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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
LEE ENTERPRISES, INCORPORATED
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(Exact name of registrant as specified in its charter)
Delaware 42-0823980
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
215 N. Main Street, Davenport, Iowa 52801
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(Address of Principal Executive Offices) (Zip Code)
LEE ENTERPRISES, INCORPORATED AMENDED AND
RESTATED 1996 STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the plan)
Carl G. Schmidt
Vice President, Chief Financial Officer and Treasurer
Lee Enterprises, Incorporated
215 N. Main Street
Davenport, IA 52801
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(Name and address of agent for service)
(563)383-2100
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(Name and address of agent for service)
(Telephone number, including area code, of agent for service)
Please send copies of all communications to:
C. D. Waterman III
Lane & Waterman
220 N. Main Street, Ste. 600
Davenport, IA 52801-1987
As Filed with the Securities and Exchange Commission
On May 14, 2003
CALCULATION OF REGISTRATION FEE
------------------------- ---------------------- -------------------------- ------------------------- ---------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering price Amount of
to be registered registered per share registration fee
---------------------- ---------------------- ------------------------- ------------------------- ---------------------
Common Stock ($2.00 par 100,000 $36.63 $3,663,000 $337.00
value)
------------------------- ---------------------- -------------------------- ------------------------- ---------------------
Notes:
1. Plus such additional indeterminable number of shares as may be required
pursuant to the Lee Enterprises, Incorporated Amended and Restated Stock Plan
for Non-Employee Directors as a result of stock splits, stock dividends,
recapitalization or other similar change in the Common Stock. In addition,
preferred stock purchase rights initially are attached to and trade with the
shares of Common Stock being registered under this registration statement. The
value attributed to such rights, if any, is reflected in the market price of the
Common Stock.
2. Estimated solely for the purpose of calculating the registration fee, in
accordance with Rule 457(h)(1) on the basis of the average of the high and the
low prices of Lee Enterprises, Incorporated Common Stock on May 9, 2003, as
reported on the New York Stock Exchange.
Persons who are to respond to the collection of information
contained in this form are not required to respond unless the
SEC 1398(9-01) form displays a currently valid OMB control number.
EXPLANATORY NOTE
Lee Enterprises, Incorporated (the "Company") is filing this registration
statement on Form S-8 to register 100,000 additional shares of the Company's
common stock, $2.00 par value per share, authorized for issuance under the
Amended and Restated 1996 Stock Plan for Non-Employee Directors (the "Common
Stock" and the "Plan"), which was approved by the stockholders of the Company at
its annual meeting on January 22, 2003. The Plan is an amendment and restatement
of the Company's 1996 Stock Plan for Non-Employee Directors (the "Prior Plan"),
with respect to which the Company filed, on June 20, 1996, a registration
statement on Form S-8 (the "Prior Registration Statement") with the Securities
and Exchange Commission (the "Commission") to register 50,000 shares of the
Company's Common Stock authorized for issuance under the Prior Plan. In
accordance with General Instruction E of Form S-8, the contents of the Prior
Registration Statement, including any amendments thereto or filings incorporated
therein, are incorporated by reference into this registration statement.
The total number of shares of the Company's Common Stock available for issuance
under the Plan in connection with offerings that commence on or after May 14,
2003 will be 111,599, which includes 100,000 shares of the Company's Common
Stock registered in this registration statement and 11,599 shares of the
Company's Common Stock that were registered in the Prior Registration Statement
and reserved for issuance under the Prior Plan, but not issued thereunder.
Part I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
In accordance with the rules and regulations of the Commission, the documents
containing the information called for in Part I of Form S-8 will be sent or
given to individuals who participate in the Plan adopted by the Company and are
not being filed with or included in this Form S-8.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company are incorporated herein by
reference:
(a) The Company's Annual Report on Form 10-K, filed on December 27, 2002,
for the year ended September 30, 2002.
