-----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, PLWGoDb4AJ8mpk6se1poFy/i7oEEjk7WyWLvRrvGETV19aGaIW2riWoX+AW3IxYl kEw/TDQ4mFcMRnBGrDXzGg== 0000950103-99-000338.txt : 19990504 0000950103-99-000338.hdr.sgml : 19990504 ACCESSION NUMBER: 0000950103-99-000338 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19990503 EFFECTIVENESS DATE: 19990503 FILER: COMPANY DATA: COMPANY CONFORMED NAME: INTERNATIONAL PAPER CO /NEW/ CENTRAL INDEX KEY: 0000051434 STANDARD INDUSTRIAL CLASSIFICATION: PAPER MILLS [2621] IRS NUMBER: 130872805 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: SEC FILE NUMBER: 333-75235 FILM NUMBER: 99608900 BUSINESS ADDRESS: STREET 1: TWO MANHATTANVILLE RD CITY: PURCHASE STATE: NY ZIP: 10577 BUSINESS PHONE: 9143971500 MAIL ADDRESS: STREET 1: TWO MANHATTANVILLE ROAD CITY: PURCHASE STATE: NY ZIP: 10577 FORMER COMPANY: FORMER CONFORMED NAME: INTERNATIONAL PAPER & POWER CORP DATE OF NAME CHANGE: 19710527 S-8 POS 1 As filed with the Securities and Exchange Commission on May 3, 1999 Registration No. 333-75235 - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------------------- POST-EFFECTIVE AMENDMENT NO.1 TO FORM S-4 ON FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------------- International Paper Company (Exact Name of Registrant as specified in its charter) New York ____ 13-0872805 (State of incorporation) (I.R.S. Employer Identification No.) Two Manhattanville Road Purchase, New York 10577 (Address of principal executive offices) --------------------------- Union Camp Corporation 1989 Stock Option and Stock Award Plan (Full title of Plan) --------------------------- James W. Guedry, Esq. Vice President and Secretary International Paper Company Two Manhattanville Road Purchase, New York 10577 (914) 397-1500 (Name, address and telephone number, including area code of agent for service) CALCULATION OF REGISTRATION FEE ========================================================================================================================= Proposed Proposed Maximum Maximum Offering Aggregate Amount of Title of Securities Amount to be Price Per Offering Registration to be Registered Registered Share Price Fee - ------------------------------------------------------------------------------------------------------------------------- Common Stock, 5,225,442 Shares (1) N/A N/A $0 (2) par value $1.00 per share .. =========================================================================================================================
(1) This post-effective Amendment No. 1 to Form S-4 on Form S-8 covers 5,225,442 shares of the Registrant's common stock, par value $1.00 per share, originally registered on the Registration Statement on Form S-4 to which this Post Effective Amendment relates. These 5,225,442 shares of common stock are issuable pursuant to options granted under the Union Camp Corporation 1989 Stock Option and Stock Award Plan (the "Plan"). See "Purpose of Amendment." (2) The registrant previously paid $409,445.53 upon the initial filing of the Registration Statement to register 120,817,082 shares of common stock issuable to the stockholders of Union Camp Corporation, including the 5,225,442 shares of common stock which may be issued pursuant to the Plan. PURPOSE OF AMENDMENT The purpose of this Post Effective Amendment No. 1 is to register on Form S-8 5,225,442 shares of common stock, par value $1.00 per share, of International Paper Company, a New York corporation (the "Registrant") previously registered on Form S-4 (Registration No. 333-75235) for issuance pursuant to options granted under the Union Camp Corporation 1989 Stock Option and Stock Award Plan (the "Plan"), pursuant to the terms and conditions of the Agreement and Plan of Merger dated as of November 24, 1998 between Union Camp Corporation ("UCC"), the Registrant and Maple Acquisition, Inc. ("MergerSub"), which provided for the merger of MergerSub with and into UCC. The merger was consummated on April 30, 1999. PART I The following documents listed under this Part I and the documents incorporated by reference under Item 3 of Part II to this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act of 1933, as amended (the "1933 Act"), and are incorporated herein by reference. ITEM 1. PLAN INFORMATION The information required to be provided to participants pursuant to this Item is set forth in the Prospectus for the Plan. A copy of the Plan is attached to the Prospectus as Exhibit A. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION The written statement required to be provided to participants pursuant to this Item is set forth in the Prospectus referenced in Item 1 above. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed with the Securities and Exchange Commission (the "Commission") by the registrant, International Paper Company, a New York corporation (the "Registrant"), pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated herein by reference. (1) The Registrant's Annual Report on Form 10-K for the year ended December 31, 1998; (2) All reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31, 1998; (3) The Registrant's Current Reports on Form 8-K filed January 5, 1999 and March 10, 1999; and (4) The description of the Registrant's capital stock which is contained in the Registrant's registration statement on Form 8-A, dated July 20, 1976, as amended. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 herein and to be a part hereof from the date of filing of such documents. Any statement contained 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 also is 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 Certain legal matters with respect to the offering of the shares of Common Stock registered hereby have been passed upon by James W. Guedry, Vice President and Secretary of the Registrant. Mr. Guedry does not own a material or significant amount of the outstanding shares of Common Stock. He participates in the Registrant's Stock Option Plan and in its Salaried Savings Plan, having an interest in a fund under that plan which invests in the Registrant's Common Stock. