-----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, RnJBrd/P/7OKlYt8b4i3o8MWQMLcqTQzY8xt9B7haBNB2hkPo09z7d8SCGPigrnQ qel9nXcRXLCvrY6KSwxS9A== 0000912057-97-000751.txt : 19970114 0000912057-97-000751.hdr.sgml : 19970114 ACCESSION NUMBER: 0000912057-97-000751 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970113 EFFECTIVENESS DATE: 19970113 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: OGDEN CORP CENTRAL INDEX KEY: 0000073902 STANDARD INDUSTRIAL CLASSIFICATION: AIRPORTS, FLYING FIELDS & AIRPORT TERMINAL SERVICES [4581] IRS NUMBER: 135549268 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-19641 FILM NUMBER: 97504712 BUSINESS ADDRESS: STREET 1: TWO PENNSYLVANIA PLZ - 25TH FLR CITY: NEW YORK STATE: NY ZIP: 10121 BUSINESS PHONE: 2128686100 MAIL ADDRESS: STREET 1: TWO PENNSYLVANIA PLZ - 25TH FLR CITY: NEW YORK STATE: NY ZIP: 10121 S-8 1 S-8 As filed with the Securities and Exchange Commission on January 10, 1997 Registration No. 033- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------- OGDEN CORPORATION (Exact Name of issuer as specified in charter) DELAWARE 13-5549268 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) Two Pennsylvania Plaza - 25th Floor New York, New York 10121 (Address of Principal Executive Offices)(Zip Code) ----------------------------- OGDEN SELECT SAVINGS PLAN (Full title of the plan) J. L. Effinger, Esq. Associate Counsel and Assistant Secretary Ogden Corporation Two Pennsylvania Plaza New York, New York 10121 (212)868-6126 (Name, address, including zip code, and telephone number, including area code, of agent for service) ---------------------------------------------------------------- ---------------------------------------------------------------- CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------- - -------------------------------------------------------------------------------------------------------------------------- Title of securities to Amount to be Proposed Maximum Proposed Maximum Amount of be Registered (1) Registered (2) Offering Price per Aggregate Registration Fee Share/Unit Offering Price Deferred Compensa- tion Obligations $7,000,000 100% $7,000,000 $2,121.21 - -------------------------------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------------------------
(1) The Deferred Compensation Obligations are unsecured obligations of Ogden Corporation to pay deferred compensation in the future in accordance with the terms of the Ogden Select Savings Plan for a select group of eligible employees. (2) Estimated solely for the purpose of calculating the amount of the registration fee. PART I INFORMATION REQUIRED IN THE REGISTRATION STATEMENT The document(s) containing the information specified in Part I of this Form S-8 will be sent or given to participating employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). These documents and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed or to be filed with the Commission by the registrant are incorporated by reference in this registration statement: (a) The registrant's latest annual report (Form 10-K) filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), which contains audited financial statements for the registrant's latest fiscal year; and (b) All other reports filed by the registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual report referred to in (a) above. 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 hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part thereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES The Ogden Select Savings Plan (the "Plan") allows participants to submit elections to defer compensation, including elections as to the amount to be deferred and the timing and manner of distribution, before the start of the fiscal year in which the compensation will be earned. The amount of compensation deferred by each participant (the "Deferral Amounts") represent unsecured general obligations of the registrant to pay deferred compensation (plus any net investment earnings attributable thereto) in the future in accordance with the terms of the Plan and the Trust Agreement between the registrant or a subsidiary of the registrant and the American Express Trust 2 Company, as trustee (the "Trustee") dated as of January 1, 1995 (the "Trust Agreement") thereunder. In the event of the insolvency of the registrant, the trust fund established under the Trust Agreement (the "Trust") shall be subject to the claims of the general creditors of the registrant. In such event, all participants and beneficiaries shall constitute unsecured general creditors of the registrant with respect to amounts otherwise payable thereunder and shall have no special or priority claim with respect to the assets held in the Trust. The Deferral Amount is determined in