As filed with the Securities and Exchange Commission on July 21, 1998
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
UNITED INDUSTRIAL CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 95-2081809
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
570 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
(212) 752-8787
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
UNITED INDUSTRIAL CORPORATION
1994 STOCK OPTION PLAN
(Full Title of Plan)
SUSAN FEIN ZAWEL
SECRETARY
UNITED INDUSTRIAL CORPORATION
570 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
(212) 752-8787
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
TED S. WAKSMAN, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Title of Each Class of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered(1) Offering Price Per Aggregate Offering Registration Fee
Share(2) Price(2)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $1.00 per share 600,000 shares $13.15625 $7,893,750 $2,329
====================================================================================================================================
</TABLE>
(1) Plus such indeterminate number of shares of Common Stock of the Registrant
as may be issued to prevent dilution resulting from stock dividends, stock
splits or similar transactions in accordance with Rule 416 under the Securities
Act of 1933.
(2) Estimated pursuant to Rule 457(h) and Rule 457(c) under the Securities Act
of 1933, based upon the closing price of the Registrant's Common Stock as
reported on the New York Stock Exchange Composite Tape on July 16, 1998.
================================================================================
NYFS11...:\95\78495\0001\1708\FRM6028X.490
<PAGE>
EXPLANATORY NOTE
This Registration Statement registers 600,000 additional shares of
common stock of United Industrial Corporation (the "Company"), par value $1.00
per share (the "Common Stock"), for issuance pursuant to stock options granted
under the Company's 1994 Stock Option Plan, as amended. The contents of (i) an
earlier Registration Statement on Form S-8 in respect of the Company's 1994
Stock Option Plan, as filed with the Securities and Exchange Commission on May
31, 1994, Registration No. 33-53911, and (ii) an earlier Registration Statement
on Form S-8 in respect of the Company's 1994 Stock Option Plan, as amended, as
filed with the Securities and Exchange Commission on January 10, 1997,
Registration No. 333-19517, are hereby incorporated by reference.
1
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of New York, State of New York, on this 20th day of July,
1998.
UNITED INDUSTRIAL CORPORATION
By: /s/ James H. Perry
------------------------------------------
Name: James H. Perry
Title: Treasurer and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Susan Fein Zawel and James H.
Perry acting individually, his or her true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Richard R. Erkeneff President and Director July 20, 1998
- ---------------------------- (Principal Executive
Richard R. Erkeneff Officer)
/s/ James H. Perry Treasurer and July 20, 1998
- ---------------------------- Chief Financial Officer
James H. Perry (Principal Financial and
Accounting Officer)
/s/ Harold S. Gelb Chairman of the Board July 20, 1998
- ---------------------------- and Director
Harold S. Gelb
/s/ Joseph S. Schneider Director July 20, 1998
- ----------------------------
Joseph S. Schneider
/s/ E. Donald Shapiro Director July 20, 1998
- ----------------------------
E. Donald Shapiro
/s/ Edward C. Aldridge, Jr. Director July 20, 1998
- ----------------------------
Edward C. Aldridge, Jr.
/s/ Susan Fein Zawel Director July 20, 1998
- ----------------------------
Susan Fein Zawel
2
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
4(a) - Certificate of Amendment of Restated Certificate of
Incorporation of the Company.
4(b) - Restated Certificate of Incorporation of the Company, as
amended (incorporated by reference to the Company's Annual
Report on Form 10-K for the year ended December 31, 1993).
4(c) - Amended and Restated By-Laws of the Company (incorporated by
reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1995).
4(d) - United Industrial Corporation 1994 Stock Option Plan, as
amended.
5 - Opinion of Weil, Gotshal & Manges LLP.
23(a) - Consent of Ernst & Young LLP.
23(b) - Consent of Weil, Gotshal & Manges LLP (included in Exhibit
5).
24 - Power of Attorney (included as part of the signature page to
this Registration Statement and incorporated herein by
reference).
Exhibit 4 (a)
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
UNITED INDUSTRIAL CORPORATION
---------------
Adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware
---------------
The undersigned, Richard R. Erkeneff and Susan Fein Zawel, being
respectively the President and Secretary of UNITED INDUSTRIAL CORPORATION, a
Delaware corporation (the "Corporation"), do hereby certify on behalf of the
Corporation as follows:
FIRST: That the first sentence of Article FOURTH
of the Certificate of Incorporation of the Corporation is
hereby amended and restated to read as follows:
"The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is thirty million
(30,000,000) shares, all of which shall be Common Stock, par value
one dollar ($1.00) per share."
SECOND: This Certificate of Amendment of the Certificate of
Incorporation shall be effective upon filing with the office of the Secretary of
State of the State of Delaware pursuant to Section 103 of the General
Corporation Law of the State of Delaware.
THIRD: This Certificate of Amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation Law of
the State of Delaware.