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 721 of the New York Business Corporation Law ("NYBCL") provides that, in addition to indemnification provided in Article 7 of the NYBCL, a corporation may indemnify a director or the officer by a provision contained in its certificate of incorporation or by-laws or by a duly authorized resolution of its shareholders or directors or by agreement, provided that no indemnification may be made to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his acts 3 were committed in bad faith or were the result of active and deliberate dishonesty and material to the cause of action, or that such director or officer personally gained in fact a financial profit or other advantage to which he was not legally entitled. Section 722(a) of the NYBCL provides that a corporation may indemnify a director or officer made, or threatened to be made, a party to any action other than a derivative action, whether civil or criminal, against judgments, fines, amounts paid in settlement and reasonable expenses actually and necessarily incurred as a result of such action, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or not opposed to, the best interests of the corporation and, in criminal actions or proceedings, in addition, has no reasonable cause to believe that his conduct was unlawful. Section 722(c) of the NYBCL provides that a corporation may indemnify a director or officer, made or threatened to be made a party in a derivative action, against amounts paid in settlement and reasonable expenses 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 not opposed to, the best interests of the corporation, except that no indemnification will be available under Section 722(c) of the NYBCL in respect of a threatened or pending action which is settled or otherwise disposed of or any claim as to which such director or officer shall have been adjudged 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, upon application, that, in view of all the circumstances of the case, the director or officer is fairly and reasonably entitled to indemnity for such portion of the settlement amount and expenses as the court deems proper. Section 723 of the NYBCL specifies the manner in which payment of indemnification under Section 722 of the NYBCL or indemnification permitted under Section 721 of the NYBCL may be authorized by the corporation. It provides that indemnification may be authorized by the corporation. It provides that indemnification by a corporation is mandatory in any case in which the director or officer has been successful, whether on the merits or otherwise, in defending an action. In the event that the director or officer has not been successful or the action is settled, indemnification must be authorized by the appropriate corporate action as set forth in Section 723. Section 724 of the NYBCL provides that, upon application by a director or officer, indemnification may be awarded by a court to the extent authorized under Section 722 and 723 of the NYBCL contains certain other miscellaneous provisions affecting the indemnification of directors and officers. Section 726 of the NYBCL authorizes the purchase and maintenance of insurance to indemnify (1) a corporation for any obligation which it incurs as a result of the indemnification of directors and officers under the above section, (2) directors and officers in instances in which they may be indemnified by a corporation under such section, and (3) directors and officers in instances in which they may not otherwise be indemnified by a corporation under such section, provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the New York State Superintendent of Insurance, for a retention amount and for co-insurance. Article VII of the Restated Certificate of Incorporation of the Registrant provides in part as follows: "Each Director of the Corporation shall be indemnified by the Corporation against expenses actually and necessarily incurred by him in connection with the defense of any action, suit or proceeding in which he is made a party by reason of his being or having been a Director of the Corporation, except in relation to matters as to which he shall be adjudged in such action, suit or proceeding to be liable for negligence or misconduct in the performance of his duties as such Director, provided that such right of indemnification shall not be deemed exclusive of any other rights to which a Director of the Corporation may be entitled, under any by-law, agreement, vote of stockholders or otherwise." 4 Article IX of the By-laws, as amended, of the Registrant provides as follows: "The Corporation shall indemnify each Officer or Director who is made, or threatened to be made, a party to any action by reason of the fact that he or she is or was an Officer or Director of the Corporation, or is or was serving at the request of the Corporation in any capacity for the Corporation or any other enterprise, to the fullest extent permitted by applicable law. The Corporation may, so far as permitted by law, enter into an agreement to indemnify and advance expenses to any Officer or Director who is made, or threatened to be made, a party to any such action." The Registrant has purchased certain liability insurance for its officers and directors as permitted by Section 727 of the NYBCL and has entered into indemnity agreements with its directors and certain officers providing indemnification in addition to that provided under the NYBCL as permitted by Section 721 of the NYBCL. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. ITEM 8. EXHIBITS 5.1 Opinion of James W. Guedry, Vice President and Secretary of the Registrant, regarding the legality of the securities being registered. 