As filed with the Securities and Exchange Commission on February 8, 2002
Registration No. 333-
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HEIDRICK & STRUGGLES INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-2681268 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) |
Heidrick & Struggles International, Inc.
Deferred Compensation Plan
Heidrick & Struggles International, Inc.
Deferred Compensation Plan for UK Employees
(Full Title of the Plans)
Stephanie W. Abramson
Heidrick & Struggles International, Inc.
245 Park Avenue
New York, New York 10167
(Name and Address of Agent for Service)
Copy to:
A. Richard Susko
Cleary, Gottlieb, Steen &
Hamilton
One Liberty Plaza
New York, New York 10006
CALCULATION OF REGISTRATION FEE
---------------------------------------------------------------------------------------------------------------------- Title of Securities Amount Proposed Maximum Proposed Maximum Amount of to be to be Offering Price Per Aggregate Offering Registration Registered Registered Share Price Fee ---------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 (1) 750,000 shares $15.94 (3) $11,955,000 (3) $1,100.00 (3) ---------------------------------------------------------------------------------------------------------------------- Deferred Compensation Obligations (2) $ 15,000,000 N/A $15,000,000 (4) $1,380.00 (4) ---------------------------------------------------------------------------------------------------------------------- |
(1) Consists of common shares of Heidrick & Struggles International, Inc. (the "Common Stock") to be issued pursuant to the Heidrick & Struggles Deferred Compensation Plan (the "US Plan") and the Heidrick & Struggles International, Inc. Deferred Compensation Plan for UK Employees (the "UK Plan"), (collectively the "Plans"), together with an indeterminate number of shares that may be necessary to adjust the number of shares reserved for issuance pursuant to the Plans as a result of a stock split, stock dividend or similar adjustment of the outstanding Common Stock.
(2) The deferred compensation obligations are unsecured obligations of Heidrick & Struggles International, Inc. to pay deferred compensation in the future in accordance with the terms of the Plans.
(3) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) under the Securities Act of 1933 with respect to shares of Common Stock issuable pursuant to the Plans and based upon the average of the high and low prices of the Common Stock of Heidrick & Struggles International, Inc. as reported on NASDAQ on February 5, 2002.
(4) Solely for purposes of calculating the registration fee pursuant to Rule
457(h), the amount of deferred compensation obligations registered is based
on an estimate of the amount of compensation participants may defer under
the Plans.
Part I
The information specified in Part I of Form S-8 is not required to be
filed with the Securities and Exchange Commission (the "Commission") either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Note 1 to Part I of Form S-8 and Rule 424 under the Securities Act
of 1933, as amended (the "Securities Act"). The information required in the
Section 10(a) prospectus is included in the documents being maintained and
delivered by Heidrick & Struggles International, Inc. as required by Part I of
Form S-8 and by Rule 428 under the Securities Act.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K, dated March 29, 2001, relating to the fiscal year ended December 31, 2000.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end of the fiscal year covered by the Annual Report on Form 10-K referred to in (a) above; and
(c) The description of the Common Stock of the Registrant contained under the caption "Description of Capital Stock--Common Stock" in the Registration Statement on Form S-1 (File No. 333-59931) as filed with the Commission and incorporated by reference to the Registration Statement on Form 8-A filed by the Registrant under the Exchange Act with the Commission on April 21, 1999.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and 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 then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing such 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 this Registration Statement to the extent that a statement contained herein or in any subsequently filed document 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 this Registration Statement.
Item 4. Description of Securities.
An aggregate principal amount of $15,000,000 of deferred compensation obligations are being registered hereby based on estimated contributions of participants in the Plans. Further amounts may be registered and issued as new or existing participants of the Plans elect to defer or request to waive portions of their compensation in subsequent years.
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Under the US Plan the obligations of the Registrant to pay such deferred amounts in the future to the US Plan participants in accordance with the terms of the US Plan (the "US Obligations") will be unsecured and unsubordinated indebtedness of the Registrant and will rank pari passu with other unsecured, unsubordinated indebtedness of the Registrant from time to time outstanding. Under the US Plan, there is no limitation on the Registrant's right to issue senior debt or other securities.
The amount to be deferred by each participant in the US Plan will be determined in accordance with the US Plan based on elections by the participant. Amounts deferred by a participant will be credited to a participant's deferral account. Participants will make elections as to how their respective account balances shall be deemed invested among an interest-bearing cash account, an account referencing the value of Registrant stock, or such other alternatives that may be implemented pursuant to the provisions of the Plan. Participant accounts will be credited with earnings, gains and losses as if the deferred amounts were actually invested in accordance with the participant's investment elections. There is no trading market for the US Obligations.
