As filed with the Securities and Exchange Commission on August 24, 1999
Registration No. 33-_____
================================================================================
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
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==============================================================================================================================
Title of Each Class of Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
Securities to be Registered Registered(1) Price Per Share(2) Offering Price(2) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $1.00 per share 600,000 shares $8.15625 $4,893,750 $1,360.46
==============================================================================================================================
</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 August 23, 1999.
================================================================================
#446284 v3
<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, (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 and (iii) 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 July 21, 1998, Registration
No. 333-59487, are hereby incorporated by reference.
<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 24th day of
August, 1999.
UNITED INDUSTRIAL CORPORATION
By: /s/ James H. Perry
-------------------------------------
Name: James H. Perry
Title: Vice President, 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Richard R. Erkeneff President and Chief Executive August 24, 1999
- ------------------------------------------ Officer and Director (Principal
Richard R. Erkeneff Executive Officer)
/s/ James H. Perry Chief Financial Officer August 24, 1999
- ------------------------------------------ (Principal Financial and
James H. Perry Accounting Officer)
2
<PAGE>
/s/ Harold S. Gelb Chairman of the Board and August 24, 1999
- ------------------------------------------ Director
Harold S. Gelb
/s/ Joseph S. Schneider Director August 24, 1999
- ------------------------------------------
Joseph S. Schneider
/s/ E. Donald Shapiro Director August 24, 1999
- ------------------------------------------
E. Donald Shapiro
/s/ Edward C.Aldridge, Jr. Director August 24, 1999
- ------------------------------------------
Edward C.Aldridge, Jr.
/s/ Susan Fein Zawel Director August 24, 1999
- ------------------------------------------
Susan Fein Zawel
</TABLE>
3
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
4(a) - Restated Certificate of Incorporation of the Company
(incorporated by reference to the Company's Annual Report on
Form 10-K for the year ended December 31, 1998).
4(b) - 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(c) - 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(c)
UNITED INDUSTRIAL CORPORATION
1994 STOCK OPTION PLAN, AS AMENDED
TABLE OF CONTENTS
PAGE
I. General Description..................................................1
II. Summary of the Plan..................................................1
Administration.......................................................1
Eligibility..........................................................2
Grant, Terms and Conditions of Options...............................2
Transferability and Early Termination of Options.....................3
Exercise of Options..................................................3
Amendment or Termination.............................................4
Resale Restrictions..................................................4
III. Certain Federal Income Tax Consequences..............................4
Incentive Stock Options..............................................5
Non-Qualified Options................................................6
Change in Control....................................................7
Certain Limitations on Deductibility of Executive Compensation.......7
IV. Incorporation of Certain Documents by Reference......................7
i
#316783 v3
<PAGE>
UNITED INDUSTRIAL CORPORATION
1994 STOCK OPTION PLAN, AS AMENDED
SUMMARY PLAN DESCRIPTION
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THIS SUMMARY PLAN DESCRIPTION CONSTITUTES PART OF A PROSPECTUS COVERING
SECURITIES THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
THE DATE OF THIS PART OF THE PROSPECTUS IS MAY 11, 1999.
The purpose of this pamphlet is to give you a brief summary
of the main provisions of the United Industrial Corporation 1994 Stock Option
Plan, as amended (the "Plan"). The complete terms of the Plan are set forth in
the Plan which is available for examination upon request. In the event of any
differences between this Summary Plan Description and the provisions of the
Plan, the Plan text will govern.
This Summary Plan Description describes the provisions of
the Plan in effect as of May 11, 1999. You will be notified of any material
changes in the terms of the Plan.
