As filed with the Securities and Exchange Commission on May 16, 2001
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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International Flavors & Fragrances Inc.
(Exact name of Registrant as specified in its charter)
New York 13-1432060
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
521 West 57th Street, New York, New York 10019
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 765-5500
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Stephen A. Block, Esq.
Senior Vice President, General Counsel and Secretary
International Flavors & Fragrances Inc.
521 West 57th Street
New York, New York 10019
Telephone: (212) 765-5500
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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International Flavors & Fragrances Inc. Deferred Compensation Plan
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CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed
Amount Offering Maximum Amount of
Title of Each Class of to Be Price per Aggregate Registration
Securities to Be Registered Registered Share Offering Price Fee
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Deferred Compensation Obligations(1)....... $50,000,000(3) 100% $50,000,000(3) $12,500
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Common Stock, $0.12 1/2par value(2)........ 4,000,000 Shares(4) $25.40(5) $101,600,000(5) $25,400
-------
Total $37,900
=======
=========================================================================================================================
(1) The Deferred Compensation Obligations are unsecured obligations of International Flavors & Fragrances
Inc., a New York corporation ("IFF"), to pay deferred compensation in the future in accordance with the
terms of the IFF Deferred Compensation Plan (the "Plan").
(2) Includes associated rights.
(3) The amount to be registered is estimated solely for the purpose of calculating the registration fee.
(4) Represents the number of shares of common stock, par value $0.12 1/2 per share ("Common Stock") of IFF,
issuable in accordance with the terms of the Plan.
(5) Pursuant to Rule 457(c) and (h) under the Securities Act of 1933, the proposed maximum offering price
is estimated, solely for the purpose of determining the registration fee, on the basis of the average
high and low prices of IFF's Common Stock on May 9, 2001, as reported on the New York Stock Exchange.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Introductory Statement
On December 12, 2000, the Compensation Committee (the "Committee")
of the Board of Directors (the "Board") of International Flavors &
Fragrances Inc. ("IFF") approved and recommended that the Board adopt the
proposed "Vision 2001 Compensation Program," including therein, the IFF
Deferred Compensation Plan (the "Plan"). The Plan was approved and adopted
by the Board on the same day. The Committee will administer the Plan,
pursuant to which IFF will provide certain employees and non-employee
directors ("Directors") of IFF and its subsidiaries the opportunity to
defer receipt of compensation.
Item 1. Plan Information.
The document(s) containing the information specified in Item 1
will be sent or given to participants in the Plan as specified by Rule
428(b)(1) and are not required to be filed as part of this Registration
Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
The document(s) containing the information specified in Item 2
will be sent or given to participants in the Plan as specified by Rule
428(b)(1) and are not required to be filed as part of this Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by IFF with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by
reference, as of their respective dates, in this Registration Statement:
(i) Annual Report on Form 10-K for the fiscal year ended
December 31, 2000;
(ii) Current Reports on Form 8-K dated March 2, 2001, April
27, 2001, April 27, 2001 and May 3, 2001 and Report on
Form 8-K/A dated January 17, 2001; and
(iii) The description of IFF's Common Stock contained in IFF's
Registration Statement on Form 8-A dated March 22, 2000,
as amended by Amendment No. 1 to IFF's Registration
Statement on Form 8-A dated October 2, 2000.
In addition, all documents hereafter filed by IFF 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 such securities then
remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of
such documents. Any statement contained herein or 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
subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement. Copies of
these documents are not required to be filed with this Registration
Statement.
Item 4. Description of Securities.
Under the Plan, IFF will provide certain employees and Directors
of IFF the opportunity to defer receipt of all or a portion of their cash
compensation, payable in the form of salary, annual incentive awards,
long-term incentive awards and, in the case of Directors, retainer and
meeting fees. In addition, participants may defer the receipt of awards of
deferred stock or stock units ("Units"), and, in certain circumstances,
shares representing the pre-tax "profit" realized upon the exercise of
options (collectively with Units, "Stock-Denominated Deferrals").
With respect to deferrals by employees, IFF will make limited
matching contributions on cash deferrals if, and to the extent, matching
contributions under IFF's Retirement Investment Fund Plan (the "RIFP") are
limited under the Internal Revenue Code of 1986, as amended, or would have
been limited had the employee Plan deferrals been made under the RIFP.
Matching contributions made on behalf of a participant will be subject to
the vesting rules and risks of forfeiture that would have applied to like
matching contributions and the participant's matching contribution account
under the RIFP.
When a participant makes a deferral election, the amounts
deferred pursuant to the Plan will be credited by a book entry to the
deferral account maintained for the participant (the "Deferral Account").
Participants will be permitted to direct the manner in which cash deferrals
will be deemed to be invested, in one or more hypothetical investment
vehicles as may be specified from time to time by the committee responsible
for the administration of the Plan (the "Committee"), as well as an
interest-bearing account and an IFF equivalent common stock fund ("IFF
Deferred Stock"). Stock-Denominated deferrals may only be deferred into IFF
Deferred Stock.
Amounts deferred into IFF Deferred Stock are credited with
"dividend equivalents." In addition, the Committee may provide for the
crediting of additional IFF Deferred Stock ("Premium Shares") as a premium
or inducement to participants to elect deferrals that will be credited as
IFF Deferred Stock; provided, however, that the crediting of any such
additional IFF Deferred Stock on deferrals by Directors shall be subject to
approval of the Board. Currently, in certain cases, cash amounts deferred
into IFF Deferred Stock are credited with Premium Shares equal to 25% of
the number of shares of IFF Deferred Stock resulting from the participant's
deferral. A participant will forfeit his or her Premium Shares if, prior to
the end of the year following such participant's deferral, such participant
experiences a termination of employment (other than due to Disability (as
defined in the Plan), Retirement (as defined in the Plan) or death) or
withdraws or otherwise receives any amounts deferred into IFF Deferred
Stock. The payment of Premium Shares is not applicable to deferrals by
Directors or any Stock-Denominated Deferrals into IFF Deferred Stock.
Deferrals into IFF Deferred Stock are more restrictive than other
deferrals under the Plan. For example, IFF Deferred Stock, once acquired,
cannot be reallocated into any other investment vehicle. In addition,
deferred amounts deemed invested in other investment vehicles may not be
reallocated into IFF Deferred Stock.
Before it adopted the Plan, IFF permitted limited deferrals of
annual incentive awards payable under IFF's Management Incentive
Compensation Plan ("MICP") and Special Executive Bonus Plan ("SEBP"), and
deferrals by Directors under IFF's Directors' Deferred Compensation Plan
(collectively, the "Prior Plans"). Amounts deferred under the Prior Plans
remain deferred, but become subject to certain terms of the Plan.
Specifically, participants will be able to switch the prior deferral
amounts among the available funds, except that Prior Plan cash deferral
balances may not be switched into IFF Deferred Stock, and MICP and SEBP
deferrals that are already deferred in IFF Deferred Stock may not be
switched out.
Participants' Deferral Accounts will be distributed at such time
or times and by such form elected by the participant subject to certain
restrictions contained in the Plan. Participants who have Prior Plan
deferrals will be required to make a new election, on or before June 1,
2001, with respect to the timing and settlement of such Prior Plan
deferrals. Specifically, each such participant will be required to make a
single election, which will be applicable to all of his or her Prior Plan
deferrals (including earnings thereon), to have (1) payments made in a
number of installments which is not less than the least number, and not
greater than the greatest number, of installments previously elected by
such participant with respect to any such Prior Plan deferral and (2)
payment commence on a date that occurs no sooner than the earliest and no
later than the latest payment commencement date previously elected by such
participant with respect to any such Prior Plan deferral.
Under certain circumstances, a participant may make an election to
further defer the distribution date of an existing Deferral Account
balance. With respect to cash deferrals, distribution will be made in cash
or, in the discretion of the Committee, by delivery of other assets having
a fair market value equal to the amount otherwise payable in cash.
Distribution of Stock-Denominated Deferrals will be made by delivery of one
share of IFF Common Stock for each share of IFF Deferred Stock credited to
the applicable participant's account.
In the event of a Change in Control of IFF (as defined in the
Plan), all deferral periods will be automatically accelerated to end at the
time of the Change in Control, provided that the Committee may accelerate
such settlement in anticipation of a Change in Control, subject to such
conditions as the Committee may impose.
A participant's interest in his or her Deferral Account is only a
right to receive payments pursuant to the Plan. Except as described above
with respect to Premium Shares, all amounts credited to the deferred
compensation accounts on behalf of the participants are nonforfeitable. A
participant's account balance and right to settlement of his or her
Deferral Account, are not transferable except in the event of death by will
or by the laws of descent and distribution or to a beneficiary designated
by the participant in accordance with the Plan. Likewise, a participant's
account balance and right to settlement of his or her Deferral Account are
not subject to alienation, pledge, encumbrance, attachment, garnishment,
levy or other legal process.
The deferred compensation obligations represented by a
participant's Deferral Account are only a right to receive payments
pursuant to the Plan. The obligations of IFF to make payments to
participants in the future in accordance with the terms of the Plan will
constitute unsecured general obligations of IFF, and will rank equally with
other unsecured and unsubordinated indebtedness of IFF outstanding from
time to time.
