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As filed with the Securities and Exchange Commission on March 28, 2003
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
McCORMICK & COMPANY, INCORPORATED
(Exact name of registrant as specified in its charter)
| Maryland (State or other jurisdiction of incorporation or organization) |
52-0408290 (I.R.S. Employer Identification No.) |
|
18 Loveton Circle Sparks, Maryland (Address of Principal Executive Offices) |
21152 (Zip Code) |
2003 EMPLOYEES STOCK PURCHASE PLAN
NON-QUALIFIED STOCK OPTIONS
(Full title of plans)
Robert
W. Skelton
Senior Vice President, General Counsel & Secretary
McCormick & Company, Incorporated
18 Loveton Circle
Sparks, Maryland 21152
(410) 771-7563
(Name, address and telephone of agent for service)
CALCULATION OF REGISTRATION FEE
| Title of Securities to be Registered |
Amount to be Registered* |
Proposed Maximum Offering Price Per Share* |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee |
||||
|---|---|---|---|---|---|---|---|---|
| Common Stock Non-Voting (no par value) |
997,968 shares | $24.525 | $24,475,165 | $1,980.43 | ||||
Notes:
* Represents the aggregate number of shares available at March 28, 2003 for issuance under the Plans with the estimated offering price and registration fee calculated in accordance with Rule 457 (c) and (h), based upon the average of the high and low prices reported on the New York Stock Exchange for the Common Stock Non-Voting of the Registrant on March 26, 2003 ($24.525). In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plans described herein.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
As permitted by the rules of the Securities and Exchange Commission (the "Commission"), this registration statement omits the information specified in Part I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the plans as required by Rule 428(b)(1) under the Securities Act of 1933. Such documents are not being filed with the Commission as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents or designated portions thereof are incorporated herein by reference in this registration statement:
- (a)
- The
Company's Annual Report on Form 10-K for the fiscal year ended November 30, 2002;
- (b)
- Not
applicable;
- (c)
- The Company's Form 10 Registration Statement dated April 29, 1965 (Registration Statement File Number 0-748) registering stock pursuant to Section 12(g) of the Securities and Exchange Act of 1934, as amended by Form 8 filed on August 16, 1988 with the Commission, which describes the Company's securities.
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold, or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The legal validity of the issuance of the shares of Common Stock and Common Stock Non-Voting offered by the Prospectus has been passed upon by Robert W. Skelton, Senior Vice President and General Counsel of the Company. As of January 31, 2003, the record date for the 2003 Annual Meeting of Stockholders, Mr. Skelton owned 165,044 shares of the Company's Common Stock and 72,062 shares of Common Stock Non-Voting, which includes shares of Common Stock and Common Stock Non-Voting beneficially owned by Mr. Skelton alone or jointly with his spouse and children who have the same home as Mr. Skelton. It also includes shares which could be acquired within 60 days of January 31, 2003 pursuant to the exercise of stock options and shares beneficially owned by virtue of his participation in the McCormick 401(k) Retirement Plan. Ernst & Young LLP, independent auditors, have no reportable interest in the Company.
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Item 6. Indemnification of Directors and Officers
Under the Company's By-Laws and the Maryland General Corporation Law, the directors and officers of the Company may be entitled to indemnification in respect to threatened, pending or completed actions, suits or proceedings, whether civil, criminal, administrative or investigative ("proceedings") to which they are made a party by reason of their position as a director or officer of the Company. In the case of conduct in their official capacity with the Company, directors and officers will be entitled to indemnification so long as they acted in good faith and in a manner which they reasonably believed was in the best interests of the Company, and in all other cases they will be entitled to indemnification so long as they acted in good faith and in a manner that was at least not opposed to the best interests of the Company. In the case of criminal proceedings, the director or the officer also must have had no reasonable cause to believe that the conduct was unlawful.
If the director or officer is successful on the merits or otherwise in the defense of any proceedings, the director or officer will be entitled to indemnification against reasonable expenses incurred in connection with the proceedings regardless of whether the foregoing standards are met. In addition, a court of competent jurisdiction may order indemnification if it determines that the director or officer has met the foregoing standards, or even if not, if it determines that the director or officer is entitled to indemnification in view of all the relevant circumstances.
Any indemnification required or permitted by the Company's By-Laws and the Maryland General Corporation Law may be against judgments, penalties, fines, settlements and reasonable expenses actually incurred by the director or officer in connection with the proceeding. However, if the proceeding is by or in the right of the Company, indemnification may be made only against expenses and may not be made in respect of any proceeding in which the director or officer is adjudged to be liable to the Company.