<PAGE>
I. GENERAL DESCRIPTION
The United Industrial Corporation 1994 Stock Option Plan,
as amended (the "Plan") was adopted by the Board of Directors of United
Industrial Corporation (the "Company") on March 10, 1994 and approved by the
Company's stockholders on May 10, 1994, amended as of February 27, 1996 with
such amendment being approved by the Company's stockholders on May 14, 1996,
amended again as of February 17, 1998 with such amendment being approved by the
Company's stockholders on May 12, 1998, and amended again as of March 18, 1999
with such amendment being approved by the Company's stockholders on May 11,
1999. The Plan terminates on March 10, 2004. The purposes of the Plan are to
provide certain key employees of the Company and its subsidiaries an opportunity
to acquire an ownership interest in the Company and thereby create in such
employees an increased interest in and greater concern for the welfare of the
Company, to retain their continued employment, and to secure and retain the
services of persons capable of filling key positions with the Company and its
subsidiaries. Options granted under the Plan shall be exercisable for shares of
common stock, $1.00 par value, of the Company ("Common Stock"). Pursuant to the
Plan, the Company may grant options ("Options") with respect to an aggregate of
up to 2,400,000 shares of Common Stock (the "Shares"), with no individual
optionee to receive in excess of 750,000 Shares. Options granted pursuant to the
Plan may be either incentive stock options ("ISOs") or non-qualified stock
options ("NQSOs"). Shares of Common Stock subject to Options may be either
authorized and unissued Shares, or previously issued Shares acquired or to be
acquired by the Company and held in its treasury. Previously issued Shares may
be acquired by the Company in the open market or in privately negotiated
transactions, in connection with which the Company may pay customary brokerage
commissions.
The Plan is not subject to any provisions of the Employee
Retirement Income Security Act of 1974, as amended, nor is it qualified under
the provisions of Section 401(a) of the Internal Revenue Code of 1986, as
amended (the "Code").
The following summary of the Plan is not intended to be
complete and is qualified in its entirety by reference to the Plan, as amended.
II. SUMMARY OF THE PLAN
ADMINISTRATION. The Plan is administered by an option
committee of the Board of Directors of the Company, which is comprised of
"Non-Employee Directors" within the meaning of Rule 16b-3 under Section 16(b) of
the Exchange Act (the "Option Committee"). The members of the Option Committee
are selected by, and serve at the pleasure of, the Board of Directors of the
Company. Currently, the members of the Option Committee are: Edward C. Aldridge,
Jr., E. Donald Shapiro and Harold S. Gelb. Any and all powers and functions of
the Option 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"), provided all of the members of the Board or the
<PAGE>
Executive Committee are "Non-Employee Directors" within the meaning of Rule
16b-3. (References in this discussion to the "Committee" include the Option
Committee, the Board of Directors and the Executive Committee to the extent any
of the foregoing administers the Plan.) The authority of the Committee includes,
among other things, determining the persons to whom Options are granted, the
timing of any grants, the number of Shares subject to each Option, the period of
exercisability, the designation of Options as ISOs or NQSOs and the other terms
and provisions thereof.
Officers subject to Section 16(a) of the Exchange Act may
not, and the Committee also has the authority to require, as a condition to any
grant, that any other grantee also may not, sell or otherwise dispose of Shares
acquired pursuant to the exercise of an Option within six months of the date an
Option is granted.
ELIGIBILITY. Options may be granted only to salaried key
employees of the Company or any subsidiary or parent corporation of the Company
now existing or subsequently formed or acquired.
GRANT, TERMS AND CONDITIONS OF OPTIONS. The Company will
not receive any monetary consideration for granting Options. 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.
The exercise price for each Share subject to an Option will
be an amount that the Committee determines, in its good faith judgment, to be
not less than 100% of the fair market value per Share on the date the Option is
granted (generally determined to be the closing price as reported on the New
York Stock Exchange Composite Tape). In the case of ISOs, however, the exercise
price per Share of ISOs granted to any holder of capital stock of the Company
(or any subsidiary or parent corporation) representing 10% or more of the voting
power of the Company (or any subsidiary or parent corporation) will be in an
amount that the Committee determines, in its good faith judgment, to be not less
than 110% of the fair market value per Share on the date the ISO is granted.
Payment for Shares purchased upon the exercise of Options
may be in cash or, if the terms of an Option so provide, with other Shares of
Common Stock or an executed promissory note on such terms and conditions as the
Committee shall determine.
Options will be evidenced by a written Stock Option
Agreement, which must be executed on behalf of the Company and the optionee. The
Stock Option Agreement will contain the specific terms of the particular Option.
The date on which the grant of an Option is authorized by the Committee will be
the effective date of grant for all purposes, regardless of when the Stock
Option Agreement is signed. Because the Options will be evidenced by a written
Stock Option Agreement, no reports will be given to the participating employees
indicating the amount and status of their Options.
2
<PAGE>
An optionee shall have none of the rights of a stockholder
with respect to the Shares subject to an Option until he exercises the Option
and the Shares are issued to him.