(b) The Company's Proxy Statement, filed on December 27, 2002, for the
Annual Meeting of Stockholders held on January 22, 2003.
(c) The Company's Quarterly Report on Form 10-Q, filed on May 14, 2003,
for the quarter-ended March 31, 2003.
(d) The Company's Quarterly Report on Form 10-Q, filed on February 13,
2003, for the quarter ended December 31, 2002.
(e) The Company's Current Report on Form 8-K, filed on April 21, 2003.
(f) The description of the Company's Common Stock, which is contained in a
registration statement filed on Form S-1 (Registration No. 2-31630),
as amended.
(g) The description of the Company's preferred stock purchase rights
contained in its report on Form 8-K, filed with the Commission on May
7, 1998, and related Rights Agreement, dated as of May 7, 1998,
between Lee Enterprises, Incorporated and The First Chicago Trust
Company of New York, which includes the form of Certificate of
Designation of the Preferred Stock as Exhibit A, the form of Rights
Certificate as Exhibit B and the Summary of Rights as Exhibit C,
included as Exhibit 1.1 to the Company's registration statement filed
on Form 8-A, filed with the Commission on May 26, 1998 (File No.
1-6227).
In addition, all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act of 1934,
as amended (the "Exchange Act"), prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this registration statement and to be a part
hereof from the date of filing of such documents.
Any statement in the document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this registration statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the Common Stock that may be offered under the Plan has been
passed on for the Company by Lane & Waterman, 220 N. Main Street, Ste. 600,
Davenport, Iowa. C. D. Waterman III, a partner in said firm, is the secretary of
the Company. As of May 1, 2003, attorneys in the firm of Lane & Waterman
beneficially own 17,710 shares of the Company's Common Stock and 21,249 shares
of the Company's Class B Common Stock. These amounts are expected to change from
time to time.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware grants
corporations the power to indemnify their directors, officers, employees and
agents in accordance with the provisions described therein.
Article III of the Company's By-Laws provides for indemnification of directors,
officers, employees and agents of the Company to the fullest extent provided by
law and authority for the Company to obtain directors' and officers' liability
insurance and to enter into indemnification agreements with its officers and
directors. The Company has entered into indemnification agreements with its
officers and directors and maintains such insurance for its officers and
directors. Subsections (b) and (c) of Section 7, Article III, of the Company's
By-Laws include basic indemnification provisions and provide as follows:
(b) The Company shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Company) by reason of the fact
that he or she is or was a director, officer, employee or agent of the Company,
or is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorney's fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that he or she did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his or her conduct
was unlawful.
(c) The Company shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Company to procure a judgment in its favor by
reason of the fact that he or she is or was a director, officer, employee or
agent of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorney's fees)
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Company, except that no indemnification shall be made in
respect of any claim, issue or matter as to which he or she shall have been
adjudged to be liable to the Company unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all of the circumstances of the case, he or she is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
Article V(D) of the Company's Restated Certificate of Incorporation
provides that a director of the Company shall not have any personal liability to
the Company or its stockholders for monetary damages for breach of a fiduciary
duty as a director. However, this provision will not eliminate or limit the
liability of a director: (1) for any breach of the director's duty of loyalty to
the Company or its stockholders; (2) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (3) under
Section 174 of the Delaware General Corporation Law; or (4) for any transaction
from which the director derived an improper personal benefit, unless and except
to the extent otherwise permitted from time to time by applicable law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
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4.1 Restated Certificate of Incorporation of Lee Enterprises, Incorporated as
of November 14, 2002 (Exhibit 3.1 to Annual Report on Form 10-K, filed on
December 27, 2002, for the year-ended September 30, 2002)
4.2 Lee Enterprises, Incorporated Amended and Restated By-Laws as of January
23, 2002 (Exhibit 3 to Form 10-Q, filed on May 15, 2002, for the
quarter-ended March 31, 2002)
4.3 The description of the Company's preferred stock purchase rights contained
in its report on Form 8-K, filed with the Commission on May 7, 1998, and
related Rights Agreement, dated as of May 7, 1998, between Lee Enterprises,
Incorporated and The First Chicago Trust Company of New York, which
includes the form of Certificate of Designation of the Preferred Stock as
Exhibit A, the form of Rights Certificate as Exhibit B and the Summary of
Rights as Exhibit C, included as Exhibit 1.1 to Company's registration
statement filed on Form 8-A, filed with the Commission on May 26, 1998
(File No. 1-6227).
