As Filed with the Securities and Exchange Commission on November 27, 2002
Registration No. 333- ________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DENTSPLY International Inc.
(Exact name of registrant as specified in its charter)
Delaware 39-1434669
(State or other jurisdiction (I.R.S.Employer Identification No.)
of incorporation or organization)
570 West College Avenue
York, Pennsylvania 17405-0872
(Address of principal executive offices) (Zip Code)
DENTSPLY International Inc.
2002 Stock Option Plan
(Full title of the plan)
Brian M. Addison, Esq.
General Counsel
DENTSPLY International Inc.
570 West College Avenue
York, Pennsylvania 17405-0872
(Name and address of agent for service)
(717) 845-7511
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be (Price Per Offering Registration
to be Registered Registered(1) Share Price Fee
Common Stock, par
value $.01 per share 7,000,000 shares $33.32(2) $233,240,000(3) $21,458.08
- ------------------------------------------------------------------------------
(1) This Registration Statement shall also cover any additional shares of
Common Stock which are offered or issued under the plan to prevent dilution
resulting from stock splits, stock dividends or similar transactions.
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"), solely for the purpose of calculating the
registration fee.
(3) Calculated pursuant to Rule 457(h) under the Securities Act solely for
the purpose of calculating the registration fee based upon the average of
the high and low prices of Dentsply common stock reported on the Nasdaq
Stock Market on November 25, 2002.
1
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by DENTSPLY International Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference into this Registration Statement:
1. The Company's Form 10-K filed with the Commission for the year
ended December 31, 2001 (File No. 0-16211).
2. The Company's Form 10-Q filed with the Commission for the quarterly
period ended March 31, 2002 (File No. 0-16211).
3. The Company's Form 10-Q filed with the Commission for the quarterly
period ended June 30, 2002 (File No. 0-16211).
4. The Company's Form 10-Q filed with the Commission for the quarterly
period ended September 30, 2002 (File No. 0-16211).
5. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 10 (File No. 0-16211), including any
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") after the date of this
Registration Statement, but prior to the filing of a post-effective amendment
to this Registration Statement which indicates that all securities offered by
this Registration Statement have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement. Each document incorporated by
reference into this Registration Statement shall be deemed to be a part of
this Registration Statement from the date of the filing of such document with
the Commission until the information contained therein is superseded or
updated by any subsequently filed document which is incorporated by reference
into this Registration Statement or by any document which constitutes part of
the prospectus relating to the Plan meeting the requirements of Section 10(a)
of the Securities Act.
Item 4. Description of Securities.
The class of securities to be offered under this Registration Statement
is registered under Section 12(g) of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
None
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL")
permits a Delaware corporation, in its certificate of incorporation, to limit
or eliminate, subject to certain statutory limitations, the liability of a
director to the corporation or its stockholders for monetary damages for
breaches of fiduciary duty. Article Nine of the Company's Restated
Certificate of Incorporation provides that a director of the Company shall
not be personally liable to the Company or its stockholders for monetary
damages for breach of duty as a director except for liability (i) for any
breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or knowing violation of law, (iii) under Section 174 of the DGCL,
or (iv) for any transaction from which the director derived any improper
personal
benefit.
2
Under Section 145 of the DGCL, a corporation has the power to indemnify
directors and officers under certain prescribed circumstances and, subject to
certain limitations, against certain costs and expenses, including attorneys'
fees, actually and reasonably incurred in connection with any action, suit or
proceeding, whether civil, criminal, administrative or investigative, to
which any of them is a party by reason of his being a director or officer of
the corporation if it is determined that he acted in accordance with the
applicable standard of conduct set forth in such statutory provision. Article
V of the Company's Bylaws provides that the Company will indemnify any person
who was or is a party or a witness or is threatened to be made a party or a
witness to any threatened, pending or completed action, suit or proceeding by
reason of the fact that he is or was an authorized representative of the
Company, against all expenses (including attorneys' fees and disbursements),
judgments, fines (including excise taxes and penalties), and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding. Article V further permits the Company to
maintain insurance on behalf of any such person against any liability
asserted against such person and incurred by such person in any such capacity
or arising out of his status as such, whether or not the Company would have
the power to indemnify such person
against such liability under the DGCL. The Company maintains directors' and
officers' liability insurance.
Item 7. Exemption From Registration Claimed
Not Applicable
Item 8. Exhibits.
The following exhibits are filed herewith or incorporated by reference
as part of this Registration Statement:
Exhibit Description
No.
4.1 Restated Certificate of Incorporation, as amended by
Certificate of Amendment dated June 12, 2002
4.2 Amended and Restated Bylaws (1)
5.1 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Morgan, Lewis & Bockius LLP (included in
Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of attorney (included on signature page of this
registration statement).
99.1 DENTSPLY International Inc. 2002 Stock Option Plan
(1) Incorporated by reference to exhibit 3.2 included in the Company's
Annual Report on Form 10-K for the year ended December 31, 2001, File
No. 0-16211.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
3
(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) 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 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
* * *
(h) 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.
4
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 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 York, Commonwealth of Pennsylvania,
on November 27, 2002.
DENTSPLY INTERNATIONAL INC.