NYFS11...:\95\78495\0001\1708\CRT5138L.270
<PAGE>
IN WITNESS WHEREOF, UNITED INDUSTRIAL CORPORATION has caused this
Certificate of Amendment to be issued signed by Richard R. Erkeneff, its
President, and attested by Susan Fein Zawel, its Secretary, as of this 13th day
of May, 1998.
UNITED INDUSTRIAL CORPORATION
By: /s/ Richard R. Erkeneff
-----------------------
Name: Richard R. Erkeneff
Title: President
ATTEST:
By: /s/ Susan Fein Zawel
--------------------
Name: Susan Fein Zawel
Title: Secretary
2
Exhibit 4(d)
UNITED INDUSTRIAL CORPORATION
1994 STOCK OPTION PLAN, AS AMENDED
NYFS11...:\95\78495\0001\1708\PLN7208W.170
<PAGE>
TABLE OF CONTENTS
Page
1. Purposes................................................. 1
2. Stock Subject to the Plan................................ 1
3. Administration........................................... 2
4. Eligibility.............................................. 4
5. Option Price and Payment................................. 4
6. Terms of Options and Limitations
on the Right of Exercise ............................... 6
7. Termination of Employment................................ 7
8. Exercise of Options...................................... 9
9. Use of Proceeds.......................................... 10
10. Non-Transferability of Options........................... 10
11. Adjustment of Shares;
Effect of Certain Transactions.......................... 10
12. Right to Terminate Employment............................ 12
13. Purchase for Investment.................................. 12
14. Issuance of Stock Certificates; Legends;
Payment of Expenses..................................... 13
15. Withholding Taxes........................................ 13
16. Listing of Shares and Related Matters.................... 15
17. Amendment of the Plan.................................... 15
18. Termination or Suspension of the Plan.................... 15
19. Savings Provision........................................ 16
20. Governing Law............................................ 16
21. Partial Invalidity....................................... 16
22. Effective Date........................................... 16
<PAGE>
UNITED INDUSTRIAL CORPORATION
1994 STOCK OPTION PLAN, AS AMENDED
1. PURPOSES
United Industrial Corporation, a Delaware corporation (the
"Company"), wishes to provide certain of its key employees and certain key
employees of any subsidiary corporation or parent corporation of the Company now
existing or hereafter formed or acquired who are responsible for the continued
growth of the Company an opportunity to acquire a proprietary interest in the
Company, and thereby create in such key employees an increased interest in and a
greater concern for the welfare of the Company and its subsidiaries.
The Company, by means of the Plan, seeks to retain the services of
persons now holding key positions and also to secure and retain the services of
persons capable of filling such positions.
The stock options ("Options") offered pursuant to this 1994 Stock
Option Plan (the "Plan") are a matter of separate inducement and are not in lieu
of any salary or other compensation for the services of any key employee.
The Options granted under the Plan are intended to be either
incentive stock options ("Incentive Options") within the meaning of Section 422
of the Internal Revenue Code of 1986, as amended (the "Code"), or options that
do not meet the requirements for Incentive Options ("Non-Qualified Options").
The Company makes no warranty, however, as to the qualification of any Option as
an Incentive Option.
2. STOCK SUBJECT TO THE PLAN
Options granted under the Plan shall be exercisable for shares of
common stock, $1.00 par value per share, of the Company ("Common Stock"). The
total number of shares of Common Stock of the Company authorized for issuance
upon the exercise of Options under the Plan (the "Shares") shall not exceed, in
the aggregate, 1,800,000 Shares, with no individual optionee to receive in
excess of 750,000 Shares upon exercise of Options granted under the Plan,
subject to adjustment in accordance with Section 11 of the Plan.
<PAGE>
Shares available for issuance under the Plan may be either
authorized but unissued Shares, Shares of issued stock held in the Company's
treasury, or both, at the discretion of the Company. If and to the extent that
Options granted under the Plan expire or terminate without having been
exercised, the Shares covered by such expired or terminated Options may again be
subject to an Option under the Plan.
Except as provided in Sections 18 and 22 hereof, the Company may,
from time to time during the period beginning on March 10, 1994 (the "Effective
Date") and ending on March 10, 2004 (the "Termination Date"), grant to certain
key employees of the Company, or certain key employees of any subsidiary
corporation or parent corporation of the Company, Incentive Options and/or
Non-Qualified Options under the terms hereinafter set forth.
As used in the Plan, the term "parent corporation" and "subsidiary
corporation" shall mean a corporation within the definitions of such terms
contained in Sections 424(e) and 424(f) of the Code, respectively.
3. ADMINISTRATION
The board of directors of the Company (the "Board of Directors")
shall designate from among its members an option committee, which may also be
any other committee of the Board of Directors (the "Committee"), to administer
the Plan. The Committee shall consist of no fewer than two (2) members of the
Board of Directors, each of whom shall be a "disinterested person" within the
meaning of Rule 16b-3 (or any successor rule or regulation) promulgated under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"). A majority
of the members of the Committee shall constitute a quorum and the act of a
majority of the members of the Committee shall be the act of the Committee. Any
member of the Committee may be removed at any time either with or without cause
by resolution adopted by the Board of Directors and any vacancy on the Committee
at any time may be filled by resolution adopted by the Board of Directors.