5.1 Opinion of Lane & Waterman regarding legality of securities being
registered
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of McGladrey & Pullen, LLP
23.3 Consent of Lane & Waterman (included in Exhibit 5.1)
24 Power of Attorney
99.1 Lee Enterprises, Incorporated Amended and Restated 1996 Stock Plan for
Non-Employee Directors effective January 22, 2003
Item 9. Undertakings.
1. The undersigned Company hereby undertakes:
a. 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, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if
the information required to be included in a post-effective amendment to those
paragraphs is contained in periodic reports filed by the Company pursuant to
Sections 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this registration statement.
2. That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
3. To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
a. The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
b. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer, or controlling person of the Company in the successful
defense of any action, suit or proceedings) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Company 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
The Company. Pursuant to the requirements of the Securities Act of 1933, the
issuer 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 St. Louis, State of Missouri, on the 14th day of May
2003.
LEE ENTERPRISES, INCORPORATED
By:/s/Mary E. Junck
------------------------------------------------
Mary E. Junck
Chairman, President and Chief Executive Officer
By:/s/Carl G. Schmidt
------------------------------------------------
Carl G. Schmidt
Vice President, Chief Financial Officer
and Treasurer (Principal Financial and
Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons on behalf of the
Company in their respective capacities on the 14th day of May 2003.
Signature
*/s/Carl G. Schmidt
-----------------------------------
Rance E. Crain Director
/s/Mary E. Junck
-----------------------------------
Mary E. Junck Chairman, President and Chief
Executive Officer and Director
*/s/Carl G. Schmidt
-----------------------------------
William E. Mayer Director
*/s/Carl G. Schmidt
-----------------------------------
Herbert W. Moloney III Director
*/s/Carl G. Schmidt
-----------------------------------
Andrew E. Newman Director
*/s/Carl G. Schmidt
-----------------------------------
Gordon D. Prichett Director
*/s/Carl G. Schmidt
-----------------------------------
Gregory P. Schermer Vice President - Interactive Media
and Corporate Counsel and Director
*/s/Carl G. Schmidt
-----------------------------------
Mark Vittert Director
*by Carl G. Schmidt, Attorney-in-fact
Exhibit 5.1
May 14, 2003
Lee Enterprises, Incorporated
215 N. Main Street
Davenport, IA 52801
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), on behalf of Lee Enterprises,
Incorporated, a Delaware corporation (the "Company"), relating to 100,000 shares
of the Company's Common Stock, $2.00 par value, issued pursuant to the Lee
Enterprises, Incorporated Amended and Restated 1996 Stock Plan for Non-Employee
Directors effective January 22, 2003 (the "Common Stock" and the "Plan").
As counsel to the Company, we have examined such corporate records, other
documents and such questions of law as we have deemed necessary or appropriate
for the purposes of this opinion and, upon the basis of such examinations,
advise you that in our opinion all necessary corporate proceedings by the
Company have been duly taken to authorize the issuance of the Common Stock
pursuant to the Plan, and the shares of Common Stock being registered pursuant
to the Registration Statement, when issued and paid for in accordance with the
terms of the Plan, will be duly authorized, validly issued, fully paid and
non-assessable.
We consent to the filing of this opinion as Exhibit 5.1 to the Registration
Statement and to the reference to our firm under the heading "Interests of Named
Experts and Counsel" in the Registration Statement. This consent is not to be
construed as an admission that we are a person whose consent is required to be
filed with the Registration Statement under the provisions of the Act.