The Committee may amend, alter, suspend, discontinue or terminate
the Plan at any time provided that, without the consent of a participant,
no such action may materially and adversely affect the rights of such
participant with respect to any rights to payment of amounts credited to
such participant's Deferral Account. The foregoing notwithstanding, the
Committee may terminate the Plan and distribute to participants the amounts
credited to their Deferral Accounts, and reserves the right to accelerate
the settlement of any participant's Deferral Account.
Item 5. Interests of Named Experts and Counsel.
Stephen A. Block, Senior Vice President, General Counsel and
Secretary of IFF, who has passed upon the legality of the Deferred
Compensation Obligations and the validity of the IFF Common Stock offered
hereby, is eligible for participation in the Plan.
Item 6. Indemnification of Officers and Directors.
On July 24, 1986, New York substantially revised the provisions of
the New York Business Corporation Law ("BCL") to permit New York
corporations to extend broader protection to their directors and officers
by way of indemnity and advancement of expenses than that previously
afforded by New York law. On October 31, 1986, the Board amended IFF's
By-laws to extend such indemnification and advancement of expenses to its
directors and officers. Article II, Section 14 of IFF's By-laws, as amended
(the "By-laws"), provides among other things that a corporation may
indemnify a person against judgments, fines, amounts paid in settlement and
reasonable expenses arising out of litigation, to which such person shall
have been made a party by reason of the fact he or she is or was a director
or officer of the corporation, unless a judgment or other final
adjudication adverse to such person establishes that his or her acts were
committed in bad faith or were the result of active and deliberate
dishonesty and were material to the action so adjudicated, or that he or
she personally gained in fact a personal profit or other advantage to which
he or she was not entitled. The By-laws also permit IFF to advance
litigation expenses of such director or officer upon receipt of an
undertaking to repay such advances if the director or officer is ultimately
determined not to be entitled to indemnification.
In July 1987, New York added Section 402(b) to the BCL which
permits New York corporations, with shareholder approval, to amend their
certificates of incorporation in order to eliminate or limit the personal
liability of directors to a corporation and its shareholders for damages
arising from breaches of the directors' duty. On May 13, 1988, IFF amended
its Certificate of Incorporation by adding a new Article XI which had been
approved by the shareholders on May 12, 1988. Article XI provides that no
director of IFF shall be personally liable to IFF or its shareholders for
damages for any breach of duty as a director. Article XI does not permit
elimination or limitation of the liability of any director if a judgment or
other final adjudication adverse to him or her establishes that (i) his or
her acts or omissions were in bad faith or involved intentional misconduct
or a knowing violation of law or that he or she personally derived a
financial profit or other advantage to which he or she was not legally
entitled, or (ii) that his or her action involved (a) an improper
declaration of any dividend or other distribution, (b) an improper
redemption by IFF of its own shares, (c) the distribution of assets to
shareholders after dissolution, without paying or adequately providing for,
with certain exceptions, known liabilities of IFF or (d) the making of an
improper loan to a director. Article XI also does not authorize any
limitation on the ability of IFF or its shareholders to obtain injunctive
relief, specific performance or other equitable remedies, and would not
apply to acts or omissions which occurred prior to the filing of the
amendment to IFF's Certificate of Incorporation containing the limitation
on directors' liability.
On December 9, 1975, the Board adopted a resolution pursuant to
which IFF is obligated to indemnify, to the extent permitted by law, any
director, officer or employee of IFF against any liability arising out of
claims under the Employee Retirement Income Security Act of 1974.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description of Exhibit
-------------- -----------------------
4.1 Shareholder Protection Rights Agreement, dated as
of March 21, 2000, between IFF and The Bank of New
York, as Rights Agent (the "Rights Agreement")
(incorporated by reference to Exhibit 4 to IFF's
Report on Form 8-K dated March 22, 2000).
4.2 First Amendment, dated as of September 26, 2000,
to the Rights Agreement (incorporated by reference
to Exhibit 4 to IFF's Report on Form 8-K dated
September 27, 2000).
4.3 Specimen certificate of IFF's Common Stock
(incorporated by reference to Exhibit 4(b) to
IFF's Registration Statement on Form S-3 dated
September 29, 2000).
5 Opinion of Stephen A. Block.
15 Not applicable.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Stephen A. Block (included in Exhibit
5).
24 Powers of Attorney.
99 Deferred Compensation Plan.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes: (1) to file, during
any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement (i) to include any prospectus
required by section 10(a)(3) of the Securities Act of 1933; (ii) to reflect
in the prospectus any facts or events arising after the effective date of
the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration Statement;
notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration
Statement; and (iii) to include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement, provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the Registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the Registration Statement; (2) that, for the purpose of
determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof; and (3) to remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to section 13(a) or section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, and State of New York,
on this 16th day of May, 2001.
INTERNATIONAL FLAVORS & FRAGRANCES INC.
By: /s/ Stephen A. Block
--------------------------------------
Stephen A. Block
Senior Vice President, General Counsel
and Secretary
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
* Chairman of the Board and Chief May 16, 2001
--------------------- Executive Officer
Richard A. Goldstein
* Senior Vice President and May 16, 2001
--------------------- Chief Financial Officer
Douglas J. Wetmore and Director
* Director May 16, 2001
-----------------------
Margaret Hayes Adame
* Director May 16, 2001
-----------------------
J. Michael Cook
* Director May 16, 2001
-----------------------
Peter A. Georgescu
* Executive Vice President May 16, 2001
----------------------- and Director
Carlos A. Lobbosco
* Director May 16, 2001
----------------------
Arthur C. Martinez
* Director May 16, 2001
----------------------
Henry P. van Ameringen
* Director May 16, 2001
------------------------
William D. Van Dyke III
*By: /s/ Stephen A. Block
---------------------------
Attorney-in-Fact
LIST OF EXHIBITS
Exhibit No. Description of Exhibit
------------ -----------------------
4.1 Shareholder Protection Rights Agreement, dated as
of March 21, 2000, between IFF and The Bank of New
York, as Rights Agent (the "Rights Agreement")
(incorporated by reference to Exhibit 4 to IFF's
Report on Form 8-K dated March 22, 2000).
4.2 First Amendment, dated as of September 26, 2000,
to the Rights Agreement (incorporated by reference
to Exhibit 4 to IFF's Report on Form 8-K dated
September 27, 2000).
4.3 Specimen certificate of IFF's Common Stock
(incorporated by reference to Exhibit 4(b) to
IFF's Registration Statement on Form S-3 dated
September 29, 2000).
5 Opinion of Stephen A. Block.
15 Not applicable.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Stephen A. Block (included in Exhibit
5).
24 Powers of Attorney.
99 Deferred Compensation Plan.
EXHIBIT 5
[LETTERHEAD OF INTERNATIONAL FLAVORS & FRAGRANCES INC.]
May 16, 2001
Board of Directors
International Flavors & Fragrances Inc.
421 West 57th Street
New York, New York 10019
Ladies and Gentlemen:
I am Senior Vice President, General Counsel and Secretary
of International Flavors & Fragrances Inc., a New York corporation (the
"Company"). In that capacity, I have acted as counsel to the Company in
connection with the filing with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), of
a registration statement on Form S-8 (the "Registration Statement") on the
date hereof for the purpose of registering (i) $50,000,000 of certain
deferred compensation obligations (the "Deferred Compensation Obligations")
which represent unsecured obligations of the Company to pay deferred
compensation in the future pursuant to the Deferred Compensation Plan of
the Company, effective as of June 1, 2001 (the "Plan") and (ii) 4,000,000
shares of the Company's common stock, par value $0.12 1/2 per share
("Common Stock") held by the Company in treasury (the "Shares"), available
for distribution pursuant to the Plan.
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act.
In connection with rendering this opinion, I have
examined and am familiar with originals or copies, certified or otherwise
identified to my satisfaction, of (i) the Registration Statement as filed
with the Commission on the date hereof; (ii) a specimen certificate
representing the Common Stock; (iii) the Restated Certificate of
Incorporation of the Company, as presently in effect; (iv) the By-laws of
the Company, as presently in effect; (v) the Plan; and (vi) certain
resolutions of the Board of Directors of the Company relating to the Plan
and related matters (the "Resolutions"). I have also examined originals or
copies, certified or otherwise identified to my satisfaction, of such
contracts and other records of the Company and such other documents,
certificates, resolutions and corporate or other records as I have deemed
necessary or appropriate as a basis for rendering the opinions set forth
herein.
I am admitted to the Bar in the State of New York and I
express no opinion as to the laws of any other jurisdiction other than the
federal laws of the United States to the extent specifically referred to
herein.
Based upon and subject to the foregoing, I am of the
opinion that:
1. When the Deferred Compensation Obligations are
issued in accordance with the terms and subject
to the conditions of the Plan, such Deferred
Compensation Obligations will be valid and
binding obligations of the Company, enforceable
in accordance with their terms, except as may be
limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting
the enforcement of creditors' rights generally
or by general equity principles.
