As Filed with the Securities and Exchange Commission on May 7, 1999
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
VALMONT INDUSTRIES, INC.
(Exact Name of Issuer as Specified in its Charter)
Delaware 47-0351813
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation of Organization) Identification No.)
Valley, Nebraska 68064
(Address of Principal Executive Offices) (Zip Code)
Valmont 1999 Stock Plan
Valmont Consultant Agreements
(Full Title of the Plans)
Terry J. McClain, Senior Vice President
and Chief Financial Officer
Valmont Industries, Inc.
Valley, NE 68064
(Name and Address of Agent for Service)
Telephone Number, Including Area Code,
of Agent for Service: 402-359-2201
CALCULATION OF REGISTRATION FEE
<TABLE>
- ----------------------- --------------------- -------------------- ------------------------ --------------------
<S> <C> <C> <C> <C>
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered share price(1) registration fee
- ----------------------- --------------------- -------------------- ------------------------ --------------------
Common Stock 1,725,000 $ 15.53 $ 26,789,250 $ 7,448
- ----------------------- --------------------- -------------------- ------------------------ --------------------
</TABLE>
(1) Estimated solely for the purposes of calculating the amount of the
registration fee, pursuant to Rule 457(c), on the basis of the average of
the high and low sales prices on May 5, 1999.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
As permitted by the rules of the Securities and Exchange Commission
(the "Commission"), this Registration Statement omits the information specified
in Part I of Form S-8. The documents containing the information specified in
Part I will be delivered to the Company's employees (as defined in the
instructions to Form S-8) receiving securities registered hereunder as required
by Securities Act Rule 428(b). Such documents are not being filed with the
Commission as part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Valmont Industries, Inc. (the "Company") hereby incorporates by reference
in this Registration Statement the following documents previously filed with the
Securities and Exchange Commission:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 26, 1998.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") by
the Company since the end of the Company's fiscal year ended
December 26, 1998.
(c) The description of the Company's common stock and related
rights contained in registration statements filed under the
Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company 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 have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in the Registration Statement and to be a part
thereof from the date of filing of such documents.
<PAGE>
Item 6. Indemnification of Directors and Officers.
Pursuant to Article IX of the Certificate of Incorporation of the
Company, the Company shall, to the extent required, and may, to the extent
permitted, by Section 102 and Section 145 of the General Corporation Law of the
State of Delaware, as amended from time to time, indemnify and reimburse all
persons whom it may indemnify and reimburse pursuant thereto. No director shall
be liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, a director shall continue to be liable
for (i) any breach of a director's duty of loyalty to the Company or its
stockholders; (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) paying a dividend or
approving a stock repurchase which would violate Section 174 of the General
Corporation Law of the State of Delaware; or (iv) any transaction from which the
director derived an improper personal benefit.
The by-laws of the Company provide for indemnification of Company
officers and directors against all expenses, liability or losses reasonably
incurred or suffered by them to the extent legally permissible under the
Delaware General Corporation Law where any such person was, is, or is threatened
to be made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact such
person was serving the Company in such capacity. Generally, under Delaware law,
indemnification will only be available where an officer or director can
establish that such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Company.
The Company also maintains a director and officer insurance policy
which insures the Company, its subsidiaries and their officers and directors
against damages, judgments, settlements and costs incurred by reason of certain
wrongful acts committed by such persons in their capacities as officers and
directors.
Item 8. Exhibits
4.1 - Certificate of Incorporation, as amended, filed with the
Company's Quarterly Report on Form 10-Q for the quarter
ended March 28, 1998 and incorporated herein by reference.
4.2 - Bylaws, as amended, filed with the Company's Annual Report
on Form 10-K for the fiscal year ended December 26, 1998
and incorporated herein by reference.
4.3 - Rights Agreement dated as of December 19, 1995 between the
Company and First National Bank of Omaha as Rights Agent
filed with the Company's Current Report on Form 8-K dated
December 19, 1995 and incorporated herein by reference.
4.4 - Certificate of Adjustment dated May 30, 1997 to Rights
Agreement dated as of December 19, 1995, filed with the
Company's Annual Report on Form 10-K for fiscal year ended
December 27, 1997 and incorporated herein by reference.
4.5 - Valmont 1999 Stock Plan
5 - Opinion of McGrath, North, Mullin & Kratz, P.C.