Options granted under the Plan are exercisable at such
times, in such amounts and during such period or periods as the Committee may
determine at the date the Option is granted. ISOs, however, are not exercisable
after ten years from the date of grant and, in the case of a person who at the
date of grant owns capital stock of the Company (or any subsidiary or parent
corporation) representing 10% or more of the voting power of the Company (or any
subsidiary or parent corporation), are not exercisable after five years from the
date of grant. Except as otherwise provided under the Internal Revenue Code of
1986, as amended (the "Code"), to the extent that the aggregate fair market
value of Shares subject to ISOs (under any plan of the Company or any subsidiary
or parent corporation) exercisable for the first time in any calendar year
exceeds $100,000, such Options will be treated as NQSOs.
In addition, the Committee has the right to accelerate, in
whole or in part, from time to time, conditionally or unconditionally, the right
to exercise any Option granted under the Plan.
In the event of a "change in control" of the Company, all
then outstanding Options shall immediately become exercisable. The Committee, in
its sole discretion, may determine that, upon the occurrence of a "change in
control," each Option outstanding under the Plan 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 in cash or
other property, or any combination thereof, equal to the excess of the aggregate
fair market value at the time of such transaction of the Shares subject to such
Option over the aggregate exercise price therefor. The foregoing provision does
not apply to Options granted to officers subject to Section 16(a) of the
Exchange Act within six months prior to a change-in-control, unless an exemption
from liability under Section 16(b) of the Exchange Act is otherwise available.
TRANSFERABILITY AND EARLY TERMINATION OF OPTIONS. Options
are not assignable or transferable, except upon death of the optionee, and may
be exercised only by the optionee or, in the event of the optionee's death, by
his legal representative. Each Option will terminate on the earlier of its
expiration date or the termination of an optionee's employment with the Company
or its subsidiaries for any reason other than (i) death, (ii) disability or
(iii) retirement or termination for good reason (if an employment agreement
allows such termination) or for other than cause. In the event of death or
disability, each Option will terminate on the earlier of its expiration date or
one year after death or total disability. In the event of retirement or
termination for good reason or for other than cause, each Option will terminate
on the earlier of its expiration or three months after such occurrence.
EXERCISE OF OPTIONS. 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
3
<PAGE>
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. The Company shall cause 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. In addition to the payment of the exercise price, the
Company may require the optionee to pay the full amount of all federal, state
and local withholding or other applicable employment taxes applicable to the
taxable income resulting from such exercise.
AMENDMENT OR TERMINATION. The Board of Directors of the
Company may at any time amend or terminate the Plan, provided that no such
action affects or impairs the rights of an optionee under any previously granted
Option. Notwithstanding the foregoing, without the approval of the Company's
stockholders, no amendment or change may be made (a) increasing the total number
of Shares reserved for Options under the Plan (other than an increase resulting
from an adjustment), (b) reducing the exercise price of any ISO, (c) modifying
the provisions of the Plan relating to eligibility or (d) materially increasing
the benefits accruing to participants under the Plan.
RESALE RESTRICTIONS. The Shares to be issued upon exercise
of the Options have been registered under the Securities Act of 1933 (the
"Securities Act"). The resale of such Shares by persons who are deemed to be
"affiliates" of the Company, as defined under Rule 144 of the Securities Act,
are subject to the restrictions contained in such rule, other than the holding
period requirement. Persons who are not affiliates are not subject to the
restrictions contained in Rule 144 and may freely resell Shares acquired by them
pursuant to the Plan. The Board may require, however, in the event that the
Shares to be issued upon exercise of an Option cease to be registered under the
Securities Act or other applicable securities laws, that each optionee (i)
represents that any and all Shares purchased upon exercise of the Option will be
purchased for investment and not with a view to distribution or resale and (ii)
agrees that such Shares will not be sold except pursuant to either (A) an
effective registration statement under the Securities Act covering such Shares
and under applicable state securities laws or (B) 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.
III. CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The statements in the following paragraphs are based on
federal income tax law and interpretational authorities as of the date of this
Description, which are subject to change at any time. The law is technical and
complex and the statements represent only a general summary of some of the
applicable provisions.
4
<PAGE>
INCENTIVE STOCK OPTIONS. ISOs granted under the Plan are
intended to meet the definitional requirements of Section 422(b) of the Code for
"incentive stock options."