2. The Shares have been duly authorized and validly
issued by the Company and, when such Shares are
distributed in accordance with the terms and
subject to the conditions of the Plan and as set
forth in the Resolutions, such Shares will be
fully paid and non-assessable; provided that the
consideration for each Share of Common Stock is
not less than the par value thereof.
I hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the reference to me in the
Registration Statement and any amendments thereto.
Very truly yours,
/s/ Stephen A. Block
Stephen A. Block
EXHIBIT 23.1
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January 29, 2001
relating to the financial statements, which appears in the 2000 Annual
Report to Shareholders of International Flavors & Fragrances Inc., which is
incorporated by reference in International Flavors & Fragrances Inc.'s
Annual Report on Form 10-K for the year ended December 31, 2000. We also
consent to the incorporation by reference of our report dated January 29,
2001 relating to the financial statement schedule, which appears in such
Annual Report on Form 10-K.
PricewaterhouseCoopers LLP
New York, New York
May 16, 2001
EXHIBIT 23.2
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January 28, 2000,
except as it relates to the change in accounting for certain inventories
described in Note 1, which is as of January 17, 2001, relating to the Bush
Boake Allen Inc. financial statements which appears in the Current Report
on Form 8-K/A of International Flavors & Fragrances Inc. dated January 17,
2001.
PricewaterhouseCoopers LLP
Florham Park, NJ
May 16, 2001
EXHIBIT 24
POWER OF ATTORNEY
The undersigned director and/or officer of International
Flavors & Fragrances Inc., a New York corporation, which is about to file
with the Securities and Exchange Commission, under the provisions of the
Securities Act of 1933, as amended, a new Registration Statement on Form
S-8 or on other appropriate form, for the purpose of registering with the
Commission "Deferred Compensation Obligations," and up to 4 million shares
of the Corporation's Common Stock to be issued upon settlement of accounts,
under the Corporation's Deferred Compensation Plan, hereby constitutes and
appoints Stephen A. Block or Jodie Simon his (her) attorneys, and each of
them his (her) attorney with power to act without the other, with full
power of substitution and resubstitution, for him (her) and in his (her)
name, place and stead to sign in any and all capacities such new
Registration Statement, and any and all amendments thereto, and to file the
same with all exhibits thereto and other documents in connection therewith,
granting unto such attorneys, and each of them, full power and authority to
do so and perform all and every act necessary to be done in connection
therewith, as fully to all intents and purposes as he (she) might or could
do if personally present, hereby ratifying the acts of such attorneys and
each of them.
IN WITNESS WHEREOF, the undersigned has hereunto set his
(her) hand and seal this 16th day of May 2001.
/s/ Richard A. Goldstein (L.S.)
--------------------------
Richard A. Goldstein
POWER OF ATTORNEY
The undersigned director and/or officer of International
Flavors & Fragrances Inc., a New York corporation, which is about to file
with the Securities and Exchange Commission, under the provisions of the
Securities Act of 1933, as amended, a new Registration Statement on Form
S-8 or on other appropriate form, for the purpose of registering with the
Commission "Deferred Compensation Obligations," and up to 4 million shares
of the Corporation's Common Stock to be issued upon settlement of accounts,
under the Corporation's Deferred Compensation Plan, hereby constitutes and
appoints Stephen A. Block or Jodie Simon his (her) attorneys, and each of
them his (her) attorney with power to act without the other, with full
power of substitution and resubstitution, for him (her) and in his (her)
name, place and stead to sign in any and all capacities such new
Registration Statement, and any and all amendments thereto, and to file the
same with all exhibits thereto and other documents in connection therewith,
granting unto such attorneys, and each of them, full power and authority to
do so and perform all and every act necessary to be done in connection
therewith, as fully to all intents and purposes as he (she) might or could
do if personally present, hereby ratifying the acts of such attorneys and
each of them.
IN WITNESS WHEREOF, the undersigned has hereunto set his
(her) hand and seal this 16th day of May 2001.
/s/ Douglas J. Wetmore (L.S.)
------------------------
Douglas J. Wetmore
POWER OF ATTORNEY
The undersigned director and/or officer of International
Flavors & Fragrances Inc., a New York corporation, which is about to file
with the Securities and Exchange Commission, under the provisions of the
Securities Act of 1933, as amended, a new Registration Statement on Form
S-8 or on other appropriate form, for the purpose of registering with the
Commission "Deferred Compensation Obligations," and up to 4 million shares
of the Corporation's Common Stock to be issued upon settlement of accounts,
under the Corporation's Deferred Compensation Plan, hereby constitutes and
appoints Stephen A. Block or Jodie Simon his (her) attorneys, and each of
them his (her) attorney with power to act without the other, with full
power of substitution and resubstitution, for him (her) and in his (her)
name, place and stead to sign in any and all capacities such new
Registration Statement, and any and all amendments thereto, and to file the
same with all exhibits thereto and other documents in connection therewith,
granting unto such attorneys, and each of them, full power and authority to
do so and perform all and every act necessary to be done in connection
therewith, as fully to all intents and purposes as he (she) might or could
do if personally present, hereby ratifying the acts of such attorneys and
each of them.
IN WITNESS WHEREOF, the undersigned has hereunto set his
(her) hand and seal this 16th day of May 2001.
/s/ Margaret Hayes Adame (L.S.)
-------------------------
Margaret Hayes Adame
POWER OF ATTORNEY
The undersigned director and/or officer of International
Flavors & Fragrances Inc., a New York corporation, which is about to file
with the Securities and Exchange Commission, under the provisions of the
Securities Act of 1933, as amended, a new Registration Statement on Form
S-8 or on other appropriate form, for the purpose of registering with the
Commission "Deferred Compensation Obligations," and up to 4 million shares
of the Corporation's Common Stock to be issued upon settlement of accounts,
under the Corporation's Deferred Compensation Plan, hereby constitutes and
appoints Stephen A. Block or Jodie Simon his (her) attorneys, and each of
them his (her) attorney with power to act without the other, with full
power of substitution and resubstitution, for him (her) and in his (her)
name, place and stead to sign in any and all capacities such new
Registration Statement, and any and all amendments thereto, and to file the
same with all exhibits thereto and other documents in connection therewith,
granting unto such attorneys, and each of them, full power and authority to
do so and perform all and every act necessary to be done in connection
therewith, as fully to all intents and purposes as he (she) might or could
do if personally present, hereby ratifying the acts of such attorneys and
each of them.
IN WITNESS WHEREOF, the undersigned has hereunto set his
(her) hand and seal this 16th day of May 2001.
/s/ J. Michael Cook (L.S.)
---------------------
J. Michael Cook
POWER OF ATTORNEY
The undersigned director and/or officer of International
Flavors & Fragrances Inc., a New York corporation, which is about to file
with the Securities and Exchange Commission, under the provisions of the
Securities Act of 1933, as amended, a new Registration Statement on Form
S-8 or on other appropriate form, for the purpose of registering with the
Commission "Deferred Compensation Obligations," and up to 4 million shares
of the Corporation's Common Stock to be issued upon settlement of accounts,
under the Corporation's Deferred Compensation Plan, hereby constitutes and
appoints Stephen A. Block or Jodie Simon his (her) attorneys, and each of
them his (her) attorney with power to act without the other, with full
power of substitution and resubstitution, for him (her) and in his (her)
name, place and stead to sign in any and all capacities such new
Registration Statement, and any and all amendments thereto, and to file the
same with all exhibits thereto and other documents in connection therewith,
granting unto such attorneys, and each of them, full power and authority to
do so and perform all and every act necessary to be done in connection
therewith, as fully to all intents and purposes as he (she) might or could
do if personally present, hereby ratifying the acts of such attorneys and
each of them.
IN WITNESS WHEREOF, the undersigned has hereunto set his
(her) hand and seal this 16th day of May 2001.
/s/ Peter A. Georgescu (L.S.)
------------------------
Peter A. Georgescu
POWER OF ATTORNEY
The undersigned director and/or officer of International
Flavors & Fragrances Inc., a New York corporation, which is about to file
with the Securities and Exchange Commission, under the provisions of the
Securities Act of 1933, as amended, a new Registration Statement on Form
S-8 or on other appropriate form, for the purpose of registering with the
Commission "Deferred Compensation Obligations," and up to 4 million shares
of the Corporation's Common Stock to be issued upon settlement of accounts,
under the Corporation's Deferred Compensation Plan, hereby constitutes and
appoints Stephen A. Block or Jodie Simon his (her) attorneys, and each of
them his (her) attorney with power to act without the other, with full
power of substitution and resubstitution, for him (her) and in his (her)
name, place and stead to sign in any and all capacities such new
Registration Statement, and any and all amendments thereto, and to file the
same with all exhibits thereto and other documents in connection therewith,
granting unto such attorneys, and each of them, full power and authority to
do so and perform all and every act necessary to be done in connection
therewith, as fully to all intents and purposes as he (she) might or could
do if personally present, hereby ratifying the acts of such attorneys and
each of them.
