View:
As Filed with the Securities and Exchange Commission on June 4,
1998
Registration No. 333-
=================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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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 of (I.R.S. Employer
incorporation or organization) Identification No.)
570 West College Avenue
York, Pennsylvania 17405-0872
(Address of principal executive offices) (Zip Code)
DENTSPLY International Inc. 1998 Stock Option Plan
(Full title of the plan)
John C. Miles II
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
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share(1) Price Fee(1)
Common Stock,
par value
$.01 4,300,000 shares $33.625 $144,587,500(2) $42,654
=================================================================
(1) Registration fee calculated pursuant to Rule 457(h) under the Securities
Act of 1933, as amended.
(2) The fee with respect to 4,300,000 shares of Common Stock is
calculated based upon the average of the high and low prices
of the Registrant's Common Stock reported on the Nasdaq National Market on
June 3, 1998.
=================================================================
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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, 1997 (File No. 0-16211).
2. The Company's Form 10-Q filed with the Commission for the quarterly
period ended March 31, 1998 (File No. 0- 16211).
3. 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 DENTSPLY International Inc. 1998 Stock Option Plan meeting the
requirements of Section 10(a) of the Securities Act of 1933, as amended (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.
Not applicable.
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
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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 impersonal
benefit.
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 No. Description
- ----------- --------------------------------------------------
3.1 Restated Certificate of Incorporation
4.1 Articles 4A, 4B, 4C and 7 of the Restated
Certificate of Incorporation (see Exhibit 3.1)
4.2 Article I of By-Laws, as amended (incorporated by
reference to exhibit included in the Company's
registration Statement on Form S-8 (No. 33-31792))
- 3 -
5.1 Legal Opinion of Morgan, Lewis & Bockius LLP
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Morgan, Lewis & Bockius LLP (contained
in legal opinion filed as Exhibit 5.1)
24.1 Power of Attorney (set forth on the signature page
of this Registration Statement)
99.1 DENTSPLY International Inc. 1998 Stock Option Plan
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;
(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 by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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 Section 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
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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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of York, the Commonwealth of Pennsylvania, on this 4th
day of June, 1998.
DENTSPLY International Inc.
By: /s/ John C. Miles II
--------------------------
Chairman of the Board
and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and
officers of DENTSPLY International Inc. hereby constitutes and appoints John C.
Miles II and William R. Jellison, and each of them, his true and lawful
attorneys-in-fact and agents, for him and in his name, place and stead, in any
and all capacities, to sign one or more amendments to this Registration
Statement on Form S-8 under the Securities Act of 1933, including post-effective
amendments and other related documents, and to file the same with the Securities
and Exchange Commission under said Act, hereby granting power and authority to
do and perform any and all acts and things requisite and necessary to be done in
and about the premises, as fully as to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and the foregoing Power of Attorney have been signed by
the following persons in the capacities and on the date(s) indicated:
Signature Capacity Date
--------- -------- ----
/s/ John C. Miles II
- ------------------------- Chairman of the Board June 4, 1998
John C. Miles, II and Chief Executive
Officer (Principal Executive
Officer) and a Director
/s/ William R. Jellison
- ------------------------- Senior Vice President June 4, 1998
William R. Jellison and Chief Financial Officer
(Principal Financial and
Accounting Officer)
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/s/ Burton C. Borgelt
- ------------------------- Director June 4, 1998
Burton C. Borgelt
/s/ Douglas K. Chapman
- ------------------------- Director June 4, 1998
Douglas K. Chapman
/s/ Michael J. Coleman
- ------------------------- Director June 4, 1998
Michael J. Coleman
/s/ Arthur A. Dugoni
- ------------------------- Director June 4, 1998
Arthur A. Dugoni, D.D.S, M.S.D.