By: /s/ JOHN C. MILES II
John C. Miles II
Chief Executive Officer
and Chairman of the Board
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints, John C. Miles II and William
R. Jellison, and each of them, as his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments to this registration statement (including post-effective
amendments) and any and all additional registration statements pursuant to
Rule 462(b) under the Securities Act of 1933, as amended, in connection with
or related to the offering contemplated by this registration statement and
its amendments, if any, and to file the same, with all exhibits thereto and
all other documents in connection therewith, with the Securities and Exchange
Commission, granting unto each said attorney-in-fact and agent full power and
authority to do and perform each and every act in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or either of them,
or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Capacity Date
/s/ JOHN C. MILES II Principal Executive November 27, 2002
Officer and Director
John C. Miles II
/s/ GARY K. KUNKLE, JR. Director November 27, 2002
Gary K. Kunkle, Jr.
/s/ WILLIAM R. JELLISON Principal Financial November 27, 2002
and Accounting Officer
William R. Jellison
/s/ MICHAEL C. ALFANO Director November 27, 2002
Dr. Michael C. Alfano
/s/ BURTON C. BORGELT Director November 27, 2002
Burton C. Borgelt
/s/ PAULA H. CHOLMONDELEY Director November 27, 2002
Paula H. Cholmondeley
/s/ MICHAEL J. COLEMAN Director November 27, 2002
Michael J. Coleman
5
/s/ LESLIE A. JONES Director November 27, 2002
Leslie A. Jones
/s/ WILLIAM F. HECHT Director November 27, 2002
William F. Hecht
/s/ BETTY JANE SCHEIHING Director November 27, 2002
Betty Jane Scheihing
/s/ EDGAR H. SCHOLLMAIER Director November 27, 2002
Edgar H. Schollmaier
/s/ W. KEITH SMITH Director November 27, 2002
W. Keith Smith
6
EXHIBIT INDEX
Sequential
Exhibit Page
No. Description Number
- ---------- ---------------------------------------------------------
4.1 Restated Certificate of
Incorporation, as amended. 8
5.1 Opinion of Morgan, Lewis &
Bockius LLP. 12
23.1 Consent of Morgan, Lewis &
Bockius LLP (included in Exhibit
5.1).
23.2 Consent of PricewaterhouseCoopers
LLP. 13
24.1 Power of attorney (included on
signature page of this
registration statement).
99.1 DENTSPLY International Inc. 2002
Stock Option Plan 14
7
EXHIBIT 4.1
RESTATED CERTIFICATE OF INCORPORATION
OF
DENTSPLY International Inc.
DENTSPLY International Inc., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is DENTSPLY International Inc. and the
name under which the corporation was originally incorporated is Gendex
Corporation. The date of filing of its original Certificate of
Incorporation with the Secretary of State was February 15, 1983.
2. This Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the
Certificate of Incorporation of this corporation as heretofore amended
or supplemented and there is no discrepancy between those provisions
of this Restated Certificate of Incorporation.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is hereby restated without further amendments
or changes to read as herein set forth in full:
1. The name of the corporation is: DENTSPLY
International Inc.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the registered
agent at such address is The Corporation Trust Company.
3. The nature and business or purposes to be conducted or promoted
is: To engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law
of Delaware.
4A. Number of Shares and Classes. The aggregate number of shares of
stock which the corporation shall have authority to issue is Two
Hundred Million Two Hundred Fifty Thousand (200,250,000) shares,
which shall be divided into two classes as follows:
(1) Two Hundred Million (200,000,000) shares of Common Stock,
the par value of each of such shares is One Cent ($.01),
amounting in the aggregate to Two Million Dollars
($2,000,000.00); and
(2) Two Hundred Fifty Thousand (250,000) shares of Preferred
Stock, the par value of each of which shares is One Dollar
($1.00), amounting in the aggregate to Two Hundred Fifty
Thousand Dollars ($250,000.00).
8
4B. Preferred Stock. The corporation's board of
directors is hereby expressly authorized to
provide by resolution or resolutions from time to
time for the issue of the Preferred Stock in one
or more series, the shares of each of which series
may have such voting powers, full or limited, or
no voting powers, and such designations,
preferences and relative, participating, optional
or other special rights, and qualification,
limitations or restrictions thereof, as shall be
permitted under the General Corporation Law of the
State of Delaware and as shall be stated in the
resolution or resolutions providing for the issue
of such stock adopted by the board of directors
pursuant to the authority expressly vested in the
board of directors hereby.
4C. Common Stock.
(1) Voting. Except as otherwise required by the General
Corporation Law of the State of Delaware, this Restated
Certificate of Incorporation or any series of Preferred
Stock designated by the board of directors, all of the
voting power of the corporation shall be vested in the
holders of the Common Stock and each holder of the Common
Stock shall have one (1) vote for each share of such Common
Stock held by him of record on all matters voted upon by the
Stockholders.
(2) Dividends. Whenever all accrued dividends on any series of
Preferred Stock have been paid or declared and a sum
sufficient for the payment thereof set aside, the board of
directors of the corporation may declare a dividend on the
Common Stock out of the remaining unreserved and
unrestricted surplus of the corporation, and the holders of
the Common Stock shall share ratably in such dividend in
proportion to the number of shares of such Common Stock held
by each.
