<PAGE>
As filed with the Securities and Exchange Commission on April 17, 1996
Registration No. _________
This Registration Statement also constitutes Post-Effective Amendment No. 7 to
Registration Statement No. 2-55753, Post Effective Amendment No. 5 to
Registration Stattement No. 2-63830 and Post Effective Amendment No. 1 to
Registration Statement No. 33-14464.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BUTLER MANUFACTURING COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 44-0188420
State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
BMA Tower, Penn Valley Park (P.O. Box 419917), Kansas City, Missouri 64141-0917
(816) 968-3000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
STOCK INCENTIVE PLANS AND
DIRECTORS STOCK COMPENSATION PROGRAM
John H. Calvert, Esq.
Lathrop & Gage L.C.
2345 Grand Boulevard, Suite 2600
Kansas City, Missouri 64108
(816) 472-3220
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Richard O. Ballentine
Vice President, General Counsel and Secretary
Butler Manufacturing Company
BMA Tower, Penn Valley Park (P.O. Box 419917)
Kansas City, Missouri 64141-0917
(816) 968-3206
CALCULATION OF REGISTRATION FEE
Proposed
Proposed Maximum
Title of Each Class Maximum Aggregate
of Securities to be Amount to be Offering Price Offering Amount of
Registered Registered(1) Per Unit(2) Price(2) Registration Fee
- -------------------------------------------------------------------------------
Common Stock,
no par value..........650,000 $34.25 $22,262,500 $7,677
(1) Plus such additional amount which may result from plan adjustments,
stock splits, stock dividends or similar transactions with respect to
undistributed shares.
<PAGE>
(2) Pursuant to Rule 457(c) and (h), and solely for purposes of calculating
the registration fee, the proposed maximum offering price per share and
the proposed maximum aggregate offering price are based upon the
average of the high and low prices of the Common Stock of the
Registrant as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ") on April 12, 1996.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference
This Registration Statement covers the offering of Common Stock of
Butler Manufacturing Company (the "Company" or "Registrant") under the Butler
Manufacturing Company Stock Incentive Plans of 1979, 1986 and 1996 and the
Butler Manufacturing Company Director Stock Compensation Program (the "Plans").
The Company hereby incorporates by reference the following documents:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
2. All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities and Exchange Act of 1934 since the end of the fiscal
year covered by the Annual Report referred to above;
3. The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A dated September 23, 1988, as amended by
Amendment No. 1 on Form 8, dated October 27, 1988 and Amendment No. 2 on Form
8, dated June 27, 1990; and
4. All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
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 into this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Any statement contained herein or in a document all or a portion of
which is incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or amended, to constitute
a part of this Registration Statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify any director or officer against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with any
threatened, pending or completed action, suit or proceedings, whether civil,
<PAGE>
criminal, administrative or investigative, other than an action by or in the
right of the corporation, by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, or other enterprise, if 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 corporation and, with respect to any criminal action,
R-1
if such person had no reasonable cause to believe his conduct was unlawful. The
statute also provides that (1) a corporation may indemnify any such person
against expenses actually and reasonably incurred by him in connection with any
such action by or in the right of the corporation if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the corporation, except that no indemnification is to be made with respect to
any matter as to which he has been adjudged liable unless authorized by the
court; (2) a corporation shall indemnify any such person against expenses
actually and reasonably incurred in defense of any such action (whether or not
by or in the right of the corporation) if such person has been successful in
defense of the action; and (3) a corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
another corporation or other enterprise against any liability asserted against
such person incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would otherwise have the
power to indemnify such person against such liability.
Pursuant to the DGCL the Company's Certificate of Incorporation
provides that each person who is involved in any threatened, pending or
completed action, suit or proceeding by reason of the fact that the person is an
officer or director of the Company or of a Company subsidiary or enterprise
(including an employee benefit plan as a plan fiduciary) or who, while an
officer or director of the Company, was serving at the request of the Company as
an officer or director of another enterprise, shall be indemnified by the
Corporation to the fullest extent authorized by the DGCL; provided, that the
Company is not required to provide indemnity with respect to any claim made
against the director or officer (i) for an accounting of profits made from the
purchase or sale by the officer or director of securities of the Corporation
within the meaning of Section 16(b) of the Securities Exchange Act of 1934 or
(ii) for amounts paid in settlement of a claim without the consent of the
Company.
The indemnification provisions in the Company's Certificate of
Incorporation also entitle an officer or director to obtain payment of expenses
incurred by him in defending against a proceeding in advance of the outcome if
he undertakes in writing to repay such amounts if it shall ultimately be
determined that he is not entitled to indemnity.
Under a director's and officer's liability insurance policy purchased
by the Company, the insurer is generally obligated to pay, subject to certain
limits, deductibles, exceptions and exclusions, on behalf of officers and
directors of the Company claims made against such directors and officers for
losses (as defined) caused by any negligent act, any error, any omission or any
breach of duty while acting in their capacities as directors or officers of the
Company, any of its subsidiaries or as members of the Administrative Committee
of the Plan or any matter claimed against them solely by reason of their holding
such offices. Under the policy the insurer is also obligated to pay on behalf of
the Company such claims made against the Company's directors and officers which
the Company may be required or permitted to pay as indemnities due the directors
<PAGE>
or officers for such losses.