IN WITNESS WHEREOF, the undersigned has hereunto set his
(her) hand and seal this 16th day of May 2001.
/s/ Carlos A. Lobbosco (L.S.)
------------------------
Carlos A. Lobbosco
POWER OF ATTORNEY
The undersigned director and/or officer of International
Flavors & Fragrances Inc., a New York corporation, which is about to file
with the Securities and Exchange Commission, under the provisions of the
Securities Act of 1933, as amended, a new Registration Statement on Form
S-8 or on other appropriate form, for the purpose of registering with the
Commission "Deferred Compensation Obligations," and up to 4 million shares
of the Corporation's Common Stock to be issued upon settlement of accounts,
under the Corporation's Deferred Compensation Plan, hereby constitutes and
appoints Stephen A. Block or Jodie Simon his (her) attorneys, and each of
them his (her) attorney with power to act without the other, with full
power of substitution and resubstitution, for him (her) and in his (her)
name, place and stead to sign in any and all capacities such new
Registration Statement, and any and all amendments thereto, and to file the
same with all exhibits thereto and other documents in connection therewith,
granting unto such attorneys, and each of them, full power and authority to
do so and perform all and every act necessary to be done in connection
therewith, as fully to all intents and purposes as he (she) might or could
do if personally present, hereby ratifying the acts of such attorneys and
each of them.
IN WITNESS WHEREOF, the undersigned has hereunto set his
(her) hand and seal this 16th day of May 2001.
/s/ Arthur C. Martinez (L.S.)
------------------------
Arthur C. Martinez
POWER OF ATTORNEY
The undersigned director and/or officer of International
Flavors & Fragrances Inc., a New York corporation, which is about to file
with the Securities and Exchange Commission, under the provisions of the
Securities Act of 1933, as amended, a new Registration Statement on Form
S-8 or on other appropriate form, for the purpose of registering with the
Commission "Deferred Compensation Obligations," and up to 4 million shares
of the Corporation's Common Stock to be issued upon settlement of accounts,
under the Corporation's Deferred Compensation Plan, hereby constitutes and
appoints Stephen A. Block or Jodie Simon his (her) attorneys, and each of
them his (her) attorney with power to act without the other, with full
power of substitution and resubstitution, for him (her) and in his (her)
name, place and stead to sign in any and all capacities such new
Registration Statement, and any and all amendments thereto, and to file the
same with all exhibits thereto and other documents in connection therewith,
granting unto such attorneys, and each of them, full power and authority to
do so and perform all and every act necessary to be done in connection
therewith, as fully to all intents and purposes as he (she) might or could
do if personally present, hereby ratifying the acts of such attorneys and
each of them.
IN WITNESS WHEREOF, the undersigned has hereunto set his
(her) hand and seal this 16th day of May 2001.
/s/ Henry P. van Ameringen (L.S.)
----------------------------
Henry P. van Ameringen
POWER OF ATTORNEY
The undersigned director and/or officer of International
Flavors & Fragrances Inc., a New York corporation, which is about to file
with the Securities and Exchange Commission, under the provisions of the
Securities Act of 1933, as amended, a new Registration Statement on Form
S-8 or on other appropriate form, for the purpose of registering with the
Commission "Deferred Compensation Obligations," and up to 4 million shares
of the Corporation's Common Stock to be issued upon settlement of accounts,
under the Corporation's Deferred Compensation Plan, hereby constitutes and
appoints Stephen A. Block or Jodie Simon his (her) attorneys, and each of
them his (her) attorney with power to act without the other, with full
power of substitution and resubstitution, for him (her) and in his (her)
name, place and stead to sign in any and all capacities such new
Registration Statement, and any and all amendments thereto, and to file the
same with all exhibits thereto and other documents in connection therewith,
granting unto such attorneys, and each of them, full power and authority to
do so and perform all and every act necessary to be done in connection
therewith, as fully to all intents and purposes as he (she) might or could
do if personally present, hereby ratifying the acts of such attorneys and
each of them.
IN WITNESS WHEREOF, the undersigned has hereunto set his
(her) hand and seal this 16th day of May 2001.
/s/ William D. Van Dyke III (L.S.)
-----------------------------
William D. Van Dyke III
EXHIBIT 99
INTERNATIONAL FLAVORS & FRAGRANCES INC.
Deferred Compensation Plan
INTERNATIONAL FLAVORS & FRAGRANCES INC.
Deferred Compensation Plan
Page
1. Purpose...........................................................1
2. Definitions.......................................................1
3. Administration....................................................3
4. Participation.....................................................3
5. Deferrals.........................................................3
6. Deferral Accounts.................................................4
7. Company Matching Contributions....................................7
8. Settlement of Deferral Accounts...................................7
9. Provisions Relating to Section 16 of the Exchange Act
and Section 162(m) of the Code.................................10
10. Statements.......................................................11
11. Sources of Stock; Shares Available for Delivery..................11
12. Amendment and Termination........................................11
13. General Provisions...............................................11
14. Effective Date...................................................13
INTERNATIONAL FLAVORS & FRAGRANCES INC.
Deferred Compensation Plan
1. Purpose. The purpose of this Deferred Compensation Plan (the
"Plan") is to provide to members of a select group of management or highly
compensated employees of International Flavors & Fragrances Inc. (the
"Company") and its subsidiaries and/or its affiliates who are selected for
participation in the Plan, and non-employee directors of the Company, a
means to defer receipt of specified portions of compensation and to have
such deferred amounts treated as if invested in specified investment
vehicles, in order to enhance the competitiveness of the Company's
executive compensation program and, therefore, its ability to attract and
retain qualified key personnel necessary for the continued success and
progress of the Company, and to encourage such persons to retain a
significant equity stake in the Company.
2. Definitions. In addition to the terms defined in Section 1
above, the following terms used in the Plan shall have the meanings set
forth below:
(a) "Administrator" means the officer or committee of officers of
the Company designated by the Committee to administer the Plan. Initially,
the Administrator shall be the Company's administrative committee, the
current members of which are the Executive Vice President, Global Business
Development; the Executive Vice President, Global Operations; the Senior
Vice President and Chief Financial Officer; the Senior Vice President and
General Counsel; and the Vice President, Human Resources of the Company.
The full Committee may perform any function of the Administrator hereunder,
in which case the term "Administrator" shall refer to the Committee.
(b) "Beneficiary" means any family member or members, including by
marriage or adoption, any trust in which the Participant or any family
member or members have more than 50% of the beneficial interest, any
foundation in which the Participant or any family member or members control
the management of assets, and any other entity in which the Participant or
any family member or members own more than 50% of the voting interests, in
each case designated by the Participant in his or her most recent written
Beneficiary designation filed with the Committee as entitled to exercise
rights or receive benefits under the Plan in connection with the
Participant's Deferral Account (or any portion thereof), or if there is no
surviving designated Beneficiary, then the person, persons, trust or trusts
entitled by will or the laws of descent and distribution to exercise rights
or receive benefits under the Plan in connection with the Participant's
Deferral Account on behalf or in lieu of such non-surviving designated
Beneficiary.
(c) "Board" or "Board of Directors" means the Board of Directors
of the Company.
(d) "Cash Deferral" means that portion of the assets of a
Participant's Deferral Account which is attributable to cash-based
deferrals made by Participant and investment results earned (or lost)
thereon.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
References to any provision of the Code or regulation (including a proposed
regulation) thereunder shall include any successor provisions or
regulations.
(f) "Committee" means the Compensation Committee of the Board of
Directors or such other committee designated under Section 3(b), to which
the Board has delegated the authority to take action under the Plan. The
full Board may perform any function of the Committee hereunder, in which
case the term "Committee" shall refer to the Board.
(g) "Deferral Account" means the account or subaccount established
and maintained by the Company for specified deferrals by a Participant, as
described in Section 6. Deferral Accounts will be maintained solely as
bookkeeping entries by the Company to evidence unfunded obligations of the
Company.
(h) "Deferred Stock" means a credit to the Participant's Deferral
Account representing the right to receive one share of Stock for each share
of Deferred Stock so credited, together with rights to dividend equivalents
and other rights and limitations specified in the Plan.
(i) "Disability" means a disability entitling the Participant to
long-term disability benefits under the Company's long-term disability plan
as in effect at the date of Participant's termination of employment.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended. References to any provision of the Exchange Act or rule thereunder
shall include any successor provisions or rules.
(k) "Matching Account" means the subaccount under a Participant's
Deferral Account which reflects Matching Contributions under the Plan and
amounts of hypothetical income and appreciation and depreciation in value
of such subaccount.
(l) "Matching Contributions" means contributions to a
Participant's Matching Account made in accordance with Section 7.
(m) "Participant" means any employee of the Company or any
subsidiary or affiliate who is designated by the Committee as eligible to
participate and who participates or makes an election to participate in the
Plan, or any non-employee director of the company who participates or makes
an election to participate in the Plan.
(n) "Prior Plan Deferrals" means deferrals of annual incentive
awards payable under the International Flavors & Fragrances Inc. Management
Incentive Compensation Plan and the International Flavors & Fragrances Inc.