Under the Code, the grantee of an ISO generally is not
subject to federal income tax upon the grant of such ISO. Similarly, the
exercise of an ISO generally does not give rise to federal income tax to the
employee, provided that (i) the federal "alternative minimum tax", which depends
on the employee's particular tax situation, does not apply and (ii) the employee
is employed by the Company or any subsidiary or parent corporation of the
Company from the date of grant of the option until three months prior to the
exercise thereof, except where such employment terminates by reason of
disability (where the three month period is extended to one year) or death
(where this requirement does not apply). If an employee exercises an ISO after
the requisite periods referred to in clause (ii) above, the ISO will be treated
as a NQSO and will be subject to the rules set forth below under the caption
"Non-qualified Options." Further, if after exercising an ISO, an employee
disposes of the Shares so acquired after the longer of two years from the date
of grant or one year from the date of transfer of Shares pursuant to the
exercise of such ISO (the "applicable holding period"), the employee will
normally recognize a capital gain or loss equal to the difference, if any,
between the amount received for the Shares over the exercise price. The capital
gain or loss will be long-term or short-term depending on the employee's holding
period. If, however, an employee does not hold the Shares so acquired for the
applicable holding period, thereby making a "disqualifying disposition," the
employee would recognize ordinary income in the year of the disqualifying
disposition equal to the excess of the fair market value of the shares at the
time the ISO was exercised over the exercise price and the balance, if any, will
be long-term or short-term capital gain depending on the employee's holding
period. If the disqualifying disposition is a sale or exchange that would permit
a loss to be recognized under the code (were a loss in fact to be realized), and
the sales proceeds are less than the fair market value of the Shares on the date
of exercise, the employee's ordinary income therefrom would be limited to the
gain (if any) realized on the sale.
An employee who exercises an ISO by delivering Shares
previously acquired pursuant to the exercise of an ISO is treated as making a
"disqualifying disposition" of such Shares if the employee delivers such Shares
before the expiration of the applicable holding period with respect to such
Shares. Upon the exercise of an ISO with previously acquired Shares as to which
no disqualifying disposition occurs, the employee would not recognize gain or
loss with respect to such previously acquired Shares.
A deduction will not be allowed to the Company for federal
income tax purposes with respect to the grant or exercise of an ISO or the
disposition, after the applicable holding period, of the Shares acquired upon
exercise of an ISO. In the event of a disqualifying disposition, a federal
income tax deduction generally will be allowed to the Company in an amount equal
to the amount included in ordinary income by the employee, provided that such
amount constitutes an ordinary and necessary business expense to the Company, is
reasonable, the limitations of Sections 280G and 162(m) of the Code (as
5
<PAGE>
described below) do not apply and the Company satisfies its withholding
obligation, if any, with respect to such income.
NON-QUALIFIED OPTIONS. A NQSO is an Option that does not
qualify as an "incentive stock option" under Section 422(b) of the Code. An
individual who receives a NQSO will not recognize any taxable income upon the
grant of such NQSO. Generally, upon exercise of a NQSO, an individual will be
treated as having received ordinary income in an amount equal to the excess of
the fair market value of the Shares at the time of exercise over the exercise
price.
Any optionee who is an officer of the Company or a
beneficial owner of more than ten percent (10%) of any class of registered
equity securities of the Company should consult with his or her tax advisor as
to whether, as a result of Section 16(b) of the Exchange Act and the rules and
regulations thereunder that are related thereto, the timing of income
recognition is deferred for any period following the exercise of a NQSO (i.e.,
the "Deferral Period"). If there is a Deferral Period, absent a written election
(pursuant to Section 83(b) of the Code) filed with the Internal Revenue Service
within 30 days after the date of transfer of the Shares pursuant to the exercise
of the Option to include in income, as of the transfer date, the excess (on such
date) of the fair market value of such Shares over their exercise price,
recognition of income by the individual will be deferred until the expiration of
the Deferral Period.
The ordinary income recognized with respect to the transfer
of Shares upon exercise of a NQSO under the Plan will be subject to both wage
withholding and employment taxes. In addition to the customary methods of
satisfying the withholding tax liabilities that arise upon the exercise of a
NQSO, an individual may satisfy the liability in whole or in part by directing
employer corporation to withhold Shares from those that would otherwise be
issuable to the individual or by tendering other shares of Common Stock owned by
the individual. The withheld Shares and other tendered shares will be valued at
their fair market value as of the date that the tax obligation arises.
Individuals who, by virtue of their positions with the Company, are subject to
Section 16(b) of the Exchange Act may elect this method of satisfying the
withholding obligation only during certain restricted periods.