Each US Obligation will be payable as soon as reasonably practicable after the earlier of the first business day of the calendar quarter following a termination of the participant's employment with the Registrant for any reason or the date or dates selected by the participant in accordance with the terms of the US Plan. US Obligations relating to the interest-bearing cash account will be payable in cash and in a lump sum or such number of annual installments (subject to certain requirements of the US Plan), not to exceed ten, as directed by the participant. US Obligations relating to the Registrant stock account will be payable, in a lump sum, in shares of Registrant stock.
As soon as is reasonably practicable following a change in control (as defined in the US Plan), a termination of the US Plan or a participant's death, the Registrant will pay to a participant the balance of his or her deferral account(s) in a lump sum.
Other than by will or the laws of descent and distribution, the US Obligations are not subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment. Any attempt by any person to transfer or assign benefits under the US Plan, other than a claim for benefits by a participant or his or her beneficiary(ies), will be null and void. Except for distributions from the US Plan in the form of shares of Common Stock, the US Obligations are not convertible into any other security of the Registrant. No trustee has been appointed to take action with respect to the US Obligations and each participant in the US Plan will be responsible for enforcing his or her own rights with respect to the US Obligations. The Registrant may establish a trust or trusts to serve as a source of funds from which it can satisfy the US Obligations. Participants in the US Plan will have no right to any assets held by such trust or trusts, except as general creditors of the Registrant. Assets of any trust will at all times be subject to the claims of the Registrant's general creditors.
The Registrant reserves the right to amend or terminate the US Plan at any time, except that no such amendment shall adversely affect the right of a participant to the balance of his or her deferral account as of the date of such amendment or termination. The US Plan will remain in effect until it is terminated.
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Under the UK Plan the obligations of the Registrant to pay such waived amounts in the future to the UK Plan participants in accordance with the terms of the UK Plan (the "UK Obligations") will be unsecured and unsubordinated indebtedness of the Registrant and will rank pari passu with other unsecured, unsubordinated indebtedness of the Registrant from time to time outstanding. Under the UK Plan, there is no limitation on the Registrant's right to issue senior debt or other securities.
The amount to be waived by each participant in the UK Plan will be determined in accordance with the UK Plan based on requests by the participant. Amounts waived by a participant will be credited to a participant's waiver account. Participants will make requests as to how their respective account balances shall be deemed invested among an interest-bearing cash account, an account referencing the value of Registrant stock, or such other alternatives that may be implemented pursuant to the provisions of the UK Plan. Participant accounts will be credited with earnings, gains and losses as if the waived amounts were actually invested in accordance with the participant's investment requests. There is no trading market for the UK Obligations.
Each UK Obligation will be payable as soon as reasonably practicable after the earlier of the first business day of the calendar quarter following a termination of the participant's employment with the Registrant for any reason or the date or dates selected by the participant in accordance with the terms of the UK Plan. UK Obligations relating to the interest-bearing cash account will be payable in cash and in a lump sum or such number of annual installments (subject to certain requirements of the UK Plan), not to exceed ten, as directed by the participant. UK Obligations relating to the Registrant stock account will be payable, in a lump sum, in shares of Registrant stock.
As soon as is reasonably practicable following a change in control (as defined in the UK Plan), a termination of the UK Plan or a participant's death, the Registrant will pay to a participant the balance of his or her waiver account(s) in a lump sum.
Other than by will or the laws of descent and distribution, the UK Obligations are not subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment. Any attempt by any person to transfer or assign benefits under the UK Plan, other than a claim for benefits by a participant or his or her beneficiary(ies), will be null and void. Except for distributions from the UK Plan in the form of shares of Common Stock, the UK Obligations are not convertible into any other security of the Registrant. No trustee has been appointed to take action with respect to the UK Obligations and each participant in the UK Plan will be responsible for enforcing his or her own rights with respect to the UK Obligations. The Registrant may establish a trust or trusts to serve as a source of funds from which it can satisfy the UK Obligations. Participants in the UK Plan will have no right to any assets held by such trust or trusts, except as general creditors of the Registrant. Assets of any trust will at all times be subject to the claims of the Registrant's general creditors.
The Registrant reserves the right to amend or terminate the UK Plan at any time, except that no such amendment shall adversely affect the right of a participant to the balance of his or her waiver account as of the date of such amendment or termination. The UK Plan will remain in effect until it is terminated.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware (the "Delaware Law") authorizes the Registrant to indemnify its officers and directors, under certain circumstances and subject to certain conditions and limitations as stated therein, against all expenses and liabilities incurred by or imposed upon them as a result of actions, suits and proceedings, civil or criminal, brought against them as such officers and directors if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interest of the Registrant and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful.