Special Executive Bonus Plan and deferrals by non-employee directors of the
Company under the International Flavors & Fragrances Inc. Directors'
Deferred Compensation Plan.
(o) "Retirement" means a Participant's voluntary termination of
employment (i) at or after attaining age 62 or (ii), in the case of a
non-employee director of the Company, any termination of service as a
director.
(p) "Stock" means the Company's Common Stock or any other equity
securities of the Company designated by the Administrator.
(q) "Stock Units" or "Units" means stock unit awards granted under
the Company's 2000 Stock Award and Incentive Plan, 2000 Supplemental Stock
Award Plan, or other Company plans.
(r) "Trust" means any trust or trusts established by the Company
as part of the Plan; provided, however, that the assets of such trusts
shall remain subject to the claims of the general creditors of the Company.
(s) "Trustee" means the trustee of a Trust.
(t) "Trust Agreement" means the agreement entered into between the
Company and the Trustee to carry out the purposes of the Plan, as amended
or restated from time to time.
(u) "Valuation Date" means the close of business on the last
business day of each calendar quarter or other periodic date specified by
the Administrator; provided, however, that in the case of termination of
employment for reasons other than Retirement, death, or Disability, the
Valuation Date means the close of business on the last business day of the
year in which employment terminates, unless otherwise determined by the
Administrator.
3. Administration.
(a) Authority. The Committee shall administer the Plan in
accordance with its terms, and shall have all powers necessary to
accomplish such purpose, including the power and authority to construe and
interpret the Plan, to define the terms used herein, to prescribe, amend
and rescind rules and regulations, agreements, forms, and notices relating
to the administration of the Plan, to make all other determinations
necessary or advisable for the administration of the Plan, and to determine
whether to terminate participation of and accelerate distributions to
Participants, including Participants who engage in activities competitive
with or not in the best interests of the Company. The Administrator shall
share in these powers, to the extent provided herein and subject to such
limitations imposed by and oversight of the Committee. Any actions of the
Committee and Administrator with respect to the Plan and determinations in
all matters hereunder shall be conclusive and binding for all purposes and
upon all persons, including the Company, Participants, employees, and
non-employee directors (in their individual capacities) and their
respective successors in interest (subject to the Board's and Committee's
reserved authority hereunder).
(b) Service on Committee or as Administrator. Members of the
Committee shall be appointed by and remain in office at the will of, and
may be removed with or without cause by, the Board. Persons serving as the
Administrator shall be appointed by and remain in office at the will of,
and may be removed with or without cause by, the Committee. Any member of
the Committee or Administrator may resign at any time. The Committee or
Administrator may delegate administrative and other functions under the
Plan to officers or employees of the Company and its subsidiaries, or other
agents, except as limited by the Plan. No member of the Committee or
Administrator shall be entitled to act on or decide any matter relating
solely to himself or herself or any of his or her rights or benefits under
the Plan. No bond or other security shall be required in connection with
the Plan of the Committee or the Administrator or any member thereof in any
jurisdiction.
(c) Limitation of Liability. Each member of the Committee or
Administrator shall be entitled, in good faith, to rely or act upon any
report or other information furnished to him or her by any officer or other
employee of the Company or any subsidiary or affiliate, the Company's
independent certified public accountants, or any executive compensation
consultant, legal counsel, or other professional retained by the Company to
assist in the administration of the Plan. To the maximum extent permitted
by law, no member of the Committee or Administrator, nor any person to whom
duties have been delegated under the Plan, shall be liable to any person
for any action taken or omitted in connection with the interpretation and
administration of the Plan, except for the willful misconduct or gross
negligence of such member or person.
4. Participation. The Committee shall determine those employees of
the Company and its subsidiaries and/or affiliates, from among the
executives who qualify as a select group of management or highly
compensated employees, who will be eligible to participate in the Plan.
Such persons shall be notified of such eligibility by the Administrator.
The Committee may limit participation by otherwise eligible employees in
its discretion, including, for example, for a specified period following a
Participant's withdrawal from a Deferral Account under Section 8(f) or (g).
In addition, each non-employee director of the Company shall be eligible to
participate in the Plan.
5. Deferrals. To the extent authorized by the Committee, a
Participant may elect to defer compensation or awards which may be in the
form of cash, Stock, Stock-denominated awards or other property to be
received from the Company or a subsidiary or affiliate, including salary,
annual bonus awards, long-term awards, retainer fees and meeting fees
payable to a non-employee director, specified shares issuable on stock
option exercise and compensation payable under other plans and programs,
employment agreements or other arrangements, or otherwise, as may be
provided under the terms of such plans, programs and arrangements or as
designated by the Committee. Stock-denominated awards that the Committee
may authorize for deferral include (i) Stock Units and (ii) the shares
representing the profit upon exercise of stock options granted under any
Company plan, in circumstances in which the option exercise price is paid
by the surrender of previously acquired shares. (All deferrals of shares
under the Plan are referred to as Deferred Stock, including awards
originally denominated "restricted stock units"). The foregoing
notwithstanding, an employee-Participant may defer, with respect to a given
year, receipt of only that portion of the Participant's salary, annual
bonus award, long-term award, shares issuable on stock option exercise and
compensation payable under other plans and programs, employment agreements
or other arrangements that exceeds the FICA maximum taxable wage base plus
the amount necessary to satisfy Medicare and all other payroll taxes (other
than Federal, state or local income tax withholding) imposed on the wages
or compensation of such Participant from the Company and its subsidiaries
and affiliates; this limitation shall not apply to non-employee directors,
however. In addition to such limitation, and any terms and conditions of
deferral set forth under plans, programs or arrangements from which receipt
of compensation or awards is deferred, the Administrator may impose
limitations on the amounts permitted to be deferred and other terms and
conditions on deferrals under the Plan. Any such limitations, and other
terms and conditions of deferral, shall be specified in documents setting
forth terms and conditions of deferrals under the Plan, rules relating to
the Plan or election forms, other forms, or instructions published by or at
the direction of the Administrator. The Committee may permit awards and
other amounts to be treated as deferrals under the Plan, including
deferrals that may be mandatory as determined by the Committee in its sole
discretion or under the terms of another plan or arrangement of the
Company, for administrative convenience or otherwise to serve the purposes
of the Plan and such other plan or arrangement.
(a) Elections. Once an election form, properly completed, is
received by the Company, the elections of the Participant shall be
irrevocable; provided, however, that the Administrator may in its
discretion determine that elections are revocable until the deadline
specified for the filing of such election; provided further, that the
Administrator may, in its discretion, permit a Participant to elect a
further deferral of amounts credited to a Deferral Account by filing a
later election form; and provided, further, that, unless otherwise approved
by the Administrator, any election to further defer amounts credited to a
Deferral Account must be made at least one year prior to the date such
amounts would otherwise be payable.
(b) Date of Election. An election to defer compensation or awards
hereunder must be received by the Administrator prior to the date specified
by or at the direction of the Administrator. Under no circumstances may a
Participant defer compensation or awards to which the Participant has
attained, at the time of deferral, a legally enforceable right to current
receipt of such compensation or awards.
6. Deferral Accounts.
(a) Establishment; Crediting of Amounts Deferred. One or more
Deferral Accounts will be established for each Participant, as determined
by the Administrator. The amount of compensation or awards deferred with
respect to each Deferral Account will be credited to such Account as of the
date on which such amounts would have been paid to the Participant but for
the Participant's election to defer receipt hereunder, unless otherwise
determined by the Administrator. With respect to any fractional shares of
Stock or Stock-denominated awards, the Administrator shall determine
whether to credit the Deferral Account with a fraction of a share, to pay
cash in lieu of the fractional share or carry forward such cash amount
under the Plan, round to the nearest whole share, round to the next whole
share, or round down to eliminate the fractional share or otherwise make
provision for the fractional share. Amounts of hypothetical income and
appreciation and depreciation in value of such account will be credited and
debited to, or otherwise reflected in, such Account from time to time.
Unless otherwise determined by the Administrator (including under Section
6(e)), Cash Deferrals shall be deemed invested in a hypothetical investment
as of the date of deferral.
(b) Investment Vehicles.
(i) Subject to the provisions of this Section 6(b) and
Sections 6(d) and 9, Cash Deferral amounts shall be
deemed to be invested, at the Participant's
direction, in one or more investment vehicles as may
be specified from time to time by the Committee;
provided, however, that the Administrator may
expressly reserve the right to approve or disapprove
any investment direction given by a Participant. The
Committee may, but is not required to, permit Cash
Deferrals to be deemed invested in Deferred Stock,
subject to Section 11. The Committee may change or
discontinue any hypothetical investment vehicle
available under the Plan in its discretion; provided,
however, that each affected Participant shall be
given the opportunity, without limiting or otherwise
impairing any other right of such Participant
regarding changes in investment directions, to
redirect the allocation of his or her Cash Deferral
amount deemed invested in the discontinued investment
vehicle among the other hypothetical investment
vehicles, including any replacement vehicle.