23.1 - Consent of McGrath, North, Mullin & Kratz, P.C., counsel
for the Company (included as part of Exhibit 5)
23.2 - Consent of Deloitte & Touche LLP
24 - Powers of Attorney
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:
<PAGE>
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (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;
(iii)To include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement;
provided, however that paragraph (A)(l)(i) and
(A)(l)(ii) do not apply if the information required to
be included in a post-effective amendment by the
foregoing paragraphs is contained in periodic reports
filed by the Company pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(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 Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall he
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 Securities and Exchange
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 of 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.
<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
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 Omaha, and the State of Nebraska, on April 27, 1999.
Valmont Industries, Inc.
/s/ Mogens C. Bay
By_________________________
Mogens C. Bay
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated on April 27, 1999.
Signature Title
/s/ Mogens C. Bay
_________________________ Director, President and Chief
Mogens C. Bay Executive Officer (Principal
Executive Officer)
/s/ Terry J. McClain
_________________________ Vice President and Chief
Terry J. McClain Financial Officer (Principal
Financial Officer)
/s/ Brian C. Stanley
_________________________ Vice President - Investor
Brian C. Stanley Relations & Controller
(Principal Accounting Officer)
Robert B. Daugherty*
Charles M. Harper*
John E. Jones*
Thomas F. Madison*
Charles D. Peebler, Jr.
Bruce Rohde*
Walter Scott, Jr.*
Kenneth E. Stinson*
*Mogens C. Bay, by signing his name hereto, signs this registration
statement on behalf of each of the directors indicated. A Power of Attorney
authorizing such action has been filed herein as Exhibit 24.
/s/ Mogens C. Bay
----------------------------
Mogens C. Bay
Attorney-in-Fact
<PAGE>
Index to Exhibits
Exhibit No. Exhibit Page
4.1 - Certificate of Incorporation, as amended, filed with the
Company's Quarterly Report on Form 10-Q for the quarter
ended March 28, 1998 and incorporated herein by reference.
4.2 - Bylaws, as amended, filed with the Company's Annual Report
on Form 10-K for the fiscal year ended December 26, 1998
and incorporated herein by reference.
4.3 - Rights Agreement dated as of December 19, 1995 between the
Company and First National Bank of Omaha as Rights Agent
filed with the Company's Current Report on Form 8-K dated
December 19, 1995 incorporated herein by reference.
4.4 - Certificate of Adjustment dated May 30, 1997 to Rights
Agreement dated as of December 19, 1995, filed as Exhibit
4(b) with the Company's Annual Report on Form 10-K for
fiscal year ended December 27, 1997 and incorporated herein
by reference.
4.5 - Valmont 1999 Stock Plan...................................
5 - Opinion of McGrath, North, Mullin & Kratz, P.C............
23.1 - Consent of McGrath, North, Mullin & Kratz, P.C., counsel
for the Company (included as part of Exhibit 5)
23.2 - Consent of Deloitte & Touche LLP..........................
24 - Powers of Attorney........................................
<PAGE>
VALMONT 1999 STOCK PLAN
SECTION 1
NAME AND PURPOSE
1.1 Name. The name of the plan shall be the Valmont 1999 Stock Plan (the
"Plan").
1.2. Purpose of Plan. The purpose of the Plan is to foster and promote
the long-term financial success of the Company and increase stockholder value by
(a) motivating superior performance by means of stock incentives, (b)
encouraging and providing for the acquisition of an ownership interest in the
Company by Employees and (c) enabling the Company to attract and retain the
services of a management team responsible for the long-term financial success of
the Company.
SECTION 2
DEFINITIONS
2.1 Definitions. Whenever used herein, the following terms shall have
the respective meanings set forth below:
(a) "Act" means the Securities Exchange Act of 1934, as amended.
(b) "Award" means any Option, Stock Appreciation Right, Restricted
Stock, Stock Bonus, or any combination thereof, including
Awards combining two or more types of Awards in a single
grant.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means the Compensation Committee of the Board,
which shall consist of two or more members, each of whom shall
be a "non-employee director" within the meaning of Rule 16b-3
as promulgated under the Act.
(f) "Company" means Valmont Industries, Inc., a Delaware
corporation (and any successor thereto) and its Subsidiaries.