The Registrant's Amended and Restated Bylaws provide for indemnification
of officers and directors of the Registrant to the fullest extent authorized by
Section 145 of the Delaware Law. The Amended and Restated Bylaws authorize the
Registrant to purchase and maintain insurance on behalf of any officer,
director, employee, trustee or agent of the Registrant or its subsidiaries
against any liability asserted against or incurred by them in such capacity or
arising out of their status as such, whether or not the Registrant would have
the power to indemnify such officer, director, employee, trustee or agent
against such liability under the provisions of the Bylaws or Delaware law.
The Registrant maintains a directors' and officers' insurance policy which insures the officers and directors of the Registrant from any claim arising out of an alleged wrongful act by such person in their respective capacities as officers and directors of the Registrant. Section 102(b)(7) of the Delaware Law permits corporations to eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of a fiduciary duty of care as a director. The Registrant's Amended and Restated Certificate of Incorporation limits a director's liability in accordance with Section 102(b)(7) of Delaware Law.
The Plans provide for indemnification, to the maximum extent permitted by law, of the Compensation Committee of the Board of Directors and the Administrator of the Plan with respect to any action taken or omitted in good faith in connection with the interpretation or administration of the Plans.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed with or incorporated by reference into this Registration Statement (numbering corresponds to Exhibit Table in Item 601 of Regulation S-K)
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Exhibit No. Document ---------- -------- 4.1 Heidrick & Struggles International, Inc. Deferred Compensation Plan 4.2 Heidrick & Struggles International, Inc. Deferred Compensation Plan for UK Employees 4.3 Form of Amended and Restated Certificate of Incorporation of the Registrant 4.4 Form of Amended and Restated Bylaws of the Registrant 5.1 Opinion of Cleary, Gottlieb, Steen & Hamilton regarding the validity of the securities being registered 23.1 Consent of Arthur Andersen, LLP, Independent Accountants 23.2 Consent of Cleary, Gottlieb, Steen & Hamilton (included in Exhibit 5.1) 24.1 Power of Attorney (included on signature page) |
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. 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 the prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent 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 this Registration Statement or any material change to such information in this 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 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
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(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in this 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 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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Pursuant to the requirements of the Securities Act, 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 City of New York, State of New York, on this 5/th/ day of February, 2002.
Heidrick & Struggles International, Inc.
By: /s/ Stephanie W. Abramson ------------------------- Stephanie W. Abramson Chief Legal Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Stephanie W. Abramson and Kevin Smith, and each of the, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all future amendments to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and things and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the date(s) indicated.
Signature Title --------- ----- /s/ Piers Marmion President, Chief Executive Officer and Director ----------------- (Principal Executive Officer) Name: Piers Marmion On this 1/st/ day of February, 2002 /s/ Kevin Smith Chief Financial Officer and Treasurer (Principal --------------- Financial Officer) Name: Kevin Smith On this 4/th/ day of February, 2002 |
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/s/ Gerard R. Roche Director ------------------- Name: Gerard R. Roche |
On this 4/th/ day of February, 2002
/s/ David C. Anderson Director --------------------- Name: David C. Anderson |
On this 1/st/ day of February, 2002
/s/ Carlene M. Ziegler Director ---------------------- Name: Carlene M. Ziegler |
On this 1/st/ day of February, 2002
/s/ Thomas J. Friel Director ------------------- Name: Thomas J. Friel |
On this 4/th/ day of February, 2002
/s/ Robert E. Knowling, Jr. Director --------------------------- Name: Robert E. Knowling, Jr. |
On this 5/th/ day of February, 2002
/s/ Bengt Lejsved Director ----------------- Name: Bengt Lejsved |
On this 1/st/ day of February, 2002
/s/ Dr. Juergen B. Muelder Director ---------------------------------- Name: Dr. Juergen B. Muelder |
On this 1/st/ day of February, 2002
/s/ Robert W. Shaw Director --------------------------- Name: Robert W. Shaw |
On this 1/st/ day of February, 2002
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EXHIBIT INDEX
Exhibit Description Method of Filing Number 4.1 Heidrick & Struggles International, Inc. Deferred Filed herewith Compensation Plan 4.2 Heidrick & Struggles International, Inc. Deferred Filed herewith Compensation Plan for UK Employees 4.3 Form of Amended and Restated Certificate of Incorporation Filed as Exhibit 3.02 of the Registrant to the Registration Statement on S-4 (File No. 333-61023) and incorporated herein by reference 4.4 Form of Amended and Restated Bylaws of the Registrant Filed as Exhibit 3.02 to the Registration Statement on Form S-4 (File No. 333-61023) and incorporated herein by reference 5.1 Opinion of Cleary, Gottlieb, Steen & Hamilton regarding Filed herewith the validity of the securities being registered 23.1 Consent of Arthur Andersen, LLP, Independent Accountants Filed herewith 23.2 Consent of Cleary, Gottlieb, Steen & Hamilton (included in Filed herewith Exhibit 5.1) 24.1 Power of Attorney (included on signature page) Filed herewith |
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Exhibit 4.1
HEIDRICK & STRUGGLES INTERNATIONAL, INC.