(3) Liquidation. Except as otherwise required by any series of
Preferred Stock designated by the board of directors, in the
event of any voluntary or involuntary liquidation,
dissolution or winding up of the corporation, after
distribution in full of the preferential amounts to be
distributed to the
holders of any series of Preferred Stock, the remaining
assets of the corporation shall be distributed ratably among
the holders of the Common Stock in proportion to the number
of shares of such Common Stock held by each.
9
5. The business and affairs of the corporation shall
be managed by or under the direction of a board of
directors consisting of such number of directors
as is determined from time to time by resolution
adopted by affirmative vote of a majority of the
entire board of directors; provided, however, that
in no event shall the number of directors be less
than three (3). The directors shall be divided
into three (3) classes, designated Class I, Class
II and Class III. Each class shall consist, as
nearly as may be possible, of one-third (1/3) of
the total number of directors constituting the
entire board of directors. Effective upon the
filing of this Restated Certificate of
Incorporation, Class I directors shall be elected
for a term ending upon the next succeeding annual
meeting of Stockholders, Class II directors for a
term ending upon the second succeeding annual
meeting of stockholders and Class III directors
for a term ending upon the third succeeding annual
meeting of stockholders. At each succeeding
annual meeting of stockholders beginning with the
annual meeting immediately succeeding the filing
of this Restated Certificate of Incorporation,
successors to the class of directors whose term
expires at such annual meeting shall be elected
for a three-year term. If the number of directors
is changed, any increase or decrease shall be
apportioned among the classes so as to maintain
the number of directors in each class as nearly
equal as possible, and any additional director of
any class elected to fill a vacancy resulting from
an increase in such class shall hold office for a
term that shall coincide with the remaining term
of that class, but in no case will a decrease in
the number of directors shorten the term of any
incumbent director. A director shall hold office
until the annual meeting for the year in which his
or her term expires and until his or her successor
shall be elected and shall qualify, subject,
however, to prior death, resignation,
incapacitation or removal from office. Except as
otherwise required by law, any vacancy on the
board of directors that results from an increase
in the number of directors shall be filled only by
a majority of the board of directors then in
office, provided that a quorum is present, and any
other vacancy occurring in the board of directors
shall be filled by a majority of the directors
then in office, even if less than a quorum, or by
a sole remaining director. Any director elected
to fill a vacancy not resulting from an increase
in the number of directors shall have the same remaining term as
that of his or her predecessor. A director may be removed only
for cause by the stockholders.
Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of stock issued by the corporation shall
have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies and other features
of such directorships shall be governed by the terms of this
Restated Certificate of Incorporation applicable thereto and such
directors so elected shall not be divided into classes pursuant
to this Article V, in each cash unless expressly provided by such
terms.
6. The corporation is to have perpetual existence.
10
7. Notwithstanding any other provision of this
Restated Certificate of Incorporation or the
corporation's by-laws (and notwithstanding the
fact that some lesser percentage may be specified
by law, this Restated Certificate of Incorporation
or the corporation's by-laws), the corporation's
by-laws may be amended, altered or repealed, and
new by-laws enacted, only by the affirmative vote
of not less than two-thirds (2/3) of the
outstanding shares of capital stock of the
corporation entitled to vote at a meeting of
stockholders duly called for such purpose, or by a
vote of not less than three-quarters (3/4) of the
entire board of directors then in office.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
9. A director of the corporation shall not be
personally liable to the corporation or its
stockholders for monetary damages for breach of
fiduciary duty as a director except for liability
(i) for any breach of the director's duty of
loyalty to the corporation or its stockholders,
(ii) for acts or omission not in good faith or
which involve intentional misconduct or knowing
violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any
transaction from which the director derived any
improper personal benefit.
10. The stockholders of the corporation shall have no authority to
call a special meeting of the stockholders.
11. No action required to be taken or which may be
taken at any annual or special meeting of stockholders of the
corporation may be taken without a meeting, and the power of the
stockholders to consent in writing, without a meeting, to the
taking of any action is specifically denied.
4. This Restated Certificate of Incorporation was duly adopted by the
Board of Directors in accordance with Section 245 of the General
Corporation Law of the State of Delaware.
DENTSPLY International Inc.
11
EXHIBIT 5.1
MORGAN, LEWIS & BOCKIUS LLP
ONE OXFORD CENTRE
PITTSBURGH, PENNSYLVANIA 15219-1417
November 27, 2002
DENTSPLY International Inc.
570 West College Avenue
York, Pennsylvania 17405-0872
Re: Form S-8 Registration Statement
Ladies and Gentlemen:
As your counsel, we have assisted in the preparation of a Registration
Statement on Form S-8 (the "Registration Statement") for filing with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended (the "Act"), and the rules and the regulations thereunder.
The Registration Statement relates to an aggregate of 7,000,000 shares of
Common Stock, par value $.01 per share (the "Common Stock"), of DENTSPLY
International Inc. (the "Company") which will be issued pursuant to the
DENTSPLY International Inc. 2002 Stock Option Plan (the "Plan"). We have
examined the Company's Restated Certificate of Incorporation, as amended, the
Company's Amended and Restated Bylaws, minutes and such other documents, and
have made such inquiries of the Company's officers, as we deemed
appropriate. In our examination, we have assumed the genuiness of all
signatures, the authenticity of all items submitted to us as originals, and
the conformity with originals of all items submitted to us as copies.