23.1 Consent of Arthur Andersen LLP, independent public accountants 23.2 Consent of James W. Guedry (included in Exhibit 5.1) 24.1 Power of Attorney 99.1 Union Camp Corporation 1989 Stock Option and Stock Award Plan ITEM 9. REQUIRED 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 1933 Act; (ii) to reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represents a fundamental change in the information set forth in this registration statement; and (iii) 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; 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 5 contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the 1933 Act, 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 1933 Act, each filing of the Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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 1933 Act 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. 6 SIGNATURES Pursuant to the requirements of the 1933 Act, the registrant has duly caused this registration statement on form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Purchase, State of New York, on this 1st day of May, 1999. INTERNATIONAL PAPER COMPANY By: /s/ JAMES W. GUEDRY ------------------------------------- James W. Guedry Secretary Pursuant to the requirements of the 1933 Act, this registration statement has been signed by the following persons in the capacities and on the 9th day of March, 1999. Signature Title - --------- --------- /s/ JOHN T. DILLON* - -------------------------- John T. Dillon Director and Chairman of the Board (Chief Executive Officer) /s/ C. WESLEY SMITH* - -------------------------- C. Wesley Smith Executive Vice President and Director /s/ PETER I. BIJUR* - -------------------------- Peter I. Bijur Director /s/ ROBERT J. EATON* - -------------------------- Robert J. Eaton Director /s/ JOHN A. GEORGES* - -------------------------- John A. Georges Director /s/ JAMES A. HENDERSON* - -------------------------- James A. Henderson Director /s/ JOHN R. KENNEDY* - -------------------------- John R. Kennedy Director - -------------------------- Donald F. McHenry Director /s/ PATRICK F. NOONAN* - -------------------------- Patrick F. Noonan Director /s/ JANE C. PFEIFFER* - -------------------------- Jane C. Pfeiffer Director /s/ CHARLES R. SHOEMATE* - -------------------------- Charles R. Shoemate Director /s/ MARIANNE M. PARRS* - -------------------------- Marianne M. Parrs Senior Vice President and Chief Financial Officer /s/ANDREW R. LESSIN* - -------------------------- Andrew R. Lessin Vice President and Controller and Chief Accounting Officer *By: /s/ JAMES W. GUEDRY* -------------------------------- James W. Guedry, Attorney-in-fact 8 Exhibit No. Description of Exhibit Page No. - ------- -------------------------- -------- 5.1 Opinion of James W. Guedry, Vice President and Secretary of the Registrant, regarding the legality of the securities being registered. 10 23.1 Consent of Arthur Andersen LLP, independent public accountants. 11 23.2 Consent of James W. Guedry (included in Exhibit 5.1). 24.1 Power of Attorney 12 99.1 Union Camp Corporation 1989 Stock Option and Stock Award Plan 14 9
EX-5.1 2 EXHIBIT 5.1 International Paper Company Two Manhattanville Road Purchase, New York 10577 April 30, 1999 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Gentlemen: The following opinion is furnished by the undersigned in connection with the Registration Statement on Form S-8 (the "Registration Statement") being filed by International Paper Company, a New York corporation (the "Company") under the Securities Act of 1933, as amended, relating to the issuance of up to 5,225,442 shares of the Common Stock, par value $1.00 per share of the Company (the "Shares"), in connection with the Union Camp Corporation 1989 Stock Option and Stock Award Plan (the "Plan"). I have examined originals or copies, certified or otherwise identified to my satisfaction, or such corporate records and other documents, and have conducted such other investigations of fact and law, as I have deemed necessary or advisable for purposes of this opinion. Upon the basis of the foregoing, I am of the opinion that the Shares have been duly authorized and, subject to the Registration Statement becoming effective, when issued in accordance with the terms of the Plans, the Shares will be legally issued, fully paid and nonassessable. I consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to me in the Prospectus forming a part of the Registration Statement. Very truly yours, /s/ James W. Guedry ------------------------------ James W. Guedry 10 EX-23.1 3 EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated February 9, 1999 included in International Paper Company's Form 10- K for the year ended December 31, 1998 and to all references to our Firm included in this Registration Statement. ARTHUR ANDERSEN LLP New York, New York April 28, 1999 11 EX-24.1 4 EXHIBIT 24.1 POWER OF ATTORNEY EACH PERSON WHOSE SIGNATURE APPEARS BELOW HEREBY CONSTITUTES AND APPOINTS JAMES W. GUEDRY AND BARBARA L. SMITHERS, AND EACH OF THEM, HIS OR HER TRUE AND LAWFUL ATTORNEYS-IN-FACT AND AGENTS WITH FULL POWER OF SUBSTITUTION AND RESUBSTITUTION, FOR HIM OR HER AND IN HIS OR HER NAME, PLACE AND STEAD, AND IN ANY AND ALL CAPACITIES, TO SIGN, EXECUTE AND AFFIX THEIR SEAL THERETO AND FILE ANY AND ALL FORM S-8 REGISTRATION STATEMENTS FOR VARIOUS PLANS OF INTERNATIONAL PAPER FOR ITS EMPLOYEES/DIRECTORS AND FORMER UNION CAMP CORPORATION EMPLOYEES, ON BEHALF OF INTERNATIONAL PAPER COMPANY (THE "COMPANY"), UNDER THE SECURITIES ACT OF 1933, AS AMENDED, TOGETHER WITH ANY AND ALL AMENDMENTS THERETO (INCLUDING POST-EFFECTIVE AMENDMENTS) TO SUCH FORM S-8 REGISTRATION STATEMENTS AND TO FILE THE SAME, WITH ALL EXHIBITS THERETO, AND OTHER DOCUMENTS IN CONNECTION THEREWITH, WITH THE SECURITIES AND EXCHANGE COMMISSION, AND HEREBY GRANTS TO SUCH ATTORNEYS-IN-FACT AND AGENTS, AND EACH OF THEM, FULL POWER AND AUTHORITY TO DO AND PERFORM EACH AND EVERY ACT AND THING REQUISITE AND NECESSARY TO BE DONE AS FULLY TO ALL INTENTS AND PURPOSES AS HE OR SHE MIGHT OR COULD DO IN PERSON, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID ATTORNEYS-IN-FACT AND AGENTS OR ANY OF THEM OR HIS, HER OR THEIR SUBSTITUTE OR SUBSTITUTES MAY LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSON IN THE CAPACITIES AND ON THE DATES INDICATED. Signature Title Date - --------- ----- ---- /s/ JOHN T. DILLON* - ----------------------------- Director and Chairman March 9, 1999 John T. Dillon of the Board (Chief Executive Officer) /s/ C. WESLEY SMITH* - ----------------------------- Executive Vice President and March 9, 1999 C. Wesley Smith Director /s/ PETER I. BIJUR* - ----------------------------- Director March 9, 1999 Peter I. Bijur /s/ ROBERT J. EATON* - ----------------------------- Director March 9, 1999 Robert J. Eaton /s/ JOHN A. GEORGES* - ----------------------------- Director March 9, 1999 John A. Georges 12 /s/ JAMES A. HENDERSON* - ----------------------------- Director March 9, 1999 James A. Henderson /s/ JOHN R. KENNEDY* - ----------------------------- Director March 9, 1999 John R. Kennedy - ----------------------------- Director March 9, 1999 Donald F. McHenry /s/ PATRICK F. NOONAN* - ----------------------------- Director March 9, 1999 Patrick F. Noonan /s/ JANE C. PFEIFFER* - ----------------------------- Director March 9, 1999 Jane C. Pfeiffer /s/ CHARLES R. SHOEMATE* - ----------------------------- Director March 9, 1999 Charles R. Shoemate /s/ MARIANNE M. PARRS* - ----------------------------- Senior Vice President and March 9, 1999 Marianne M. Parrs Chief Financial Officer /s/ANDREW R. LESSIN* - ----------------------------- Vice President and Controller March 9, 1999 Andrew R. Lessin and Chief Accounting Officer * By: /s/ JAMES W. GUEDRY --------------------------------- James W. Guedry, Attorney-in-fact 13 EX-99.1 5 Exhibit 99.1 UNION CAMP CORPORATION 1989 STOCK OPTION AND STOCK AWARD PLAN 1. Purpose The purpose of this 1989 Stock Option and Stock Award Plan (the "Plan") is to encourage and enable selected officers and other key employees of Union Camp Corporation (the "Company") and its subsidiaries to acquire a proprietary interest in the Company through the ownership of common stock of the Company. Such ownership will provide such employees with a more direct stake in the future welfare of the Company, and encourage them to remain with the Company and its subsidiaries. It is also expected that the Plan will encourage qualified persons to seek and accept employment with the Company and its subsidiaries. Pursuant to the Plan, such employees will be offered the opportunity to acquire such common stock through the grant of options, the award of restricted stock under the Plan, bonuses payable, in stock or a combination thereof. As used herein, the term "subsidiary" shall mean any present or future corporation which is or would be a "subsidiary corporation" of the Company as the term is defined in Section 424 of the Internal Revenue Code of 1986, as amended (the "Code"). 2. Administration of the Plan The Plan shall be administered by a Personnel, Compensation and Nominating Committee (the "Committee") as appointed from time to time by the Board of Directors of the Company (the "Board"), which committee shall consist of not less than two (2) members of such Board; none of such members of the Committee shall be eligible to be granted options or awarded restricted stock under the Plan or receive bonuses payable in stock or shall have been so eligible within one year prior to appointment. In administering the Plan, the Committee may adopt rules and regulations for carrying out the Plan. The interpretation and decision with regard to any questions arising under the Plan made by the Committee shall be final and conclusive on all employees of the Company and its subsidiaries participating or eligible to participate in the Plan. The Committee shall determine the employees to whom, and the time or times at which, grants or awards shall be made and the number of shares to be included in the grants or awards. 3. Shares of Stock Subject to the Plan The total number of shares that may be optioned or awarded under the Plan is 2,896,638 shares of the $1 par value common stock of the Company (the "Common Stock") plus an additional amount of shares on January 1 each calendar year, from and including 1994 to 1999, equal to one percent (1.0%) of the number of shares of Common Stock outstanding on December 31 of the immediately preceding year (the "Additional Annual Increment"), of which (i) 579,327 shares plus an additional amount of shares each calendar year equal to twenty percent (20%) of the Additional Annual Increment with respect to such year may be awarded as restricted stock, (ii) from November 30, 1993 until April 24, 1999, the current expiration date of the plan, no more than 750,000 shares may be optioned to any one executive and (iii) no more than one million (1,000,000) shares may be awarded as Incentive Stock Options, as defined in Section 422 of the Code, except that, notwithstanding any of the foregoing limitations set forth in this Paragraph 3, said numbers of shares shall be adjusted as provided in Paragraph 12. Any shares subject to an option which for any reason expires or is terminated unexercised and any restricted stock which is forfeited may again be optioned or awarded under the Plan. 4. Eligibility Key employees, including officers, of the Company and its subsidiaries (but excluding members of the Committee) are eligible to be granted options and awarded restricted stock under the Plan and to have their bonuses payable in stock. The employees who shall receive awards or options under the Plan shall be selected from time to time by the Committee, in its sole discretion, from among those eligible, and the Committee shall determine, in its sole discretion, the number of shares to be covered by the award or awards and by the option or options granted to such employee selected. 