DEFERRED COMPENSATION PLAN
(a) "Administrator" shall mean the person or persons to whom the Committee has delegated the authority to take action under the Plan, except as may be otherwise required under Section 9.
(b) "Annual Bonus Shares" shall mean the shares awarded to a Participant pursuant to the Heidrick & Struggle's Annual Management Incentive Plan ("MIP").
(c) "Annual Installments" shall mean, with respect to a Cash-Based Deferral, a payment option offered to the Participant where Heidrick & Struggles shall pay the Participant annually, for a period not to exceed ten (10) years, the amounts owed him or her from the Deferral Account relating to such Cash-Based Deferral. Heidrick & Struggles shall pay the first installment to a Participant as soon as is reasonably practicable following the Payment Commencement Date. Subsequent installments shall be paid as soon as is reasonably practicable following each anniversary of the Payment Commencement Date.
(d) "Beneficiary" shall mean any person (which may include trusts and is not limited to one person) who has been designated by the Participant in his or her most recent written beneficiary designation filed with the Company to receive the benefits specified under the Plan in the event of the Participant's death. If no Beneficiary has been designated who survives the Participant's death, then Beneficiary means any person(s) entitled by will or, in the absence thereof, the laws of descent and distribution to receive such benefits.
(e) "Cash-Based Deferral" shall mean a deferral of Deferrable Cash Compensation, except to the extent that a Participant directs that the reference investment for such Cash-Based Deferral is Stock.
(f) "Cause" shall mean, when used in connection with the termination of a Participant's employment by the Company, (i) the willful and continued failure by the Participant substantially to perform his or her duties and obligations to the Company (other than any such failure resulting from any physical or mental condition, whether or not such condition constitutes a Disability) which failure continues after Heidrick & Struggles has given notice thereof to the Participant which notice specifies the aspects in which the Participant has failed to perform his or her duties or obligations to the Company and sets forth specific corrective action required of the
Participant or (ii) the willful engaging by the Participant in misconduct which is materially injurious to the Company, monetarily or otherwise. For purposes of this definition, no act, or failure to act, on a Participant's part shall be considered "willful" unless done, or omitted to be done, by the Participant in bad faith and without reasonable belief that his or her action or omission was in the best interests of Heidrick & Struggles.
(g) "Change in Control" shall have the meaning given to such term in the Heidrick & Struggles International, Inc. 2001 Change in Control Severance Plan.
(h) "Code" shall mean the Internal Revenue Code of 1986, as amended. References to any provision of the Code or regulation (including a proposed regulation) thereunder shall include any successor provisions or regulations.
(i) "Committee" shall mean the Compensation Committee of the Board of Directors of Heidrick & Struggles or any other directors of Heidrick & Struggles designated as the Committee by the Board of Directors of Heidrick & Struggles. Except as may be otherwise required under Section 9 or by applicable law, any function of the Committee may be delegated to the Administrator.
(j) "Company" shall mean Heidrick & Struggles and Heidrick & Struggles Inc., including any and all subsidiaries, or any successor or successors thereto, individually or collectively, as the context requires.
(k) "Deferrable Cash Compensation" shall mean cash compensation that, absent a deferral, would be paid by the Company to a Participant in the form of annual cash bonus awards, annual base salary to the extent permitted by the Committee, and any other cash compensation or award as designated by the Committee from time to time.
(l) "Deferrable Compensation" shall mean both Deferrable Stock-Based Compensation and Deferrable Cash Compensation.
(m) "Deferrable Stock-Based Compensation" shall mean compensation that, absent a deferral, would be paid by the Company to a Participant in the form of Stock, including the following; Performance Shares awarded pursuant to Heidrick & Struggle's Long Term Incentive Plan ("LTIP"), Annual Bonus Shares that are subject to Mandatory Deferral, restricted stock units, gains upon the exercise of stock options awarded pursuant to the LTIP to the extent permitted by the Committee, and/or any other Stock-based compensation as designated by the Committee from time to time.
(n) "Deferral Account" shall mean an account established and maintained by the Committee for a specific deferral by a Participant, as described in Section 6.
(o) "Deferral Election Form" shall mean a form prescribed by the Committee and filed by the Participant with the Committee setting forth his or her deferral request.
(p) "Disability" shall mean (i) a physical or mental condition entitling the Company to terminate the Participant's employment pursuant to an employment agreement between the
Participant and the Company or (ii) in the absence of such a provision for disability termination or in the absence of an employment agreement, a physical or mental incapacity of a Participant which entitles the Participant to benefits under the long-term disability plan applicable to the Participant and maintained by the Company.
