SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
PIONEER HI-BRED INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Iowa 42-0470520
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
700 Capital Square, 400 Locust Street, Des Moines, IA 50309
(Address of Principal Executive Offices) (Zip Code)
PIONEER HI-BRED INTERNATIONAL INC.
STOCK OPTION PLAN
(Full title of the Plan)
Susan Griggs
700 Capital Square, 400 Locust Street
Des Moines, IA 50309
(515) 248-4820
(Name and address of agent for service)
(Telephone number, including area code,
name of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of securities Amount to be offering price per aggregate Amount of
to be registered registered (1) share offering price registration fee
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Common Stock
Par value $1 973,000 $43.125 (2) $41,960,625 $14,469.18
Common Stock
Par value $1 2,027,000 $51.1875(3) $103,757,062.5 $35,778.30
Total Fee $50,247.48
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<FN>
(1) There is also being registered hereunder such additional undetermined number
of shares of Common Stock which may be issued from time to time as a result
of the anti-dulution provisions of the Plans.
(2) Exercise price of options that have been granted.
(3) Estimated solely for purposes of calculation of the registration fee
pursuant to Rule 457(h) and based on the average of the high and low sales
prices of the Common Stock of Pioneer Hi-Bred International, Inc. as
reported on July 19, 1996 on the New York Stock Exchange.
</FN>
INTRODUCTION
This Registration Statement on Form S-8 is filed by Pioneer Hi-Bred
International Inc., (the "Company" or "Registrant") relating to shares of the
common stock, par value $1 (the "Common Stock"), issuable to eligible employees,
officers and directors of the Company and its subsidiaries pursuant to awards
granted under the Company's Stock Option Plan.
PART 1
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information. *
*Information required by Part 1 of Form S-8 to be contained in
the Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as amended (the
"Securities Act"), and the Note to Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which previously have been filed by the
Company with the Securities and Exchange Commission (the "Commission"), are
incorporated herein by reference and made a part hereof:
(i) The Company's latest annual report on Form 10K, for the
fiscal year ended August 31, 1995, filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934;
(ii) The Company's Quarterly Reports on Form 10-Q for the
quarters ended November 30, 1995, February 29, 1996 and May 31, 1996;
(iii) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 since the end of the fiscal year
covered by the annual report referred to in (i) above;
(iv) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A, dated October 19,
1995, (Registration Statement No. 95581557), including any amendment or
report filed for the purpose of updating such description; and
(v) The description of the Common Share Purchase Rights attached
to Common Stock contained in the Company's Registration Statement on
Form 8-A (Registration Statement No. 95581558), dated October 19, 1995,
including any amendment or report filed for purposes of updating such
description.
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") subsequent to the date of this Registration Statement and Prior
to the filing of a post-effective amendment hereto which indicates that all
securities offered hereunder have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of filing of such documents.
For purposes of this Registration Statement, any statement
contained in a document incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated herein by reference modifies or
supersedes such statement in such document. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Iowa Business Corporation Act. The Company is subject to the Iowa Business
Corporation Act (the "Act") which provides for or permits indemnification of
Directors and officers in certain situations. Unless limited by its Articles of
Incorporation, indemnification is mandatory for a Director or an officer (not an
employee) who was wholly successful, on the merits or otherwise, in the defense
of any proceeding to which the Director or officer was a party because such
person is or was a Director or officer of the corporation against reasonable
expenses incurred by the Director or officer in connection with the proceeding.
In addition, unless the Articles of Incorporation provide otherwise, a Director
or officer may apply for limited court ordered indemnification if certain
standards are met.
The Act by its terms expressly permits indemnification where a Director,
officer, employee or agent acted in good faith and in a manner such person
reasonably believed to be in (if acting in its official capacity), or not
opposed to, the Company's best interests, and, in a criminal action, if such
person had no reasonable cause to believe that his or her conduct was unlawful.
No indemnification is permitted in connection with a proceeding by or in the
right of a corporation in which the person was adjudged liable to the
corporation or in connection with any other proceeding charging improper
personal benefit to the Director, whether or not involving action in an official
capacity, in which the person was adjudged liable on the basis that personal
benefit was improperly received.
The Act also permits advancement of expenses to a Director, officer, employees
or agents upon 1) receipt of an undertaking by such to repay all amounts
advanced if it shall ultimately be determined that he or she is not entitled to
be indemnified by the corporation; 2) the person furnishes the corporation a
written affirmation of the person's good faith belief he or she has met the
applicable standard or conduct; or 3) determination is made that the facts then
known to those making the determination would not preclude indemnification.