accordance with the Plan based on the participant's election. Under the Plan, Deferral Amounts may be invested in one or more investment funds available under the Plan. Each participant under the Plan will have a separate participant account, and each participant's account will be valued separately. Any earnings and realized and unrealized gains attributable to a participant's account shall be credited to such account on a segregated basis, and any amounts distributed from, any realized losses incurred by, and any expenses and fees properly chargeable to, a participant's account shall be charged against such account on a segregated basis. Except as set forth in the Plan, or as otherwise provided by applicable law, the interest of any participant in the Plan, in the Trust, or in any distribution to be made under the Plan may not be assigned, pledged, alienated, anticipated, or otherwise encumbered (either at law or in equity) and shall not be subject to attachment, bankruptcy, garnishment, levy, execution, or other legal or equitable process. Each participant in the Plan has the right to designate a beneficiary to receive the balance, if any, of the participant's account at the time of the participant's death and shall have the right at any time to revoke such designation or to substitute another such beneficiary. The registrant's Board of Directors has the right to amend or terminate the Plan at any time and for any reason, provided, however, that no amendment or termination of the Plan shall reduce any participant's or beneficiary's rights or benefits accrued under the Plan before the date the amendment is adopted or the Plan is terminated, as appropriate, including the participant's or beneficiary's right to payment of the balance of the participant's account as of such date. The Deferral Amounts are not convertible into another security of the registrant. The Trustee was appointed pursuant to the Trust Agreement to take action with respect to the Deferral Amounts. Pursuant to the Trust Agreement, the Trustee shall be directed by the Plan Administrator with respect to the investment of Trust assets in accordance with the investment decisions of the participants (and, if applicable, beneficiaries), and the Trustee will follow such directions. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 102 of the Delaware General Corporation Law allows a corporation to eliminate the personal liability of directors of a corporation to any of its stockholders for monetary damage for a 3 breach of fiduciary duty as a director, except in the case where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The Registrant's Amended and Restated Certificate of Incorporation contains a provision that eliminates directors' personal liability as set forth above. Section 145 of the Delaware General Corporation Law, as amended, provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the corporation or is or was serving at its request in such capacity in another corporation or business association against expenses (including attorneys' fees), judgements, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he 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 his conduct was unlawful. In addition to the foregoing, (i) Article 20 of the registrant's Amended and Restated Certificate of Incorporation provides that a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Law as presently in effect or as the same may hereafter be amended and; (ii) section 16-A of the registrant's By-laws provides that (a) the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he 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 his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he 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 reasonable cause to believe that his conduct was unlawful. (b) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was 4 a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of the State of Delaware or such other court shall deem proper. (c) To the extent that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b), or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. (d) Any indemnification under subsections (a) and (b) (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in subsections (a) and (b). Such determination shall be made (1) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the stockholders. (e) Expenses incurred in defending a civil or criminal action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in these By-laws. (f) The indemnification and advancement of expenses provided by this Section 16-A of the By-laws shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any other by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. (g) The Corporation shall have power to purchase and maintain 5 insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such whether or not the Corporation would have the power to indemnify him against such liability under the provisions of these By-laws. (h) Any amendment to this Section 16-A shall not apply to any liability of a director, officer, employee or agent arising out of a transaction or omission occurring prior to the adoption of such amendment, but any such liability based on a transaction or omission occurring prior to the adoption of such amendment shall be governed by Section 16-A of the By-laws, as in effect at the time of such transaction or omission, and (c) the registrant has purchased directors and officers liability insurance which would indemnify the directors and officers of the registrant against damages arising out of certain kinds of claims which might be made against them based on their negligent acts or omissions while acting in their capacity as such. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. ITEM 8. EXHIBITS 4 Ogden Select Savings Plan 5 Opinion regarding Legality 23 Consent of Independent Auditors 24 Power of Attorney (see page S-1) ITEM 9. UNDERTAKINGS (a) The undersigned hereby undertakes: (1) To file, during any period in which offers and sales are being made, a post-effective amendment to this registration statement; (i) to include any prospectus required by section 10(a)(3) of the Securities Act; (ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post- effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) to include any material information with respect to the plan of 6 distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraph (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or 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 Securities 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 Securities 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering hereof. (c) Insofar as indemnification for liabilities under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described in Item 6 above, 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 Securities 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 a successful defense of any action, suit of 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 of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that is has reasonable grounds to believe that it meets all of the requirements for filing of Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, on November 21, 1996. OGDEN CORPORATION (Registrant) By:/S/ R. Richard Ablon -------------------------------- R. Richard Ablon, Chairman of the Board, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints J. L. Effinger and Lynde H. Coit true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof. Pursuant to the requirements of the Security Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated. S-1 SIGNATURE TITLE - --------- ----- /S/ R. Richard Ablon President, Chairman of the Board and Chief - ------------------------------- Executive Officer, Director R. Richard Ablon /S/ Philip G. Husby Senior Vice President, Chief Financial - ------------------------------- Officer and Treasurer Philip G. Husby /S/ Robert M. DiGia Vice President and Controller - ------------------------------- (Chief Accounting Officer) Robert M. DiGia /S/ Ralph E. Ablon Director - ------------------------------- Ralph E. Ablon /S/ David M. Abshire Director - ------------------------------- David M. Abshire /S/ Norman G. Einspruch Director - ------------------------------- Norman G. Einspruch /S/ Attallah Kappas Director - ------------------------------- Attallah Kappas - ------------------------------- Director Terry Allen Kramer /S/ Judith D. Moyers Director - ------------------------------- Judith D. Moyers /S/ Homer A. Neal Director - ------------------------------- Homer A. Neal /S/ Stanford S. Penner Director - ------------------------------- Stanford S. Penner /S/ Frederick Seitz Director - ------------------------------- Frederick Seitz /S/ Robert E. Smith Director - ------------------------------- Robert E. Smith S-2 /S/ Helmut F.O. Volcker Director - ------------------------------- Helmut F.O. Volcker /S/ Abraham Zaleznik Director - ------------------------------- Abraham Zaleznik S-3 INDEX TO EXHIBITS EXHIBIT NO. EXHIBIT - ----------- ------- 4 Ogden Select Savings Plan 5 Opinion regarding Legality 23 Consent of Independent Auditors 24 Power of Attorney (See Page S-1) EX-4 2 EXH. 4 - SELECT SAVINGS PLAN EXHIBIT 4 OGDEN SELECT SAVINGS PLAN ARTICLE I PURPOSE 1.1 PURPOSE. The purpose of the Ogden Select Savings Plan is to enable eligible employees of the Company to enhance their retirement security by permitting them to elect to defer receipt of a portion of their compensation to a later date or event. The Ogden Select Savings Plan was originally effective as of October 1, 1990, the amendment and restatement of the Ogden Select Savings Plan shall be January 1, 1995. ARTICLE II DEFINITIONS When used herein the following terms shall have the following meanings: 2.1 "BOARD" shall mean the Board of Directors of the Company. 