We do not find it necessary for the purposes of this opinion to cover, and
accordingly we express no opinion as to, the application of the securities or
blue sky laws of the various states as to the issuance and sale of the Common
Stock.
Very truly yours,
/s/ Lane & Waterman
Exhibit 23.1
Deloitte & Touche LLP
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Lee Enterprises, Incorporated on Form S-8 of our report dated November 7, 2002
relating to our audit of the consolidated financial statements of the Company
for the year ended September 30, 2002, appearing in the Annual Report on
Form 10-K of Lee Enterprises, Incorporated for the year ended September 30,
2002.
/s/ Deloitte & Touche LLP
Davenport, Iowa
May 12, 2003
Exhibit 23.2
McGladrey & Pullen, LLP
Certified Public Accountants
INDEPENDENT AUDITOR'S CONSENT
To the Stockholders
Lee Enterprises, Incorporated
and Subsidiaries
Davenport, Iowa
We consent to the incorporation by reference in this Registration Statement of
Lee Enterprises, Incorporated on Form S-8 of our report, dated November 9, 2001,
appearing in the Annual Report on Form 10-K for Lee Enterprises, Incorporated
and subsidiaries for the year ended September 30, 2002.
/s/ McGladrey & Pullen, LLP
Davenport, Iowa
May 13, 2003
Exhibit 24
POWER OF ATTORNEY
We, the undersigned directors of Lee Enterprises, Incorporated, hereby severally
constitute Mary E. Junck and Carl G. Schmidt, and each of them, our true and
lawful attorneys with full power to them, and each of them, to sign for us and
in our names, in the capacities indicated below, the Registration Statement on
Form S-8 of Lee Enterprises, Incorporated to be filed herewith and any
amendments to said Registration Statement, and generally do all such things in
our name and behalf in our capacities as directors to enable Lee Enterprises,
Incorporated to comply with the provisions of the Securities Act of 1933 as
amended, and all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorneys, or either of them, to said Registration Statement on Form S-8 and any
and all amendments thereto.
Signature Date
/s/Rance E.Crain
-----------------------------------
Rance E. Crain, Director May 14, 2003
/s/Mary E. Junck
-----------------------------------
Mary E. Junck, Director May 14, 2003
/s/William E. Mayer
-----------------------------------
William E. Mayer, Director May 14, 2003
/s/Herbert W. Moloney III
-----------------------------------
Herbert W. Moloney III, Director May 9, 2003
/s/Andrew E. Newman
-----------------------------------
Andrew E. Newman, Director May 14, 2003
/s/Gordon D. Prichett
-----------------------------------
Gordon D. Prichett, Director May 14, 2003
/s/Gregory P. Schermer
-----------------------------------
Gregory P. Schermer, Director May 14, 2003
/s/Mark Vittert
-----------------------------------
Mark Vittert, Director May 14, 2003
Exhibit 99.1
LEE ENTERPRISES, INCORPORATED
AMENDED AND RESTATED
1996 STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
Effective January 22, 2003
1. Purposes
The purpose of the Amended and Restated 1996 Stock Plan for Non-Employee
Directors (the "Plan") of Lee Enterprises, Incorporated (the "Company") is to
promote the interests of the Company and its stockholders by (i) encouraging
non-employee directors to own shares of the Company's Common Stock and thereby
link their interests more closely with the interests of the other stockholders
of the Company; (ii) attracting and retaining non-employee directors of
outstanding ability; (iii) providing incentive compensation opportunities which
are competitive with those of other major corporations; and (iv) enabling such
directors to participate in the long-term growth and financial success of the
company.
2. Definitions
The following definitions shall be applicable throughout the Plan:
"Administrator" - means the Chief Executive Officer of the Company.
"Award" - means a grant of Common Stock under Section 7 of the Plan.
"Board of Directors" - means the Board of Directors of the Company.