Generally, the above provisions of the Act are permissive in nature. The only
indemnification requirement imposed by the Act is that, unless limited by its
Articles of Incorporation, a company must indemnify a Director or officer
against reasonable expenses incurred in connection with the wholly successful
defense of a proceeding.
The Act specifically provides that, subject to certain limitations, its terms
shall not be deemed exclusive of any other right to indemnification to which a
Director or officer may be entitled under a corporation's Articles of
Incorporation or Bylaws, or any agreement, vote of shareholders or disinterested
Directors, or otherwise. However, indemnification cannot be provided in the case
of 1) breach of the director's duty of loyalty to the corporation or
shareholders; 2) an act or omission not in good faith; 3) an intentional
misconduct; 4) a knowing violation of the law; 5) a transaction from which the
person seeking indemnification derives an improper personal benefit; 6)
liability for certain unlawful distributions; and 7) the person being adjudged
liable to the corporation in a proceeding by or in the right of the corporation.
Indemnification by or in the right of the corporation is limited to reasonable
expenses in connection with the proceeding.
THE ABOVE IS A SUMMARY OF THE ACT WHICH SHOULD BE READ AND REVIEWED CAREFULLY
Bylaws. Under the Bylaws and Indemnification Agreements, officers, Directors and
employees will be indemnified to the fullest extent permitted by law. Under
current Iowa law, indemnification is generally not permitted in the
circumstances set forth in the last full paragraph of the section titled "Iowa
Business Corporation Act ."
The key terms of the Bylaw provision are the following:
a) The Company is required to indemnify officers, directors and employees
for expenses and liabilities by reason of the fact that such person is
or was a director, officer or employee of the Company or while a
director, officer or employee of the Company was serving for another
entity at the request or with approval of the Company to the fullest
extent permitted by law as the law exists or may thereafter be amended
(but only to the extent greater protection is permitted). The
provision does limit indemnification for proceedings initiated by the
indemnitee, except with Company consent, to enforce the
indemnification provision;
b) Mandatory expense advancement is provided upon a promise to repay if
it is later determined that the person was not entitled to
indemnification;
c) The following make determinations as to whether the applicable
standard was met: 1) the board of directors by majority vote of a
quorum consisting of directors not at the time parties to the
proceeding , 2) if a quorum cannot be obtained, a committee duly
designated by the board of directors, in which designation directors
who are parties may participate, consisting solely of two or more
directors not at the time parties to the proceeding, 3) special legal
counsel or 4) the shareholders;
d) Partial indemnification is provided if some but not all liabilities
and expenses are entitled to indemnification;
e) Company consent to settlement is required;
f) An individual may bring suit to enforce the Bylaw provisions if they
are not paid within 60 days after a written claim;
g) The rights under the Bylaws are nonexclusive of other rights to
indemnification;
h) The Company is authorized to set up trusts for payment of
indemnification (the Company does not currently anticipate setting up
such a trust);
i) The Company is authorized to provide insurance (the Company currently
has insurance);
j) The right to indemnification is contractual and cannot be amended
retroactively;
k) Indemnification is provided for suits to enforce the contractual
rights;
l) The Company is provided subrogation rights;
m) The potential indemnitee must provide notice of proceedings;
n) The Company is entitled to participate in any suit or to assume the
defenses of the indemnitees, with counsel reasonably satisfactory to
the indemnitee. Indemnitee shall have the right to employ its own
counsel. After the Company assumes defense, fees and expenses of such
counsel will be at the expense of the indemnitee unless 1) authorized
by the Company; 2) the Company has not employed counsel or cannot in
good faith without conflict assume the defense of indemnitee; or 3)
the counsel selected by the Company does not in fact assume the
defense;
o) The Company may, by Board of Directors resolution, provide
indemnification to officers, directors or employees of other entities
not otherwise provided indemnification by the Bylaws. The Company is
reviewing which officers, directors and employees of its affiliates it
may want to provide indemnification protection;
p) Indemnification and advancements are provided to an indemnitee for
serving as a witness; and
q) Directors, officers or employees are provided the protection stated
above for serving employee benefit plans.
Indemnification Agreements. The Indemnification Agreements are intended to
supplement the indemnification provisions of the Bylaws in order to attract and
retain qualified Directors and officers.
The terms of the Indemnification Agreements closely parallel the Bylaws. The
Indemnification Agreements require indemnification of and advancement of
expenses for Directors and officers to the fullest extent allowed by law as now
exist or may be amended, but only to any extent greater protection is provided.