(q) "Fair Market Value" shall mean (i) if the Stock is then listed or admitted to trading upon an established stock exchange or exchanges, the closing price on such date of determination of a share of Stock as reported on the principal securities exchange on which shares of Stock are then listed or admitted to trading, (ii) if the Stock is not then listed or admitted to trading upon an established stock exchange, the average of the closing bid and ask prices on such date of determination as reported on the National Association of Securities Dealers Automated Quotation System, or (iii) if not so reported, the average of the closing bid and ask prices on such date of determination as furnished by any member of the National Association of Securities Dealers, Inc. selected by the Committee.
(r) "Heidrick & Struggles" shall mean Heidrick & Struggles International Inc., organized under the laws of the state of Delaware, or any successor or successors thereto.
(s) "Mandatory Deferral" shall mean the deferral of the delivery of Annual Bonus Shares pursuant to Section 5(d) of the Plan.
(t) "Participant" shall mean any employee of the Company who is eligible to participate in the Plan and who elects to participate pursuant to the terms of the Plan.
(u) "Payment Commencement Date" shall mean:
(i) with respect to a Deferral Account other than for a Mandatory Deferral, the earlier to occur of the date elected by the Participant in his or her Deferral Election Form for such Deferral Account or the first business day of the calendar quarter commencing after the Participant's employment with the Company terminates.
(ii) with respect to a Mandatory Deferral, the second anniversary of the date the amounts subject to the Mandatory Deferral were deferred, unless the Participant elects to defer further such amounts or a portion thereof, in which case the Payment Commencement Date for such redeferral shall be determined pursuant to subsection (i) above.
(v) "Performance Share" shall mean performance shares granted or to be granted to a Participant pursuant to the Heidrick & Struggles International, Inc. GlobalShare Program.
(w) "Plan" shall mean the plan set forth in this instrument, and known as the Heidrick & Struggles International, Inc. Deferred Compensation Plan.
(x) "Retirement" shall mean the termination of a Participant's employment with the Company, other than for Cause or by death (i) on or after the Participant's attaining age 65 or (ii) on or after Participant's attaining age 55, but prior to attaining age 65, only if such termination is
approved in advance by the Committee and the Committee, with discretion, elects to treat the termination as a Retirement.
(y) "Rule of Sixty Five" shall mean that, where the Participant's
employment with the Company has been terminated other than for Cause or death,
(i) the sum of such Participant's age and years of employment with the Company
as of the date of termination equals sixty-five (65) years and (ii) the
Participant has a minimum of five (5) years of service with the Company.
(z) "Stock" shall mean Heidrick & Struggles common stock or such other securities or properties (including cash) into which such common stock may be changed pursuant to Sections 6(f) and 6(g) herein.
(aa) "Stock-Based Deferral" shall mean (i) the deferral of
Deferrable Stock-Based Compensation, (ii) a Mandatory Deferral of Stock and
(iii) a Cash-Based Deferral from and after the time the Participant directs that
such deferral's reference investment be Stock.
(cc) "Trustee" shall mean the trustee of a Trust.
(dd) "Trust Agreement" shall mean the agreement entered into between Heidrick & Struggles and the Trustee to carry out the purposes of the Plan, as amended or restated from time to time.
Plan or Deferral Election Forms, other forms, or instructions published by the Committee and/or the Administrator.
Deferral Account with respect to which the Participant directs that Stock be the reference investment, by (ii) the Fair Market Value of a share of Stock on the date as of which Stock becomes the reference investment for such Deferral Account.
in such deemed investment, to comply with any applicable law or regulation, or for such other purpose as the Committee may determine is not inconsistent with the Plan.
(i) With respect to a Deferral Account with a Payment Commencement Date prior to the termination of the Participant's employment with the Company, as soon as is reasonably practicable following the Payment Commencement Date, in a lump sum or Annual Installments, as the Participant elected in his or her Deferral Election Form relating to such Deferral Account. If such Participant's employment with the Company subsequently terminates prior to such Participant's satisfying the Rule of Sixty Five, Heidrick & Struggles shall pay the entire balance in all of the Participant's Deferral Accounts, in a lump sum, to the Participant as soon as is reasonably practicable following the first business day of the calendar quarter commencing after the date of such termination.