Any and all powers and functions of the Committee may be exercised
at any time and from time to time by the Board of Directors or an executive
committee of the Board of Directors (the "Executive Committee"; references below
to the Committee shall be deemed to include references to the Board of Directors
and the Executive Committee, except as the context otherwise requires);
provided, however, that all of the members of the Board of Directors or the
Executive Committee, as the case may be, shall be "disinterested
2
<PAGE>
persons" within the meaning of Rule 16b-3 (or any successor rule or regulation)
promulgated under the Exchange Act.
Subject to the express provisions of the Plan, the Committee shall
have the authority, in its sole discretion, to determine the key employees to
whom Options shall be granted, the time when such persons shall be granted
Options, the number of Shares which shall be subject to each Option, the
purchase price of each Share which shall be subject to each Option, the
period(s) during which such Options shall be exercisable (whether in whole or
part), and the other terms and provisions thereof (which need not be identical).
In determining the key employees to whom Options shall be granted and the number
of Shares for which Options are to be granted to each key employee, the
Committee shall give due consideration to the length of service, performance,
the amount of earnings and the responsibilities and duties of such person.
Subject to the express provisions of the Plan, the Committee also
shall have the authority to construe the Plan and the Options granted hereunder,
to prescribe, amend and rescind rules and regulations relating to the Plan, to
determine the terms and provisions of the Options (which need not be identical)
and to make all other determinations necessary or advisable for administering
the Plan. The Committee also shall have the authority to require, in its
discretion, as a condition of the granting of any such Option, that the employee
agree (a) not to sell or otherwise dispose of Shares acquired pursuant to the
exercise of such Option for a period of six (6) months following the date of the
acquisition of such Option and (b) that in the event of termination of
employment of such employee, other than as a result of dismissal without cause
or Termination For Good Reason (as defined in Section 7 herein), such employee
will not, for a period to be fixed at the time of the grant of the Option, enter
into any other employment or participate directly or indirectly in any other
business or enterprise which is competitive with the business of the Company or
any subsidiary corporation or parent corporation of the Company, or enter into
any employment in which such employee will be called upon to utilize special
knowledge obtained through employment with the Company or any subsidiary
corporation or parent corporation thereof. Any officer of the Company or any
subsidiary corporation or parent corporation who is subject to the reporting
requirements of Section 16(a) of the Exchange Act (or any successor provision)
shall not be entitled to sell or otherwise dispose of any Shares acquired upon
the exercise of any Option for a period of six (6) months from the date such
Option was granted.
3
<PAGE>
Any determination of the Committee on the matters referred to in
this Section 3 shall be conclusive.
The Committee may employ such legal or other counsel, consultants
and agents as it may deem desirable for the administration of the Plan and may
rely upon any opinion or computation received from any such counsel, consultant
or agent. Expenses incurred by the Committee in the engagement of such counsel,
consultant or agent shall be paid by the Company or such subsidiary corporation
or parent corporation of the Company whose employees have benefitted from the
Plan, as determined by the Committee. No member or former member of the Board of
Directors, the Executive Committee or the Committee shall be liable for any
action or determination made in good faith with respect to the Plan or any
Options granted hereunder.
4. ELIGIBILITY
Options may be granted only to salaried key employees of the Company
or any subsidiary corporation or parent corporation of the Company now existing
or hereafter formed or acquired, except Bernard Fein and members of the
Committee.
The Plan does not create a right in any person to participate in, or
be granted options under, the Plan.
5. OPTION PRICE AND PAYMENT
The price for each Share purchasable under any Option granted
hereunder shall be determined by the Committee in its good faith judgment, but
shall not be less than one hundred percent (100%) of the "fair market value" (as
defined below) per Share at the date the Option is granted; provided, however,
that in the case of an Incentive Option granted to a key employee who, at the
time such Option is granted, owns shares of the Company or any subsidiary
corporation or parent corporation representing more than ten percent (10%) of
the total combined voting power of all classes of stock of the Company or any
subsidiary corporation or parent corporation, the purchase price for each Share
shall be not less than one hundred ten percent (110%) of the fair market value
per Share at the date the Option is granted. In determining the stock ownership
of a key employee for any purpose under the Plan, the rules of Section 424(d) of
the Code shall be applied, and the Committee may rely on representations of fact
made to it by the key employee and believed by it to be true.
