an agreement with the Company to effect a transaction described in subsections (i), (iii) or (iv) of this definition) whose election by the Board or nomination for election by the Company's shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved cease for any reason to constitute at least a majority thereof; (iii) The shareholders of the Company have approved a merger or consolidation of the Company with any other company and all other required governmental approvals of such merger or consolidation have been obtained, other than (A) a merger of consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 60% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no person (as defined above) becomes the beneficial owner (as defined above) of more than 20% of the combined voting power of the Company's then outstanding securities; or (iv) The shareholders of the Company have approved a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets, and all other required governmental approvals of such transaction have been obtained. "CODE" shall mean the Internal Revenue Code of 1986, as amended from time to time. "COMMITTEE" shall mean the Compensation and Benefits Committee of the Board or such other committee of the Board as may be designated by the Board from time to time. Any duty or responsibility allocated to the Committee under the Plan may also be performed or exercised by the Board. 2 4 "EMPLOYEE" shall mean, each employee of the Company or a Subsidiary, as of the effective date of the Plan, other than an employee who participates or has been selected to participate in the Company's 1991 Key Employees' Stock Option Plan, as amended and restated, or the Company's 2001 Stock Award and Incentive Plan adopted as of the date hereof, subject to stockholder approval. "FAIR MARKET VALUE" of Common Stock means, as of a given date, the most recent closing price per share of Company Common Stock reported on a consolidated basis for securities listed on the principal stock exchange or market on which Stock is traded, unless the Committee shall specify an alternative methodology for determining fair market value. "OPTION" shall mean an option granted under the Plan, representing the right to purchase Shares from the Company, in accordance with the terms of the Plan. "PARTICIPANT" shall mean each Employee granted an Option which remains outstanding under the Plan. "SHARE" shall mean a share of common stock, par value $1.00 per share, of the Company, or any other equity securities of the Company substituted or resubstituted for a Share under Section 5(b). "SUBSIDIARY" shall mean any corporation or other entity in which the Company possesses directly or indirectly a significant equity interest, as determined by the Committee. 3. ADMINISTRATION. The Plan shall be administered by the Committee. The Committee will interpret this Plan and may from time to time adopt such rules and regulations for carrying out the terms and provisions of this Plan as it may deem best. All determinations by the Committee shall be made by the affirmative vote of a majority of its members, but any determination reduced to writing and signed by a majority of its members shall be fully as effective as if it had been made by a majority vote at a meeting duly called and held. Subject to any applicable provisions of the Company's By-Laws or of this Plan, all determinations by the Committee pursuant to the provisions of this Plan, and all related orders or resolutions of the Committee, shall be final, conclusive and binding on all persons, including the Company and its stockholders, employees and Participants. 4. ELIGIBILITY. Each Employee shall be eligible to be granted an Option hereunder in accordance with the provisions of Section 6. 5. AUTHORIZED SHARES. (a) Shares Available for Options. Subject to adjustment as provided in Section 5(b), the number of Shares that may be granted under the Plan shall be 140,000. (b) Adjustments. In the event that the Committee determines that any dividend or other distribution (whether in the form of cash, Shares, Subsidiary securities, other securities or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase or exchange of Shares or other securities of the Company, issuance of warrants or other rights to purchase Shares or other securities of the Company, or other similar corporate transaction or event affects the Shares such that an adjustment is determined by the Committee to be appropriate to prevent dilution or enlargement of the benefits or potential benefits intended to be made available 3 5 under the Plan, then the Committee may, in its sole discretion and in such manner as it may deem equitable, adjust any or all of (i) the aggregate number of Shares authorized for issuance in connection with Options granted hereunder, (ii) the number of Shares subject to each outstanding Option and the vesting schedule therefor, as set forth in Section 6, and (iii) the exercise price with respect to any Option or, if deemed appropriate, make provision for a cash payment to the holder of an outstanding Option. 6. OPTIONS. (a) Options shall be granted to each Employee. Each Option shall represent the right to purchase 250 Shares (subject to adjustment as provided in clause (b) above) from the Company. Each option shall become exercisable ("vest") with respect to 25%of the Shares (subject to adjustment) covered by such option of the first four anniversaries of the date of grant, subject to accelerated exercisability under Section 6(b) or 6(c). Options shall expire on the tenth anniversary of the date of grant. The exercise price per Share of each Option shall be 100% of the Fair Market Value of a Share at the date of grant. Options shall be nonqualified options, not intended to comply with the provisions of Section 422 of the Code. (b) Upon termination of a Participant's employment with the Company or a Subsidiary, the Participant's Option shall be subject to the following: (i) Exercisability Upon Termination of Employment by Death. If a Participant's employment by the Company or a Subsidiary terminates by reason of death, the Option thereafter may be exercised for one year after the date of death or the remaining stated period of the Option, whichever period is shorter, to the full extent of the Option regardless of the extent to which it was exercisable at the time of death. (ii) Exercisability Upon Termination of Employment by Disability or Retirement. If a Participant's employment by the Company or a Subsidiary terminates by reason of disability or retirement, the Option thereafter may be exercised during the remaining stated period of the Option, to the full extent of the Option regardless of the extent to which it was exercisable at the time of termination of employment. For purposes of this Section 6, "retirement" shall mean voluntary termination of employment with the Company or a Subsidiary (A) after the Participant has attained age 55 with the approval of the Committee or (B) after the Participant has attained age 65. A participant