2.2 "CODE" shall mean the Internal Revenue Code of 1986, as amended from time to time. 2.3 "COMMITTEE" shall mean the Administrative Committee of the Ogden Profit Sharing Plan as appointed by the Board to administer the Plan. 2.4 "COMPANY" shall mean Ogden Services Corporation along with certain of its designated subsidiaries and affiliates. 2.5 "COMPENSATION" shall mean a Participant's annual salary including any bonuses, any car allowance or other current cash compensation paid by the Company but excluding Discretionary Profit Sharing Cash Payments, any Select Awards, imputed income, salary gross-ups, non-cash compensation and severance pay. 2.6 "COMPENSATION COMMITTEE" shall mean the Compensation Committee of the Ogden Corporation Board of Directors. 2.7 "DEFERRAL YEAR" shall mean each Plan Year as to which an election is made to defer Compensation in accordance with the provisions of Section 3.3 of the Plan. 2.8 "DISABILITY" shall mean the inability of a Participant to perform the duties of his position with the Company due to a physical or mental ailment, as determined by the Committee in its sole discretion, such physical or mental ailment to result in the Executive's termination of employment or retirement. 2.9 "DISCRETIONARY PROFIT SHARING CASH PAYMENT" shall mean the cash payment awarded to a Participant out of Company profits by the Compensation Committee in its sole 1 discretion. Any Discretionary Profit Sharing Cash Payment awarded shall be paid from the profits of the Company and not be Compensation. 2.10 "DISTRIBUTION DATE" shall mean, as determined by a Participant, either (i) the last business day of the calendar quarter immediately following such Participant's Termination of Service; or (ii) the December 31 immediately following such Participant's Termination of Service. 2.11 "EFFECTIVE DATE" shall mean January 1, 1995. 2.12 "EXECUTIVE" shall mean any officer or other member of the management group of the Company whose Compensation is within the top 4% of all employees of the Company. 2.13 "INVESTMENT COMMITTEE" shall mean the Investment Committee of the Ogden Profit Sharing Plan as appointed by the Board to manage and direct the investment of the assets of the Plan. 2.14 "PARTICIPANT" shall mean any Executive who becomes a Participant in the Plan as provided in Section 3.2 of the Plan. 2.15 "PAYMENT EVENT" shall mean Termination of Service, death, or Disability, in accordance with Section 5.2 of the Plan. 2.16 "PLAN" shall mean this Ogden Select Savings Plan, as amended and restated herein, and as amended from time to time. 2.17 "PLAN YEAR" shall mean calendar year. 2.18 "SELECT AWARD" shall mean an amount determined by the Compensation Committee in its sole discretion and contributed by the Company to the deferral account of a Participant in accordance with Section 3.4 of the Plan. 2.19 "TRUST" shall mean the trust established under the Trust Agreement. 2.20 "TRUST AGREEMENT" shall mean as of the Effective Date the agreement between the Company and The Bank of New York dated as of October 1, 1990, and as in effect through December 31, 1994 and the agreement with American Express Trust dated as of January 1, 1995, as amended from time to time or an agreement between the Company and such other trustee as may be appointed by the Board from time to time. 2.21 "TERMINATION OF SERVICE" shall mean termination of employment with the Company and all of its affiliates including any form of retirement other than by reason of Disability or death. 2.22 "VALUATION DATE" shall mean each business day of the Plan Year that the New York Stock Exchange is open for business and shall be the date upon which the Participant's account balances are determined in accordance with Section 4.1(c). 2 ARTICLE III ELIGIBILITY AND PARTICIPATION 3.1 ELIGIBILITY. Participation in the Plan shall be limited to those Executives who (i) are eligible to participate in the Ogden Profit Sharing Plan, or any other defined contribution plan sponsored by any affiliate or subsidiary of the Company, and (ii) have received written notification from either (1) the Company or (2) from a person designated by the Company, that they are eligible to participate in the Plan. 3.2 PARTICIPATION. (a) An Executive eligible to participate in the Plan under Section 3.1 may become a Participant for any Plan Year by executing an irrevocable deferral election (on a form prescribed by the Committee) with respect to his Compensation, his Discretionary Profit Sharing Cash Payment, or