(g) "Director Award" means an award of Stock and an annual Award
of a Nonstatutory Stock Option granted to each Eligible
Director pursuant to Section 7.1 without any action by the
Board or the Committee.
<PAGE>
(h) "Eligible Director" means a person who is serving as a member
of the Board and who is not an Employee.
(i) "Employee" means any employee of the Company or any of its
Subsidiaries.
(j) "Fair Market Value" means, on any date, the average of the
high and low sales prices of the Stock as reported on the
National Association of Securities Dealers Automated Quotation
system (or on such other recognized market or quotation system
on which the trading prices of the Stock are traded or quoted
at the relevant time) on such date. In the event that there
are no Stock transactions reported on such system (or such
other system) on such date, Fair Market Value shall mean the
average of the high and low sale prices on the immediately
preceding date on which Stock transactions were so reported.
(k) "Option" means the right to purchase Stock at a stated price
for a specified period of time. For purposes of the Plan, an
Option may be either (i) an Incentive Stock Option within the
meaning of Section 422 of the Code or (ii) a Nonstatutory
Stock Option.
(l) "Participant" means any Employee designated by the Committee
to participate in the Plan.
(m) "Plan" means the Valmont 1999 Stock Plan, as in effect from
time to time.
(n) "Restricted Stock" shall mean a share of Stock granted to a
Participant subject to such restrictions as the Committee may
determine.
(o) "Stock" means the Common Stock of the Company, par value $1.00
per share.
(p) "Stock Appreciation Right" means the right, subject to such
terms and conditions as the Committee may determine, to
receive an amount in cash or Stock, as determined by the
Committee, equal to the excess of (i) the Fair Market Value,
as of the date such Stock Appreciation Right is exercised, of
the number shares of Stock covered by the Stock Appreciation
Right being exercised over (ii) the aggregate exercise price
of such Stock Appreciation Right.
<PAGE>
(q) "Stock Bonus" means the grant of Stock as compensation from
the Company in lieu of cash salary or bonuses otherwise
payable to the Participant.
(r) "Subsidiary" means any corporation or partnership in which the
Company owns, directly or indirectly, 50% or more of the total
combined voting power of all classes of stock of such
corporation or of the capital interest or profits interest of
such partnership.
2.2 Gender and Number. Except when otherwise indicated by the context,
words in the masculine gender used in the Plan shall include the feminine
gender, the singular shall include the plural, and the plural shall include the
singular.
SECTION 3
ELIGIBILITY AND PARTICIPATION
Except as otherwise provided in Section 7.1, the only persons eligible
to participate in the Plan shall be those Employees selected by the Committee as
Participants.
SECTION 4
POWERS OF THE COMMITTEE
4.1 Power to Grant. The Committee shall determine the Participants to
whom Awards shall be granted, the type or types of Awards to be granted, and the
terms and conditions of any and all such Awards. The Committee may establish
different terms and conditions for different types of Awards, for different
Participants receiving the same type of Awards, and for the same Participant for
each Award such Participant may receive, whether or not granted at different
times.
4.2 Administration. The Committee shall be responsible for the
administration of the Plan. The Committee, by majority action thereof, is
authorized to prescribe, amend, and rescind rules and regulations relating to
the Plan, to provide for conditions deemed necessary or advisable to protect the
interests of the Company, and to make all other determinations necessary or
advisable for the administration and interpretation of the Plan in order to
carry out its provisions and purposes. Determinations, interpretations, or other
actions made or taken by the Committee pursuant to the provisions of the Plan
shall be final, binding, and conclusive for all purposes and upon all persons.
<PAGE>
SECTION 5
STOCK SUBJECT TO PLAN
5.1 Number. Subject to the provisions of Section 5.3, the number of
shares of Stock subject to Awards (including Director Awards) under the Plan may
not exceed 1,700,000 shares of Stock. The shares to be delivered under the Plan
may consist, in whole or in part, of treasury Stock or authorized but unissued
Stock, not reserved for any other purpose. The maximum number of shares of Stock
with respect to which Awards may be granted to any one Employee under the Plan
is 40% of the aggregate number of shares of Stock available for Awards under
Section 5.1.