For purposes of the Plan, "fair market value," with respect to any
date of determination, means:
4
<PAGE>
(i) if the Shares are listed or admitted to trading on a
national securities exchange in the United States or reported through the
National Association of Securities Dealers Automated Quotation System
--National Market System ("NASDAQ-NMS"), then the closing sale price on
such exchange or NASDAQ-NMS on such date or, if no trading occurred or
quotations were available on such date, then on the closest preceding date
on which the Shares were traded or quoted; or
(ii) if not so listed or reported but a regular, active public
market for the Shares exists (as determined in the sole discretion of the
Committee, whose decision shall be conclusive and binding), then the
average of the closing bid and ask quotations per Share in the
over-the-counter market for such Shares in the United States on such date
or, if no such quotations are available on such date, then on the closest
date preceding such date. For purposes of the foregoing, a market in which
trading is sporadic and the ask quotations generally exceed the bid
quotations by more than 15% shall not be deemed to be a "regular, active
public market."
If the Committee determines that a regular, active public market
does not exist for the Shares, the Committee shall determine the fair market
value of the Shares in its good faith judgment based on the total number of
shares of Common Stock then outstanding, taking into account all outstanding
options, warrants, rights or other securities exercisable or exchangeable for,
or convertible into, shares of Common Stock.
Upon the exercise of an Option granted hereunder, the Company shall
cause the purchased Shares to be issued only when it shall have received the
full purchase price therefor in cash; provided, however, that in lieu of cash,
the holder of an Option may, if the terms of such Option so provide and to the
extent permitted by applicable law, exercise an Option (a) in whole or in part,
by delivering to the Company shares of Common Stock of the Company (in proper
form for transfer and accompanied by all requisite stock transfer tax stamps or
cash in lieu thereof) owned by such holder having a fair market value equal to
the cash exercise price applicable to that portion of the Option being
exercised, the fair market value of the shares of Common Stock so delivered to
be determined as of the date immediately preceding the date of exercise, or as
otherwise may be required to comply with or conform to the requirements of any
applicable law or regulations, or (b) in part, by delivering to the Company an
executed promissory
5
<PAGE>
note on such terms and conditions as the Committee shall determine at the time
of grant, in its sole discretion; provided, however, that the principal amount
of such note shall not exceed ninety percent (90%) (or such lesser percentage as
would be permitted by applicable margin regulations) of the aggregate purchase
price of the Shares then being purchased pursuant to the exercise of such
Option.
6. TERMS OF OPTIONS AND LIMITATIONS ON THE RIGHT OF EXERCISE
Any Option granted hereunder shall be exercisable at such times, in
such amounts and during such period or periods as the Committee shall determine
at the date of the grant of such Option; provided, however, that an Incentive
Option shall not be exercisable after the expiration of ten (10) years from the
date such Option is granted; provided, further, that in the case of an Incentive
Option granted to a person who, at the time such Incentive Option is granted,
owns stock of the Company or any subsidiary corporation or parent corporation of
the Company representing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company or of any subsidiary
corporation or parent corporation of the Company, such Incentive Option shall
not be exercisable after the expiration of five (5) years from the date such
Incentive Option is granted.
The Committee shall have the right to accelerate, in whole or in
part, from time to time, conditionally or unconditionally, rights to exercise
any Option granted hereunder. To the extent that an Option is not exercised
within the period of exercisability specified therein, it shall expire as to the
then unexercised part.
Except as otherwise provided under the Code, to the extent that the
aggregate fair market value of stock for which Incentive Options (under all
stock option plans of the Company and of any parent corporation or subsidiary
corporation of the Company) are exercisable for the first time by an employee
during any calendar year exceeds one hundred thousand dollars ($100,000), such
Options shall be treated as Non-Qualified Options. For purposes of this
limitation, (a) the fair market value of stock is determined as of the time the
Option is granted, (b) the limitation will be applied by taking into account
Options in the order in which they were granted, and (c) Incentive Options
granted before 1987 shall not be taken into account.
In no event shall an Option granted hereunder be exercised for a
fraction of a Share or for less than one
6
<PAGE>
hundred (100) Shares (unless the number purchased is the total balance for which
the Option is then exercisable).
A person entitled to receive Shares upon the exercise of an Option
shall not have the rights of a stockholder with respect to such Shares until the
date of issuance of a stock certificate to him or her for such Shares; provided,
however, that until such stock certificate is issued, any holder of an Option
using previously acquired shares of Common Stock in payment of an option
exercise price shall continue to have the rights of a stockholder with respect
to such previously acquired shares of Common Stock.