shall not be considered disabled for purposes of this Section 6 unless he or she furnishes such medical or other evidence of the existence of the disability as the Committee, in its sole discretion, may require. (iii) Effect of Other Termination of Employment. If a Participant's employment terminates for any reason other than disability, death or retirement, (A) if such termination is for Cause, the Option shall terminate upon such termination of employment; and (B) if such termination is for reasons other than for Cause, unless otherwise determined by the Committee, the Option shall be exercisable during the period of 90 days after such termination but in no event after the end of the stated term of the Option and in any event only to the extent to which the Option was exercisable at the time of termination of employment; provided, however, that in the event of a Participant's leave of absence, (C) if the Participant returns to service at the scheduled ending date of such leave of absence, the Participant's employment shall not be considered to have terminated, and (D) if the Participant fails to return to service at such scheduled ending date, Participant's employment shall be considered to have terminated at the date such leave of absence began, in which case the Option shall be exercisable during the period of 90 days after such termination or 30 days 4 6 after such ending date, whichever is longer, but in no event after the end of the stated term of the Option and in any event only to the extent to which the Option was exercisable at the time of termination of employment. (c) In the event of a Change in Control, each Option shall become fully exercisable immediately upon such Change in Control. (d) Except as otherwise provided in the Plan, an Option may be exercised for all, or from time to time any part, of the Shares for which it is then exercisable. The exercise price for the Shares as to which the Option is exercised shall be paid to the Company in full, or adequate provision for such payment made, at the time of exercise at the election of the participant (i) in cash, (ii) in Shares having a Fair Market Value equal to the exercise price for the Shares being purchased and satisfying such other requirements as may be imposed by the Committee, or (iii) partly in cash and partly in such Shares. The Committee may permit the Participant to elect, subject to such terms and conditions as the Committee shall determine, to have the number of Shares deliverable to the participant as a result of the exercise reduced by a number sufficient to pay the amount the Company determines to be necessary to withhold for federal, state or local taxes as a result of the exercise of the stock option. No Participant shall have any rights to dividends or other rights of a shareholder with respect to Shares subject to an Option until the participant has given written notice of exercise of the Option, paid in full for such shares or made adequate provision therefor. 7. AMENDMENTS. The Committee may amend, suspend or terminate the Plan or any portion thereof at any time, provided that no amendment that would materially adversely affect a Participant with respect to a vested Option shall be made without the consent of the affected Participant. 8. GENERAL. (a) Each Option hereunder shall be evidenced by a writing delivered to the Participant, which need not be executed by the Participant, that shall specify or refer to the terms and conditions thereof and any rules applicable thereto. (b) The Company may establish appropriate procedures to provide for payment or withholding of such income or other taxes as may be required by law to be paid or withheld in connection with the exercise of Options, and to ensure that the Company receives prompt advice concerning the occurrence of any event which may create, or affect the timing or amount of, any obligation to pay or withhold any such taxes or which may make available to the Company any tax deduction resulting from the occurrence of such event. (c) No Option shall be transferable by a Participant other than by will or the laws of descent and distribution, and an Option may be exercised, during the Participant's lifetime, only by the Participant. (d) Nothing contained in the Plan shall prevent the Company from adopting or continuing in effect other compensation arrangements, which may, but need not, provide for the grant of the type of awards provided for hereunder (subject to shareholder approval of any such arrangement if approval is required), and such arrangements may be either generally applicable or applicable only in specific cases. (e) The grant of an Option shall not be construed as giving a Participant the right to be retained in the employ of the Company or any Subsidiary. The Company or any 5 7 Subsidiary may at any time dismiss a Participant from employment, free from any liability or any claim under the Plan, unless otherwise expressly provided in the Plan. (f) Each Option shall be subject to the requirement that if at any time the Board shall be advised by counsel that the listing, registration or qualification of the Shares subject to such Option upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body, is necessary or desirable as a condition of, or in connection with, the granting of such Option or the issue or purchase of Shares thereunder, such Option may not be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected or obtained free from any conditions not reasonably acceptable to the Company. (g) The validity, construction, and effect of the Plan, any rules and regulations relating to the Plan and any Option shall be determined in accordance with the laws of the State of New York, without regard to provisions governing conflicts of laws, except as such matters may be governed by the Delaware General Corporation Law and applicable federal law. (h) If any provision of the Plan or any Option is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any person or Option, or would disqualify the Plan or any Option under any law, regulation or financial accounting requirement deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to applicable laws, regulations or accounting requirements, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Option, such provision shall be stricken as to such jurisdiction, person or Option and the remainder of the Plan and any such Option shall remain in full force and effect. (i) Neither the Plan nor any Option shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company and a Participant or any other person. (j) Headings are given to the subsections of the Plan solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of the Plan or any provision thereof. 9. EFFECTIVE DATE OF PLAN; TERMINATION. The Plan shall be effective as of February 27, 2001, upon its approval by the Compensation and Benefits Committee of the Board of Directors. The Plan shall terminate at such time as no Options remain outstanding hereunder. 6 -----END PRIVACY-ENHANCED MESSAGE-----