Under the Company's Charter, the monetary liability of directors and officers to the Company or its stockholders is eliminated except for, and to the extent of, actual receipt of an improper benefit in money, property or services, or in respect to an adjudication based upon a finding of active and deliberate dishonesty material to the cause of action adjudicated.
The Company also maintains for the benefit of its directors and officers insurance covering certain liabilities asserted against or incurred by such persons in their capacity as, or as a result of their position of, director or officer of the Company. This insurance may afford protection for liabilities not subject to indemnification under the Company's By-Laws and the Maryland General Corporation Law.
Item 7. Exemption from Registration Claimed
Not Applicable.
See Exhibit Index.
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 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
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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 the 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 (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.
C. 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 questions 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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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 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 County of Baltimore, and the State of Maryland, on the 28th day of March, 2003.
| MCCORMICK & COMPANY, INCORPORATED | |||
By: |
/s/ ROBERT J. LAWLESS |
||
Robert J. Lawless Chairman, President & Chief Executive 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 dates indicated.
| Principal Executive Officer: | ||||
/s/ ROBERT J. LAWLESS Robert J. Lawless |
Chairman, President & Chief Executive Officer |
March 28, 2003 |
||
Principal Financial Officer: |
||||
/s/ FRANCIS A. CONTINO Francis A. Contino |
Executive Vice President, Chief Financial Officer & Supply Chain |
March 28, 2003 |
||
Principal Accounting Officer: |
||||
/s/ KENNETH A. KELLY, JR. Kenneth A. Kelly, Jr. |
Vice President & Controller |
March 28, 2003 |
A majority of the Board of Directors:
BARRY H. BERACHA, JAMES T. BRADY, FRANCIS A. CONTINO, ROBERT G. DAVEY, EDWARD S. DUNN, JR., J. MICHAEL FITZPATRICK, FREEMAN A. HRABOWSKI, III, ROBERT J. LAWLESS, JOHN C. MOLAN, CARROLL D. NORDHOFF, ROBERT W. SCHROEDER, WILLIAM E. STEVENS AND KAREN D. WEATHERHOLTZ.
| By: | /s/ ROBERT W. SKELTON Robert W. Skelton |
Attorney-in-fact |
March 28, 2003 |
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McCormick & Company, Incorporated 2003 Employees Stock Purchase Plan. Pursuant to the requirements of the Securities Act of 1933, the McCormick & Company, Incorporated 2003 Employees Stock Purchase Plan has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the County of Baltimore, and the State of Maryland, on the 28th day of March, 2003.
| McCORMICK & COMPANY, INCORPORATED 2003 EMPLOYEES STOCK PURCHASE PLAN |
||||
By: |
Executive Committee of the Board of Directors |
|||
By: |
/s/ ROBERT W. SKELTON Robert W. Skelton Attorney-in-Fact |
|||
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| Exhibit |
References |
|||
|---|---|---|---|---|
| (4) | Instruments defining the rights of security holders, including | Restatement of Charter of McCormick & Company, Incorporated dated April 16, 1990, (See Exhibit #4, Registration Statement on S-8, Registration No. 33-39582 filed March 25, 1991), as amended by Articles of Amendment dated April l, 1992 (See Exhibit #4, Registration Statement on Form S-8, Registration No. 33-59842 filed March 19, 1993), as further amended by the Articles of Amendment dated March 27, 2003, a copy of which is attached to this registration statement as Exhibit 4. No instrument of Registrant with respect to long-term debt involves an amount of authorized securities which exceeds 10 percent of the total assets of the Registrant and its subsidiaries on a consolidated basis. Registrant agrees to furnish a copy of any such instrument upon request of the Commission. | ||
(5) |
Opinion re: legality |
Opinion of Robert W. Skelton, Esquire, attached. |
||
(15) |
Letter re: unaudited, interim financial information |
Not applicable. |
||
(23) |
Consents of experts and counsel |
See "Consent of Independent Auditors" and Exhibit #5 |
||
(24) |
Power of Attorney |
Attached. |
||
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PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
-
Item 3. Incorporation of Documents by Reference
Item 4. Description of Securities
Item 5. Interests of Named Experts and Counsel
Item 6. Indemnification of Directors and Officers
Item 7. Exemption from Registration Claimed
Item 8. Exhibits
Item 9. Undertakings
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McCORMICK & COMPANY, INCORPORATED
ARTICLES OF AMENDMENT
McCormick & Company, Incorporated, a Maryland corporation, having its principal office at 18 Loveton Circle, Sparks, Maryland 21152-6000 (hereinafter called the "Corporation"), hereby certifies to the State Department of Assessments and Taxation of Maryland that:
