Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE PROCTER & GAMBLE COMPANY
(Exact name of registrant as specified in its charter)
Ohio 31-0411980
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
One Procter & Gamble Plaza, Cincinnati, Ohio 45202
(513) 983-1100
(Address, including zip code, and telephone
number, including area code, of registrant's principal
executive offices)
THE PROCTER & GAMBLE 2001 STOCK AND INCENTIVE COMPENSATION PLAN
(Full title of the plan)
Terry L. Overbey, Secretary
The Procter & Gamble Company
One Procter & Gamble Plaza, Cincinnati, Ohio 45202
(513) 983-4463
(Name, address, including zip code, and 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 offering registration
registered registered per unit price fee
--------------------------------------------------------------------------------
Common Stock 95,000,000 $79.45(1) $7,547,750,000(1) $1,803,912.25
(without par
value)
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low prices
of the Common Stock reported in the consolidated reporting system on December
12, 2001.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by The Procter & Gamble Company (the
"Company") with the Securities and Exchange Commission (the "Commission") (File
No. 1-434) pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 2001 (which incorporates by reference portions of the Company's
definitive Proxy Statement dated August 24, 2000 for the Company's Annual
Meeting of Shareholders held on October 9, 2001 and portions of its Annual
Report to Shareholders for the year ended June 30, 2001).
2. The Company's Quarterly Report on Form 10-Q for the period ended
September 30, 2001.
3. The Company's Current Reports on Form 8-K dated August 7, 2001,
August 15, 2001, September 5, 2001, October 30, 2001, November 16, 2001 and
December 11, 2001.
4. All other documents filed by the Company or Plan pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be a
part hereof from the dates of filing of such reports and documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
the Registration Statement or any Prospectus hereunder to the extent that a
statement contained in any subsequent Prospectus hereunder or in any document
subsequently filed with the Commission which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of the Registration Statement or any
Prospectus hereunder.
EXPERTS
The financial statements incorporated in this Registration Statement
by reference from the Company's Annual Report on Form 10-K for the year ended
June 30, 2001 have been audited by Deloitte & Touche LLP, independent auditors,
as stated in their report which is incorporated herein by reference, and has
been so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
Item 4. DESCRIPTION OF CAPITAL STOCK AND OTHER SECURITIES OFFERED
The Company's Amended Articles of Incorporation (the "Amended Articles
of Incorporation") authorize the issuance of 5,000,000,000 shares of Common
Stock, 600,000,000 shares of Class A Preferred Stock and 200,000,000 shares of
Class B Preferred Stock all of which are without par value ("Common Stock,"
"Class A Preferred Stock," and "Class B Preferred Stock," respectively). The
holders of Common Stock and Class A Preferred Stock are entitled to one
non-cumulative vote per share on each matter submitted to a vote of
shareholders. The holders of Class B Preferred Stock are not entitled to vote
other than as provided by law.
The holders of Class A Preferred Stock and Class B Preferred Stock have
the right to receive dividends prior to the payment of dividends on the Common
Stock. The Board of Directors of the Company (the "Board"), which is divided
into three classes, has the power to determine certain terms relative to any
Class A Preferred Stock and Class B Preferred Stock to be issued, such as the
power to establish different series and to set dividend rates, the dates of
payment of dividends, the cumulative dividend rights and dates, redemption
rights and prices, sinking fund requirements, restrictions on the issuance of
such shares or any series thereof, liquidation price and conversion rights.
Also, the Board may fix such other express terms as may be permitted or required
by law. In the event of any liquidation, dissolution or winding up, the holders
of the Common Stock are entitled to receive as a class, pro rata, the residue of
the assets after payment of the liquidation price to the holders of Class A
Preferred Stock and Class B Preferred Stock.
The Board has determined the terms of shares of Class A Preferred Stock
issued as Series A ESOP Convertible Class A Preferred Stock, which can only be
held by a trustee or trustees of an employee stock ownership plan or other
benefit plan of the Company. Upon transfer of Series A ESOP Convertible Class A
Preferred Stock to any other person, such transferred shares shall be
automatically converted into shares of Common Stock. Each share of Series A ESOP
Convertible Class A Preferred Stock has a cumulative dividend of $1.52 per year
and a liquidation price of $13.75 per share (as adjusted for the stock splits on
October 20, 1989, May 15, 1992 and August 22, 1997), is redeemable by the
Company or the holder, is convertible at the option of the holder into one share
of Common Stock and has certain anti-dilution protections associated with the
conversion rights. Appropriate adjustments to dividends and liquidation price
will be made to give effect to any future stock splits, stock dividends or
similar changes to the Series A ESOP Convertible Class A Preferred Stock.