/s/ C. Frederick Fetterolf
- -------------------------- Director June 4, 1998
C. Frederick Fetterolf
/s/ Leslie A. Jones
- -------------------------- Director June 4, 1998
Leslie A. Jones
/s/ Edgar H. Schollmaier
- ------------------------- Director June 4, 1998
Edgar H. Schollmaier
/s/ W. Keith Smith
- ------------------------- Director June 4, 1998
W. Keith Smith
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EXHIBIT INDEX
Sequential
Exhibit Page
No. Description Number
- ------- ---------------------------------------- ----------
3.1 Restated Certificate of Incorporation 9
4.1 Articles 4A, 4B, 4C, and 7 of the Restated
Certificate of Incorporation (see Exhibit 3.1)
4.2 Article I of By-Laws, as amended
(incorporated by reference to exhibit included
in the Company's registration Statement on
Form S-8 (No. 33-31792)).
5.1 Legal Opinion of Morgan, Lewis &
Bockius LLP. 14
23.1 Consent of KPMG Peat Marwick LLP,
independent accountants. 15
23.2 Consent of Morgan, Lewis & Bockius LLP
(contained in legal opinion filed as
Exhibit 5.1).
24.1 Power of Attorney (set forth on the signature
page of this Registration Statement). 6
99.1 DENTSPLY International Inc. 1998
Stock Option Plan. 16
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EXHIBIT 3.1
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 One
Hundred Million Two Hundred Fifty Thousand (100,250,000) shares,
which shall be divided into two classes as follows:
(1) One Hundred Million (100,000,000) shares of Common Stock,
the par value of each of such shares is One Cent ($.01),
amounting in the aggregate to One Million Dollars
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($1,000,000.00); 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).
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
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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.
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
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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.
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
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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.
IN WITNESS WHEREOF, said DENTSPLY International Inc. has
caused this Certificate to be signed by J. Patrick Clark, its
Vice President, this 7th day of October, 1997.
DENTSPLY International Inc.
By /s/ J. Patrick Clark
------------------------------
J. Patrick Clark
Vice President
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EXHIBIT 5.1
MORGAN, LEWIS & BOCKIUS LLP
ONE OXFORD CENTRE
PITTSBURGH, PA 15219-1417
June 3, 1998
DENTSPLY International Inc.
570 West College Avenue
York, Pennsylvania 17405-0872
Re: Form S-8 Registration Statement Relating to the DENTSPLY
International Inc.
1998 Stock Option Plan
Ladies and Gentlemen:
As your counsel, we have assisted in the preparation of the above-referenced
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 4,300,000 shares of Common Stock, $.01 par
value per share (the "Common Stock"), of DENTSPLY International Inc. (the
"Company") which will be issued pursuant to the DENTSPLY International Inc. 1998
Stock Option Plan (the "Plan"). We have examined the Company's Restated
Certificate of Incorporation, the Company's By-Laws, as amended, 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 Plan, will be validly issued,
fully-paid and non-assessable.
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,
MORGAN, LEWIS & BOCKIUS LLP
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EXHIBIT 23.1
The Board of Directors
DENTSPLY International Inc.:
We consent to the use of our reports incorporated herein by reference to the
Form 10-K of DENTSPLY International Inc. for the year ended December 31, 1997.
s/ KPMG Peat Marwick LLP
Philadelphia, Pennsylvania
June 2, 1998
- 15 -
EXHIBIT 99.1
DENTSPLY International Inc.
1998 Stock Option Plan
SECTION 1. PURPOSE
The purpose of the DENTSPLY International Inc. 1998 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, 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" ("ISOs") within
the meaning of Section 422 of the Code, or stock options which do not constitute
ISOs ("NSOs") (ISOs and NSOs are collectively referred to as "Options") may be
granted under the Plan. The persons to whom Options are granted under the Plan
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") (officers, other key employees and Employee Directors are
collectively referred to as "Key Employees") to participate in the Plan on the
basis of the importance of their services in the management, development and
operations of the Company.
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
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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.
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 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 PLAN
4.1 Subject to adjustment as provided in Sections 4.1 and 4.2, Options
with respect to an aggregate of four million three hundred thousand
(4,300,000) 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), may be granted
under the Plan (the "Maximum
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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 4,300,000 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 four
million (4,000,000) shares of Common Stock may be granted as ISOs under the
Plan, and (ii) no Key Employee shall be granted Options with respect to
more than one hundred fifty thousand (150,000) 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
cancelled, shall once again be available for issuance pursuant to the grant
of Options under the Plan.