Based upon the foregoing, it is our opinion that the Company's Common Stock
originally issued by the Company to eligible participants through the Plan,
when issued and delivered as contemplated by the Plans, will be validly
issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement. In giving such consent, we do not thereby admit that
we are acting within the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ MORGAN, LEWIS & BOCKIUS LLP
12
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January
21, 2002, except for Note 16, as to which the date is January 31,
2002, relating to the financial statements, which appears in the
2001 Annual Report to Shareholders of DENTSPLY International
Inc., which is incorporated by reference in DENTSPLY
International Inc.'s Annual Report on Form 10-K for the year
ended December 31, 2001. We also consent to the incorporation by
reference of our report dated March 28, 2002 relating to the
financial statement schedule, which appears in such Annual Report
on Form 10-K.
/s/ PricewaterhouseCoopers LLP
Philadelphia, PA
November 27, 2002
13
EXHIBIT 99.1
DENTSPLY INTERNATIONAL INC.
2002 STOCK OPTION PLAN
SECTION 1 PURPOSE
The purpose of the DENTSPLY International Inc. 2002 Stock Option Plan (the
"Plan") is to benefit DENTSPLY International Inc. ("DENTSPLY") and its
"Subsidiaries," as defined below (hereinafter referred to, either individually
or collectively, as the "Company") by recognizing the contributions made to the
Company by officers and other key employees, consultants and advisers, to
provide such persons with an additional incentive to devote themselves to the
future success of the Company, and to improve the ability of the Company to
attract, retain and motivate such persons. The Plan is also intended as an
additional incentive to members of the Board of Directors of DENTSPLY (the
"Board") who are not employees of the Company ("Outside Directors") to serve on
the Board and to devote themselves to the future success of the Company.
"Subsidiaries," as used in the Plan, has the definition set forth in Section 424
(f) of the Internal Revenue Code of 1986, as amended (the "Code").
Stock options which constitute "incentive stock options" within the meaning
of Section 422 of the Code ("ISOs"), or stock options which do not constitute
ISOs ("NSOs") may be granted under the Plan. ISOs and NSOs are collectively
referred to as "Options." The persons to whom Options are granted under the
Plan, unless otherwise identified, are hereinafter referred to as "Optionees."
SECTION 2 ELIGIBILITY
Outside Directors shall participate in the Plan only in accordance with the
provisions of Section 5. The Committee (as defined in Section 3) shall
initially, and from time to time thereafter, select those officers and other key
employees of the Company, including members of the Board who are also employees
("Employee Directors") and consultants and advisers to the Company, to
participate in the Plan on the basis of the importance of their services in the
management, development and operations of the Company. Officers, other key
employees and Employee Directors are collectively referred to as "Key
Employees."
SECTION 3 ADMINISTRATION
3.1 The Committee
The Plan shall be administered by the Stock Option Subcommittee (the
"Committee") of the Human Resources Committee of the Board. The Committee shall
be comprised of two (2) or more members of the Board. All members of the
Committee shall qualify as "Non-Employee Directors" as defined in Rule 16b-3
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), or any
successor rule or regulation, and "outside directors" as defined in Section
162(m) or any successor provision of the Code and applicable Treasury
regulations thereunder, if such qualification is deemed necessary in order for
the grant or the exercise of Options under the Plan to qualify for any tax or
other material benefit to Optionees or the Company under applicable law.
14
3.2 Authority of the Committee
Subject to the express provisions of the Plan, the Committee shall have
sole discretion concerning all matters relating to the Plan and Options granted
hereunder. The Committee, in its sole discretion, shall determine the Key
Employees, consultants and advisers to whom, and the time or times at which,
Options will be granted, the number of shares to be subject to each Option, the
expiration date of each Option, the time or times within which the Option may be
exercised, the cancellation or termination of the Option and the other terms and
conditions of the grant of the Option. The terms and conditions of the Options
need not be the same with respect to each Optionee or with respect to each
Option.
The Committee may, subject to the provisions of the Plan, establish such
rules and regulations as it deems necessary or advisable for the proper
administration of the Plan, and may make determinations and may take such other
actions in connection with or in relation to the Plan as it deems necessary or
advisable. Each determination or other action made or taken pursuant to the
Plan, including interpretation of the Plan and the specific terms and
conditions of the Options granted hereunder by the Committee, shall be final,
binding and conclusive for all purposes and upon all persons.
3.3 Option Agreement
Each Option shall be evidenced by a written agreement or grant certificate
specifying the type of Option granted, the Option exercise price, the terms for
payment of the exercise price, the expiration date of the Option, the number of
shares of Common Stock to be subject to such Option and such other terms and
conditions established by the Committee, in its sole discretion, which are not
inconsistent with the Plan.
