As filed with the Securities and Exchange Commission on March 8, 1994
Registration No.33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
-------------------
Capital Cities/ABC, Inc.
(Exact name of registrant as specified in its charter)
New York 14-1284013
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
77 West 66th Street, New York, New York 10023-6298
(212)456-7777
(Address, including zip code and telephone number, including
area code of registrant's principal executive offices)
1991 STOCK OPTION PLAN OF
CAPITAL CITIES/ABC, INC.
(Full title of the plan)
-------------------
RONALD J. DOERFLER
Senior Vice President & Chief Financial Officer
Capital Cities/ABC, Inc.
77 West 66th Street, New York, New York 10023-6298
(212)456-6019
(Name, address, including zip code and telephone number, including
area code, of agent for service)
-------------------
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Amount maximum maximum Amount of
Title of securities to be offering price aggregate registration
to be registered registered per share offering price fee
- ---------------------------------------------------------------------------------
Common stock par value
$1.00 per share.........60,000 $670.375(1) $40,222,500(1) $13,869.80(1)
(1) In accordance with the terms of the 1991 Stock Option Plan, the option
price shall not be less than 100% of the fair market value of the common
stock at the time the option is granted. In accordance with Rule 457(c), the
aggregate offering price and the amount of the registration fee are computed
on the basis of the average of the high and low prices reported in the
consolidated reporting system on March 2,1994.
-------------------
Pursuant to Rule 429 of the Rules and Regulations promulgated under the
Securities Act of 1933, the Prospectus relates also to shares of common stock of
the Company included in Registration Statements No. 33-16206 and No. 2-86863.
================================================================================
This document constitutes part of a prospectus covering securities
that have been registered under the Securities Act of 1933.
Capital Cities/ABC, Inc.
----------
1991 STOCK OPTION PLAN
----------
SUMMARY OF THE PLAN
MARCH 1, 1994
SUMMARY OF THE 1991 STOCK OPTION PLAN
General Information Regarding the Plan
The 1991 Stock Option Plan of Capital Cities/ABC, Inc. (the "Plan") was
adopted by the Board of Directors of Capital Cities/ABC, Inc. (the "Company")
on March 19, 1991 and was thereafter approved by the shareholders of the
Company on May 7, 1991. It became effective as of March 19, 1991. The Plan
provides for the granting of options to purchase an aggregate of up to 500,000
shares of the Company's common stock, $1.00 par value ("Common Stock"),
subject to adjustment for stock splits and other changes in the Company's
capital structure. The Plan is to remain in effect for the grant of options
until March 19, 2001 and for the subsequent exercise of such options, unless
it is sooner terminated by the Company's Board of Directors. Either incentive
stock options or non-qualified options may be granted under the Plan (See "Tax
Consequences" below for a description of the difference between incentive
stock options and non-qualified options).
The purposes of the Plan are to provide a greater community of interest
between the shareholders and key employees of the Company, to facilitate the
purchase by such employees of shares of stock in the Company, to encourage
such employees to remain in the employ of the Company and to assist the
Company in retaining the services of its key employees.
Participation
Options may be granted to such key employees (including officers) of the
Company and its subsidiaries as the Compensation Committee of the Board of
Directors of the Company (the "Compensation Committee") shall select. The Plan
does not limit the number of options which may be granted to an employee or
the number of shares which may be subject to an option, except that (i) the
aggregate fair market value of Common Stock (determined at the time the option
is granted) with respect to which incentive stock options are exercisable for
the first time by any employee during any calendar year may not exceed
$100,000, and (ii) no incentive stock option may be granted to an employee who
owns (at the time the option is granted) stock possessing more than 10% of the
total combined voting power of all classes of stock of his employer
corporation or any of its parent corporations or subsidiary corporations.
Shares to be issued upon exercise of an option under the Plan may be
authorized but unissued shares or treasury shares, as the Board of Directors
of the Company may determine. Shares reserved under an option which for any
reason expires or is terminated, in whole or in part, shall again be available
for the purposes of the Plan.
Administration
The Plan is administered by the Compensation Committee. The members of
the Compensation Committee are appointed by and serve at the discretion of the
Board of Directors of the Company and their tenure can be terminated at any
time. In its discretion the Board may appoint another and different committee
to administer the Plan. The Compensation Committee, subject to the express
provisions of the Plan, shall have authority, in its discretion, to determine
the individuals who shall receive options, the kind of options to be granted,
the times when options are to be granted and the number of shares to be
subject to each option; to prescribe, amend and rescind rules and regulations
relating to the Plan; to determine the provisions of option agreements (other
than the required terms described below); to construe option agreements and
the Plan; and to make all other determinations necessary and advisable for the
administration of the Plan.