(ii) Amounts credited as Deferred Stock to a Participant's
Deferral Account (whether or not as a result of a
Cash Deferral) may not be reallocated or deemed
reinvested in any other investment vehicle, but shall
remain as Deferred Stock until such time as the
Deferral Account is settled in accordance with
Section 8.
(iii) Subject to Section 11, the Committee may provide for
crediting of additional Deferred Stock as a premium
or inducement to Participants to elect deferrals that
will be credited as Deferred Stock; provided,
however, that the crediting of any such additional
Deferred Stock on deferrals by non-employee directors
shall be subject to approval of the Board. Such
additional Deferred Stock shall not exceed 40% of the
number of shares of Deferred Stock resulting from the
Participant's deferral. Such additional Deferred
Stock shall be subject to such vesting and forfeiture
conditions as the Committee may specify.
(c) Dividend Equivalents and Adjustments. Deferred Stock credited
to a Participant's Deferral Account will be credited with Dividend
Equivalents and subject to adjustment as provided in this Section 6(c):
(i) Cash Dividends. If the Company declares and pays a
cash dividend on Stock, then a number of additional
shares of Deferred Stock shall be credited to a
Participant's Deferral Account as of the payment date
for such dividend equal to (A) the number of shares
of Deferred Stock credited to the Deferral Account as
of the record date for such dividend, multiplied by
(B) the amount of cash actually paid as a dividend on
each share at such payment date, divided by (C) the
fair market value of a share of Stock at such payment
date. The Administrator shall determine how amounts
that would be credited or settled as fractional
shares shall be treated under the Plan in accordance
with Section 6(a) hereof.
(ii) Non-Stock Dividends. If the Company declares and pays
a dividend on Stock in the form of property other
than shares of Stock, then a number of additional
shares of Deferred Stock shall be credited to a
Participant's Deferral Account as of the payment date
for such dividend equal to (A) the number of shares
of Deferred Stock credited to the Deferral Account as
of the record date for such dividend, multiplied by
(B) the fair market value of any property other than
shares actually paid as a dividend on each share at
such payment date, divided by (C) the fair market
value of a share of Stock on the day after such
payment date. The Administrator shall determine how
amounts that would be credited or settled as
fractional shares shall be treated under the Plan in
accordance with Section 6(a) hereof.
(iii) Stock Dividends and Splits. If the Company declares
and pays a dividend on Stock in the form of
additional shares of Stock, or there occurs a forward
split of Stock, then a number of additional shares of
Deferred Stock shall be credited to Participant's
Deferral Account as of the payment date for such
dividend or forward Stock split equal to (A) the
number of shares of Deferred Stock credited to the
Deferral Account as of the record date for such
dividend or split, multiplied by (B) the number of
additional shares actually paid as a dividend or
issued in such split in respect of each share of
Stock. The Administrator shall determine how amounts
that would be credited or settled as fractional
shares shall be treated under the Plan in accordance
with Section 6(a) hereof.
(iv) Modifications to Dividend Equivalents Policy. Other
provisions of this Section 6(c) notwithstanding, the
Administrator may modify the manner of payment or
crediting of Dividend Equivalents hereunder, in order
to coordinate the value of Deferral Accounts with any
trust holding shares established under Section 6(e),
for administrative convenience, or for any other
reason.
(v) Adjustments. The number of shares of Deferred Stock
credited to the Participant's Account may be adjusted
by the Committee in order to prevent dilution or
enlargement of Participants' rights with respect to
Deferred Stock, in the event of any unusual corporate
transaction or event which affects the value of
Common Stock, provided that any such adjustment shall
be made taking into account any crediting of Deferred
Stock to the Participant under other provisions of
this Section 6(c) in connection with such transaction
or event.
(d) Allocation and Reallocation of Hypothetical Investments. A
Participant may allocate the Cash Deferral portion of his or her Deferral
Account to one or more of the hypothetical investment vehicles authorized
under the Plan. Subject to Section 6(b)(ii) and any rules established by
the Administrator, a Participant may reallocate such Cash Deferrals as of
the Valuation Date or other date specified by the Administrator at or
following the filing of Participant's election to one or more of such
hypothetical investment vehicles, by filing with the Administrator a notice
in such form as may be specified by the Administrator. The Administrator
may, in its discretion, restrict allocation into or reallocation by
specified Participants into or out of specified investment vehicles or
specify minimum or maximum amounts that may be allocated or reallocated by
Participants.
(e) Trusts. The Administrator may, in its discretion, establish
one or more Trusts (including sub-accounts under such Trust(s)), and
deposit therein amounts of cash, Stock, or other property in connection
with the Company's obligations with respect to a Participant's Deferral
Account established under this Section 6. If so determined by the
Administrator in any case in which the amounts deposited represent the
economic equivalent of the Participant's deemed investment in his or her
Deferral Account, the amounts of hypothetical income and appreciation and
depreciation in value of such Deferral Account shall be equal to the actual
income on, and appreciation and depreciation of, the assets in such
Trust(s). Other provisions of this Section 6 notwithstanding, the timing of
allocations and reallocations of assets in such a Deferral Account, and the
investment vehicles available with respect to the Cash Deferral portion of
the Deferral Account, may be varied to reflect the timing of actual
investments of the assets of such Trust(s) and the actual investments
available to such Trust(s). Assets deposited in such Trust may not be paid
out to the Company, except to the extent that (i) such assets are held by
the Trust in connection with the Deferral Account of a specified
Participant and the Company has made payments in settlement of such
Participant's Deferral Account, (ii) the assets of the Trust exceed the
deferred compensation liabilities of the Company under the Plan by more
than 25% of the amount of such deferred compensation liabilities, or (iii)
a creditor of the Company may attach the assets of the Trust, consistent
with the status of Trust as a "rabbi" trust.
(f) Restrictions on Participant Direction. The provisions of
Section 6(b), 6(d), and 7(c) notwithstanding, the Administrator may
restrict or prohibit reallocations of amounts deemed invested in specified
investment vehicles, and subject such amounts to a risk of forfeiture and
other restrictions, in order to conform to restrictions applicable to
Stock, a Stock-denominated award, or any other award or amount deferred
under the Plan and resulting in such deemed investment, to comply with any
applicable law or regulation, or for such other purpose as the
Administrator may determine is not inconsistent with the Plan.
7. Company Matching Contributions.
(a) Amount of Matching Contributions To Be Credited. With respect
to each employee-Participant who makes Cash Deferrals under this Plan in a
calendar year, the Company shall, on its books, credit a Matching
Contribution to such Participant's Matching Account as described in this
Section 7. The amount of Matching Contribution the Company shall credit to
a Participant in a calendar year shall be equal to the results of (i) minus
(ii), as follows:
(i) the amount of the Company's matching contributions
which were actually made and which would have been
made on behalf of the Participant under the
Retirement Investment Fund Plan (the "RIFP),
determined on the basis of the Participant's actual
"pre-tax contributions" and "after-tax contributions"
(as those terms are defined under the RIFP), plus the
amount of Company matching contributions which would
have been made on account of the Participant's Cash
Deferrals in such calendar year if such Cash
Deferrals had instead been contributions by the
Participant to the RIFP for the plan year and
disregarding any reduction in Company matching
contributions required under the RIFP due to the
application of the limitations set forth in Section
401(a)(17), 401(k), 401(m), 402(g), and 415 of the
Internal Revenue Code (the "Statutory Limitations"),
minus
(ii) the amount of Company matching contributions that
were made by the Company on behalf of a Participant
under the RIFP for such plan year and allocated to
the Participant's accounts under the RIFP.
Matching Contributions are subject to any limitation or maximum imposed
under the RIFP apart from the Statutory Limitations, and the Committee may
in its discretion further limit Matching Contributions under the Plan (but
Participants shall be given notice of any such further limitation prior to
the effectiveness of an irrevocable deferral election that would be
affected thereby).
(b) Time of Crediting of Matching Contributions. The Matching
Contributions with respect to a Participant pursuant to (a) above shall be
credited to the Participant's Matching Account at the same times as like
matching contributions would have been credited to the Participant's
matching account under the RIFP.
(c) Vesting of Matching Account; Other Plan Rules Applicable.
Matching Contributions on behalf of a Participant and the Participant's
Matching Account shall be subject to the vesting rules and risks of
forfeiture that would have applied to like matching contributions to the
Participant and the Participant's matching account under the RIFP. In other
respects, such Matching Contributions and Matching Account shall be subject
to the same rules, applied separately, as the rules that apply to the
Participant's Cash Deferrals and Deferral Account under the Plan.
8. Settlement of Deferral Accounts.
(a) Form of Payment. The Company shall settle a Participant's
Deferral Account, and discharge all of its obligations to pay deferred
compensation under the Plan with respect to such Deferral Account, as
follows:
(i) with respect to Cash Deferrals, payment of cash or,
in the discretion of the Administrator, by delivery
of other liquid assets (including Stock) having a
fair market value equal to the Cash Deferral amount
credited to the Deferral Account; provided, however,
that, to the extent practicable, any assets delivered
in settlement of Cash Deferrals shall be of the same
type or kind as the investment vehicle in which those
Cash Deferrals were deemed invested at the time of
settlement; or
(ii) with respect to Stock based deferral amounts, by
delivery of shares of Stock, including shares of
Stock delivered out of the assets of the Trust.