5.2 Cancelled, Terminated or Forfeited Awards. Any shares of Stock
subject to an Award which for any reason are cancelled, terminated or otherwise
settled without the issuance of any Stock shall again be available for Awards
under the Plan. In the event a Participant pays the exercise price of an Option
pursuant to Section 6.4 by transferring or having withheld shares of stock, only
the net number of Shares shall be considered utilized under the Plan and the
balance shall again be available for Award under the Plan.
5.3 Adjustment in Capitalization. In the event of any Stock dividend or
Stock split, recapitalization (including, without limitation, the payment of an
extraordinary dividend), merger, consolidation, combination, spin-off,
distribution of assets to stockholders, exchange of shares, or other similar
corporate change, (i) the aggregate number of shares of Stock available for
Awards under Section 5.1 and (ii) the number of shares and exercise price with
respect to Options and the number, prices and dollar value of other Awards, may
be appropriately adjusted by the Committee, whose determination shall be
conclusive. If, pursuant to the preceding sentence, an adjustment is made to the
number of shares of Stock authorized for issuance under the Plan, a
corresponding adjustment shall be made with respect to Director Awards granted
pursuant to Section 7.1.
SECTION 6
STOCK OPTIONS
6.1 Grant of Options. Options may be granted to Participants at such
time or times as shall be determined by the Committee. Options granted under the
Plan may be of two types: (i) Incentive Stock Options and (ii) Nonstatutory
Stock Options. The Committee shall have complete discretion in determining the
<PAGE>
number of Options, if any, to be granted to a Participant. Each Option shall be
evidenced by an Option agreement that shall specify the type of Option granted,
the exercise price, the duration of the Option, the number of shares of Stock to
which the Option pertains, the exercisability (if any) of the Option in the
event of death, retirement, disability or termination of employment, and such
other terms and conditions not inconsistent with the Plan as the Committee shall
determine. Options may also be granted in replacement of or upon assumption of
options previously issued by companies acquired by the Company by merger or
stock purchase, and any options so replaced or assumed may have the same terms
including exercise price as the options so replaced or assumed.
6.2 Option Price. Nonstatutory Stock Options and Incentive Stock
Options granted pursuant to the Plan shall have an exercise price which is not
less than the Fair Market Value on the date the Option is granted.
6.3 Exercise of Options. Options awarded to a Participant under the
Plan shall be exercisable at such times and shall be subject to such
restrictions and conditions as the Committee may impose, subject to the
Committee's right to accelerate the exercisability of such Option in its
discretion. Notwithstanding the foregoing, no Option shall be exercisable for
more than ten years after the date on which it is granted.
6.4 Payment. The Committee shall establish procedures governing the
exercise of Options, which shall require that written notice of exercise be
given and that the Option price be paid in full in cash or cash equivalents,
including by personal check, at the time of exercise or pursuant to any
arrangement that the Committee shall approve. The Committee may, in its
discretion, permit a Participant to make payment (i) in Stock already owned by
the Participant valued at its Fair Market Value on the date of exercise (if such
Stock has been owned by the Participant for at least six months) or (ii) by
electing to have the Company retain Stock which would otherwise be issued on
exercise of the Option, valued at its Fair Market Value on the date of exercise.
As soon as practicable after receipt of a written exercise notice and full
payment of the exercise price, the Company shall deliver to the Participant a
certificate or certificates representing the acquired shares of Stock. The
Committee may permit a Participant to elect to pay the exercise price upon the
exercise of an Option by authorizing a third party to sell shares of Stock (or a
sufficient portion of the shares) acquired upon exercise of the Option and remit
to the Company a sufficient portion of the sale proceeds to pay the entire
exercise price and any required tax withholding resulting from such exercise.
<PAGE>
6.5 Incentive Stock Options. Notwithstanding anything in the Plan to
the contrary, no term of this Plan relating to Incentive Stock Options shall be
interpreted, amended or altered, nor shall any discretion or authority granted
under the Plan be so exercised, so as to disqualify the Plan under Section 422
of the Code, or, without the consent of any Participant affected thereby, to
cause any Incentive Stock Option previously granted to fail to qualify for the
Federal income tax treatment afforded under Section 421 of the Code.