SECTION 4 SHARES OF COMMON STOCK SUBJECT TO THE PLAN
4.1 Subject to adjustment as provided in Sections 4.1 and 4.2, Options with
respect to an aggregate of seven million (7,000,0000) shares of common stock,
par value $.01 per share of DENTSPLY (the "Common Stock") (plus any shares of
Common Stock covered by any unexercised portion of canceled or terminated stock
options granted under the DENTSPLY International Inc. 1993 Stock Option Plan or
1998 Stock Option Plan), may be granted under the Plan (the "Maximum Number").
The Maximum Number shall be increased on January 1 of each calendar year during
the term of the Plan (as set forth in Section 13) to equal seven percent (7%) of
the outstanding shares of Common Stock on such date, in the event that seven
million (7,000,000) shares is less than seven percent (7%) of the outstanding
shares of Common Stock on such date, prior to such increase. Notwithstanding the
foregoing, and subject to adjustment as provided in Section 4.2, (i) Options
with respect to no more than one million (1,000,000) shares of Common Stock may
be granted as ISOs under the Plan, and (ii) no person shall be granted Options
with respect to more than five hundred thousand (500,000) shares of Common Stock
in any calendar year. The number of shares of Common Stock delivered by any
Optionee or withheld by the Company on behalf of any Optionee pursuant to
Section 8.2 or 8.3 shall once again be available for issuance pursuant to the
grant of Options under the Plan. Any shares of Common Stock reserved for
issuance upon exercise of Options which expire, terminate or are canceled, shall
once again be available for issuance pursuant to the grant of Options under the
Plan.
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4.2 The number of shares of Common Stock subject to the Plan and to Options
granted under the Plan shall be adjusted as follows: (a) in the event that the
number of outstanding shares of Common Stock is changed by any stock dividend,
stock split or combination of shares, the number of shares subject to the Plan
and to Options previously granted thereunder shall be proportionately adjusted,
(b) in the event of any merger, consolidation or reorganization of the Company
with any other corporation or corporations, there shall be substituted on an
equitable basis as determined by the Board of Directors, in its sole discretion,
for each share of Common Stock then subject to the Plan and for each share of
Common Stock then subject to an Option granted under the Plan, the number and
kind of shares of stock, other securities, cash or other property to which the
holders of Common Stock of the Company are entitled pursuant to the transaction,
and (c) in the event of any other changes in the capitalization of the Company,
the Committee, in its sole discretion, shall provide for an equitable adjustment
in the number of shares of Common Stock then subject to the Plan and to each
share of Common Stock then subject to an Option granted under the Plan. In the
event of any such adjustment, the exercise price per share shall be
proportionately adjusted.
SECTION 5 GRANT OF OPTIONS TO OUTSIDE DIRECTORS
5.1 Grants
All grants of Options to Outside Directors shall be automatic and
non-discretionary. Each individual who becomes an Outside Director (other than
an Outside Director who was previously an Employee Director) shall be granted a
NSO to purchase nine thousand (9,000) shares of Common Stock on the date he or
she becomes an Outside Director. Each individual who is an Employee Director and
who thereafter becomes an Outside Director shall be granted automatically a NSO
to purchase nine thousand (9,000) shares of Common Stock on the third
anniversary of the date such Employee Director was last granted an Option.
Thereafter, each Outside Director who holds NSOs granted under this Section 5
and is re-elected to the Board shall be granted an additional NSO to
purchase nine thousand (9,000) shares of Common Stock on the third anniversary
of the date such Outside Director was last granted an Option.
5.2 Expiration
Except to the extent otherwise provided in or pursuant to Section 7, each
Option shall expire, and all rights to purchase shares of Common Stock shall
expire, on the tenth anniversary of the date on which the Option was granted.
5.3 Exercise Price
The exercise price of each NSO granted to an Outside Director shall be the
"Fair Market Value," on the date on which the Option is granted, of the Common
Stock subject to the Option. For purposes of the Plan, "Fair Market Value" shall
mean the closing sales price of the Common Stock on The NASDAQ National Market,
or other national securities exchange which is the principal securities market
on which the Common Stock is traded (as reported in The Wall Street Journal,
Eastern Edition).
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5.4 Vesting
Each such NSO shall become exercisable ("vest") with respect to one-third
of the total number of shares of Common Stock subject to the Option on the first
anniversary following the date of its grant, and with respect to an additional
one-third of the total number of shares of Common Stock subject to the Option,
on each anniversary thereafter during the succeeding two years.
SECTION 6 GRANTS OF OPTIONS TO EMPLOYEES, CONSULTANTS AND ADVISERS
6.1 Grants
Subject to the terms of the Plan, the Committee may from time to time grant
Options, which are ISOs to Key Employees and options which are NSOs to Key
Employees, consultants and advisers of the Company. Each such grant shall
specify whether the Options so granted are ISOs or NSOs, provided, however, that
if, notwithstanding its designation as an ISO, all or any portion of an Option
does not qualify under the Code as an ISO, the portion which does not so qualify
shall be treated for all purposes as a NSO.
6.2 Expiration
Except to the extent otherwise provided in or pursuant to Section 7, each
Option shall expire, and all rights to purchase shares of Common Stock shall
expire, on the tenth anniversary of the date on which the Option was granted.
6.3 Vesting
Except to the extent otherwise provided in or pursuant to Section 7, or in
the proviso to this sentence, Options shall vest pursuant to the following
schedule: with respect to one-third of the total number of shares of Common
Stock subject to Option on the first anniversary following the date of its
grant, and with respect to an additional one-third of the total number of shares
of Common Stock subject to the Option, on each anniversary thereafter during the
succeeding two years; provided, however, that the Committee, in its sole
discretion, shall have the authority to shorten or lengthen the vesting schedule
with respect to any or all Options, or any part thereof, granted to Key
Employees, consultants and advisers under the Plan.