An individual's tax basis in the Shares received on
exercise of a NQSO will be equal to the exercise price, amount of any cash paid
on exercise, plus the amount of ordinary income recognized by such individual as
a result of the receipt of such Shares. The holding period for such Shares would
begin just after the transfer of such Shares or, in the case of an officer or
beneficial owner of more than 10% of any class of registered equity securities
of the Company who does not elect to be taxed as of the exercise date, just
after the expiration of the Deferral Period, if any. A deduction for federal
income tax purposes generally will be allowed to the Company in an amount equal
to the amount included in ordinary income by the individual, provided that such
amount constitutes an ordinary and necessary business expense, is reasonable,
the limitations of Sections 280G and 162(m) of the Code do not apply and the
Company satisfies its withholding obligation, if any, with respect to such
income.
6
<PAGE>
If an individual exercises a NQSO by delivering Shares to
the Company, other than Shares previously acquired pursuant to the exercise of
an ISO which is treated as a "disqualifying disposition" as described above, the
individual will not recognize gain or loss with respect to the exchange of such
Shares, even if their then fair market value is different from the individual's
tax basis. The individual, however, will be taxed as described above with
respect to the exercise of the NQSO as if he or she had paid the exercise price
in cash, and the Company likewise generally will be entitled to an equivalent
tax deduction. So long as the individual receives a separate identifiable stock
certificate therefor, the tax basis and the holding period for that number of
Shares received on such exercise that is equal to the number of Shares
surrendered on such exercise will be equal to the tax basis and include the
holding period of those Shares surrendered. The individual's tax basis and
holding period for the additional Shares received on exercise of a NQSO paid
for, in whole or in part, with Shares will be the same as if the individual had
exercised the NQSO solely for cash.
CHANGE IN CONTROL. As described above, upon a "change in
control" of the Company, all the then outstanding Options shall immediately
become exercisable. In general, if the total amount of payments to optionees
that are contingent upon a "change of control" of the Company (as defined in
Section 280G of the Code), including payments under the Plan that vest upon a
"change in control," equals or exceeds three times the recipient's "base amount"
(generally, such recipient's average annual compensation for the five years
preceding the change in control), then, subject to certain exceptions, the
payments may be treated as "excess parachute payments" under the Code, in which
case a portion of such payments would be non-deductible to the Company and the
recipient would be subject to a 20% excise tax on such portion of the payments.
CERTAIN LIMITATIONS ON DEDUCTIBILITY OF EXECUTIVE
COMPENSATION. With certain exceptions, Section 162(m) of the Code limits the
Company's deduction for compensation paid to executive officers in excess of $1
million per executive per taxable year (including any deduction with respect to
the exercise of a NQSO or the disqualifying disposition of stock purchased
pursuant to an ISO). One such exception applies to certain performance based
compensation, provided that such compensation has been approved by shareholders
in a separate vote and certain other requirements are met. If approved by the
shareholders, the Company believes that options granted under the Plan, as
amended, at a time when the Option Committee consists solely of two or more
outside directors (within the meaning of Section 162(m) of the Code) should
qualify for this exception.
IV. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the
Securities and Exchange Commission (the "Commission") are incorporated herein by
reference:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998.
7
<PAGE>
(b) The Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999.
(c) The Proxy Statement of the Company for its Annual
Meeting of Stockholders held on May 11, 1999.
(d) The description of the Company's Common Stock contained
in the Company's Registration Statement on Form 8-B filed with the Commission
pursuant to Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the respective date of
filing of each such document.
The Company hereby undertakes to provide, without charge to
each participant in the Plan, on the written or oral request of any such person,
a copy of any and all of the documents that have been or may be incorporated
herein by reference and other documents required to be delivered to eligible
employees pursuant to Rule 428(b) under the Securities Act or additional
information about the Plan. The request for such documents or information should
be directed to Corporate Secretary, United Industrial Corporation, 570 Lexington
Avenue, New York, New York 10022, telephone (212) 752-8787.
8
Exhibit 5
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
Fax: (212) 310-8007
August 24, 1999
United Industrial Corporation
570 Lexington Avenue
New York, NY 10022
Ladies and 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. Capitalized terms defined in the Registration Statement
and used (but not otherwise defined) herein are used herein 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 all natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed 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 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.
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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
March 2, 1999, 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, 1998, and the related financial statement
schedule included therein, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
New York, New York
August 19, 1999