6.6 Replacement Options. The Committee may grant a replacement option (a
"Replacement Option") to any Employee who exercises all or part of an option
granted under this Plan using Qualifying Stock (as herein defined) as payment
for the purchase price. A Replacement Option shall grant to the Employee the
right to purchase, at the Fair Market Value as of the date of said exercise and
grant, the number of shares of stock equal to the sum of the number of whole
shares (i) used by the Employee in payment of the purchase price for the option
which was exercised and (ii) used by the Employee in connection with applicable
withholding taxes on such transaction. A Replacement Option may not be exercised
for six months following the date of grant, and shall expire on the same date as
the option which it replaces. Qualifying Stock is stock which has been owned by
the Employee for at least six months prior to the date of exercise and has not
been used in a stock-for-stock swap transaction within the preceding six months.
SECTION 7
DIRECTOR AWARDS
7.1 Amount of Award. Each Eligible Director shall receive a
non-discretionary Award of 2,000 shares of stock each year; such Award shall be
made annually on the date of and following completion of the Company's annual
stockholders' meeting (commencing with the 1999 annual stockholders' meeting).
Each Eligible Director shall be issued a common stock certificate for such
number of shares. Termination of the director's services for any reason other
than (i) death, (ii) retirement from the Board at mandatory retirement age, or
(iii) resignation or failure to stand for re-election, in any such case with the
prior approval of the Board, will result in forfeiture of the Stock. If the
Stock is forfeited, the director shall return the number of forfeited shares of
Stock, or equivalent value, to the Company. The number of shares of Stock
awarded to an Eligible Director annually shall be appropriately adjusted in the
event of any stock changes as described in Section 5.3. In addition, each
Eligible Director shall receive a non-discretionary Award of a
<PAGE>
Nonqualified Stock Option for 4,000 shares of Stock exercisable at the Fair
Market Value of the Company's common stock on the date of grant; such Award
shall be made annually on the date of and following completion of the Company's
annual stockholders' meeting (commencing with the 1999 annual stockholders'
meeting). The number of nonqualified options awarded to a director shall be
appropriately adjusted in the event of any stock changes as described in Section
5.3.
7.2 No Other Awards. An Eligible Director shall not receive any other
Award under the Plan.
SECTION 8
STOCK APPRECIATION RIGHTS
8.1 SAR's In Tandem with Options. Stock Appreciation Rights may be
granted to Participants in tandem with any Option granted under the Plan, either
at or after the time of the grant of such Option, subject to such terms and
conditions, not inconsistent with the provisions of the Plan, as the Committee
shall determine. Each Stock Appreciation Right shall only be exercisable to the
extent that the corresponding Option is exercisable, and shall terminate upon
termination or exercise of the corresponding Option. Upon the exercise of any
Stock Appreciation Right, the corresponding Option shall terminate.
8.2 Other Stock Appreciation Rights. Stock Appreciation Rights may also
be granted to Participants separately from any Option, subject to such terms and
conditions, not inconsistent with the provisions of the Plan, as the Committee
shall determine.
SECTION 9
RESTRICTED STOCK
9.1 Grant of Restricted Stock. The Committee may grant Restricted Stock
to Participants at such times and in such amounts, and subject to such other
terms and conditions not inconsistent with the Plan as it shall determine. Each
grant of Restricted Stock shall be subject to such restrictions, which may
relate to continued employment with the Company, performance of the Company, or
other restrictions, as the Committee may determine. Each grant of Restricted
Stock shall be evidenced by a written agreement setting forth the terms of such
Award. A
<PAGE>
maximum of 20% of the shares of Stock available for issuance under the Plan may
be issued as Restricted Stock.
9.2 Removal of Restrictions. The Committee may accelerate or waive such
restrictions in whole or in part at any time in its discretion.
SECTION 10
STOCK BONUSES
10.1 Grant of Stock Bonuses. The Committee may grant a Stock Bonus to a
Participant at such times and in such amounts, and subject to such other terms
and conditions not inconsistent with the Plan, as it shall determine.