The Board has also determined the terms of shares of Class A Preferred
Stock issued as Series B ESOP Convertible Class A Preferred Stock. Each share of
Series B ESOP Convertible Class A Preferred Stock has a cumulative dividend of
$2.06 per year and a liquidation price of $26.12 per share, (as adjusted for the
stock splits on May 15, 1992 and August 22, 1997) is redeemable by the Company
or the holder under certain circumstances, is convertible at the option of the
holder into one share of Common Stock and has certain anti-dilution protections
associated with the conversion rights.
Appropriate adjustments to dividends and liquidation price will be made
to give effect to any future stock splits, stock dividends or similar changes to
the Series B ESOP Convertible Class A Preferred Stock.
No shares of Class B Preferred Stock are currently issued.
All of the issued shares of Common Stock of the Company are fully paid
and non-assessable. Common Stock does not have any conversion rights and is not
subject to any redemption provisions. No holder of shares of any class of the
Company's capital stock has or shall have any right, pre-emptive or other, to
subscribe for or to purchase from the Company any of the shares of any class of
the Company hereafter issued or sold. No shares of any class of the Company's
capital stock are subject to any sinking fund provisions or to calls,
assessments by, or liabilities of the Company.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1701.13(E) of the Ohio Revised Code (the "Revised Code")
provides as follows:
(E)(1)A corporation may indemnify or agree to indemnify any person who was or is
a party, or is threatened to be made a party, to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative, other than an action by or in the right of the corporation, by
reason of the fact that he is or was a director, officer, employee, or agent of
the corporation, or is or was serving at the request of the corporation as a
director, trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited liability
company, or a partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's fees, judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit, or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if he had
no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any person who was or is a
party, or is threatened to be made a party, to any threatened, pending, or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor, by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign, nonprofit or for
profit, a limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's fees, actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit, if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, except that no
indemnification shall be made in respect of any of the following:
(a) Any claim, issue, or matter as to which such person is adjudged to
be liable for negligence or misconduct in the performance of his duty to the
corporation unless, and only to the extent that, the court of common pleas or
the court in which such action or suit was brought determines, upon application,
that, despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court of common pleas or such other court
shall deem proper;
(b) Any action or suit in which the only liability asserted against a
director is pursuant to section 1701.95 of the Revised Code.
(3) To the extent that a director, trustee, officer, employee, member, manager,
or agent has been successful on the merits or otherwise in defense of any
action, suit, or proceeding referred to in division (E)(1) or (2) of this
section, or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses, including attorney's fees, actually and reasonably
incurred by him in connection with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this section, unless
ordered by a court, shall be made by the corporation only as authorized in the
specific case, upon a determination that indemnification of the director,
trustee, officer, employee, member, manager, or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
division (E)(1) or (2) of this section. Such determination shall be made as
follows:
(a) By a majority vote of a quorum consisting of directors of the
indemnifying corporation who were not and are not parties to or threatened with
the action, suit, or proceeding referred to in division (E)(1) or (2) of this
section;
(b) If the quorum described in division (E)(4)(a) of this section is
not obtainable or if a majority vote of a quorum of disinterested directors so
directs, in a written opinion by independent legal counsel other than an
attorney, or a firm having associated with it an attorney, who has been retained
by or who has performed services for the corporation or any person to be
indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the action,
suit, or proceeding referred to in division (E)(1) or (2) of this section was
brought.
Any determination made by the disinterested directors under division
(E)(4)(a) or by independent legal counsel under division (E)(4)(b) of this
section shall be promptly communicated to the person who threatened or brought
the action or suit by or in the right of the corporation under division (E)(2)
of this section, and, within ten days after receipt of such notification, such
person shall have the right to petition the court of common pleas or the court
in which such action or suit was brought to review the reasonableness of such
determination.