"Cash Compensation" - means annual retainer, fees payable for serving
as Chairman of the Board of Directors or of a committee of the Board
or for attending any meetings of the Board or any committee thereof,
per diem consultation fees or other compensation payable as a
non-employee director of the Company.
"Code" - means the Internal Revenue Code of 1986 as amended from time
to time.
"Common Stock" - means the common stock of Lee Enterprises,
Incorporated, $2.00 par value.
"Company" - means Lee Enterprises, Incorporated, a Delaware
corporation, including any and all subsidiaries.
"Exchange Act" - means the Securities Exchange Act of 1934 as amended
from time to time.
"Participant" - means a non-employee director of the Company who has
been granted an Award.
3. Effective Date and Duration of the Plan
The Plan shall become effective upon approval by the Company's stockholders at
the Annual Meeting of Stockholders to be held on January 22, 2003 or any
adjournment thereof. The Plan shall terminate at such time as may be determined
by the Administrator, and no Awards shall be granted after such termination.
4. Administration
(a) Administrator. The Plan shall be administered by the Administrator subject
to the restrictions set forth in the Plan. Before any Awards are granted,
the Administrator may require Participants to execute any agreements that
the Administrator, in his or her discretion, shall reasonably require.
(b) Powers. Subject to the provisions of the Plan, the Administrator shall have
the full power, discretion, and authority to interpret and administer the
Plan in a manner which is consistent with the Plan's provisions, but shall
have no authority with respect to the selection of directors to receive
awards, the number of shares subject to the Plan or each grant thereunder,
or the price or timing of Awards to be made except as provided in Section
9. The Administrator shall have no authority to increase materially the
benefits under the Stock Plan.
(c) Decisions Binding. All determinations and decisions made by the
Administrator according to the provisions of the Plan shall be final,
conclusive and binding on all persons, including the Participants, their
estates and beneficiaries, and the Company and it stockholders and
employees.
5. Common Stock Awards; Shares Subject to the Plan
(a) Stock Grant Limit. Awards will be granted to Participants in the Plan in
accordance with the provisions of Section 7 below. Subject to Section 8
below, the aggregate number of shares of Common Stock that may be issued
under the Plan shall not exceed 150,000 shares. Shares of Common Stock
shall be deemed to have been issued under the Plan only to the extent
actually issued and delivered pursuant to an Award.
(b) Stock Offered. The Common Stock to be granted constituting an Award may be
authorized but unissued Common Stock or Common Stock previously issued and
outstanding and reacquired by the Company.
6. Eligibility
Awards may be granted only to directors of the Company who, at the time of
grant, are not employees of the Company or of any subsidiary of the Company.
Awards may not be granted to any person who is an employee of the Company or of
any subsidiary of the Company.
7. Common Stock Awards
(a) Minimum Awards of Common Stock. An Award of 1,500 shares of Common Stock,
as adjusted according to Section 8 below, shall be made automatically to
Participants on the first business day of June of each year, beginning on
June 2, 2003. A Participant who is elected by the Board of Directors to
fill a vacancy or newly created directorship between annual meetings of
stockholders shall automatically receive 1,500 shares of Common Stock, as
adjusted according to Section 8 below, on the earlier of the first business
day of the fourth month after taking office or the last business day of the
year in which he or she took office.
(b) Elective Payment in Common Stock. Participants shall have the right to
elect, in writing filed with the Company, to receive all or fifty percent
(50%) of their Cash Compensation payable for services rendered by them in
shares of Common Stock, commencing with the effective date of the Plan. The
number of shares shall be determined by dividing the amount of the Cash
Compensation to be paid by the closing price of the Company's Common Stock
as reported for New York Stock Exchange-Composite Transactions of the
trading day immediately preceding the date of payment and rounding to the
nearest whole number. If the Company's Common Stock is not then traded on
such exchange, the determination shall be based on the principal market
where the Company's Common Stock is actively traded as reported in The Wall
Street Journal, Midwest Edition. Elections under this section shall be made
at least one (1) week prior to the beginning of the Company' next fiscal
quarter. A change in an election shall be effective, if timely made,
beginning with the Company's next fiscal quarter. A Participant's election
shall remain in effect from year to year until changed by the Participant.