| FIRST: | The Charter of the Corporation is hereby amended as follows: | |||
By striking out the first paragraph of Article 4 of the Charter of the Corporation, as heretofore amended, and substituting in lieu thereof the following: |
||||
"4. The total amount of the authorized capital stock of the Corporation shall be as follows: Thirty Thousand shares of five per cent. Preferred Stock of the par value of $100 each, making the aggregate par value of said five per cent. Preferred Stock $3,000,000; Three Hundred Twenty Million (320,000,000) shares of Common Stock, which said Common Stock shall be without any fixed par value; and Three Hundred Twenty Million (320,000,000) shares of Common Stock Non-Voting, which said Common Stock Non-Voting shall be without any fixed par value"; |
||||
and by changing the figure "160,000,000" to the figure "320,000,000" wherever it appears elsewhere in said Article 4. |
||||
SECOND: |
The amendment of the Charter of the Corporation as hereinabove set forth has been duly advised by the Board of Directors and approved by the stockholders of the Corporation. |
|||
THIRD: |
(a) The total number of shares of all classes of stock of the Corporation heretofore authorized, and the number and par value of the shares of each class, are as follows: |
|||
Three Hundred Twenty Million Thirty Thousand (320,030,000), divided into Thirty Thousand (30,000) shares of five per cent. Preferred Stock of the par value of One Hundred Dollars ($100) each, having an aggregate par value of Three Million Dollars ($3,000,000); One Hundred Sixty Million (160,000,000) shares of Common Stock without par value; and One Hundred Sixty Million (160,000,000) shares of Common Stock Non-Voting without par value. |
||||
(b) The total number of shares of all classes of the Corporation as increased, and the number and par value of the shares of each class are as follows: |
||||
Six Hundred Forty Million Thirty Thousand (640,030,000), divided into Thirty Thousand (30,000) shares of five per cent. Preferred Stock of the par value of One Hundred Dollars ($100) each, having an aggregate par value of Three Million Dollars ($3,000,000); Three Hundred Twenty Million (320,000,000) shares of Common Stock without par value; and Three Hundred Twenty Million (320,000,000) shares of Common Stock Non-voting without par value. |
||||
(c) The information required by Section 2-607(b)(2)(i) of the Corporations and Associations Article of the Annotated Code of Maryland is not included because the amendment to the Charter did not change such matters. |
||||
IN WITNESS WHEREOF, McCORMICK & COMPANY, INCORPORATED has caused these presents to be signed in its name and on its behalf by its Chairman, President and Chief Executive Officer and its corporate seal to be hereunto affixed and attested by its Secretary on March 27, 2003.
ATTEST: |
McCORMICK & COMPANY, INCOPORATED |
||
/s/ ROBERT W. SKELTON Robert W. Skelton Secretary |
By: |
/s/ ROBERT J. LAWLESS Robert J. Lawless Chairman, President & Chief Executive Officer |
|
THE UNDERSIGNED, Chairman, President and Chief Executive Officer of McCormick & Company, Incorporated, who executed on behalf of the Corporation the foregoing Articles of Amendment of which this certificate is made a part, hereby acknowledges in the name and on behalf of said Corporation the foregoing Articles of Amendment to be the corporate act of said Corporation and hereby certifies that the best of his knowledge, information and belief the matters and facts set forth therein with respect to the authorization and approval thereof are true in all material respects under the penalties of perjury.
| /s/ ROBERT J. LAWLESS Robert J. Lawless Chairman, President & Chief Executive Officer |
McCORMICK & COMPANY, INCORPORATED ARTICLES OF AMENDMENT
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| March 28, 2003 |
Board
of Directors
McCormick & Company, Incorporated
18 Loveton Circle
Sparks, Maryland 21152
Re: Registration Statement on Form S-8 dated March 28, 2003
I am Senior Vice President, General Counsel & Secretary of McCormick & Company, Incorporated (the "Company"). I have reviewed and am familiar with the McCormick & Company, Incorporated 2003 Employees Stock Purchase Plan (the "Plan") and the non-qualified stock options granted by the Company on March 26, 2003 (the "Non-Qualified Stock Options") to certain foreign nationals employed by the Company's foreign subsidiaries and to other Company employees who are not otherwise eligible to participate in the Plan in lieu of participation in the Plan, the stock option form (the "Stock Option Form") evidencing the Non-Qualified Stock Options, the Charter and the By-Laws of the Company, the corporate proceedings relating to the adoption of the Plan and the granting of the options thereunder, and to the granting of the Non-Qualified Stock Options and the adoption of the Stock Option Form, and the Registration Statement on Form S-8 being filed with the Securities and Exchange Commission under the Securities Act of 1933 in the matter of the offering of shares of Common Stock Non-Voting under the Plan and pursuant to the Non-Qualified Stock Options.