The Indemnification Agreements also set forth a number of procedural and
substantive matters which presently are not covered or are covered in less
detail in the Bylaws, including the following:
First, each Indemnification Agreement requires that, at the time of any Change
in Control, as defined in the Indemnification Agreement, the Company will obtain
at its expense and maintain for the duration of the Indemnification Agreement an
irrevocable standby letter of credit in the amount of $1,000,000 or more in
favor of each person covered by an agreement to secure the obligations of the
Company under the Indemnification Agreement. A person covered by an
Indemnification Agreement could draw upon the letter of credit any time after he
or she makes a demand upon the Company for payment of a claim for
indemnification which is not subsequently paid by the Company. Each letter of
credit would provide a person covered by an Indemnification Agreement with the
assurance that, notwithstanding the inability of the Company or unwillingness of
a new Board of Directors to pay for indemnification under the Indemnification
Agreement, the person will have a minimum amount of protection from liability.
Second, the Indemnification Agreements establish a presumption that a person
covered by an Indemnification Agreement has met the applicable standard of
conduct required for indemnification, and the Company has the burden of proof
(by clear and convincing evidence) to overcome such presumption in reaching any
contrary determination. The termination of any claim, issue or matter does not
adversely affect the right to indemnification or create a presumption that the
person did not act in good faith. Reliance on certain information is deemed to
be in good faith and knowledge and actions of others is not imputed to the
indemnitee. The right of a person covered by an Indemnification Agreement to
indemnification under the Indemnification Agreement will be determined by a
forum selected by such persons consisting of either: (i) disinterested members
of the Board of Directors; (ii) independent legal counsel; or (iii) a panel of
three arbitrators. If the Company does not submit the claim to a selected forum
within 30 days after notice thereof or if the selected forum fails to reach a
decision within 30 days, the person covered by an Indemnification Agreement is
automatically deemed to be entitled to indemnification under the Indemnification
Agreement.
Third, the Indemnification Agreement does not terminate until the later of 10
years after the person ceases to serve in a capacity covered under the
Indemnification Agreement or termination of all proceedings in respect to which
the officer or director is granted the right of indemnification.
Fourth, the Indemnification Agreement explicitly states that all dismissals,
with or without prejudice, shall be deemed successful defenses if there is no
finding indemnitee did not act in good faith.
Fifth, the Indemnification Agreement obligates the Company to use reasonable
efforts to purchase and maintain insurance.
Sixth, the Indemnification Agreement prevents suits by or on behalf of the
Company against the Indemnitee two years after the person ceases to be a
director or officer or serve for the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
4.1 Pioneer Hi-Bred International, Inc. Stock Option Plan.
4.2 Articles of Incorporation of the Company, as amended, as
presently in effect.
4.3 Bylaws of the Company, as amended, as presently in effect.
4.4 Amended and Restated Rights Agreement dated December 13, 1994
(incorporated by reference to Exhibit 1 to the Company's Form
8A/A-1 dated March 14, 1995, file No. 95520632).
4.5 Specimen of the Company's Common Stock Certificate.
5.1 Opinion of Legal Counsel (relating to legality of securities
being registered).
23.1 Consent of Independent Auditors.
23.2 Consent of Legal Counsel (included in Exhibit 5.1 hereto).
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 in contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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 offering of such securities at the time shall be deemed to
be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
The Registrant. 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 requirement 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 Des Moines, State of Iowa on the 26
day of July, 1996.
PIONEER HI-BRED INTERNATIONAL, INC.
Registrant
By:____________________________________
Jerry L. Chicoine
Senior Vice President
Chief Financial Officer & Secretary
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 Title Date
____________________________ President
Charles S. Johnson and Chief Executive
Officer/Director 7/26/96
____________________________ Senior Vice President
Jerry L. Chicoine and Chief Financial Officer 7/26/96
____________________________ Vice President
Brian G. Hart and Corporate Controller
____________________________ Director
Thomas N. Urban
____________________________ Director
Dr. Owen J. Newlin
____________________________ Director
Nancy Y. Bekavac
____________________________ Director
C. Robert Brenton
____________________________ Director
Dr. Pedro M. Cuatrecasas
____________________________ Director
Dr. Ray A. Goldberg
____________________________ Director
Fred S. Hubbell
____________________________ Director
Luiz Kaufmann
____________________________ Director
Dr. F. Warren McFarlan
____________________________ Director
Dr. Virginia Walbot
____________________________ Director
H. Scott Wallace
____________________________ Director
Fred W. Weitz
____________________________ Director
Herman H.F. Wijffels