(c) Payment for Stock. A Participant shall not be required to make any payment
for Common Stock received pursuant to this Plan, except to the extent
otherwise required by law.
8. Change in Capital Structure
In the event of any change in the outstanding shares of Common Stock by reason
of any stock dividend or split, recapitalization, merger, consolidation,
spin-off, combination or exchange of shares or other corporate change, or any
distributions to the holders of Common Stock other than cash dividends, the
Administrator shall make such substitution or adjustment, if any, as he or she
deems to be equitable to accomplish fairly the purposes of the Plan and to
preserve the intended benefits of the Plan to the Participants and the Company,
as to the number, including the number specified in Section 5(a) above, or kind
of shares of Common Stock or other securities issued or reserved for issuance
pursuant to the Plan, including the number of outstanding shares of Common
Stock.
9. Amendment, Modification and Termination
The Administrator may amend, suspend or terminate the Plan as he or she shall
deem advisable or to comply with changes in the Code, the Employee Retirement
Income Security Act of 1974, or the rules thereunder, but may not amend the Plan
without further approval of the stockholders if such approval is required by
law. Adjustments shall be made in the number and kind of shares subject to the
Plan as provided in Section 8 above.
10. Miscellaneous
(a) No Right to an Award. Neither the adoption of the Plan or any action of the
Administrator shall be deemed to give a director a right to an Award or any
other rights hereunder except as may be evidenced by an Award duly executed
on behalf of the Company, and then only to the extent and on the terms and
conditions expressly set forth herein. The Plan shall be unfunded. The
Company shall not be required to establish any special or separate fund or
to make any other segregation of funds or assets to assure the payment of
any Award.
(b) No Employment Rights Conferred. Nothing contained in the Plan shall (i)
confer upon any director any right with respect to continuation of service
or nomination for reelection as a director with the Company or (ii)
interfere in any way with the right to remove a director from office at any
time for cause as provided in the Company's Restated Certificate of
Incorporation.
(c) Other Laws; Withholding. The Company shall not be obligated to issue any
shares of Common Stock until there has been compliance with such laws and
regulations as the Company may deem applicable. No fractional shares of
Common Stock shall be delivered. The Company shall have the right to
collect cash from Participants in an amount necessary to satisfy any
federal, state or local withholding tax requirements. A Participant may
elect to satisfy tax withholding requirements, in whole or in part, by
having the Company withhold shares of Common Stock to satisfy the amount of
taxes required to be withheld.
(d) Severability. If any provision of the Plan shall be held illegal or invalid
for any reason, the illegality or invalidity shall not affect the remaining
parts of the Plan, and the Plan shall be construed and enforced as if the
illegal or invalid provision had not been included.
(e) Additional Compensation. Except as otherwise provided in Section 7(b)
above, shares of Common Stock granted under the Plan shall be in addition
to any Cash Compensation payable to a Participant as a result of his or her
service as a non-employee director of the Company.
(f) Requirements of Law. The granting of Awards under the Plan shall be subject
to all applicable laws, rules, and regulations and to such approvals by any
governmental agencies or national securities exchanges as may be required.
(g) Governing Law. To the extent not preempted by federal law, the Plan, and
all agreements hereunder, shall be construed in accordance with and
governed by the laws of the State of Delaware, without regard to conflict
of law principles.
(h) Securities Law Compliance. With respect to any Participant subject to
Section 16 of the Exchange Act, transactions under the Plan are intended to
comply with all applicable conditions of Rule 16b-3 or its successors under
the Exchange Act, regardless of whether the conditions are expressly set
forth in the Plan. To the extent any provision of the Plan or action by the
Administrator fails to so comply, it shall be deemed null and void to the
extent permitted by law and deemed advisable by the Administrator.