7. TERMINATION OF EMPLOYMENT
Upon termination of employment of any key employee with the Company
and all subsidiary corporations and parent corporations of the Company, any
Option previously granted to such employee, unless otherwise specified by the
Committee in the Option shall, to the extent not theretofore exercised,
terminate and become null and void; provided, however, that:
A. if any key employee shall die while in the employ of such
corporation or during either the one (1) year or three (3) month period,
whichever is applicable, specified in clauses (B), (C) and (D) below, any Option
granted hereunder, unless otherwise specified by the Committee in the Option,
shall be exercisable for any or all of such number of Shares that such employee
is entitled to exercise at the time of death, by the legal representative of
such employee or such person who acquired such Option by bequest or inheritance
or by reason of the death of such employee, at any time up to and including one
(1) year after the date of death;
B. if the employment of any key employee shall terminate by reason
of such employee's disability (as described in Section 22(e)(3) of the Code),
any Option granted hereunder, unless otherwise specified by the Committee in the
Option, shall be exercisable for any or all of such number of Shares that such
employee is entitled to exercise at the effective date of termination of
employment by reason of disability, at any time up to and including one (1) year
after the effective date of such termination of employment;
C. if the employment of any key employee shall terminate (i) by
reason of the employee's retirement (at such age or upon such conditions as
shall be specified by the Committee), (ii) by the key employee for "good reason"
7
<PAGE>
(only if such employee is party to a written employment agreement with the
Company or any subsidiary corporation or parent corporation which expressly
provides for termination by the key employee for "good reason," and such
employee validly terminates his or her employment for "good reason," as such
term is defined in the agreement ("Termination For Good Reason")), or (iii) by
the employer other than for cause (as defined below), such Option, unless
otherwise specified by the Committee in the Option, shall be exercisable for any
or all of such number of Shares that such employee is entitled to exercise at
the effective date of termination of employment, at any time up to and including
three (3) months after the effective date of such termination of employment; and
D. if the employment of any employee shall terminate by any reason
other than that provided for in clauses (A), (B) or (C) above, such Option,
unless otherwise specified by the Committee in such Option shall, to the extent
not theretofore exercised, become null and void.
None of the events described above shall extend the period of
exercisability of the Option beyond the expiration date thereof. If an Option
granted hereunder shall be exercised by the legal representative of a deceased
grantee or by a person who acquired an Option granted hereunder by bequest or
inheritance or by reason of the death of any employee or former employee,
written notice of such exercise shall be accompanied by a certified copy of
letters testamentary or equivalent proof of the right of such legal
representative or other person to exercise such Option.
For purposes of the Plan, the term "for cause" shall mean (a) with
respect to an employee who is a party to a written employment agreement with,
or, alternatively, participates in a compensation or benefit plan (other than
the Plan) of, the Company or a subsidiary corporation or parent corporation of
the Company, which agreement or plan contains a definition of "for cause" or
"cause" (or words of like import) for purposes of termination of employment or
services thereunder by the Company or such subsidiary corporation or parent
corporation of the Company, "for cause" or "cause" as defined therein (if an
employee is both party to an employment agreement and participates in such a
plan, the definition contained in such employment agreement shall control); or
(b) in all other cases, as determined by the Committee or the Board of
Directors, in its sole discretion, (i) the willful commission by an employee of
an act that causes or may cause substantial damage to the Company or a
subsidiary corporation or parent corporation of
8
<PAGE>
the Company; (ii) the commission by an employee of an act of fraud in the
performance of such employee's duties on behalf of the Company or a subsidiary
corporation or parent corporation of the Company; (iii) conviction of the
employee for commission of a felony in connection with the performance of his
duties on behalf of the Company or a subsidiary corporation or parent
corporation of the Company; or (iv) the continuing failure of an employee to
perform the duties of such employee to the Company or a subsidiary corporation
or parent corporation of the Company that has not been cured within 15 days
after written notice thereof has been given to the employee by the Committee.
For purposes of the Plan, an employment relationship shall be deemed
to exist between an individual and a corporation if, at the time of
determination, the individual was an "employee" of such corporation for purposes
of Section 422(a) of the Code. If an individual is on leave of absence taken
with the consent of the corporation by which such individual was employed, or is
on active military service, and is determined to be an "employee" for purposes
of the exercise of an Option, such individual shall not be entitled to exercise
such Option during such period and while the employment is treated as continuing
intact unless such individual shall have obtained the prior written consent of
such corporation, which consent shall be signed by the chairman of the board of
directors, the president, a senior vice-president or other duly authorized
officer of such corporation.
A termination of employment shall not be deemed to occur by reason
of (i) the transfer of an employee from employment by the Company to employment
by a subsidiary corporation or a parent corporation of the Company or (ii) the
transfer of an employee from employment by a subsidiary corporation or a parent
corporation of the Company to employment by the Company or by another subsidiary
corporation or parent corporation of the Company.
8. EXERCISE OF OPTIONS
Subject to the limitations on exercise referred to in Sections 6 and
7 hereof, Options granted under the Plan shall be exercised by the optionee as
to all or part of the Shares covered thereby by giving written notice of
exercise to the Corporate Secretary of the Company at the principal business
office of the Company, specifying the number of Shares to be purchased and
specifying a business day not more than ten (10) days from the date such notice
is given for the payment of the purchase price against delivery of the Shares
being purchased. Subject to the terms of Sections 13, 14 and 15 hereof, the
Company shall cause
9
<PAGE>
certificates for the Shares so purchased to be delivered at the principal
business office of the Company, against payment of the full purchase price, on
the date specified in the notice of exercise.
9. USE OF PROCEEDS
The cash proceeds of the sale of Shares subject to the Options
granted hereunder are to be added to the general funds of the Company and used
for its general corporate purposes as the Board of Directors shall determine.