(ii) With respect to a Deferral Account with a Payment Commencement Date based on the Participant's termination of employment with the Company, in a lump sum, as soon as is reasonably practicable after the Payment Commencement Date, unless such termination occurs on or after such Participant's satisfying the Rule of Sixty Five, in which case Heidrick & Struggles shall make all payments in accordance with the direction of such Participant in his or her Deferral Election Form relating to such Deferral Account.
modify the terms of such deferral (including by means of accelerated or deferred payouts) in order to ensure that the compensation would not, at the time of payout, be so disqualified. Similarly, the Committee may modify the terms of any deferral (including by means of accelerated or deferred payouts) relating to compensation that does not constitute "qualified performance-based compensation" within the meaning of Code Section 162(m) or otherwise does not qualify for an exemption from Code Section 162(m) in order to permit the deductibility of such compensation under Code Section 162(m).
Shares of Stock actually delivered in settlement of Deferral Accounts shall be originally issued shares or treasury shares, in the discretion of the Committee.
Committee, or the Administrator, and Heidrick & Struggles may require such Participant or Beneficiary, as a condition to such payments, to execute a receipt and release to such effect. In the case of any payment under the Plan of less than all amounts then credited to an account in the form of Stock, the amounts paid shall be deemed to relate to the Stock credited to the account at the earliest time.
extending the meaning of any of the terms and provisions of the Plan. Whenever appropriate, words used in the singular shall include the plural or the plural may be read as the singular.
Exhibit 4.2.
HEIDRICK & STRUGGLES INTERNATIONAL, INC.
DEFERRED COMPENSATION PLAN FOR UK EMPLOYEES
(a) "Administrator" shall mean the person or persons to whom the Committee has delegated the authority to take action under the Plan, except as may be otherwise required under Section 9.
(b) "Annual Bonus Shares" shall mean the shares awarded to a Participant pursuant to the Heidrick & Struggle's Annual Management Incentive Plan ("MIP").
(c) "Annual Installments" shall mean, with respect to a Cash-Based Waiver, a payment option offered to the Participant where Heidrick & Struggles shall pay the Participant annually, for a period not to exceed ten (10) years, the amounts owed him or her from the Deferral Account relating to such Cash-Based Waiver. Heidrick & Struggles shall pay the first installment to a Participant as soon as is reasonably practicable following the Payment Commencement Date. Subsequent installments shall be paid as soon as is reasonably practicable following each anniversary of the Payment Commencement Date.
(d) "Beneficiary" shall mean any person (which may include trusts and is not limited to one person) who has been designated by the Participant in his or her most recent written beneficiary designation filed with the Company to receive the benefits specified under the Plan in the event of the Participant's death. If no Beneficiary has been designated who survives the Participant's death, then Beneficiary means any person(s) entitled by will or, in the absence thereof, the laws of descent and distribution to receive such benefits.
(e) "Cash-Based Waiver" shall mean a waiver of Deferrable Cash Compensation, except to the extent that a Participant directs that the reference investment for such Cash-Based Waiver is Stock.
(f) "Cause" shall mean, when used in connection with the termination of a Participant's employment by the Company, (i) the willful and continued failure by the Participant substantially to perform his or her duties and obligations to the Company (other than any such failure resulting from any physical or mental condition, whether or not such condition constitutes a Disability) which failure continues after Heidrick & Struggles has given notice thereof to the Participant which notice specifies the aspects in which the Participant has failed to perform his or her duties or obligations to the Company and sets forth specific corrective action required of the
Participant or (ii) the willful engaging by the Participant in misconduct which is materially injurious to the Company, monetarily or otherwise. For purposes of this definitions, no act, or failure to act, on a Participant's part shall be considered "willful" unless done, or omitted to be done, by the Participant in bad faith and without reasonable belief that his or her action or omission was in the best interests of Heidrick & Struggles.
(g) "Change in Control" shall have the meaning given to such term in the Heidrick & Struggles International, Inc. 2001 Change in Control Severance Plan.
(h) "Code" shall mean the Internal Revenue Code of 1986, as amended. References to any provision of the Code or regulation (including a proposed regulation) thereunder shall include any successor provisions or regulations.
(i) "Committee" shall mean the Compensation Committee of the Board of Directors of Heidrick & Struggles or any other directors of Heidrick & Struggles designated as the Committee by the Board of Directors of Heidrick & Struggles. Except as may be otherwise required under Section 9 or by applicable law, any function of the Committee may be delegated to the Administrator.
(j) "Company" shall mean Heidrick & Struggles and Heidrick & Struggles Inc., including any and all subsidiaries, or any successor or successors thereto, individually or collectively, as the context requires.
(k) "Deferrable Cash Compensation" shall mean cash compensation that, unless the Committee has answered a waiver request, would be paid by the Company to a Participant in the form of annual cash bonus awards, annual base salary to the extent permitted by the Committee, and any other cash compensation or award as designated by the Committee from time to time.
(l) "Deferrable Compensation" shall mean both Deferrable Stock-Based Compensation and Deferrable Cash Compensation.