Provisions of Options
Each option shall be granted pursuant to an agreement with the optionee.
The Compensation Committee shall determine the provisions of each such
agreement subject to the following:
(a) The option price shall not be less than 100% of the fair market
value of the Common Stock at the time the option is granted.
(b) The term of an incentive stock option may not exceed 10 years
from the date it is granted.
2
(c) The term of a non-qualified option may not exceed 11 years from
the date it is granted.
(d) An option may not be transferred, assigned, pledged,
hypothecated or otherwise disposed of (whether by operation of law or
otherwise) by an optionee except by will or by the laws of descent and
distribution, and may be exercised, during his lifetime, only by the
optionee.
(e) Unless an Accelerating Event occurs (see below), no option may
be exercised, in whole or in part, earlier than one year from the date it
is granted. If an Accelerating Event occurs, all options granted more
than six months prior thereto shall be exercisable in full.
(f) Unless an Accelerating Event occurs (see below), (i) an option
having a term of at least four years shall not be exercisable earlier
than in cumulative annual portions at the rate of 25% of the total number
of shares subject to such option, and (ii) an option having a term of
less than four years shall not be exercisable earlier than in cumulative
annual portions equal to the total number of shares subject to such
option divided by the number of years of the term of such option. If an
Accelerating Event occurs (see below), all options granted more than six
months prior thereto shall be exercisable in full.
(g) An option may be exercised within three months after the date of
an optionee's termination of employment (or within 12 months after that
date if the optionee's termination of employment was on account of his
death of disability), but only to the extent the option is otherwise
exercisable on that date.
(h) The exercise price of any option may be paid, at the optionee's
election, either in cash or by his delivery of shares of Common Stock
previously held by him at their fair market value.
An Accelerating Event shall be deemed to have occurred if (i) any person
or group, other than Berkshire Hathaway Inc. ("Berkshire") and certain of its
subsidiaries ("Berkshire Subsidiaries") through which Berkshire as of the date
hereof owns 2,000,000 shares of the Company's Common Stock, shall have
acquired beneficial ownership of 20% or more of the outstanding Common Stock,
or if Berkshire and the Berkshire Subsidiaries shall have acquired beneficial
ownership of more than 30% of the outstanding Common Stock; (ii) more than 50%
of the membership of the Board of Directors shall have been replaced without
the approval of a majority of the incumbent Directors; or (iii) the
shareholders of the Company shall have approved a complete reorganization,
merger or consolidation, liquidation or dissolution of the Company, or the
sale or other disposition of all or substantially all of the assets of the
Company other than in certain specified circumstances which do not constitute
a change in control of the management or the equity owenership of the Company.
TERMINATION AND AMENDMENT
The Board of Directors, in its discretion and at any time, may modify,
amend or terminate the Plan; however, no modification or amendment may be made
without the approval of the shareholders of the Company which would increase
the maximum aggregate number of shares which may be issued under the Plan,
change the class of employees who are eligible for the grant of options, reduce
the option price, extend the termination date of the Plan, or increase the
period of time during which options may be exercised. Neither termination of
the Plan, nor any modification or amendment thereof, may adversely affect any
rights under an option previously granted under the Plan without the consent
of the optionee.
In the event of stock dividends, stock splits, or similar changes to the
Common Stock registered hereby, the Compensation Committee is to make
appropriate proportional adjustments to the number of securities deliverable
upon exercise of an option and to the exercise price of an option.
TAX CONSEQUENCES
Options may be granted under the Plan which are (i) incentive stock
options within the meaning of Section 422(b) of the Internal Revenue Code
("the Code") or (ii) options other than incentive stock options (i.e., non-
qualified options).
The federal income tax consequences of an incentive stock option are as
follows: An employee realizes no income upon the grant of an option to him.
An optionee who has held his shares for two years after the grant of the option
and for one year after he receives the shares upon its exercise will not incur
any federal income tax liability as a result of the exercise of the option
(except that the spread between the option exercise price and the fair market
3
value of the Common Stock at the time of exercise will be includable in his
alternative minimum taxable income), and he will realize taxable long-term
capital gain upon a subsequent sale of his shares at a price greater than the
option price. No deduction will be allowable to the Company for federal income
tax purposes in connection with the grant or exercise of an incentive stock
option. However, if the optionee sells his shares without complying with the
above holding periods, he will have ordinary compensation income in the year
of sale equal to the difference between the option price and the value of the
Common Stock when the option was exercised (or, in certain cases, the sale
price, if lower). The Company would be entitled to a federal income tax
deduction in the amount of such income.