10. NON-TRANSFERABILITY OF OPTIONS
An Option granted hereunder shall not be transferable, whether by
operation of law or otherwise, other than by will or the laws of descent and
distribution, and any Option granted hereunder shall be exercisable, during the
lifetime of the holder, only by such holder. Except to the extent provided
above, Options may not be assigned, transferred, pledged, hypothecated or
disposed of in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment or similar process.
11. ADJUSTMENT OF SHARES; EFFECT OF CERTAIN TRANSACTIONS
Notwithstanding any other provision contained herein, in the event
of any change in the Shares subject to the Plan or to any Option granted under
the Plan (through merger, consolidation, reorganization, recapitalization, stock
dividend, stock split, split-up, split-off, spin-off, combination of shares,
exchange of shares, or other like change in the capital structure of the
Company), an adjustment shall be made to each outstanding Option such that each
such Option shall thereafter be exercisable for such securities, cash and/or
other property as would have been received in respect of the Shares subject to
such Option had such Option been exercised in full immediately prior to such
change, and such an adjustment shall be made successively each time any such
change shall occur. The term "Shares" after any such change shall refer to the
securities, cash and/or property then receivable upon exercise of an Option. In
addition, in the event of any such change, the Committee shall make any further
adjustment to the maximum number of Shares which may be acquired under the Plan
pursuant to the exercise of Options, the maximum number of Shares for which
Options may be granted to any one employee and the number of Shares and price
per Share subject to outstanding Options as shall be equitable to prevent
dilution or enlargement of rights under such
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Options, and the determination of the Committee as to these matters shall be
conclusive and binding on the optionee; provided, however, that (a) each such
adjustment with respect to an Incentive Option shall comply with the rules of
Section 424(a) of the Code (or any successor provision) and (b) in no event
shall any adjustment be made which would render any Incentive Option granted
hereunder other than an "incentive stock option" as defined in Section 422 of
the Code.
In the event of a "change in control" of the Company, all then
outstanding Options shall immediately become exercisable. For purposes of the
Plan, a "change in control" of the Company shall occur if (a) any person or
other entity (other than any of the Company's subsidiaries), including any
person as defined in Section 13(d)(3) of the Exchange Act, becomes the
beneficial owner, as defined in Rule 13d-3 of the Exchange Act, directly or
indirectly, of more than fifty percent (50%) of the total combined voting power
of all classes of capital stock of the Company normally entitled to vote for the
election of directors of the Company (the "Voting Stock"), (b) the Board of
Directors approves the sale of all or substantially all of the property or
assets of the Company, (c) the Board of Directors approves a consolidation or
merger of the Company with another corporation (other than with any of the
Company's subsidiaries), the consummation of which would result in the
stockholders of the Company immediately before the occurrence of the
consolidation or merger owning, in the aggregate, less than 50% of the Voting
Stock of the surviving entity, or (d) a change in the Board of Directors occurs
with the result that the members of the Board of Directors on the date hereof
(the "Incumbent Directors") no longer constitute a majority of such Board of
Directors, provided that any person becoming a director whose election or
nomination for election was supported by a majority of the Incumbent Directors
shall be considered an Incumbent Director for purposes hereof.
The Committee, in its sole discretion, may determine that, upon the
occurrence of a transaction described in the preceding paragraph, each Option
outstanding hereunder shall terminate within a specified number of days after
notice to the holder, and such holder shall receive, with respect to each Share
subject to such Option, an amount equal to the excess of the fair market value
of such Shares immediately prior to the occurrence of such transaction over the
exercise price per Share of such Option; such amount shall be payable in cash,
in one or more of the kinds of property payable in such transaction, or in a
combination thereof, as the Committee in its discretion shall determine. The
provisions contained in the preceding
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sentence shall be inapplicable to an Option granted within six (6) months before
the occurrence of a change in control if the holder of such Option is subject to
the reporting requirements of Section 16(a) of the Exchange Act and no exemption
from liability under Section 16(b) is otherwise available to such holder.
12. RIGHT TO TERMINATE EMPLOYMENT
The Plan shall not impose any obligation on the Company or on any
subsidiary corporation or parent corporation thereof to continue the employment
of any holder of an Option and it shall not impose any obligation on the part of
any holder of an Option to remain in the employ of the Company or of any
subsidiary corporation or parent corporation thereof.
13. PURCHASE FOR INVESTMENT
Except as hereinafter provided, the Committee may require the holder
of an Option granted hereunder, as a condition of exercise of such Option in the
event the Shares subject to such Option are not registered pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(the "Securities Act"), and applicable state securities laws, to execute and
deliver to the Company a written statement, in form satisfactory to the
Committee, in which such holder (1) represents and warrants that such holder is
purchasing or acquiring the Shares acquired thereunder for such holder's own
account, for investment only and not with a view to the resale or distribution
thereof in violation of any federal or state securities laws, and (2) agrees
that any subsequent resale or distribution of any of such Shares shall be made
only pursuant to either (i) an effective registration statement under the
Securities Act covering such Shares and under applicable state securities laws
or (ii) specific exemptions from the registration requirements of the Securities
Act and any applicable state securities laws, based on a written opinion of
counsel, in form and substance satisfactory to counsel for the Company, as to
the application thereto of any such exemptions.