both, for such Plan Year. Except as provided in Section 3.2(b), such election must be executed and delivered to the Committee on or before the last day of December of the preceding Plan Year. (b) With respect to an Executive who first becomes eligible to participate in the Plan under Section 3.1 after the beginning of a Plan Year, such Executive may participate in the Plan for the remainder of such Plan Year by executing an irrevocable deferral election (on a form prescribed by the Committee) with respect to such Executive's Compensation, Discretionary Profit Sharing Cash Payment, or both, earned on or after the date the deferral election is made, within 30 days of the date such Executive receives notice from the Committee that the Executive is eligible to participate. (c) An Executive eligible to participate in the Plan under Section 3.1 will become a Participant for any Plan Year in which the Compensation Committee grants a Select Award on behalf of such Participant. 3.3 DEFERRAL ELECTION. (a) As a condition of participation under Section 3.2(a) and (b) of the Plan, an Executive must agree to defer from 1% to 10% of Compensation, or 1% to 100% of his Discretionary Profit Sharing Cash Payment, or both, for each Plan Year as to which such Executive elects to defer Compensation or Discretionary Profit Sharing Cash Payment. The amount so deferred must be in increments of 1%. The Executive may make separate elections with respect to base salary, bonus payments, or both. The Committee may from time to time provide another manner of specifying the amount of Compensation or Discretionary Profit Sharing Cash Payment to be deferred, including, but not limited to, a specific dollar amount. (b) An election made under the Plan shall relate only to Compensation, a Discretionary Profit Sharing Cash Payment, or both for the Plan Year, or to Compensation, Discretionary Profit Sharing Cash Payment, or both for the remainder of a Plan Year if Section 3.2(b) applies. A separate election must be made in order to defer Compensation or a Discretionary Profit Sharing Cash Payment for each subsequent Plan Year. In the event of a failure to make a timely deferral election for any Plan Year, no portion of the Participant's 3 Compensation or Discretionary Profit Sharing Cash Payment for such Plan Year may be deferred under the Plan. (c) Each deferral election under Sections 3.2 and 3.3 shall (in accordance with Section 5.2) also designate: (1) the Distribution Date the payment shall commence; and (2) the method of payment. The Participant may choose between a lump sum distribution and annual installments to a maximum of five years; (3) the investment fund or funds the deferral is to be initially invested under; and (4) the beneficiary to receive any payments if the Participant dies before receiving all amounts to which the Participant is entitled under the Plan. 3.4 SELECT AWARD. The Compensation Committee may contribute directly to the Plan on behalf of any Executive or group of Executives a discretionary amount in a given Plan Year. Each Select Award shall be a bookkeeping entry on the Company's records. The Participant shall be a general unsecured creditor of the Company with respect to the amount of any Select Award credited to his account. The Compensation Committee may establish a vesting schedule for any Select Award. The vesting schedule will be determined at the time the Select Award is determined. ARTICLE IV PARTICIPANT'S ACCOUNT 4.1 ACCOUNTS. (a) The Company shall establish written bookkeeping accounts to record the deferrals of Compensation, Discretionary Profit Sharing Cash Payments and any Select Award and earnings, increases and decreases thereon under the Plan. (b) During the Deferral Year, the Company shall credit each Participant's account for that Deferral Year with the amount deferred under Sections 3.2 3.3 and 3.4 by each Participant. Any deferral of Compensation, Discretionary Profit Sharing Cash Payments or Select Awards will be credited to such Participant's account as soon as it is received by the Trustee. Generally, this will be in the month immediately following the month in which the deferral, or Select Award is payable. (c) The amounts determined in accordance with Section 4.1(b) shall be deemed to be invested by the Investment Committee in accordance with the Participant's election. The Committee shall maintain written records of such investments. If a Participant 4 does not make a written election, he shall be deemed to have directed the investment of his funds into the investment fund with the highest price stability and the least volatile total return potential. Income, gains and losses on such investments shall be credited to or charged against each Participant's account as of the Valuation Date. (d) A Participant's