6.4 Required Terms and Conditions of ISOs
ISOs may be granted to Key Employees. Each ISO granted to a Key Employee
shall be in such form and subject to such restrictions and other terms and
conditions as the Committee may determine, in its sole discretion,
at the time of grant, subject to the general provisions of the Plan, the
applicable Option agreement or grant certificate, and the following specific
rules:
(a) Except as provided in Section 6.5(c), the exercise price per share
of each ISO shall be the Fair Market Value of a share of Common Stock on
the date such ISO is granted.
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(b) The aggregate Fair Market Value (determined with respect to each
ISO at the time such Option is granted) of the shares of Common Stock with
respect to which ISOs are exercisable for the first time by an Optionee
during any calendar year (under all incentive stock option plans of the
Company) shall not exceed $100,000.
(c) Notwithstanding anything herein to the contrary, if an ISO is
granted to an individual who owns stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the
Company, (i) the exercise price of each ISO shall be not less than one
hundred ten percent (110%) of the Fair Market Value of a share of Common
Stock on the date the ISO is granted, and (ii) the ISO shall expire and all
rights to purchase shares thereunder shall cease no later than the fifth
anniversary of the date the ISO was granted.
6.5 Required Terms and Conditions of NSOs
Each NSO granted to Key Employees, consultants and advisers shall be in
such form and subject to such restrictions and other terms and conditions as the
Committee may determine, in its sole discretion, at the time of grant, subject
to the general provisions of the Plan, the applicable Option agreement or grant
certificate, and the following specific rule: the exercise price per share of
each NSO shall be not less than the Fair Market Value of a share of Common Stock
on the date the NSO is granted.
SECTION 7 EFFECT OF TERMINATION OF EMPLOYMENT
7.1 Termination Generally
Except as provided in Section 7.2, 7.3 or 11, or as determined by the
Committee, in its sole discretion, all rights to exercise the vested portion of
any Option held by an Optionee whose employment or relationship (if a
non-employee) with the Company or service on the Board is terminated for any
reason other than "Cause," as defined below, shall terminate ninety (90) days
following the date of termination of employment or the relationship or service
on the Board, as the case may be. The transfer of employment from the Company to
a Subsidiary, or from a Subsidiary to the Company, or from a Subsidiary to
another Subsidiary, shall not constitute a termination of employment for
purposes of the Plan. Options granted under the Plan shall not be affected by
any change of duties in connection with the employment of the Key Employee or by
a leave of absence authorized by the Company. All rights to exercise the vested
portion of any Option held by an Optionee whose employment or relationship (if a
non-employee) with the Company is terminated for "Cause" shall terminate on the
date of termination of employment or the relationship. For the purposes hereof,
"Cause" shall mean a finding by the Committee that the Optionee has engaged in
conduct that is fraudulent, disloyal, criminal or injurious to the Company,
including, without limitation, acts of dishonesty, embezzlement, theft,
felonious conduct or unauthorized disclosure of trade secrets or confidential
information of the Company. Unless otherwise provided in the Plan or determined
by the Committee, vesting of Options ceases immediately upon termination of
employment, or the date of termination of the relationship with the Company, and
any portion of an Option that has not vested on or before the date of such
termination is forfeited on such date.
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7.2 Death and Disability
In the event of the death or Disability (as defined below) of an Optionee
during employment or such Optionee's relationship with the Company or service on
the Board, all Options held by such Optionee shall become fully exercisable on
such date of death or Disability. Each of the Options held by such Optionee
shall expire on the earlier of (a) the first anniversary of the date of death or
Disability and (b) the date that such Option expires in accordance with its
terms. For purposes of this Section 7.2, "Disability" shall mean the inability
of an individual to engage in any substantial gainful activity by reason of any
medically determinable physical or
mental impairment which is expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve (12)
months. The Committee, in its sole discretion, shall determine the existence and
date of any Disability.
7.3 Retirement
(a) Key Employees. In the event the employment of a Key Employee with the
Company shall be terminated by reason of "Normal Retirement" or "Early
Retirement," as defined below, all Options held by such Key Employee
shall become fully exercisable on the date of such Employee retirement.
Each of the Options held by such a Key Employee shall expire on the
earlier of (i) the fifth anniversary of the date of the Employee
retirement, or (ii) the date that such Option expires in accordance
with its terms. For the purposes hereof, "Normal Retirement" shall mean
retirement of a Key Employee at or after age 65 and "Early Retirement"
shall mean retirement of a Key Employee at or after age 60 with a
minimum of 15 years of service with the Company. In the event the
employment of a Key Employee with the Company shall be terminated by
reason of a retirement that is not an Normal Retirement or Early
Retirement, the Committee may, in its sole discretion, determine the
vesting, exercisability and exercise periods applicable to Options held
by such Key Employee.
(b) Outside Directors. In the event the service on the Board of an Outside
Director shall be terminated by reason of the retirement of such
Outside Director in accordance with the Company's retirement policy for
members of the Board ("Outside Director Retirement"), all Options held
by such Outside Director shall become fully exercisable on the date of
such Outside Director Retirement. Each of the Options held by such an
Outside Director shall expire on the earlier of (i) the date that such
Option expires in accordance with its terms or (ii) the five year
anniversary date of such Outside Director Retirement.