Nothing herein shall be construed as requiring the Company to
register Shares subject to any Option under the Securities Act or any state
securities law and, to the extent deemed necessary by the Company, Shares issued
upon exercise of an Option may contain a legend to the effect that registration
rights had not been granted with respect to such Shares.
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14. ISSUANCE OF STOCK CERTIFICATES; LEGENDS; PAYMENT OF EXPENSES
Upon any exercise of an Option granted hereunder and payment of the
purchase price therefor, a certificate or certificates representing the Shares
shall be issued by the Company in the name of the person exercising the Option
and shall be delivered to or upon the order of such person.
The Company may endorse such legend or legends upon the certificates
for Shares issued pursuant to the Plan and may issue such "stop transfer"
instructions to its transfer agent in respect of such Shares as the Committee,
in its sole discretion, determines to be necessary or appropriate to (a) prevent
a violation of, or to comply with the procedures for an exemption from, the
registration requirements of the Securities Act, (b) implement the provisions of
the Plan and any agreement between the Company and the optionee or grantee with
respect to such Shares or (c) permit the Company to determine the occurrence of
a disqualifying disposition, as described in Section 421(b) of the Code, of
Shares transferred upon exercise of an Incentive Option granted under the Plan.
The Company shall pay all issue or transfer taxes with respect to
the issuance or transfer of Shares, as well as all fees and expenses necessarily
incurred by the Company in connection with such issuance or transfer, except
fees and expenses which may be necessitated by the filing or amending of a
registration statement under the Securities Act, which fees and expenses shall
be borne by the recipient of the Shares unless such registration statement has
been filed by the Company for its own corporate purposes (and the Company so
states) in which event the recipient of the Shares shall bear only such fees and
expenses as are attributable solely to the inclusion of the Shares an optionee
receives in the registration statement.
All Shares issued as provided herein shall be fully paid and
nonassessable to the extent permitted by law.
15. WITHHOLDING TAXES
The Company may require an employee exercising a Non-Qualified
Option granted hereunder, or disposing of Shares acquired pursuant to the
exercise of an Incentive Option in a disqualifying disposition (within the
meaning of Section 421(b) of the Code), to reimburse the corporation which
employs such employee for any taxes required by any governmental regulatory
authority to be withheld or otherwise deducted and paid by such corporation in
respect
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of the issuance or disposition of such Shares. In lieu thereof, the corporation
which employs such employee shall have the right to withhold the amount of such
taxes from any other sums due or to become due from such corporation to the
employee upon such terms and conditions as the Committee shall prescribe. The
corporation that employs such employee may, in its discretion, hold the stock
certificate to which such employee is entitled upon the exercise of an Option as
security for the payment of such withholding tax liability, until cash
sufficient to pay that liability has been accumulated. In addition, at any time
that the Company becomes subject to a withholding obligation under applicable
law with respect to the exercise of a Non-Qualified Option (the "Tax Date"),
except as set forth below, a holder of a Non-Qualified Option may elect to
satisfy, in whole or in part, the holder's related personal tax liabilities (an
"Election") by (a) directing the Company to withhold from Shares issuable in the
related exercise either a specified number of Shares or Shares having a
specified value (in each case not in excess of the related personal tax
liabilities), (b) tendering Shares previously issued pursuant to the exercise of
an Option or other shares of the Company's Common Stock owned by the holder or
(c) combining any or all of the foregoing Elections in any fashion. An Election
shall be irrevocable. The withheld Shares and other shares of Common Stock
tendered in payment shall be valued at their fair market value (as determined
under Section 5) on the Tax Date. The Committee may disapprove of any Election,
suspend or terminate the right to make Elections or provide that the right to
make Elections shall not apply to particular Shares or exercises. The Committee
may impose any additional conditions or restrictions on the right to make an
Election as it shall deem appropriate. In addition, the Company shall be
authorized, without the prior written consent of the employee, to effect any
such withholding upon exercise of a Non-Qualified Option by retention of Shares
issuable upon such exercise having a fair market value at the date of exercise
(as determined under Section 5) which is equal to the amount to be withheld;
provided, however, that the Company shall not be authorized to effect such
withholding without the prior written consent of the employee if such
withholding would subject such employee to liability under Section 16(b) of the
Exchange Act. The Committee may prescribe such rules as it determines with
respect to employees subject to the reporting requirements of Section 16(a) of
the Exchange Act to effect such tax withholding in compliance with the Rules
established by the Securities and Exchange Commission (the "Commission") under
Section 16 of the Exchange Act and the positions of the staff of the Commission
thereunder expressed in no-action letters exempting such tax withholding from
liability under Section 16(b) of the Exchange Act.