5. Duration of the Plan No award or option may be granted under the Plan after April 24, 1999, but awards or options theretofore granted may extend beyond that date. 6. Terms and Conditions of Stock Options All options granted under this Plan shall be either Incentive Stock Options as defined in Section 422 of the Code or options other than Incentive Stock Options. Each such option shall be subject to all the applicable provisions of the Plan, including the following terms and conditions, and to such other terms and conditions not inconsistent therewith as the Committee shall determine. 15 (a) The option price per share shall be determined by the Committee, but shall not be less than 100% of the fair market value at the time the option is granted. The fair market value shall be the mean of the high and low sale prices for the Common Stock as reported on the Composite Tape for New York Stock Exchange issues for the day on which the option is granted. If there is no sale of the shares on such Exchange on the date the option is granted, the mean of the bid and asked prices on such Exchange at the close of the market on such date shall be deemed to be the fair market value of the shares. In the event that the method for determining the fair market value of the shares provided for in this Paragraph 6 (a) shall not be practicable, then the fair market value per share shall be determined by such other reasonable method as the Committee shall, in its discretion, select and apply at the time of grant of the option concerned. (b) Each option shall be exercisable during and over such period ending not later than ten years from the date it was granted, as may be determined by the Committee and stated in the option. (c) No option shall be exercisable within two years from the date of the granting of the option, except as provided in Paragraphs 6 (j), 9 and 12 of the Plan. (d) Each option shall state whether it will or will not be treated as an Incentive Stock Option. (e) Each option may be exercised by giving written notice to the Company specifying the number of shares to be purchased, which shall be accompanied by payment in full including applicable taxes, if any. Payment shall be (i) in cash, or (ii) in shares of Common Stock of the Company already owned by the optionee (the value of such Stock shall be its fair market value on the date of exercise as determined under Paragraph 6 (a)), or (iii) by a combination of cash and shares of Common Stock of the Company. No option shall be exercised for less than the lesser of 50 shares or the full number of shares for which the option is then exercisable. No optionee shall have any rights to dividends or other rights of a shareholder with respect to shares subject to his option until he has given written notice of exercise of his option and paid in full for such shares. Payment of taxes, if any, shall be in cash at time of exercise or on the applicable tax date under Section 83 of the Code, if later, provided, however, tax withholding obligations may be met by the withholding of Common Stock otherwise deliverable to the optionee pursuant to procedures approved by the Committee. In no event shall Common Stock be delivered to any optionee until he has paid to the Company in cash the amount of tax required to be withheld by the Company or has elected to have his tax withholding obligations met by the withholding of Common Stock in accordance with the procedures approved by the Committee, except that in the 16 case of later tax dates under Section 83 of the Code, the Company may deliver Common Stock prior to the optionee's satisfaction of tax withholding obligations if the optionee makes arrangements satisfactory to the Company that such obligations will be met on the applicable tax date. (f) Notwithstanding the foregoing Paragraph 6 (e) of the Plan, each option granted hereunder may provide, or be amended to provide, the right either (i) to exercise such option in whole or in part without any payment of the option price, or (ii) to request the Committee to permit, in its sole discretion, such exercise without any payment of the option price. If an option is exercised without a payment of the option price, the optionee shall be entitled to receive that number of whole shares as is determined by dividing (a) an amount equal to fair market value per share on the date of exercise as determined under Paragraph 6(a) into (b) an amount equal to the excess of the total fair market value of the shares on such date as so determined with respect to which the option is being exercised over the total cash purchase price of such shares as set forth in the option. Fractional shares will be rounded to the next lowest number and the optionee will receive cash in lieu thereof. At the sole discretion of the Committee, or as specified in the option, the settlement of all or part of an optionee's rights under this Paragraph 6 (f) may be made in cash in an amount equal to the fair market value of the shares otherwise payable hereunder. The number of shares with respect to which any option is exercised under this Paragraph 6 (f) shall reduce the number of shares thereafter available for exercise under the option, and such shares thereafter may not again be optioned under the Plan. (g) Each option may provide, or be amended to provide, that the optionee may exercise the option without payment of the option price by delivery to the Company of an exercise notice and irrevocable instructions to deliver shares of Common Stock directly to the stock broker named therein in exchange for payment of the option price and withholding taxes by such broker to the Company. (h) If an optionee's employment by the company or a subsidiary terminates by reason of his retirement under a retirement plan of the Company or a subsidiary, his option may thereafter be exercised whenever two years from the date of grant have elapsed until the expiration of the stated period of the option; provided, however, that if the optionee dies after such termination of employment, any unexercised option may thereafter be immediately exercised in full by the legal representative of his estate or by the legatee of the optionee under his last will until the expiration of the stated period of the option; provided, further, that any right granted to such an optionee