I have assumed for the purpose of this opinion that all of the shares to be issued pursuant to the Plan and the Non-Qualified Stock Options will be new issue shares. In my opinion, the shares offered and sold pursuant to the Plan and the Non-Qualified Stock Options upon issuance and delivery by the Company will be legally and validly authorized and issued and will be fully paid and non-assessable in the hands of the holders thereof.
I hereby consent to the filing of this opinion as an exhibit to the above-mentioned Registration Statement.
| Very truly yours, | ||
Robert W. Skelton |
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The consent of Robert W. Skelton, Esquire is included in the opinion filed as Exhibit 5 to the Registration Statement.
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference herein and in the Prospectuses pertaining to the McCormick & Company, Incorporated 2003 Employees Stock Purchase Plan and non-qualified stock options granted in lieu of participation in the 2003 Employees Stock Purchase Plan to certain foreign nationals employed by the Company's foreign subsidiaries and other employees not eligible to participate in said Plan of our report dated January 28, 2003, with respect to the consolidated financial statements of McCormick & Company, Incorporated which are incorporated by reference in its Annual Report on Form 10-K for the year ended November 30, 2002 and the related financial statement schedules included therein filed with the Securities and Exchange Commission.
| ERNST & YOUNG LLP | ||
Baltimore, Maryland March 28, 2003 |
CONSENT OF COUNSEL
CONSENT OF INDEPENDENT AUDITORS
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McCormick & Company, Incorporated
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers and directors of McCormick & Company, Incorporated, a Maryland corporation with offices at 18 Loveton Circle, Sparks, Maryland 21152 (the "Corporation"), hereby constitute and appoint Robert J. Lawless, and Robert W. Skelton, jointly and severally, each in his own capacity, as his or her true and lawful attorney-in-fact, with full power of substitution, in his or her name, place and stead, in any and all capacities, to sign this Registration Statement, any and all amendments to this Registration Statement, or any Registration Statement filed pursuant to Rule 462 under the Securities Act, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent with full power and authority to do so and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and affirming all that said attorney-in-fact, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
| Signature |
Title |
Date |
||
|---|---|---|---|---|
| /s/ ROBERT J. LAWLESS Robert J. Lawless |
Chairman, President & Chief Executive Officer, Director | March 26, 2003 | ||
/s/ FRANCIS A. CONTINO Francis A. Contino |
Executive Vice President, Chief Financial Officer & Supply Chain, Director |
March 26, 2003 |
||
/s/ KENNETH A. KELLY, JR. Kenneth A. Kelly, Jr. |
Vice President & Controller |
March 26, 2003 |
||
/s/ BARRY H. BERACHA Barry H. Beracha |
Director |
March 26, 2003 |
||
/s/ JAMES T. BRADY James T. Brady |
Director |
March 26, 2003 |
||
/s/ ROBERT G. DAVEY Robert G. Davey |
Executive Vice President, Director |
March 26, 2003 |
||
/s/ EDWARD S. DUNN, JR. Edward S. Dunn, Jr. |
Director |
March 26, 2003 |
||
/s/ J. MICHAEL FITZPATRICK J. Michael Fitzpatrick |
Director |
March 26, 2003 |
||
/s/ FREEMAN A. HRABOWSKI, III Freeman A. Hrabowski, III |
Director |
March 26, 2003 |
||
/s/ JOHN C. MOLAN John C. Molan |
Director |
March 26, 2003 |
||
/s/ CARROLL D. NORDHOFF Carroll D. Nordhoff |
Executive Vice President, Director |
March 26, 2003 |
||
/s/ ROBERT W. SCHROEDER Robert W. Schroeder |
Executive Vice President Director |
March 26, 2003 |
||
/s/ WILLIAM E. STEVENS William E. Stevens |
Director |
March 26, 2003 |
||
/s/ KAREN D. WEATHERHOLTZ Karen D. Weatherholtz |
Senior Vice President—Human Relations, Director |
March 26, 2003 |
McCormick & Company, Incorporated Power of Attorney