(5)(a)Unless at the time of a director's act or omission that is the subject of
an action, suit, or proceeding referred to in division (E)(1) or (2) of this
section, the articles or the regulations of a corporation state, by specific
reference to this division, that the provisions of this division do not apply to
the corporation and unless the only liability asserted against a director in an
action, suit, or proceeding referred to in division (E)(1) or (2) of this
section is pursuant to section 1701.95 of the Revised Code, expenses, including
attorney's fees, incurred by a director in defending the action, suit, or
proceeding shall be paid by the corporation as they are incurred, in advance of
the final disposition of the action, suit, or proceeding, upon receipt of an
undertaking by or on behalf of the director in which he agrees to do both of the
following:
(i) Repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or failure to act
involved an act or omission undertaken with deliberate intent to cause injury to
the corporation or undertaken with reckless disregard for the best interests of
the corporation;
(ii) Reasonably cooperate with the corporation concerning the
action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, member, manager, or agent in defending any action,
suit, or proceeding referred to in division (E)(1) or (2) of this section, may
be paid by the corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, as authorized by the directors
in the specific case, upon receipt of an undertaking by or on behalf of the
director, trustee, officer, employee, member, manager, or agent to repay such
amount, if it ultimately is determined that he is not entitled to be indemnified
by the corporation.
(6) The indemnification authorized by this section shall not be exclusive of,
and shall be in addition to, any other rights granted to those seeking
indemnification under the articles, the regulations, any agreement, a vote of
shareholders or disinterested directors, or otherwise, both as to action in
their official capacities and as to action in another capacity while holding
their offices or positions, and shall continue as to a person who has ceased to
be a director, trustee, officer, employee, member, manager, or agent and shall
inure to the benefit of the heirs, executors, and administrators of such a
person.
(7) A corporation may purchase and maintain insurance or furnish similar
protection, including, but not limited to, trust funds, letters of credit, or
self-insurance, on behalf of or for any person who is or was a director,
officer, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign, nonprofit or for
profit, a limited liability company, or a partnership, joint venture, trust, or
other enterprise, against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
this section. Insurance may be purchased from or maintained with a person in
which the corporation has a financial interest.
(8) The authority of a corporation to indemnify persons pursuant to division
(E)(1) or (2) of this section does not limit the payment of expenses as they are
incurred, indemnification, insurance, or other protection that may be provided
pursuant to divisions (E)(5), (6), and (7) of this section. Divisions (E)(1) and
(2) of this section do not create any obligation to repay or return payments
made by the corporation pursuant to division (E)(5), (6), or (7).
(9) As used in division (E) of this section, "corporation" includes all
constituent entities in a consolidation or merger and the new or surviving
corporation, so that any person who is or was a director, officer, employee,
trustee, member, manager, or agent of such a constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee, member, manager, or agent of another corporation, domestic or
foreign, nonprofit or for profit, a limited liability company, or a partnership,
joint venture, trust, or other enterprise, shall stand in the same position
under this section with respect to the new or surviving corporation as he would
if he had served the new or surviving corporation in the same capacity.
Section 1701.13 (F)(7) of the Revised Code provides as follows:
(F) In carrying out the purposes stated in its articles and subject to
limitations prescribed by law or in its articles, a corporation may:
(7) Resist a change or potential change in control of the corporation if the
directors by a majority vote of a quorum determine that the change or potential
change is opposed to or not in the best interests of the corporation:
(a) Upon consideration of the interests of the corporation's
shareholders and any of the matters set forth in division (E) of section 1701.59
of the Revised Code; or
(b) Because the amount or nature of the indebtedness and other
obligations to which the corporation or any successor or the property of either
may become subject in connection with the change or potential change in control
provides reasonable grounds to believe that, within a reasonable period of time,
any of the following would apply:
(i) The assets of the corporation or any successor would be or
become less than its liabilities plus its stated capital, if any;
(ii) The corporation or any successor would be or become
insolvent;
(iii) Any voluntary or involuntary proceeding under the federal
bankruptcy laws concerning the corporation or any successor would be commenced
by any person.
(8) Do all things permitted by law and exercise all authority within the
purposes stated in its articles or incidental to its articles.
Section 1701.59 of the Revised Code provides as follows:
(A) Except where the law, the articles, or the regulations require action to be
authorized or taken by shareholders, all of the authority of a corporation shall
be exercised by or under the direction of its directors. For their own
government, the directors may adopt bylaws that are not inconsistent with the
articles or the regulations. The selection of a time frame for the achievement
of corporate goals shall be the responsibility of the directors.
(B) A director shall perform the director's duties as a director, including the
duties as a member of any committee of the directors upon which the director may
serve, in good faith, in a manner the director reasonably believes to be in or
not opposed to the best interests of the corporation, and with the care that an
ordinarily prudent person in a like position would use under similar
circumstances. In performing a director's duties, a director is entitled to rely
on information, opinions, reports, or statements, including financial statements
and other financial data, that are prepared or presented by any of the
following:
(1) One or more directors, officers, or employees of the corporation
who the director reasonably believes are reliable and competent in the matters
prepared or presented;
(2) Counsel, public accountants, or other persons as to matters that
the director reasonably believes are within the person's professional or expert
competence;
(3) A committee of the directors upon which the director does not
serve, duly established in accordance with a provision of the articles or the
regulations, as to matters within its designated authority, which committee the
director reasonably believes to merit confidence.