(m) "Deferrable Stock-Based Compensation" shall mean compensation that, unless the Committee has answered a waiver request, would be paid by the Company to a Participant in the form of Stock, including the following; Performance Shares awarded pursuant to Heidrick & Struggle's Long Term Incentive Plan ("LTIP"), Annual Bonus Shares that are subject to Mandatory Waiver, restricted stock units, gains upon the exercise of stock options awarded pursuant to the LTIP to the extent permitted by the Committee, and/or any other Stock-based compensation as designated by the Committee from time to time.
(n) "Deferral Account" shall mean an account established and maintained by the Committee for a specific waiver request by a Participant, as described in Section 6. A Deferral Account will be maintained solely as a bookkeeping entry by Heidrick & Struggles to evidence unfunded obligations of Heidrick & Struggles.
(o) "Disability" shall mean (i) a physical or mental condition entitling the Company to terminate the Participant's employment pursuant to an employment agreement between the Participant and the Company or (ii) in the absence of such a provision for disability termination or in the absence of an employment agreement, a physical or mental incapacity of a Participant which
entitles the Participant to benefits under the long-term disability plan applicable to the Participant and maintained by the Company.
(p) "Fair Market Value" shall mean (i) if the Stock is then listed or admitted to trading upon an established stock exchange or exchanges, the closing price on such date of determination of a share of Stock as reported on the principal securities exchange on which shares of Stock are then listed or admitted to trading, (ii) if the Stock is not then listed or admitted to trading upon an established stock exchange, the average of the closing bid and ask prices on such date of determination as reported on the National Association of Securities Dealers Automated Quotation System, or (iii) if not so reported, the average of the closing bid and ask prices on such date of determination as furnished by any member of the National Association of Securities Dealers, Inc. selected by the Committee.
(q) "Heidrick & Struggles" shall mean Heidrick & Struggles International Inc., organized under the laws of the state of Delaware, or any successor or successors thereto.
(r) "Mandatory Waiver" shall mean the waiver of the delivery of Annual Bonus Shares pursuant to Section 5(d) of the Plan.
(s) "Participant" shall mean any employee of the Company who is eligible to participate in the Plan and who requests the waiver of receipt of specified portions of compensation and in respect of which the Committee accepts such waiver pursuant to the terms of the Plan.
(t) "Payment Commencement Date" shall mean:
(i) with respect to a Deferral Account other than for a Mandatory Waiver, the earlier to occur of the date requested by the Participant in his or her Waiver Request Form for such Deferral Account or the first business day of the calendar quarter commencing after the Participant's employment with the Company terminates.
(ii) with respect to a Mandatory Waiver, the second anniversary of the date the amounts subject to the Mandatory Waiver were waived, unless the Participant requests to waive receipt of such amounts or a portion thereof further, in which case the Payment Commencement Date for such waiver request shall be determined pursuant to subsection (i) above.
(u) "Performance Share" shall mean performance shares granted or to be granted to a Participant pursuant to the Heidrick & Struggles International, Inc. GlobalShare Program.
(v) "Plan" shall mean the plan set forth in this instrument, and known as the Heidrick & Struggles International, Inc. Deferred Compensation Plan for UK Employees.
(w) "Retirement" shall mean the termination of a Participant's employment with the Company, other than for Cause or by death (i) on or after the Participant's attaining age 65 or (ii) on or after Participant's attaining age 55, but prior to attaining age 65, only if such termination is approved in advance by the Committee and the Committee, with discretion, elects to treat the termination as a Retirement.
(x) "Rule of Sixty Five" shall mean that, where the Participant's
employment with the Company has been terminated other than for Cause or death,
(i) the sum of such Participant's age and years of employment with the Company
as of the date of termination equals sixty-five (65) years and (ii) the
Participant has a minimum of five (5) years of service with the Company.
(y) "Stock" shall mean Heidrick & Struggles common stock or such other securities or properties (including cash) into which such common stock may be changed pursuant to Sections 6(f) and 6(g) herein.
(z) "Stock-Based Waiver" shall mean (i) the waiver of Deferrable Stock-Based Compensation, (ii) a Mandatory Waiver of Stock and (iii) a Cash-Based Waiver from and after the time the Participant requests that such waived amount's reference investment be Stock.
(bb) "Trustee" shall mean the trustee of a Trust.
(cc) "Trust Agreement" shall mean the agreement entered into between Heidrick & Struggles and the Trustee to carry out the purposes of the Plan, as amended or restated from time to time.
(dd) "Waiver Request Form" shall mean a form prescribed by the Committee and filed by the Participant with the Committee setting forth his or her waiver request.
the reference investment, by (ii) the Fair Market Value of a share of Stock on the date as of which Stock becomes the reference investment for such Deferral Account.
in such deemed investment, to comply with any applicable law or regulation, or for such other purpose as the Committee may determine is not inconsistent with the Plan.