pursuant to Paragraph 6 (f) of the Plan, may be exercised by such optionee (or his legal representative or legatee in the event his death) whenever two years from the date of grant have elapsed, but may not be 17 exercised after the expiration of the period of three years from the date of such termination of employment or the stated period of the option, whichever period is shorter. (i) If an optionee's employment by the Company or a subsidiary terminates by reason of permanent disability, as determined by the Committee, his option may thereafter be exercised whenever two years from the date of grant have elapsed until the expiration of the stated period of the option; provided, however, that if the optionee dies after such termination of employment, any unexercised option may thereafter be immediately exercised in full by the legal representative of his estate or by the legatee of the optionee under his last will until the expiration of the stated period of the option; provided, further, that any right granted to such an optionee pursuant to Paragraph 6 (f) of the Plan, may be exercised by such optionee (or his legal representative or legatee in the event his death) whenever two years from the date of grant have elapsed, but may not be exercised after the expiration of the period of three years from the date of such termination of employment or the stated period of the option, whichever period is shorter. (j) If an optionee's employment by the Company or a subsidiary terminates by reason of his death, his option may thereafter be immediately exercised in full by the legal representative of his estate or by the legatee of the optionee under his last will until the expiration of the stated period of the option; provided, however, that any right granted to such an optionee pursuant to Paragraph 6 (f) of the Plan, may immediately after his death be exercised in full by said legal representative or legatee for a period of three years from the date of his death or the expiration of the stated period of the option, whichever period is shorter. (k) Unless otherwise determined by the Committee, if an optionee's employment terminates for any reason other than death, retirement or permanent disability, his option shall thereupon terminate. (l) The option by its terms shall be personal and shall not be transferable by the optionee otherwise than by will or by the laws of descent and distribution. During the lifetime of an optionee, the option shall be exercisable only by him. (m) Notwithstanding any intent to grant Incentive Stock Options, an option granted will not be considered an Incentive Stock Option to the extent that it together with any earlier Incentive Stock Options permits the exercise for the first time in any calendar year of more than $100,000 in value of Common Stock (determined at the time of grant). 7. Terms and Conditions of Restricted Stock Awards All awards of restricted stock under the Plan shall be subject to all the applicable provisions of the Plan, including the following terms and conditions, and to such other terms and conditions not inconsistent therewith, as the Committee shall determine. (a) Awards of restricted stock may be in addition to or in lieu of option grants. (b) During a period set by the Committee at the time of each award of restricted stock (the "restriction period"), the recipient shall not be permitted to sell, transfer, pledge, or assign the shares of restricted stock. 18 (c) Shares of restricted stock shall become free of all restrictions if the recipient dies or his employment terminates by reason of permanent disability, as determined by the Committee, during the restriction period and, to the extent set by the Committee at the time of the award or later, if the recipient retires under a retirement plan of the Company or a subsidiary during such period. The Committee may require medical evidence of permanent disability, including medical examinations by physicians selected by it. If the Committee determines that any such recipient is not permanently disabled or that a retiree's restricted stock is not to become free of restrictions, the restricted stock held by either such recipient, as the case may be, shall be forfeited and revert to the Company. (d) Shares of restricted stock shall be forfeited and revert to the Company upon the recipient's termination of employment during the restriction period for any reason other than death, permanent disability or retirement under a retirement plan of the Company or a subsidiary except to the extent the Committee, in its sole discretion, finds that such forfeiture might not be in the best interest of the Company and, therefore, waives all or part of the application of this provision to the restricted stock held by such recipient. (e) Stock certificates for restricted stock shall be registered in the name of the recipient but shall be appropriately legended and returned to the Company by the recipient, together with a stock power, endorsed in blank by the recipient. The recipient shall be entitled to vote shares of restricted stock and shall be entitled to all dividends paid thereon, except that dividends paid in Common Stock or other property shall also be subject to the same restrictions. (f) Restricted stock shall become free of the foregoing restrictions upon expiration of the applicable restriction period and the Company shall deliver Common Stock certificates evidencing such stock. (g) Recipients of restricted stock shall be required to pay taxes to the Company upon the expiration of restriction periods or such earlier dates as elected pursuant to Section 83 of the Code; provided, however, tax withholding obligations may be met by the withholding of Common Stock otherwise deliverable to the recipient pursuant to procedures approved by the Committee. In no event shall Common Stock be delivered to any awardee until to the has paid to the Company in cash the amount of tax required to be withheld by the Company or has elected to have his withholding obligations met by the withholding of Common Stock in accordance with the procedures approved by the Committee. 