(C) For purposes of division (B) of this section, the following apply:
(1) A director shall not be found to have violated the director's
duties under division (B) of this section unless it is proved by clear and
convincing evidence that the director has not acted in good faith, in a manner
the director reasonably believes to be in or not opposed to the best interests
of the corporation, or with the care that an ordinarily prudent person in a like
position would use under similar circumstances, in any action brought against a
director, including actions involving or affecting any of the following:
(a) A change or potential change in control of the
corporation, including a determination to resist a change or potential change in
control made pursuant to division (F)(7) of section 1701.13 of the Revised Code;
(b) A termination or potential termination of the director's
service to the corporation as a director;
(c) The director's service in any other position or relationship
with the corporation.
(2) A director shall not be considered to be acting in good faith if
the director has knowledge concerning the matter in question that would cause
reliance on information, opinions, reports, or statements that are prepared or
presented by the persons described in divisions (B)(1) to (3) of this section to
be unwarranted.
(3) Nothing contained in this division limits relief available under
section 1701.60 of the Revised Code.
(D) A director shall be liable in damages for any action that the director takes
or fails to take as a director only if it is proved by clear and convincing
evidence in a court of competent jurisdiction that the director's action or
failure to act involved an act or omission undertaken with deliberate intent to
cause injury to the corporation or undertaken with reckless disregard for the
best interests of the corporation. Nothing contained in this division affects
the liability of directors under section 1701.95 of the Revised Code or limits
relief available under section 1701.60 of the Revised Code. This division does
not apply if, and only to the extent that, at the time of a director's act or
omission that is the subject of complaint, the articles or the regulations of
the corporation state by specific reference to this division that the provisions
of this division do not apply to the corporation.
(E) For purposes of this section, a director, in determining what the director
reasonably believes to be in the best interests of the corporation, shall
consider the interests of the corporation's shareholders and, in the director's
discretion, may consider any of the following:
(1) The interests of the corporation's employees, suppliers,
creditors, and customers;
(2) The economy of the state and nation;
(3) Community and societal considerations;
(4) The long-term as well as short-term interests of the corporation
and its shareholders, including the possibility that these interests may be best
served by the continued independence of the corporation.
(F) Nothing contained in division (C) or (D) of this section affects the duties
of either of the following:
(1) A director who acts in any capacity other than the director's
capacity as a director;
(2) A director of a corporation that does not have issued and
outstanding shares that are listed on a national securities exchange or are
regularly quoted in an over-the-counter market by one or more members of a
national or affiliated securities association, who votes for or assents to any
action taken by the directors of the corporation that, in connection with a
change in control of the corporation, directly results in the holder or holders
of a majority of the outstanding shares of the corporation receiving a greater
consideration for their shares than other shareholders.
Section 1701.95 of the Revised Code provides as follows:
(A)(1) In addition to any other liabilities imposed by law upon directors of a
corporation and except as provided in division (B) of this section, directors
shall be jointly and severally liable to the corporation as provided in division
(A)(2) of this section if they vote for or assent to any of the following:
(a) The payment of a dividend or distribution, the making of a
distribution of assets to shareholders, or the purchase or redemption of the
corporation's own shares, contrary in any such case to law or the articles;
(b) A distribution of assets to shareholders during the winding up of
the affairs of the corporation, on dissolution or otherwise, without the payment
of all known obligations of the corporation or without making adequate provision
for their payment;
(c) The making of a loan, other than in the usual course of business,
to an officer, director, or shareholder of the corporation, other than in either
of the following cases:
(i) In the case of a savings and loan association or of a
corporation engaged in banking or in the making of loans generally;
(ii) At the time of the making of the loan, a majority of the
disinterested directors of the corporation voted for the loan and, taking into
account the terms and provisions of the loan and other relevant factors,
determined that the making of the loan could reasonably be expected to benefit
the corporation.