An employee will also realize no income upon the grant to him of a
non-qualified option. However, the general rule is that the holder of a
non-qualified option will realize taxable ordinary income at the time of the
exercise of his option in an amount equal to the excess of the fair market
value of the shares acquired at the time of such exercise over the option
exercise price, and such amount will be deductible by the Company for income
tax purposes. Any gain or loss realized by the optionee upon a subsequent sale
of his shares will be a capital gain or a capital loss, and such gain or loss
will be long-term or short-term depending upon the length of time the optionee
held the stock after he acquired it.
The application of the tax law to each individual will vary depending on
his own particular circumstances. Each individual should therefore consult his
own personal advisor with respect to the tax effects of his exercise of any
option granted under the Plan and his sale or other disposition of any Common
Stock acquired upon the exercise of an option.
The Plan is not qualified under Section 401(a) of the Code nor is it
subject to the provisions of the Employee Retirement Income Security Act of
1974.
Miscellaneous
Any holder of a non-qualified option has the right to elect irrevocably
to pay any federal, state or local withholding taxes in connection with the
exercise of such option by (i) requesting the Company to withhold shares of
Common Stock otherwise deliverable to him upon such exercise and/or (ii)
delivering to the Company shares of Common Stock already held by him. This
election involving the payment of withholding taxes on a non-qualified option
exercise must be made prior to the date (the "Tax Date") that the amount of
tax to be withheld is determined, and the number of shares of Common Stock to
be withheld or delivered will be determined on the Tax Date. An optionee's
election to pay the withholding taxes by these methods is subject to the
approval of the Compensation Committee.
If the non-qualified option holder is subject to the reporting
requirements of Section 16(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), this election for the payment of the withholding
taxes must be made at least six months prior to the date he exercises his
options, or during a "window period" occurring between the third and 12th
business days following the date of the Company's public release of its
quarterly or annual sales and earnings figures.
An option shall not be subject to execution, attachment or similar
process. Upon any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of an option, or upon a levy or any attachment or similar
process with respect to an option, the term of the option shall terminate and
the option shall immediately become null and void.
4
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
are incorporated herein by reference:
(a) The Company's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act or either (1) the latest prospectus
filed pursuant to Rule 424(b) under the Securities Act of 1933 that
contains audited financial statements for the Company's latest fiscal
year for which such statements have been filed, or (2) the Company's
effective registration statement on Form 10 filed under the Exchange Act
containing audited financial statements for the Company's latest fiscal
year.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the Company
documents referred to in (a) above.
(c) The description of the Common Stock contained in a registration
statement filed under Section 12 of the Exchange Act, including any amend-
ment or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered 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.
The Company will provide without charge to each optionee under the Plan,
upon written or oral request, copies of the foregoing documents incorporated
herein by reference, other than exhibits to such documents if such exhibits
are not themselves incorporated by reference in such documents. The Company
will also provide without charge to each optionee under the Plan, who does not
otherwise receive such material, copies of all reports, proxy statements and
other communications distributed to the Company's security holders generally.
Written or telephone requests for any of these documents, or requests for
additional information about the Plan or its administrators, should be
directed to: Capital Cities/ABC, Inc., 77 West 66th Street, New York, New York
10023-6298, attention: Philip R. Farnsworth, Secretary, or call (212)
456-7213.
5
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange Commission
are incorporated herein by reference:
(a) The Company's latest annual report filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or either (1) the latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933 that contains audited
financial statements for the Company's latest fiscal year for which such
statements have been filed, or (2) the Company's effective registration
statement on Form 10 filed under the Exchange Act containing audited
financial statements for the Company's latest fiscal year.
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
Company documents referred to in (a) above.
(c) The description of the Common Stock contained in a registration
statement filed under Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered 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.
Item 6. Indemnification of Directors and Officers
The Registrant maintains a policy of insurance with a face amount of
$10,000,000 (subject to certain deductible and co-insurance provisions)
covering its officers and directors and indemnifying them against loss on
account of claims made against them, including, but not limited to, damages,
judgments, statements, costs and the costs of defense of such claims, arising
from any error, misstatement or misleading statement, act or omission, or
neglect or breach of duty committed, attempted or allegedly committed or
attempted by such officer or director in discharge of his duties to the
Registrant. The policy is sufficiently broad to cover liabilities arising
under the Securities Act of 1933, as amended (the "Securities Act").