account shall be reduced by any payments made to the Participant, or his beneficiary, estate or representative. The Company's obligation to make payments pursuant to the Plan to any Participant, his beneficiary, estate or representative shall be limited to the amount credited to such Participant's account as of the date of such payment. Neither the Plan nor any action taken pursuant thereto guarantees any fixed dollar amount of payments to the Participant, his beneficiary, estate or representative. The amount of payment under the Plan shall vary in accordance with the performance of the investment of amounts deferred under the Plan in the investment fund or funds selected by the Participant. The Company, the Committee, the Investment Committee, the Compensation Committee, and the Board shall not be responsible for any decrease in value of any Participant's account due to such investment. (e) With respect to the employee benefit or welfare plans sponsored by the Company under which the amount of any benefit is based on the rate of salary paid to an employee, a Participant's rate of salary for the purposes of such employee benefit or welfare plan shall include any amount of Compensation deferred under the Plan, unless otherwise specifically provided in such plan. 4.2 FUNDING PROHIBITIONS. All entries in a Participant's account shall be bookkeeping entries only and shall not represent a special reserve or otherwise constitute a funding of the Company's unsecured promise to pay any amounts hereunder. All payments to be made under the Plan shall be paid from the general funds of the Company. All such assets shall be the property solely of the Company and shall be subject to the claims of the Company's unsecured general creditors. To the extent a Participant or any other person acquires a right to receive payments from the Company under the Plan, such right shall be no greater than the right of any unsecured general creditor of the Company and such person shall have only the unsecured promise of the Company that such payments shall be made. In its sole discretion, the Company may authorize the creation of an irrevocable grant or trust or other arrangement to meet the obligations created under the Plan. The existence of such trust or other arrangement shall be consistent with the "unfunded" status of the Plan. ARTICLE V PAYMENT 5.1 PAYMENT OF ACCOUNT. Payment of amounts credited to a Participant's account shall be made in the manner and at the time or times specified herein. All payments shall be made by Company check or by other arrangements. 5.2 COMMENCEMENT OF PAYMENT. Notwithstanding any provisions of the Plan to the contrary, upon the occurrence of a Payment Event, the balance in the Participant's account shall be valued on the last Valuation Date of the calendar quarter or of the Plan Year as elected in accordance with Section 3.3 and 5 paid to the Participant (or, in the case of death, to the Participant's beneficiary) on or before the first day of the month following 90 days from the Valuation Date in accordance with Section 5.3. 5.3 METHOD OF PAYMENT. (a) For all Payment Events, the method of payment selected by the Participant will be irrevocable. Selection of method of payment shall be made at the time the Participant first elects to participate in the Plan. Any Participant who was a Participant prior to January 1, 1995 may elect a method of payment before January 1, 1995 other than a lump sum for those amounts deferred (and earnings thereof) on or after January 1, 1995. The method of payments shall be: (i) lump sum; or (ii) substantially equal annual installments not to exceed five years. Earnings or losses credited to a Participant's account as of the Valuation Date preceding the date of the next distribution shall be added to the Participant's account and distributed as a part of the next installment. Distribution shall be made or commence as specified in Section 5.2 of the Plan. Subsequent installments will be made each year in the month of the first installment. Each such installment shall include earnings or losses credited to the balance of the Participant's accounts. The final installment will be the balance of the Participant's deferred compensation account and earnings or losses credited to the account. (b) Notwithstanding any other provision of the Plan to the contrary, a Participant may withdraw an amount from his account only in the event of "financial hardship". To be a financial hardship, the hardship must be unforeseeable and beyond the control of the Participant. The Committee shall have the right to require such Participant to submit such documentation as it deems appropriate for the purpose of determining that the Participant has incurred a financial hardship. The amount withdrawn shall not exceed the amount reasonably needed to satisfy such financial hardship. ARTICLE VI ADMINISTRATION 6.1 ADMINISTRATION. The Plan shall be administered by the Committee. The Committee shall have all powers necessary to carry out the provisions of the Plan, including, without limitation, the power to delegate administrative matters to other persons, to interpret the Plan and to adopt guidelines for its administration. 