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16. LISTING OF SHARES AND RELATED MATTERS
If at any time the Committee shall determine that the listing,
registration or qualification of the Shares subject to such Option on any
securities exchange or under any applicable law, or the consent or approval of
any governmental regulatory authority, is necessary or desirable as a condition
of, or in connection with, the granting of an Option, or the issuance of Shares
thereunder, such Option may not be exercised in whole or in part unless such
listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Committee.
17. AMENDMENT OF THE PLAN
The Board of Directors may, from time to time, amend the Plan,
provided that no amendment shall be made, without the approval of the
stockholders of the Company, that will (a) increase the total number of Shares
reserved for Options under the Plan (other than an increase resulting from an
adjustment provided for in Section 11 hereof), (b) reduce the exercise price of
any Incentive Option granted hereunder, (c) modify the provisions of the Plan
relating to eligibility, or (d) materially increase the benefits accruing to
participants under the Plan. The Committee shall be authorized to amend the Plan
and the Options granted thereunder to permit the Incentive Options granted
thereunder to qualify as "incentive stock options" within the meaning of Section
422 of the Code and the Treasury Regulations promulgated thereunder. The rights
and obligations under any Option granted before amendment of the Plan or any
unexercised portion of such Option shall not be adversely affected by amendment
of the Plan or the Option without the consent of the holder of such Option.
18. TERMINATION OR SUSPENSION OF THE PLAN
The Board of Directors may at any time suspend or terminate the
Plan. The Plan, unless sooner terminated under Section 22 or by action of the
Board of Directors, shall terminate at the close of business on the Termination
Date. Options may not be granted while the Plan is suspended or after it is
terminated. Rights and obligations under any Option granted while the Plan is in
effect shall not be altered or impaired by suspension or termination of the
Plan, except upon the consent of the person to whom the Option was granted. The
power of the Committee to construe and administer any Options under Section 3
that are granted
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prior to the termination or suspension of the Plan shall continue after such
termination or during such suspension.
19. SAVINGS PROVISION
With respect to persons subject to Section 16 of the Exchange Act,
transactions under the Plan are intended to comply with all applicable
conditions of Rule 16b-3 (or any successor provision) under the Exchange Act. To
the extent any provision of the Plan or action by the Committee fails to so
comply, it shall be deemed null and void to the extent permitted by law and
deemed advisable by the Committee.
20. GOVERNING LAW
The Plan, the Options granted hereunder and all related matters
shall be governed by, and construed and enforced in accordance with, the laws of
the State of New York from time to time obtaining.
21. PARTIAL INVALIDITY
The invalidity or illegality of any provision herein shall not be
deemed to affect the validity of any other provision.
22. EFFECTIVE DATE
The Plan shall become effective at 5:00 P.M., New York City time, on
the Effective Date; provided, however, that if the Plan is not approved by a
vote of the stockholders of the Company at an annual meeting or any special
meeting within twelve (12) months after the Effective Date, the Plan and any
Options granted thereunder shall terminate.
16
Exhibit 5
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
Fax: (212) 310-8007
July 20, 1998
United Industrial Corporation
570 Lexington Avenue
New York, NY 10022
Gentlemen:
We have acted as counsel to United Industrial Corporation, a
Delaware corporation (the "Company"), in connection with the preparation and
filing of the Registration Statement of the Company on Form S-8 under the
Securities Act of 1933 (the "Registration Statement") relating to its 1994 Stock
Option Plan, as amended. Terms defined in the Registration Statement and not
otherwise defined herein are used herein with the meanings as so defined.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such corporate records, agreements,
documents and other instruments, and such certificates or comparable documents
of public officials and of officers and representatives of the Company, and have
made such inquiries of such officers and representatives, as we have deemed
relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to this opinion that have not been independently established, we
have relied upon certificates or comparable documents of officers and
representatives of the Company.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that the 600,000
NYFS11...:\95\78495\0001\1708\OPN6028Z.100
<PAGE>
United Industrial Corporation
July 20, 1998
Page 2
shares of Common Stock, par value $1.00 per share, of the Company (the "Common
Stock") to be issued and sold by the Company pursuant to the Registration
Statement, have been duly authorized and, when issued and sold as contemplated
by the Registration Statement and the United Industrial Corporation 1994 Stock
Option Plan, as amended, will be validly issued, fully paid and nonassessable.
We hereby consent to be named in the Prospectus as the attorneys who
have passed upon the legality of the securities being offered thereby and to the
filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
WEIL, GOTSHAL & MANGES LLP
2
Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Form S-8
Registration Statement relating to the registration of 600,000 shares under the
United Industrial Corporation 1994 Stock Option Plan of our reports dated
February 24, 1998, with respect to the consolidated financial statements of
United Industrial Corporation incorporated by reference in its Annual Report
(Form 10-K) for the year ended December 31, 1997, and the related financial
statement schedule included therein, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
New York, New York
July 16, 1998