The Registrant's By-laws provide that its directors and elected officers
shall be indemnified to the fullest extent permitted by Section 721 of the New
York Business Corporation Law against judgments, fines, amounts paid
in settlement, and costs, charges and other expenses in connection with any
actual or threatened action or proceeding whether civil, criminal,
administrative or legislative, whether involving any actual or alleged breach
of duty, neglect or error, any accountabilities, or any actual or alleged
misstatement, misleading statement or other act or omission, including any
action by or in the right of the Registrant to procure a judgment in its
favor, arising out of their service to the Registrant or to another
organization at the Registrant's request. No indemnification will be provided,
however, if a judgment or other final adjudication establishes that a director
or elected officer acted in bad faith or with active and deliberate dishonesty
and such conduct was material to the cause of action or if a director or
elected officer personally gained a financial profit to which he was not
legally entitled. As used herein, "elected officer" shall include only a
person who shall have been elected, designated or appointed to act as an officer
of the Registrant by the Board of Directors but shall not include any person
designated or appointed an officer of the Registrant, or any of its divisions
or operating units, by an individual whether acting under authority delegated
by the Board of Directors or in any other manner. Also, the Business
Corporation Law of the State of New York provides generally for
indemnification against judgments, fines, amounts paid in settlement and
reasonable expenses where the director or officer was acting on behalf of the
Registrant, in its best interests, and had no reasonable cause to believe that
his conduct was unlawful. These provisions may be sufficiently broad to permit
indemnification for liabilities arising under the Securities Act.
II-1
Item 8. Exhibits
5 --Opinion of Hall, Dickler, Lawler, Kent & Friedman.
23 --Consent of Hall, Dickler, Lawler, Kent & Friedman (contained in their
opinion filed as Exhibit 5).
24 --Powers of Attorney from the members of the Board of Directors of the
Company.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: (i) to
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933; (ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement; (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.
(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.
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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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 such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver or
cause to be delivered, to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
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.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, and State of New York, on the 8th day of
March 1994.
CAPITAL CITIES/ABC, INC.
By /s/ RONALD J. DOERFLER
-----------------------------
(Ronald J. Doerfler)
Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Principal Executive Officer:
/s/ THOMAS S. MURPHY
- ------------------------------ Chairman of the Board, and Chief March 7, 1994
(Thomas S. Murphy) Executive Officer and Director
Principal Financial Officer:
/s/ RONALD J. DOERFLER
- ------------------------------ Senior Vice President and Chief March 7, 1994
(Ronald J. Doerfler) Financial Officer
Controller:
/s/ ALLAN J. EDELSON
- ------------------------------ Vice President and Controller March 7, 1994
(Allan J. Edelson)
Directors:
*
- ------------------------------ Director March 7, 1994
(Robert P. Bauman)
*
- ------------------------------ Director March 7, 1994
(Nicholas F. Brady)
*
- ------------------------------ Director March 7, 1994
(Warren E. Buffet)
*
- ------------------------------ Director March 7, 1994
(Daniel B. Burke)
*
- ------------------------------ Director March 7, 1994
(Frank T. Cary)
*
- ------------------------------ Director March 7, 1994
(John B. Fairchild)
*
- ------------------------------ Director March 7, 1994
(Leonard H. Goldenson)
II-3
Signature Title Date
--------- ----- ----
*
- ---------------------------- Director March 7, 1994
(Frank S. Jones)
*
- ---------------------------- Director March 7, 1994
(Ann Dibble Jordan)
*
- ---------------------------- Director March 7, 1994
(John H. Muller, Jr.)
*
- ---------------------------- Director March 7, 1994
(Wyndham Robertson)
*
- ---------------------------- Director March 7, 1994
(M. Cabell Woodward, Jr.)
* /s/ RONALD J. DOERFLER
- ----------------------------
Ronald J. Doerfler,
Attorney-in-Fact
II-4
EXHIBIT INDEX
-------------
Exhibits Page no.
-------- --------
5 --Opinion of Hall, Dickler, Lawler, Kent & Friedman.
23 --Consent of Hall, Dickler, Lawler, Kent & Friedman (contained in their
opinion filed as Exhibit 5).
24 --Powers of Attorney from the members of the Board of Directors of the
Company.