6.2 INVESTMENT. The investment of funds within the Trust shall be the responsibility of the Investment Committee. ARTICLE VII MISCELLANEOUS 7.1 TERMINATION OF PLAN. The Company may at any time by action of the Board terminate the Plan. Upon termination of the Plan, no further deferrals will be permitted, and the 6 Participant's Compensation and Discretionary Profit Sharing Cash Payment will be restored on a nondeferred basis. 7.2 AMENDMENT. The Company may at any time amend the Plan in any respect, (i) in the case of amendments which have a material effect on the cost to the Company of maintaining the Plan, by action of the Compensation Committee of the Board or, (ii) with respect to any other amendments, by action of the Committee; provided, however, that no such amendment shall adversely affect the rights of Participants or their beneficiaries to any amounts credited or to be credited to the Participants' accounts with respect to any Deferral Year which has commenced prior to the adoption of any such amendment or any funds held in the Trust at the time of such amendment. 7.3 PAYMENTS TO PERSONS OTHER THAN PARTICIPANTS. If the Committee shall find that any person to whom any amount is payable under the Plan is unable to care for such person's affairs because of illness or accident, or is a minor, or has died, then any payment due to such person or such person's estate (unless a prior claim therefore has been made by a duly appointed legal representative) may, if the Committee so directs the Company, be paid to such person's spouse, child, a relative, an institution maintaining or having custody of such person or any other person deemed by the Committee to be a proper recipient on behalf of such person otherwise entitled to payment. Any such payment shall be a complete discharge of the liability of the Company, the Committee, the Investment Committee and the Board. 7.4 BENEFICIARY. Each Participant shall designate a beneficiary to whom any balance in each account under the Plan shall be payable on his death. A Participant may also designate an alternate beneficiary to receive such payment in the event that the designated beneficiary cannot receive payment for any reason. In the event no designated or alternate beneficiary can receive such payment for any reason, payment will be made to the Participant's estate. Each Participant may at any time change any beneficiary designation. A change of beneficiary designation must be made in writing and delivered to the Committee or its delegate for such purposes. The interest of any beneficiary who dies before the Participant will terminate unless otherwise specified by the Participant. 7.5 NO LIABILITY OF MEMBERS. No member of the Committee, the Investment Committee, Compensation Committee of the Board, nor any employee of the Company shall be personally liable by reason of any contract or other instrument executed by such member or employee or on such member's or employee's behalf in his capacity as a member of the Committee, the Investment Committee, the Compensation Committee of the Board or as an employee, or for any mistake of judgment made in good faith, and the Company shall indemnify and hold harmless each employee, officer or director of the Company to whom any duty or power relating to the administration or interpretation of the Plan or investment of the funds may be allocated or delegated, against any cost or expense (including counsel fees) or liability (including any sum paid in settlement of a claim) arising out of any act or omission to act in connection with the Plan unless arising out of such person's own fraud or bad faith. 7.6 SUCCESSOR CORPORATION. The obligations of the Company under the Plan shall be binding upon any successor corporation or organization resulting from the merger, consolidation or other reorganization of the Company, or upon any successor corporation or organization 7 succeeding to substantially all of the assets and business of the Company. The Company agrees that it will make appropriate provisions for the preservation of Participants' rights under the Plan in any agreement or plan which it may enter into or adopt to effect any such merger, consolidation, reorganization or transfer of assets. 