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 six thousand (6,000) shares of Common Stock
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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 six thousand (6,000) 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 six thousand (6,000) shares of Common
Stock on the third anniversary of the date such Outside Director was last
granted an Option.
5.2 Exercise Price and Period
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. "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). Each such NSO shall become exercisable 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. Each NSO shall expire on the date ten years after
the date of grant.
SECTION 6. GRANTS OF OPTIONS TO EMPLOYEES
6.1 Grant
Subject to the terms of the Plan, the Committee may from time to time
grant Options, which may be ISOs or NSOs, to Key Employees 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.
6.3 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.
6.4 Exercise Period
Except to the extent otherwise provided in or pursuant to Section 7,
or in the proviso to this sentence, Options shall become exercisable
pursuant to the following schedule: with respect to one-third of the total
number of shares of
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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 exercise period with respect to any or all Options, or any
part thereof, granted to Key Employees under the Plan, either in the
applicable option agreement or grant certificate, or at any other time
during the term of such Options.
6.5 Required Terms and Conditions of ISOs
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.
(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.
6.6 Required Terms and Conditions of NSOs
Each NSO granted to Key Employees 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
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.
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SECTION 7. EFFECT OF TERMINATION OF EMPLOYMENT
7.1 Termination Generally
Except as provided in Section 7.2, 7.3 or 11, or by the Committee, in
its sole discretion, any Option held by an Optionee whose employment 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 service on the Board. 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 Optionee or by a leave of absence authorized by the
Company. Any Option held by an Optionee whose employment with the Company
is terminated for "Cause" shall terminate on the date of termination of
employment. 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.
7.2 Death and Disability
In the event of the death or Disability (as defined below) of an
Optionee during employment with the Company or service on the Board, all
Options held by the Optionee shall become fully exercisable on such date of
death or Disability. Each of the Options held by such an 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 (other than Key Employees who are
Employee-Directors). In the event the employment of a Key Employee
with the Company (other than a Key Employee who is an Employee
Director) shall be terminated by reason of "Employee 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 first anniversary of the date of the Employee
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Retirement, or (ii) the date that such Option expires in accordance
with its terms. For the purposes hereof, "Employee Retirement" shall
mean retirement of a Key Employee at or after age 65. In the event the
employment of a Key Employee with the Company shall be terminated by
reason of a retirement that is not an Employee Retirement, the
Committee may, in its sole discretion, determine that the
exercisability and exercise periods set forth in this Section 7.3(a)
shall be 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, any Options granted to such Outside
Director shall continue to vest and remain exercisable pursuant to
Section 5, in the same manner and to the same extent as if such
Outside Director had continued his or her service on the Board during
such period.
(c) Key Employees Who Are Employee Directors. Section 7.3(b)
shall be applicable to Options held by any Key Employee who is an
Employee Director in the event the employment of such Key Employee
with the Company shall be terminated by reason of Employee Retirement,
so long as the service of such Key Employee on the Board continues
after such Employee Retirement. Section 7.3(a) shall be applicable to
Options held by any Key Employee who is an Employee Director in the
event the employment of such Key Employee with the Company shall be
terminated by reason of Employee Retirement, if such Key Employee
ceases to serve on the Board as of the date of such Key Employee's
Employee Retirement.
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 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 full exercise price of each
Option 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
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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.
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
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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, whether or not otherwise exercisable as of the date of
such Change in Control, shall become fully exercisable and all restrictions
thereon shall terminate in order that Optionees may fully realize the
benefits thereunder.
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
(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 (as such terms are used in Rule 14a-11 of Regulation 14A under
the Exchange Act); or
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(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.
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,
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however, that no Plan amendment shall be effective until approved by the
stockholders of the Company 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 May 20, 1998. Unless earlier terminated in accordance
herewith, the Plan shall terminate on February 28, 2008. 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.
SECTION 17. NO STRICT CONSTRUCTION
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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.
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