(c) Key Employees Who Are Employee Directors. Section 7.3(a) shall be
applicable to Options held by any Key Employee who is an Employee
Director at the time that such Key Employee's employment with the
Company terminates by reason of Employee Retirement. If such Key
Employee continues to serve on the Board as of the date of such Key
Employee's Employee Retirement, then Section 7.3(b) shall be applicable
to Options granted after such date.
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SECTION 8 EXERCISE OF OPTIONS
8.1 Notices
A person entitled to exercise an Option may do so by delivery of a written
notice to that effect, in a form specified by the Committee, specifying the
number of shares of Common Stock with respect to which the Option is being
exercised and any other information or documents the Committee may prescribe.
The notice shall be accompanied by payment as described in Section 8.2. All
notices, documents or requests provided for herein shall be delivered to the
Secretary of the Company.
8.2 Exercise Price
Except as otherwise provided in the Plan or in any Option agreement or
grant certificate, the Optionee shall pay the exercise price of the number of
shares of Common Stock with respect to which the Option is being exercised upon
the date of exercise of such Option (a) in cash, (b) pursuant to a cashless
exercise arrangement with a broker on such terms as the Committee may determine,
(c) by delivering shares of Common Stock held by the Optionee for at least six
(6) months and having an aggregate Fair Market Value on the date of exercise
equal to the Option exercise price, (d) in the case of a Key Employee, by such
other medium of payment as the Committee, in its sole discretion, shall
authorize, or (e) by any combination of (a), (b), (c), and (d). The Company
shall issue, in the name of the Optionee, stock certificates representing the
total number of shares of Common Stock issuable pursuant to the exercise of any
Option as soon as reasonably practicable after such exercise, provided that any
shares of Common Stock purchased by an Optionee through a broker pursuant to
clause (b) above shall be delivered to such broker in accordance with applicable
law.
8.3 Taxes Generally
At the time of the exercise of any Option, as a condition of the exercise
of such Option, the Company may withhold or require the Optionee to pay the
Company an amount equal to the amount of the tax the Company may be required to
withhold to obtain a deduction or otherwise to comply with applicable law.
8.4 Payment of Taxes
The Optionee, with the approval of the Committee, may satisfy the
obligation set forth in Section 8.3, in whole or in part, on the date of
exercise by (a) directing the Company to withhold such number of shares of
Common Stock otherwise issuable upon exercise of such Option having an aggregate
Fair Market Value on the date of exercise equal to the amount of tax required to
be withheld, or (b) delivering shares of Common Stock of the Company having an
aggregate Fair Market Value equal to the amount required to be withheld. The
Committee may, in its sole discretion, require payment by the Optionee in cash
of any such withholding obligation and may disapprove any election or delivery
or may suspend or terminate the right to make elections or deliveries under this
Section 8.4.
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SECTION 9 TRANSFERABILITY OF OPTIONS
Unless otherwise determined by the Committee, no Option granted pursuant to
the Plan shall be transferable otherwise than by will or by the laws of descent
and distribution or pursuant to a qualified domestic relations order as defined
by the Code.
SECTION 10 RIGHTS AS STOCKHOLDER
An Optionee (or a transferee of an Optionee pursuant to Section 9) shall
have no rights as a stockholder with respect to any Common Stock covered by an
Option or receivable upon the exercise of an Option until the Optionee or
transferee shall have become the holder of record of such Common Stock, and no
adjustments shall be made for dividends in cash or other property or other
distributions or rights in respect to such Common Stock for which the applicable
record date is prior to the date on which the Optionee shall have become the
holder of record of the shares of Common Stock purchased pursuant to exercise of
the Option.
SECTION 11 CHANGE IN CONTROL
11.1 Effect of Change in Control
Notwithstanding any of the provisions of the Plan or any Option agreement
or grant certificate evidencing Options granted hereunder, immediately upon a
"Change in Control" (as defined in Section 11.2), all outstanding Options
granted to Key Employees or Outside Directors, whether or not otherwise
exercisable as of the date of such Change in Control, shall accelerate and
become fully exercisable and all restrictions thereon shall terminate in order
that such Optionees may fully realize the benefits thereunder. The Committee may
determine in its discretion (but shall not be obligated to do so) that any or
all holders of outstanding Options which are exercisable immediately prior to a
Change of Control (including those that become exercisable under this Section
11.1) will be required to surrender them in exchange for a payment, in cash or
Common Stock as determined by the Committee, equal to the value of such Options
(as determined by the Committee in its discretion), with such payment to take
place as of the date of the Change in Control or such other date as the
Committee may prescribe.