19 8. Bonuses Payable in Stock In lieu of cash bonuses otherwise payable under the Company's compensation practices to employees eligible to participate in the Plan, the Committee, in its sole discretion, may determine that such bonuses shall be payable in stock or partly in cash. Such bonuses shall be in consideration of services previously performed and shall consist of shares of Common Stock free of any restrictions imposed by the Plan. The number of shares of Common Stock payable in lieu of an amount of each bonus otherwise payable shall be determined by dividing such amount by the fair market value of one share of Common Stock on the date the bonus is payable,.with the fair market value determined in accordance with Paragraph 6 (a). The Company shall withhold from any such bonus an amount of cash sufficient to meet its tax withholding obligation. 9. Limited Rights Any option granted under the Plan may, at the discretion of the Committee, contain provisions for limited rights, as described herein. A limited right shall be exercisable upon the occurrence of an event specified in the option as an exercise event, and shall expire thirty (30) days after the occurrence of such event. Exercise events may include, at the discretion of the Committee and as specified in the option, consummation of a tender or exchange offer for at least 20% of the Company's Common Stock outstanding at the commencement of such offer or a proxy contest the result of which is the replacement of a majority of the members of the Company's Board, or consummation of a merger or reorganization of the Company in which the Company does not survive or in which the shareholders of the Company receive stock or securities of another corporation or cash, or a liquidation or dissolution of the Company or other similar events. Limited rights shall permit optionees to receive in cash either (i) the highest market price per share for each share covered by an option, without regard to the date on which the option otherwise would be exercisable, which the Company's Common Stock traded on the New York Stock Exchange for the sixty days immediately preceding the exercise event or (ii) if provided by the Committee in its discretion at the time of grant, the highest market price per share for each share covered by the option which the Company's Common Stock traded on the New York Stock Exchange on the date of exercise, less the option price per share specified in the option. In the event the exercise event is consummation of a tender or exchange offer, the value per share set by the tenderor or offeror shall be substituted for the highest market price per share provided in clause (i) in the preceding sentence. Limited rights shall not extend the exercise period of any option and, to the extent exercised, shall reduce the shares of Company Common Stock available under the Plan and the shares of such Stock covered by the options to which the limited rights relate. 20 10. Transfer, Leave of Absence, Etc. For the purpose of the Plan: (a) a transfer of an employee from the Company to a subsidiary, or vice versa, or from one subsidiary to another, and (b) a leave of absence, duly authorized in writing by the Company, shall not be deemed a termination of employment. 11. Rights of Employees (a) No person shall have any rights or claims under the Plan except in accordance with the provisions of the Plan. (b) Nothing contained in the Plan shall be deemed to give any employee the right to be retained in the service of the Company or its subsidiaries. 12. Changes in Capital Upon changes in the Common Stock by a stock dividend, stock split, reverse split, subdivision, recapitalization, merger, consolidation (whether or not the Company is a surviving corporation) combination or exchange of shares, separation, reorganization or liquidation, the number and class of shares available under the Plan as to which stock options and restricted stock may be awarded, the number and class of shares under each option and the option price per share shall be correspondingly adjusted by the Committee, such adjustments to be made in the case of outstanding options without change in the total price applicable to such options; provided, however, no such adjustments shall be made in the case of stock dividends aggregating in any fiscal year of the Company not more than 10% of the Common Stock issued and outstanding at the beginning of such year or in the case of one or more splits, subdivisions or combinations of the Common Stock during any fiscal year of the Company resulting in an increase or decrease of not more than 10% of the Common Stock issued and outstanding at the beginning of such year. In the event of a "Change in Control" (as hereinafter defined) (i) all restrictions on restricted stock previously awarded to recipients under the Plan shall lapse, and (ii) all stock options and stock appreciation rights which are outstanding shall become immediately exercisable in full without regard to any limitations of time or amount otherwise contained in the Plan, the options or the rights. Further, in the event of Change in Control the Committee may determine that the options shall be adjusted and make such adjustments by substituting for Common Stock subject to options, stock or other securities of any successor corporation to the Company or that may be issuable by another corporation that is 21 a party to the Change in Control if such stock or other securities are publicly traded or, if such stock or other securities are not publicly traded, by substituting stock or other securities of a parent or affiliate of such corporation if the stock or other securities of such parent or affiliate are publicly traded, in which event the aggregate option price shall remain the same and the amount of shares or other securities subject to option shall be the amount of shares or other securities which could have been purchased