(2) (a) In cases under division (A)(1)(a) of this section, directors shall be
jointly and severally liable up to the amount of the dividend, distribution, or
other payment, in excess of the amount that could have been paid or distributed
without violation of law or the articles but not in excess of the amount that
would inure to the benefit of the creditors of the corporation if it was
insolvent at the time of the payment or distribution or there was reasonable
ground to believe that by that action it would be rendered insolvent, plus the
amount that was paid or distributed to holders of shares of any class in
violation of the rights of holders of shares of any other class.
(b) In cases under division (A)(1)(b) of this section, directors shall
be jointly and severally liable to the extent that the obligations of the
corporation that are not otherwise barred by statute are not paid or for the
payment of which adequate provision has not been made.
(c) In cases under division (A)(1)(c) of this section, directors shall
be jointly and severally liable for the amount of the loan with interest on it
at the rate specified in section 1343.03 of the Revised Code until the amount
has been paid.
(B) (1) A director is not liable under division (A)(1)(a) or (b) of this section
if, in determining the amount available for any dividend, purchase, redemption,
or distribution to shareholders, the director in good faith relied on a
financial statement of the corporation prepared by an officer or employee of the
corporation in charge of its accounts or certified by a public accountant or
firm of public accountants, the director in good faith considered the assets to
be of their book value, or the director followed what the director believed to
be sound accounting and business practice.
(2) A director is not liable under division (A)(1)(c) of this section
for making any loan to, or guaranteeing any loan to or other obligation of, an
employee stock ownership plan, as defined in section 4975(e)(7) of the Internal
Revenue Code.
(C) A director who is present at a meeting of the directors or a committee of
the directors at which action on any matter is authorized or taken and who has
not voted for or against the action shall be presumed to have voted for the
action unless that director's written dissent from the action is filed, either
during the meeting or within a reasonable time after the adjournment of the
meeting, with the person acting as secretary of the meeting or with the
secretary of the corporation.
(D) A shareholder who knowingly receives any dividend, distribution, or payment
made contrary to law or the articles shall be liable to the corporation for the
amount received by that shareholder that is in excess of the amount that could
have been paid or distributed without violation of law or the articles.
(E) A director against whom a claim is asserted under or pursuant to this
section and who is held liable on the claim shall be entitled to contribution,
on equitable principles, from other directors who also are liable. In addition,
any director against whom a claim is asserted under or pursuant to this section
or who is held liable shall have a right of contribution from the shareholders
who knowingly received any dividend, distribution, or payment made contrary to
law or the articles, and those shareholders as among themselves also shall be
entitled to contribution in proportion to the amounts received by them
respectively.
(F) No action shall be brought by or on behalf of a corporation upon any cause
of action arising under division (A)(1)(a) or (b) of this section at any time
after two years from the day on which the violation occurs.
(G) Nothing contained in this section shall preclude a creditor whose claim is
unpaid from exercising the rights that that creditor otherwise would have by law
to enforce that creditor's claim against assets of the corporation paid or
distributed to shareholders.
(H) The failure of a corporation to observe corporate formalities relating to
meetings of directors or shareholders in connection with the management of the
corporation's affairs shall not be considered a factor tending to establish that
the shareholders have personal liability for corporate obligations.
Section 8 of Article III of the Company's Regulations provides as
follows:
SECTION 8. Indemnification of Directors and Officers. The Company shall
indemnify each present and future Director and officer, his heirs, executors and
administrators against all costs, expenses (including attorneys' fees),
judgments, and liabilities, reasonably incurred by or imposed on him in
connection with or arising out of any claim or any action, suit or proceeding,
civil or criminal, in which he may be or become involved by reason of his being
or having been a Director or officer of the Company, or of any of its subsidiary
companies, or of any other company in which he served or serves as a Director or
officer at the request of the Company, irrespective of whether or not he
continues to be a Director or an officer at the time he incurs or becomes
subjected to such costs, expenses (including attorneys' fees), judgments, and
liabilities; but such indemnification shall not be operative with respect to any
matter as to which in any such action, suit or proceeding he shall have been
finally adjudged to have been derelict in the performance of his duties as such
Director or officer. Such indemnification shall apply when the adjudication in
such action, suit or proceeding is otherwise than on the merits and also shall
apply when a settlement or compromise is effected, but in such cases
indemnification shall be made only if the Board of Directors of the Company,
acting at a meeting at which a majority of the quorum of the Board is unaffected
by self interest, shall find that such Director or officer has not been derelict
in the performance of his duty as such Director or officer with respect to the
matter involved, and shall adopt a resolution to that effect and in cases of
settlement or compromise shall also approve the same; in cases of settlement or
compromise such indemnification shall not include reimbursement of any amounts
which by the terms of the settlement or compromise are paid or payable to the
Company itself by the Director or officer (or in the case of a Director or
officer of a subsidiary or another company in which such Director or officer is
serving at the request of the Company any amounts paid or payable by such
Director or officer to such company). If the Board of Directors as herein
provided refuses or fails to act or is unable to act due to the self interest of
some or all of its members, the Company at its expense shall obtain the opinion
of counsel and indemnification shall be had only if it is the opinion of such
counsel that the Director or officer has not been derelict in the performance of
his duties as such Director or officer with respect to the matter involved.