7.7 NO ALIENATION OF BENEFITS. To the extent permitted by law, Participants and beneficiaries shall not have the right to alienate, anticipate, commute, sell, assign, transfer, pledge, encumber or otherwise convey the right to receive any payments under the Plan, and any payments under the Plan or rights thereto shall not be subject to the debts, liabilities, contracts, engagements or torts of Participants or beneficiaries nor to attachment, garnishment or execution, nor shall they be transferable by operation of law in the event of bankruptcy or insolvency. Any attempt, whether voluntary or involuntary, to effect any such action shall be null, void and of no effect. 7.8 NO RIGHTS TO CONTINUED EMPLOYMENT. Nothing contained herein shall be construed as conferring upon an Executive the right to continue in the employ of the Company as an Executive or in any other capacity. 7.9 HEADINGS. The headings are included solely for convenience of reference and shall not control the meaning or interpretation of any of the provisions of the Plan. 7.10 APPLICABLE LAW. The Plan shall be construed and administered in accordance with the laws of the State of New York, without reference to the principles of conflicts of law thereof. Ogden Services Corporation By: /s/ J. L. Effinger ------------------------------ Vice President 8 EX-5 3 EXH. 5 - OPINION OF J.L. EFFINGER EXHIBIT 5 January 10, 1997 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Re: OGDEN CORPORATION FORM S-8 REGISTRATION STATEMENT IN CONNECTION WITH THE OGDEN SELECT SAVINGS PLAN Dear Sirs: I am Associate Counsel and Assistant Secretary of Ogden Corporation (the "Corporation"). In that capacity, I have acted as counsel for the Corporation in connection with the Corporation's Registrant Statement on Form S-8 (the "Registration Statement") filed by the Corporation on January 10, 1997 with the Securities and Exchange Commission (the "Commission") for the purpose of registering under the Securities Act of 1933, as amended (the "Securities Act"), $7,000,000 of Deferred Compensation Obligations which represent unsecured obligations of the Corporation to pay deferred compensation in the future in accordance with the terms of the Ogden Select Savings Plan (the "Plan"). In furnishing this opinion, I have examined such documents, legal opinions and precedents, corporate and other records of the Corporation and certificates of officers of the Corporation as I have deemed necessary or appropriate to provide a basis for the opinion set forth below. In this examination, I have assumed the genuineness of all signatures, the authenticity of all documents submitted to me as original documents and conformity to original documents of all documents submitted to me as certified or photostatic copies. Based upon the foregoing and my examination of such questions of law as I have deemed necessary or appropriate for the purpose of this opinion, it is my opinion that, when issued by the Corporation in the manner provided in the Plan, the Deferred Compensation Obligations will be valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their terms, subject, as to enforcement, (i) to bankruptcy, insolvency, reorganization, arrangement, moratorium and other laws of general applicability relating to or affecting creditor's rights, and (ii) to general principles of equity, whether such enforcement is considered in a proceeding in equity or at law. This opinion is rendered to you in connection with the issuance of the Deferred Compensation Obligations and is solely for your benefit. This opinion may not be relied upon by you for any other purpose, or relied upon by any other person, firm, corporation or other entity for any purpose, without my prior written consent. I disclaim any obligation to advise you of any change of law that occurs, or any facts of which we become aware, after the date of this opinion. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement. By giving such consent, I do not thereby admit that I am an expert with respect to any part of the Registration Statement, including this exhibit, within the meaning of the term "expert" as used in the Securities Act or the rules and regulations of the Commission issued thereunder. Very truly yours, /S/ J. L. Effinger ------------------ J. L. Effinger JLE/rd EX-23 4 EXH. 23 - CONSENT EXHIBIT 23 INDEPENDENT AUDITORS' CONSENT Ogden Corporation: We consent to the incorporation by reference in this Registration Statement of Ogden Corporation on Form S-8 of our reports dated February 5, 1996 (which express an unqualified opinion and include an explanatory paragraph relating to the adoption of Statements of Financial Accounting Standards Nos. 106, 112, 115 and 121), appearing in and incorporated by reference in the Annual Report on Form 10-K of Ogden Corporation for the year ended December 31, 1995. /s/ DELOITTE & TOUCHE LLP New York, New York January 10, 1997 -----END PRIVACY-ENHANCED MESSAGE-----