11.2 Definition of Change in Control
The term "Change in Control" shall mean the occurrence, at any time during
the term of an Option granted under the Plan, of any of the following events:
(a) The acquisition, other than from the Company, by any individual, entity
or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) (a "Person") (other than the Company or any benefit plan
sponsored by the Company) of beneficial ownership (within the meaning
of Rule 13d-3 under the Exchange Act) of 30% or more of either (i) the
then outstanding shares of the Common Stock (the "Outstanding Common
Stock") or (ii) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the
election of directors (the "Voting Securities"); or
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(b) Individuals who, as of the Effective Date, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least
one-third (1/3) of the Board (rounded down to the nearest whole
number), provided that any individual whose election or nomination for
election was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of office is
in connection with an actual or threatened election contest relating to
the election of the Directors of the Company; or
(c) Consummation by the Company of a reorganization, merger or
consolidation (a "Business Combination"), in each case, with respect to
which all or substantially all of the individuals and entities who were
the respective beneficial owners of the Outstanding Common Stock and
Voting Securities immediately prior to such Business Combination do
not, following such Business Combination, beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares
of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such
Business Combination in substantially the same proportion as their
ownership immediately prior to such Business Combination of the
Outstanding Common Stock and Voting Securities, as the case may be; or
(d) Consummation of a complete liquidation or dissolution of the Company,
or sale or other disposition of all or substantially all of the assets
of the Company other than to a corporation with respect to which,
following such sale or disposition, more than 50% of, respectively, the
then outstanding shares of common stock and the combined voting power
of the then outstanding voting securities entitled to vote generally in
the election of directors is then owned beneficially, directly or
indirectly, by all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the Outstanding Common
Stock and Voting Securities immediately prior to such sale or
disposition in substantially the same proportions as their ownership of
the Outstanding Common Stock and Voting Securities, as the case may be,
immediately prior to such sale or disposition.
SECTION 12 POSTPONEMENT OF EXERCISE
The Committee may postpone any exercise of an Option for such time as the
Committee in its sole discretion may deem necessary in order to permit the
Company to comply with any applicable laws or rules, regulations or other
requirements of the Securities and Exchange Commission or any securities
exchange or quotation system upon which the Common Stock is then listed or
quoted. Any such postponement shall not extend the term of an Option and neither
the Company nor its directors, officers, employees or agents shall have any
obligation or liability to an Optionee, or to his or her successor or to any
other person.
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SECTION 13 TERMINATION, AMENDMENT AND TERM OF PLAN
13.1 The Board or the Committee may terminate, suspend, or amend the Plan, in
whole or in part, from time to time, without the approval of the stockholders of
the Company provided, however, that no Plan amendment shall be effective until
approved by the stockholders of the Company if the effect of the amendment is to
lower the exercise price of previously granted stock options or if such
stockholder approval is required in order for the Plan to continue to satisfy
the requirements of Rule 16b-3 under the 1934 Act or applicable tax or other
laws.
13.2 The Committee may correct any defect or supply any omission or reconcile
any inconsistency in the Plan or in any Option granted hereunder in the manner
and to the extent it shall deem desirable, in its sole discretion, to effectuate
the Plan. No amendment or termination of the Plan shall adversely affect any
Option theretofore granted without the consent of the Optionee, except that the
Committee may amend the Plan in a manner that does affect Options theretofore
granted upon a finding by the Committee that such amendment is in the best
interests of holders of outstanding Options affected thereby.
13.3 The Plan has been adopted and authorized by the Board of Directors for
submission to the stockholders of the Company for their approval. If the Plan is
approved by the stockholders of the Company, it shall be deemed to have become
effective as of March 22, 2002. Unless earlier terminated in accordance
herewith, the Plan shall terminate on March 22, 2012. Termination of the Plan
shall not affect Options previously granted under the Plan.
SECTION 14 GOVERNING LAW
The Plan shall be governed and interpreted in accordance with the laws of
the State of Delaware, without regard to any conflict of law provisions which
would result in the application of the laws of any other jurisdiction.
SECTION 15 NO RIGHT TO AWARD; NO RIGHT TO EMPLOYMENT
No person shall have any claim of right to be granted an Option under the
Plan. Neither the Plan nor any action taken hereunder shall be construed as
giving any employee of the Company any right to be retained in the employ of the
Company or as giving any member of the Board any right to continue to serve in
such capacity.
SECTION 16 AWARDS NOT INCLUDABLE FOR BENEFIT PURPOSES
Income recognized by an Optionee pursuant to the provisions of the Plan
shall not be included in the determination of benefits under any employee
pension benefit plan (as such term is defined in Section 3(2) of the Employee
Retirement Income Security Act of 1974) or group insurance or other benefit
plans applicable to the Optionee which are maintained by the Company, except as
may be provided under the terms of such plans or determined by resolution of the
Committee.
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SECTION 17 NO STRICT CONSTRUCTION
No rule of strict construction shall be implied against the Company, the
Committee, or any other person in the interpretation of any of the terms of the
Plan, any Option granted under the Plan or any rule or procedure established by
the Board.
SECTION 18 CAPTIONS
All Section headings used in the Plan are for convenience only, do not
constitute a part of the Plan, and shall not be deemed to limit, characterize or
affect in any way any provisions of the Plan, and all provisions of the Plan
shall be construed as if no captions have been used in the Plan.
SECTION 19 SEVERABILITY
Whenever possible, each provision in the Plan and every Option at any time
granted under the Plan shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of the Plan or any Option
at any time granted under the Plan shall be held to be prohibited by or invalid
under applicable law, then such provision shall be deemed amended to accomplish
the objectives of the provision as originally written to the fullest extent
permitted by law, and all other provisions of the Plan and every other Option at
any time granted under the Plan shall remain in full force and effect.
SECTION 20 MODIFICATION FOR GRANTS OUTSIDE THE U.S.
The Board may, without amending the Plan, determine the terms and
conditions applicable to grants of Options to participants who are foreign
nationals or employed outside the United States in a manner otherwise
inconsistent with the Plan if the Board deems such terms and conditions
necessary in order to recognize differences in local law or regulations, tax
policies or customs.
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