(b) Forfeitures Under Other Plans and Arrangements. To the extent
that Stock or any other award or amount (i) is deposited in a Trust
pursuant to Section 6 in connection with a deferral of Stock, a
Stock-denominated award, or any other award or amount under another plan,
program, employment agreement or other arrangement, or otherwise is deemed
to be deferred under the Plan without such a deposit, and (ii) is forfeited
pursuant to the terms of such plan, program, agreement or arrangement, the
Participant shall not be entitled to the value of such Stock and other
property related thereto (including without limitation, dividends and
distributions thereon) or other award or amount, or proceeds thereof. Any
Stock or Stock-denominated awards, other property or other award or amount
(and proceeds thereof) forfeited shall be returned to the Company.
(c) Timing of Payments.
(i) Generally, the Administrator shall determine minimum
and maximum deferral periods and any limitations on
terms of deferrals (such as number of installments
and periods over which installments will be paid),
provided that any terms permitting settlement more
than ten years after the date of a Participant's
termination of employment with the Company and its
subsidiaries must be approved by the Committee.
Subject to these limitations, payments in settlement
of a Deferral Account shall be made as soon as
practicable after the date or dates (including upon
the occurrence of specified events), and in such
number of installments, as may be directed by the
Participant in his or her election relating to such
Deferral Account, provided that, except with respect
to Prior Plan Deferrals (the timing of settlement of
which, in each case, shall be determined in
accordance with the terms of Section 8(c)(ii) hereof)
or as otherwise determined by the Administrator, in
the event of termination of employment for reasons
other than Retirement, death or Disability, a single
lump sum payment in settlement of any Deferral
Account (including a Deferral Account with respect to
which one or more installment payments have
previously been made) shall be made as promptly as
practicable following the next Valuation Date, unless
otherwise determined by the Administrator; and
provided further, that payments in settlement of a
Deferral Account will be made in accordance with
Section 8(d) in the event of a Change in Control.
(ii) On or before June 1, 2001, each Participant who has
Prior Plan Deferrals, shall be required to make a new
election with respect to the timing of settlement of
his or her Prior Plan Deferrals (including earnings
thereon). Specifically, each such Participant shall
make a single election which shall be applicable to
all of his or her Prior Plan Deferrals (including
earnings thereon), to have (1) payments made in a
number of installments which is not less than the
least number, and not greater than the greatest
number, of installments previously elected by the
Participant with respect to any such Prior Plan
Deferral and (2) payment commence on a date that
occurs no sooner than the earliest and no later than
the latest payment commencement date previously
elected by such Participant with respect to any such
Prior Plan Deferral. In the event a Participant who
has Prior Plan Deferrals does not make the foregoing
election on or before June 1, 2001, such Participant
will be deemed to have elected to have (1) payments
made in a number of installments equal to the least
number of installments previously elected by such
Participant with respect to any such Prior Plan
Deferral and (2) payment commence on the earliest
payment date previously elected by such Participant
with respect to any such Prior Plan Deferral.
(d) Change in Control. In the event of a "Change in Control," as
defined under Section 8(e), the following provisions shall apply:
(i) All deferral periods will be automatically
accelerated to end at the time of the Change in
Control, and each Deferral Account will be settled
within five business days after the end of the
deferral period, provided that the Committee may
accelerate this settlement (for all or specified
parts of a Deferral Account) in anticipation of a
Change in Control for any reason, subject to such
conditions as the Committee may impose; provided,
however, that, if so determined by the Committee (and
subject to Section 5(b)), the Participant may waive
the accelerated settlement provided under this
Section 8(d)(i); and
(ii) At all times after the Change in Control, in addition
to any trustee or other fiduciary under the Plan and
any Trust established hereunder, the individual
serving as the Chief Executive Officer of the Company
immediately prior to the Change in Control shall be a
fiduciary with the full authority and the obligation
to take any required or appropriate action to cause
the Company and any such Trust to pay amounts in
settlement and provide the benefits to the
Participants in accordance with the Plan.
(e) Definition of "Change in Control." A "Change in Control" shall
be deemed to have occurred if, after the effective date of the Plan, there
shall have occurred any of the following:
(i) Any "person," as such term is used in Section 13(d)
and 14(d) of the Exchange Act (other than the
Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the
Company, or any company owned, directly or
indirectly, by the shareholders of the Company in
substantially the same proportions as their ownership
of stock of the Company), acquires voting securities
of the Company and immediately thereafter is a "40%
Beneficial Owner." For purposes of this provision, a
"40% Beneficial Owner" shall mean a person who is the
"beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of
securities of the Company representing 40% or more of
the combined voting power of the Company's
then-outstanding voting securities; provided,
however, that the term "40% Beneficial Owner" shall
not include any person who was a beneficial owner of
outstanding voting securities of the Company at
February 20, 1990, or any person or persons who was
or becomes a fiduciary of any such person or persons
who is, or in the aggregate, are a "40% Beneficial
Owner" (an "Existing Shareholder"), including any
group that may be formed which is comprised solely of
Existing Shareholders, unless and until such time
after February 20, 1990 as any such Existing
Shareholder shall have become the beneficial owner
(other than by means of a stock dividend, stock
split, gift, inheritance or receipt or exercise of,
or accrual of any right to exercise, a stock option
granted by the Company or receipt or settlement of
any other stock-related award granted by the Company)
by purchase of any additional voting securities of
the Company; and provided further, that the term "40%
Beneficial Owner" shall not include any person who
shall become the beneficial owner of 40% or more of
the combined voting power of the Company's
then-outstanding voting securities solely as a result
of an acquisition by the Company of its voting
securities, until such time thereafter as such person
shall become the beneficial owner (other than by
means of a stock dividend or stock split) of any
additional voting securities and becomes a 40%
Beneficial Owner in accordance with this Section
8(e);
(ii) Individuals who on the effective date of the Plan
constitute the Board, and any new director (other
than a director whose initial assumption of office is
in connection with an actual or threatened election
consent, including but not limited to a consent
solicitation, relating to the election of directors
of the Company) whose election by the Board or
nomination for election by the Company's shareholders
was approved by a vote of at least two-thirds (2/3)
of the directors then still in office who either were
directors on such effective date or whose election or
nomination for election was previously so approved or
recommended, cease for any reason to constitute at
least a majority thereof;
(iii) There is consummated a merger, consolidation,
recapitalization, or reorganization of the Company,
or a reverse stock split of any class of voting
securities of the Company, if, immediately following
consummation of any of the foregoing, either (A)
individuals who, immediately prior to such
consummation, constitute the Board do not constitute
at least a majority of the members of the board of
directors of the Company or the surviving or parent
entity, as the case may be, or (B) the voting
securities of the Company outstanding immediately
prior to such recommendation do not represent (either
by remaining outstanding or by being converted into
voting securities of a surviving or parent entity) at
least 60% or more of the combined voting power of the
outstanding voting securities of the Company or such
surviving or parent entity; or
(iv) The shareholders of the Company have approved a plan
of complete liquidation of the Company or there is
consummated an agreement for the sale or disposition
by the Company of all or substantially all of the
Company's assets (or any transaction have a similar
effect).
(f) Financial Emergency and Other Payments. Other provisions of
the Plan (except Section 9) notwithstanding, if, upon the written
application of a Participant, the Administrator determines that the
Participant has a financial emergency of such a substantial nature, beyond
the Participant's control, and as to which the Participant lacks other
readily available assets that could be used to timely address the
emergency, so that payment of amounts previously deferred under the Plan is
warranted, the Administrator may direct the payment to the Participant of
all or a portion of the balance of a Deferral Account and the time and
manner of such payment.
(g) Voluntary Withdrawal With 10% Penalty. A Participant may
voluntarily withdraw all or a portion of the portion of his or her Deferral
Account balance that is not attributable to salary deferrals upon 30 days'
notice to the Administrator, subject to a penalty equal to 10% of the
amount withdrawn; provided, however, that the Participant shall have no
right to withdraw Deferred Stock under this Section 8(g) if the existence
of such right would result in "variable" accounting under APB 25 (or any
successor accounting authority) with respect any Deferred Stock, if any
withdrawal otherwise would result in adverse accounting or tax consequences
to the Company, or if such withdrawal is otherwise not approved by the
Administrator. The amount of any penalty under this Section 8(g) will be
forfeited.
9. Provisions Relating to Section 16 of the Exchange Act and
Section 162(m) of the Code.
(a) Avoidance of Liability Under Section 16. With respect to a
Participant who is then subject to the reporting requirements of Section
16(a) of the Exchange Act, the Administrator shall implement transactions
under the Plan and administer the Plan in a manner that will ensure that
each transaction by such a Participant is exempt from liability under Rule
16b-3 or otherwise will not result in liability under Section 16(b) of the
Exchange Act.
(b) Compliance with Code Section 162(m). It is the intent of the
Company that any compensation (including any award) deferred under the Plan
by a person who is, with respect to the year of payout, determined by the
Administrator likely to be a "covered employee" within the meaning of Code
Section 162(m) and regulations thereunder, shall not, as a result of
deferral hereunder, become compensation with respect to which the Company
would not be entitled to a tax deduction under Code Section 162(m).