(i) With respect to a Deferral Account with a Payment Commencement Date prior to the termination of the Participant's employment with the Company, as soon as is reasonably practicable following the Payment Commencement Date, in a lump sum or Annual Installments, as the Participant requested in his or her Waiver Request Form relating to such Deferral Account. If such Participant's employment with the Company subsequently terminates prior to such Participant's satisfying the Rule of Sixty Five, Heidrick & Struggles shall pay the entire balance in all of the Participant's Deferral Accounts, in a lump sum, to the Participant as soon as is reasonably practicable following the first business day of the calendar quarter commencing after the date of such termination.
(ii) With respect to a Deferral Account with a Payment Commencement Date based on the Participant's termination of employment with the Company, in a lump sum, as soon as is reasonably practicable after the Payment Commencement Date, unless such termination occurs on or after such Participant's satisfying the Rule of Sixty Five, in which case Heidrick & Struggles shall make all payments in accordance with the direction of such Participant in his or her Waiver Request Form relating to such Deferral Account.
waiver (including by means of accelerated or waived payouts) in order to ensure that the compensation would not, at the time of payout, be so disqualified. Similarly, the Committee may modify the terms of any waiver (including by means of accelerated or waived payouts) relating to compensation that does not constitute "qualified performance-based compensation" within the meaning of Code Section 162(m) or otherwise does not qualify for an exemption from Code Section 162(m) in order to permit the deductibility of such compensation under Code Section 162(m).
Shares of Stock actually delivered in settlement of Deferral Accounts shall be originally issued shares or treasury shares, in the discretion of the Committee.
be in full satisfaction of all claims for the compensation waived hereunder and relating to the Deferral Account to which the payments and/or delivery relate against Heidrick & Struggles, the Committee, or the Administrator, and Heidrick & Struggles may require such Participant or Beneficiary, as a condition to such payments, to execute a receipt and release to such effect. In the case of any payment under the Plan of less than all amounts then notionally credited to an account in the form of Stock, the amounts paid shall be deemed to relate to the Stock credited to the account at the earliest time.
Exhibit 5.1
[LETTERHEAD of 'Cleary, Gottlieb, Steen & Hamilton]
Writer's Direct Dial: (212) 225-2410
E-Mail: bsusko@cgsh.com
February 8, 2002
Heidrick & Struggles International, Inc.
233 South Wacker Drive, Suite 4200
Chicago, Illinois 60606-6303
Ladies and Gentlemen:
We have acted as special counsel to Heidrick & Struggles International, Inc., a Delaware corporation (the "Company"), in connection with the registration statement on Form S-8 (the "Registration Statement") to be filed today with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Act of 1933, as amended (the "Act"), for the registration of 750,000 shares of Common Stock, par value $.01 per share (the "Shares"), to be issued under the Heidrick & Struggles International, Inc. Deferred Compensation Plan and the Heidrick & Struggles International, Inc. Deferred Compensation Plan for UK Employees (the "Plans"), and the $15,000,000 in deferred compensation obligations (the "Obligations") of the Company issuable under the Plans.
We have participated in the preparation of the Registration Statement and have reviewed the originals or copies certified or otherwise identified to our satisfaction of all such corporate records of the Company and such other instruments and other certificates of public officials, officers and representatives of the Company and such other persons, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinions expressed below.
Heidrick & Struggles International, Inc., p. 2
In rendering the opinions expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified the accuracy as to factual matters of each document we have reviewed.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that:
1. The Shares have been duly authorized by all necessary corporate action of the Company and, when issued in accordance with the terms of the Plans, at prices in excess of the par value thereof, will be validly issued, fully paid and nonassessable.
2. Upon the issuance of the Obligations in the manner contemplated by the Registration Statement and in accordance with the terms of the Plans, such Obligations will be legally valid and binding obligations of the Company.
Our opinion is subject to: (i) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors; (ii) the effect of general principles of equity, including without limitations concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether enforcement is considered in a proceeding in equity or at law; and (iii) the effect of the laws of usury or other laws or equitable principles relating to or limiting the interest rate payable on indebtedness.
The foregoing opinions are limited to the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are "experts" within the meaning of the Act or the rules and regulations of the Commission issued thereunder with respect to any part of the Registration Statement, including this exhibit.
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By: /s/ A. Richard Susko -------------------- A. Richard Susko, a Partner |
Exhibit 23.1
[Logo of ANDERSEN]
As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated February 6, 2001 included in Heidrick & Struggle International, Inc.'s Form 10-K for the year ended December 31, 2000 and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP ----------------------- Arthur Andersen LLP February 4, 2002 Chicago, Illinois |