on the day of the Change in Control with the proceeds which would have been received by the optionee if the option had been exercised in full prior to such Change in Control and the optionee had exchanged all of such shares in the Change in Control transaction . No optionee shall have any right to prevent the consummation of any of the foregoing acts affecting the number of shares available to the optionee. For the purposes of the foregoing, Change in Control means the occurrence of any of the following events: (a) any "person", as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than the Company, any employee benefit plan sponsored by the Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company), is or becomes (other than pursuant to a transaction which is deemed to be a "Non-Qualifying Transaction" (as hereinafter defined)) the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the combined voting power of the Corporation's then outstanding securities eligible to vote for the election of the Board (the "Company Voting Securities"); (b) individuals who, on October 29, 1996, constitute the Board (the "Incumbent Directors") cease for any reason to constitute at least a majority of the Board, provided that any person becoming a director subsequent to October 29, 1996, whose election or nomination for election was approved by a vote of at least two-thirds of the Incumbent Directors then on the Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without written objection to such nomination) shall be an Incumbent Director; provided, however, that no individual initially elected or nominated as a director of the Company as a result of an actual or threatened election contest with respect to directors (including without limitation in order to settle any such contest) or any other actual or threatened solicitation of proxies by or on behalf of any person other than the Board shall be an Incumbent Director; 22 (c) the stockholders of the Company approve a merger, consolidations, statutory share exchange or similar form of corporate transaction involving the Company or any of its subsidiaries that requires such approval, whether for such transaction or the issuance of securities in the transaction (a "Business Combination", unless immediately following such Business Combination: (i) more than 50% of the total voting power of (x) the corporation resulting form such Business Combination (the "Surviving Corporation"), or (y) if applicable, the ultimate parent corporation that directly or indirectly has beneficial ownership of 100% of the voting securities eligible to elect directors of the Surviving Corporation (the "Parent Corporation"), will be represented by Company Voting Securities that were outstanding immediately prior to such Business Combination (or, if applicable, shares into which such Company Voting Securities were converted pursuant to such Business Combination), (ii) no person (other than any employee benefit plan sponsored or maintained by the Surviving Corporation or the Parent Corporation) will be or becomes the beneficial owner, directly or indirectly, of 25% or more of the total voting power of the outstanding voting securities eligible to elect directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation), and (iii) at least a majority of the members of the board of directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) following the consummation of the Business Combination were Incumbent Directors at the time of the Board's approval of the execution of the initial agreement providing for such Business Combination (any Business Combination which satisfies all of the criteria specified in (i), (ii) and (iii) above shall be deemed to be a "Non-Qualifying Transaction"); or (d) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. Anything contained herein to the contrary notwithstanding, a Change in Control of the Company shall be deemed not to have occurred with respect to any optionee who participates as an investor in the acquiring entity (which shall include the Parent Corporation when applicable) in such Change in Control transaction, unless such acquiring entity is a publicly-traded corporation and the optionee's interests in such acquiring entity immediately prior to the acquisition constitutes less than one percent (1%) of both (1) the combined voting power of such entity's outstanding securities and (2) the aggregate fair market value of such entity's outstanding equity securities. For this purpose the optionee's interest in any equity securities shall include any such interest of which such optionee is a "beneficial owner" as defined in Rule 13d-3 under the Exchange Act. 23 13. Use of Proceeds Proceeds from the sale of shares pursuant to options granted under this Plan shall constitute general funds of the Company. 14. Amendments The Board may amend, alter or discontinue the Plan, including without limitation any amendment considered to be advisable by reason of changes to the United States Internal Revenue Code, but no amendment, alteration or discontinuation shall be made which would impair the rights of any holder of an award of restricted stock or option or stock bonus theretofore granted, without his consent, or which, without the approval of the shareholders, would: (a) Except as is provided in Paragraph 12 of the Plan, increase the total number of shares reserved for the purpose of the Plan. (b) Except as is provided in Paragraph 6(f) of the Plan, decrease the option price of an option to less than 100% of the fair market value on the date of the granting of the option. (c) Extend the duration of the Plan. The Committee may amend the terms of any award of restricted stock or option theretofore granted, retroactively or prospectively, but no such amendment shall impair the rights of any holder without his consent. Adopted April 25, 1989 As Amended April 28, 1992 As Amended April 27, 1993 As Amended November 30, 1993 As Amended October 29, 1996 24
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