SECTION 11
AMENDMENT, MODIFICATION, AND TERMINATION OF PLAN
11.1 General. The Board may from time to time amend, modify or terminate
any or all of the provisions of the Plan, subject to the provisions of this
Section 11.1. The Board may not change the Plan in a manner which would prevent
outstanding Incentive Stock Options granted under the Plan from being Incentive
Stock Options without the consent of the optionees concerned. Furthermore, the
Board may not make any amendment which would (i) materially modify the
requirements for participation in the Plan or (ii) increase the number of shares
of Stock subject to Awards under the Plan pursuant to Section 5.1, in each case
without the approval of a majority of the outstanding shares of Stock entitled
to vote thereon. No amendment or modification shall affect the rights of any
Employee with respect to a previously granted Award, nor shall any amendment or
modification affect the rights of any Eligible Director pursuant to a previously
granted Director Award.
11.2 Termination of Plan. No further Options shall be granted under the
Plan subsequent to December 31, 2009, or such earlier date as may be determined
by the Board.
<PAGE>
SECTION 12
MISCELLANEOUS PROVISIONS
12.1 Nontransferability of Awards. Except as otherwise provided by the
Committee, no Awards granted under the Plan may be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated, other than by will or by the
laws of descent and distribution.
12.2 Beneficiary Designation. Each Participant under the Plan may from
time to time name any beneficiary or beneficiaries (who may be named contingent
or successively) to whom any benefit under the Plan is to be paid or by whom any
right under the Plan is to be exercised in case of his death. Each designation
will revoke all prior designations by the same Participant shall be in a form
prescribed by the Committee, and will be effective only when filed in writing
with the Company. In the absence of any such designation, Awards outstanding at
death may be exercised by the Participant's surviving spouse, if any, or
otherwise by his estate.
12.3 No Guarantee of Employment or Participation. Nothing in the Plan
shall interfere with or limit in any way the right of the Company or any
Subsidiary to terminate any Participant's employment at any time, nor confer
upon any Participant any right to continue in the employ of the Company or any
Subsidiary. No Employee shall have a right to be selected as a Participant, or,
having been so selected, to receive any future Awards.
12.4 Tax Withholding. The Company shall have the power to withhold, or
require a Participant or Eligible Director to remit to the Company, an amount
sufficient to satisfy federal, state, and local withholding tax requirements on
any Award under the Plan, and the Company may defer issuance of Stock until such
requirements are satisfied. The Committee may, in its discretion, permit a
Participant to elect, subject to such conditions as the Committee shall impose,
(i) to have shares of Stock otherwise issuable under the Plan withheld by the
Company or (ii) to deliver to the Company previously acquired shares of Stock,
in each case having a Fair Market Value sufficient to satisfy all or part of the
Participant's estimated total federal, state and local tax obligation associated
with the transaction.
12.5 Change of Control. On the date of a Change of Control, all
outstanding options and stock appreciation rights shall become immediately
exercisable and all restrictions with respect to Restricted Stock shall lapse.
"Change of Control" shall mean:
<PAGE>
(i) The acquisition (other than from the Company) by any person,
entity or "group", within the meaning of Section 13(d)(3) or
14(d)(2) of the Act (excluding any acquisition or holding by (i)
the Company or its subsidiaries, (ii) any employee benefit plan
of the Company or its subsidiaries which acquires beneficial
ownership of voting securities of the Company and (iii) Robert
B. Daugherty, his successors and assigns and any tax-exempt
entity established by him) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Act) of 50% or more
of either the then outstanding shares of common stock or the
combined voting power of the Company's then outstanding voting
securities entitled to vote generally in the election of
directors; or
(ii) Individuals who, as of the date hereof, constitute the Board (as
of the date hereof the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board, provided that
any person becoming a director subsequent to the date hereof
whose election, or nomination for the election by the Company's
stockholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be, for
purposes of this Plan, considered as though such person were a
member of the Incumbent Board; or
(iii) Approval by the stockholders of the Company of a reorganization,
merger or consolidation, in each case, with respect to which
persons who were the stockholders of the Company immediately
prior to such reorganization, merger or consolidation do not,
immediately thereafter, own more than 50% of the combined voting
power entitled to vote generally in the election of directors of
the reorganized, merged or consolidated company's then
outstanding voting securities, or a liquidation or dissolution
of the Company or of the sale of all or substantially all of the
assets of the Company.
12.6 Company Intent. The Company intends that the Plan comply in all
respects with Rule 16b-3 under the Act, and any ambiguities or inconsistencies
in the construction of the Plan shall be interpreted to give effect to such
intention.