The right of indemnification provided for in this section shall not be
exclusive of other rights to which any Director or officer may be entitled as a
matter of law and such rights, if any, shall also inure to the benefit of the
heirs, executors or administrators of any such Director or officer.
The right of indemnification provided for in this section shall not be
exclusive of other rights to which any Director or officer may be entitled as a
matter of law and such rights, if any, shall also inure to the benefit of the
heirs, executors or administrators of any such Director or officer.
The Company's Directors, officers and certain other key employees of
the Company are insured by directors and officers liability insurance policies.
The Company pays the premiums for this insurance. The Company's basic directors
and officers liability insurance provides coverage up to an annual aggregate
liability limitation of $25,000,000. The Company has also contracted for excess
directors and officers liability insurance coverage with an annual aggregate
liability limitation of $125,000,000.
ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION
---------- -----------
*(4)(i)(a) -- Amended Articles of Incorporation
**(4)(i)(b) -- Regulations
(5) -- Opinion of Counsel
(23)(a) -- Consent of Deloitte & Touche LLP.
(23)(b) -- Consent of Terry L. Overbey, Esq. is contained in his
opinion filed as Exhibit (5)
------------------------
* Incorporated by reference to Exhibit (3-1) of the Company's Annual Report on
Form 10-K for the fiscal year ended June 30, 1998.
** Incorporated by reference to Exhibit (3-2) of the Company's Annual Report on
Form 10-K for the fiscal year ended June 30, 1998.
Item 9. UNDERTAKINGS
(1) The undersigned registrant hereby undertakes:
(a) 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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective 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 with or furnished to the
Commission 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;
(4) (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 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.
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 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 Cincinnati, State of Ohio, on December 11, 2001.
THE PROCTER & GAMBLE COMPANY
By: /s/ A.G. Lafley
-----------------------------------
A.G. Lafley
President and Chief Executive
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on December 11, 2001.
SIGNATURE TITLE
/s/ A.G. Lafley
------------------------------------
A.G. Lafley Chairman and Chief Executive
/s/ Clayton C. Daley, Jr.
Clayton C. Daley, Jr. Chief Financial Officer
and Comptroller
/s/ John E. Pepper
------------------------------------
John E. Pepper Chairman of the Board
/s/ Norman R. Augustine
------------------------------------
Norman R. Augustine Director
/s/ Donald R. Beall
------------------------------------
Donald R. Beall Director
-----------------------------------
Scott D. Cook Director
-----------------------------------
Demenico De Sole Director
/s/ Richard J. Ferris
------------------------------------
Richard J. Ferris Director
/s/ Joseph T. Gorman
------------------------------------
Joseph T. Gorman Director
/s/ Charles R. Lee
------------------------------------
Charles R. Lee Director
/s/ Lynn M. Martin
------------------------------------
Lynn M. Martin Director
/s/ Johnathan A. Rodgers
------------------------------------
Johnathan A. Rodgers Director
/s/ John F. Smith, Jr.
------------------------------------
John F. Smith, Jr. Director
/s/ Ralph Snyderman
------------------------------------
Ralph Snyderman Director
/s/ Robert D. Storey
------------------------------------
Robert D. Storey Director
/s/ Marina v. N. Whitman
------------------------------------
Marina v. N. Whitman Director
------------------------------------
Ernesto Zedillo Director
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
---------- -----------
*(4)(i)(a) -- Amended Articles of Incorporation
**(4)(i)(b) -- Regulations
(5) -- Opinion of Counsel
(23)(a) -- Consent of Deloitte & Touche LLP.
(23)(b) -- Consent of Terry L. Overbey, Esq. is contained in his
opinion filed as Exhibit (5)
--------------------------------
* Incorporated by reference to Exhibit (3-1) of the Company's Annual Report on
Form 10-K for the fiscal year ended June 30, 1998.
** Incorporated by reference to Exhibit (3-2) of the Company's Annual Report on
Form 10-K for the fiscal year ended June 30, 1998.