Accordingly, unless otherwise determined by the Administrator, if any
payment in settlement of a Deferral Account would be subject to a loss of
deductibility by the Company at the a time of scheduled settlement
hereunder, the terms of such deferral shall be automatically modified to
the extent necessary to ensure that the compensation will be, at the time
of settlement hereunder, fully deductible by the Company.
10. Statements. The Administrator will furnish statements, at
least once each calendar year, to each Participant reflecting the amounts
credited to a Participant's Deferral Accounts, transactions therein since
the date reported on in the last previous statement, and other information
deemed relevant by the Administrator.
11. Sources of Stock; Shares Available for Delivery. Shares of
Stock deliverable in settlement of Deferred Stock, including shares
deposited under the Plan in a Trust pursuant to Section 6, in connection
with a deferral of a Stock-denominated award granted or acquired under
another plan, program, employment agreement or other arrangement that
provides for the issuance of shares, shall be deemed to have originated,
and shall be counted against the number of shares reserved, under such
other plan, program or arrangement. Shares of Stock actually delivered in
settlement of such deferral shall be originally issued shares or treasury
shares in accordance with the terms of such other plan, program or
arrangement. In the case of shares deliverable in connection with Deferred
Stock credited in connection with Dividend Equivalents, or if the Committee
authorizes deemed investments in Deferred Stock by Participants deferring
cash, any shares to be deposited under the Plan in a Trust in connection
with such deemed investments in Deferred Stock or otherwise to be delivered
in settlement of such Deferred Stock shall be solely treasury shares or
shares acquired in the market by or on behalf of the Trust. For this
purpose, a total of 4,000,000 treasury shares are hereby reserved for
delivery in connection with such Deferred Stock.
12. Amendment and Termination. The Committee may, with prospective
or retroactive effect, amend, alter, suspend, discontinue, or terminate the
Plan at any time without the consent of Participants, stockholders, or any
other person; provided, however, that, without the consent of a
Participant, no such action shall materially and adversely affect the
rights of such Participant with respect to any rights to payment of amounts
credited to such Participant's Deferral Account. The foregoing
notwithstanding, the Committee may terminate the Plan (in whole or in part)
and distribute to Participants (in whole or in part) the amounts credited
to his or her Deferral Accounts, and reserves the right to accelerate the
settlement of any individual Participant's Deferral Account (in whole or in
part). The termination of the Plan, and any amendment or alteration to the
Plan that is beyond the scope of the authority or the Committee, shall be
subject to the approval of the Board of Directors.
13. General Provisions.
(a) Limits on Transfer of Awards. No right, title or interest of
any kind in the Plan or to a Deferral Account, payment or right under the
Plan shall be transferable or assignable by a Participant or his or her
Beneficiary, shall be subject to alienation, anticipation, encumbrance,
garnishment, attachment, levy, execution or other legal or equitable
process, or shall be subject to the debts, contracts, liabilities or
engagements, or torts of any Participant or his or her Beneficiary, except
that rights to payment may be transferred in connection with the death of a
Participant by will or the laws of descent and distribution or pursuant to
a valid Beneficiary designation filed with the Administrator in accordance
with such rules as the Administrator may prescribe. Any attempt to
alienate, sell, transfer, assign, pledge, garnish, attach or take any other
action subject to legal or equitable process or encumber or dispose of any
interest in the Plan (except as permitted in connection with the
Participant's death) shall be void.
(b) Receipt and Release. Payments (in any form) to any Participant
or Beneficiary in accordance with the provisions of the Plan shall, to the
extent thereof, be in full satisfaction of all claims for the compensation
or awards deferred and relating to the Deferral Account to which the
payments relate against the Company or any subsidiary or affiliate, and the
Administrator may require such Participant or Beneficiary, as a condition
to such payments, to execute a receipt and release to such effect. In the
case of any payment under the Plan of less than all amounts then credited
to an account in the form of Deferred Stock, the amounts paid shall be
deemed to relate to the Deferred Stock credited to the account at the
earliest time.
(c) Unfunded Status of Awards; Creation of Trusts. The Plan is
intended to constitute an "unfunded" plan for deferred compensation and
Participants shall rely solely on the unsecured promise of the Company for
payment hereunder. With respect to any payment not yet made to a
Participant under the Plan, nothing contained in the Plan shall give a
Participant any rights that are greater than those of a general unsecured
creditor of the Company; provided, however, that the Committee may
authorize the creation of Trusts, including but not limited to the Trusts
referred to in Section 6 hereof, or make other arrangements to meet the
Company's obligations under the Plan, which Trusts or other arrangements
shall be consistent with the "unfunded" status of the Plan unless the
Committee otherwise determines with the consent of each affected
Participant.
(d) Compliance. A Participant in the Plan shall have no right to
receive payment (in any form) with respect to his or her Deferral Account
until legal and contractual obligations of the Company relating to
establishment of the Plan and the making of such payments shall have been
complied with in full. In addition, the Company shall impose such
restrictions on Stock delivered to a Participant hereunder and any other
interest constituting a security as it may deem advisable in order to
comply with the Securities Act of 1933, as amended, the requirements of any
stock exchange or automated quotation system upon which the Stock is then
listed or quoted, any state securities laws applicable to such a transfer,
any provision of the Company's Certificate of Incorporation or By-Laws, or
any other law, regulation, or binding contract to which the Company is a
party.
(e) Other Participant Rights. No Participant shall have any of the
rights or privileges of a stockholder of the Company under the Plan,
including as a result of the crediting of Stock equivalents or other
amounts to a Deferral Account, or the creation of any Trust and deposit of
such Stock therein, except at such time as Stock may be actually delivered
in settlement of a Deferral Account. No provision of the Plan or
transaction hereunder shall confer upon any Participant any right to be
employed by the Company or a subsidiary or affiliate or to continue to
serve as a director, or to interfere in any way with the right of the
Company or a subsidiary or affiliate to increase or decrease the amount of
any compensation payable to such Participant. Subject to the limitations
set forth in Section 13(a) hereof, the Plan shall inure to the benefit of,
and be binding upon, the parties hereto and their successors and assigns.
(f) Tax Withholding. The Company and any subsidiary or affiliate
shall have the right to deduct from amounts otherwise payable by the
Company or any subsidiary or affiliate to the Participant, including
compensation not subject to deferral as well as amounts payable hereunder
in settlement of the Participant's Deferral Account, any sums that federal,
state, local or foreign tax law requires to be withheld with respect to the
deferral of compensation hereunder, transactions affecting the
Participant's Deferral Account, and payments in settlement of the
Participant's Deferral Account, including FICA, Medicare and other
employment taxes. Shares may be withheld to satisfy such mandatory
withholding obligations in any case where taxation would be imposed upon
the delivery of shares, except that shares issued or delivered under any
plan, program, employment agreement or other arrangement may be withheld
only in accordance with the terms of such plan, program, employment
agreement or other arrangement and any applicable rules, regulations, or
resolutions thereunder. No amounts deferred by non-employee directors under
the Plan will be subject to withholding.
(g) Right of Setoff. The Company or any subsidiary may, to the
extent permitted by applicable law, deduct from and set off against any
amounts the Company or a subsidiary may owe to the Participant from time to
time, including amounts payable in connection with Participant's Deferral
Account, owed as wages, fringe benefits, or other compensation owed to the
Participant, such amounts as may be owed by the Participant to the Company,
although the Participant shall remain liable for any part of the
Participant's payment obligation not satisfied through such deduction and
setoff. By electing to participate in the Plan and defer compensation
hereunder, the Participant agrees to any deduction or setoff under this
Section 13(g).
(h) Governing Law. The validity, construction, and effect of the
Plan, any rules and regulations relating to the Plan and any document
hereunder shall be determined in accordance with the laws of the State of
New York, without giving effect to principles of conflicts of laws, and
applicable provisions of federal law.
(i) Limitation. A Participant and his or her Beneficiary shall
assume all risk in connection with any decrease in value of the Deferral
Account and neither the Company, the Committee nor the Administrator shall
be liable or responsible therefor.
(j) Construction. The captions and numbers preceding the sections
of the Plan are included solely as a matter of convenience of reference and
are not to be taken as limiting or extending the meaning of any of the
terms and provisions of the Plan. Whenever appropriate, words used in the
singular shall include the plural or the plural may be read as the
singular.
(k) Severability. In the event that any provision of the Plan
shall be declared illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining provisions of the Plan but shall
be fully severable, and the Plan shall be construed and enforced as if said
illegal or invalid provision had never been inserted herein.
(l) Status. The establishment and maintenance of, or allocations
and credits to, the Deferral Account of any Participant shall not vest in
any Participant any right, title or interest in and to any Plan assets or
benefits except at the time or times and upon the terms and conditions and
to the extent expressly set forth in the Plan and in accordance with the
terms of the Trust.
14. Effective Date The Plan shall be effective as of June 1, 2001.