12.7 Requirements of Law. The granting of Awards and the issuance of
shares of Stock shall be subject to all applicable laws, rules, and regulations,
and to such approvals by any governmental agencies or securities exchanges as
may be required.
<PAGE>
12.8 Effective Date. The Plan shall be effective upon its adoption by
the Board subject to approval by the Company's stockholders at the 1999 annual
stockholders' meeting.
12.9 Governing Law. The Plan, and all agreements hereunder, shall be
construed in accordance with and governed by the laws of the State of Delaware.
McGrath, North, Mullin & Kratz, P.C.
1400 One Central Park Plaza
222 South Fifteenth Street
Omaha, NE 68102
(402) 341-3070
May 5, 1999
Valmont Industries, Inc.
One Valmont Plaza
Omaha, Nebraska 68154
Gentlemen:
In connection with the registration under the Securities Act of 1933,
as amended, of 1,700,000 shares of common stock (the "Common Stock"), $1.00 par
value, of Valmont Industries, Inc., a Delaware corporation (the "Company"),
authorized for issuance pursuant to the Valmont 1999 Stock Plan (the "Plan"),
and an additional 25,000 shares which may be issued from time to time to
non-employee consultants, we have examined such corporate records and other
documents, including the registration statement on Form S-8 to be filed with the
Securities and Exchange Commission relating to such shares (the "Registration
Statement"), and have reviewed such matters of law as we have deemed necessary
for this opinion. Based on such examination, we advise you that in our opinion:
1. The Company is a corporation duly organized and existing under the
laws of the State of Delaware.
2. Upon the issuance of shares in accordance with the Plan, all
necessary corporate action on the part of the Company will have been taken to
authorize the issuance of up to 1,700,000 shares of Common Stock by the Company,
and when issued as contemplated in the Registration Statement and related
documents, such shares will be legally issued, fully paid and nonassessable.
3. Upon the issuance of shares to non-employee consultants pursuant to
specific authorization by the Board of Directors of the Company or a duly
authorized committee of the Board of Directors in each specific case of
issuance, all necessary corporate action on the part of the Company will have
been taken to authorize the issuance of up to 25,000 shares of common stock of
the Company to such non-employee consultants, and when issued as contemplated in
the registration statement and related documents, such shares will be legally
issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Yours very truly,
MCGRATH, NORTH, MULLIN & KRATZ, P.C.
By: /s/ DAVID L. HEFFLINGER
David L. Hefflinger
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Valmont Industries, Inc. on Form S-8 of our report dated February
5, 1999, appearing in and incorporated by reference in the Annual Report on Form
10-K of Valmont Industries, Inc. for the year ended December 26, 1998.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
May 5, 1999
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of Valmont
Industries, Inc., a Delaware corporation, hereby constitutes and appoints each
of Mogens C. Bay and Terry J. McClain as his true and lawful attorney-in-fact
and agent, with full power to act for him in his name, place and stead in any
and all capacities, to do any and all acts and things and execute any and all
instruments which said attorney and agent may deem necessary or desirable to
enable Valmont Industries, Inc. to comply with the Securities Act of 1933, as
amended, and any rules regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration on
Form S-8 under said Act of 1,700,000 shares of common stock of this corporation
issuable under the Valmont 1999 Stock Plan, and an additional 25,000 shares
issuable from time to time to non-employee consultants, including specifically,
but without limiting the generality of the foregoing, power and authority to
sign the name of Valmont Industries, Inc. and the name of the undersigned
Director to the registration statement, any amendments (including post-effective
amendments) thereto, and to any instruments and documents filed as part of or in
connection with said registration statement or amendments thereto; and the
undersigned hereby ratifies and confirms all that said attorney and agent shall
do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto signed this power of
attorney this 26th day of April, 1999.
/s/ Robert B. Daugherty
- --------------------------------- ---------------------------------
Robert B. Daugherty Charles D. Peebler, Jr.
/s/ Charles M. Harper /s/ Bruce Rohde
- --------------------------------- ---------------------------------
Charles M. Harper Bruce Rohde
/s/ John E. Jones /s/ Walter Scott, Jr.
- --------------------------------- ---------------------------------
John E. Jones Walter Scott, Jr.
/s/ Thomas F. Madison /s/ Kenneth E. Stinson
- --------------------------------- ---------------------------------
Thomas F. Madison Kenneth E. Stinson