Under certain employee benefit plans of the Company, the Company has
agreed to indemnify and save harmless the members of the administrative
committees of such plans from and against any and all loss resulting from
liability to which the committee members may be subjected by reason of any act
or conduct (except willful misconduct or gross negligence) in their official
capacities in the administration of the Plans. The members of such committees
normally include directors and officers of the Company.
Item 7. Exemptions from Registration Claimed.
Not Applicable.
Item 8. Exhibits
(a) Exhibits are listed on the Exhibit Index to this Registration
Statement.
(b) Not Applicable. The Plans are not qualified under Section 401 of
the Internal Revenue Code.
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Item 9. Undertakings
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10 (a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in
the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the registration statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
<PAGE>
(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 Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to 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 Kansas City, State of Missouri, on this 16th day
of April, 1996.
BUTLER MANUFACTURING COMPANY
s/Robert H. West
By _______________________________
Robert H. West
Chairman of the Board
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 dates indicated.
Name Title Date
s/Robert H. West
___________________________ Chairman of the Board Principal April 16, 1996
Robert H. West Executive Officer and Director)
s/John J. Holland
___________________________ Vice President - Finance April 16, 1996
John J. Holland (Principal Financial Officer),
<PAGE>
s/John T. Cole
__________________________ Controller (Principal April 16, 1996
John T. Cole Accounting Officer)
s/Harold G. Bernthal*
___________________________ Director April 16, 1996
Harold G. Bernthal
s/Robert E. Cook*
___________________________ Director April 16, 1996
Robert E. Cook
s/Alan M. Hallene*
___________________________ Director April 16, 1996
Alan M. Hallene
s/C.L. William Haw*
___________________________ Director April 16, 1996
C.L. William Haw
s/George E. Powell, Jr.*
___________________________ Director April 16, 1996
George E. Powell, Jr.
s/Donald H. Pratt
___________________________ Director April 16, 1996
Donald H. Pratt
s/Robert J. Reintjes, Sr.*
___________________________ Director April 16, 1996
Robert J. Reintjes, Sr.
s/Judith A. Rogala*
___________________________ Director April 16, 1996
Judith A. Rogala
Richard O. Ballentine, by signing his name hereto, does hereby sign this
Registration Statement on behalf of each of the above referenced directors and
officers of the Registrant pursuant to a Resolution and powers of attorney
executed by each of such persons and filed herewith as Exhibits 24(a) and 24(b),
respectively.
s/Richard O. Ballentine
* By _____________________ April 16, 1996
Richard O. Ballentine, Attorney-in-fact
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4(a) Copy of Butler Manufacturing Company Stock Incentive Plan of 1996.
4(b) Copy of Butler Manufacturing Company Director Stock Compensation
Program.
4(c) Copy of Butler Manufacturing Company Stock Incentive Plan of 1987, as
amended (incorporated by reference to Exhibit 10.1 to the Company's
Form 10-K for the year ended December 31, 1990).
4(d) Copy of Butler Manufacturing Company Stock Incentive Plan of 1979, as
amended (incorporated by reference to Exhibit 10.2 to the Company's
Form 10-K for the year ended December 31, 1990).
5 Opinion of Lathrop & Gage L.C. concerning the legality of the
securities being registered.
23(a) Consent of Lathrop & Gage L.C. (incorporated by reference to Exhibit 5).
23(b) Consent of KPMG Peat Marwick LLP.
24(a) Certified Resolutions of the Executive Committee of the Board of
Directors of the Company.
24(b) Powers of Attorney executed by officers and directors of Registrant who
have signed the Registration Statement.
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<PAGE>
<PAGE>
EXHIBIT 4(a)
[Butler Logo]
BUTLER MANUFACTURING COMPANY
STOCK INCENTIVE PLAN OF 1996
TABLE OF CONTENTS
Section Page
1. Purposes .............................................1
2. Definitions...........................................1
3. Grants of Stock Incentives............................4
4. Stock Subject to the Plan.............................4
5. Stock Awards..........................................5
6. Stock Options ........................................6
7. Stock Appreciation Rights.............................8
8. Performance Awards ...................................8
9. Termination or Suspension of Employment...............9
10. Adjustment Provisions................................11
11. Change in Control....................................12
12. Term.................................................13
13. Administration.......................................13
14. General Provisions ..................................14
15. Amendment or Discontinuance of Plan..................16
Adopted by the Board of Directors on December 12, 1995
Approved by Stockholders on April 16, 1996
Effective Date: April 16, 1996
<PAGE>
BUTLER MANUFACTURING COMPANY
STOCK INCENTIVE PLAN OF 1996
1. PURPOSES.
The purposes of the Plan are (a) to provide additional incentive for
Key Employees of the Company and its Affiliates by authorizing a Committee of
the Board of Directors to grant Stock Incentives to such Key Employees, thereby
furthering their identity of interest with the interests of the Company's
stockholders, and increasing their interest in and commitment to the future
growth and prosperity of the Company; and (b) to enable the Company to induce
the employment and continued employment of Key Employees and to compete with
other organizations in attracting and retaining the services of highly-qualified
personnel.
2. DEFINITIONS.
Unless otherwise required by the context, the following terms, when
used in the Plan, shall have the meanings set forth in this Section 2:
Affiliate: Any entity that, directly or indirectly, is controlled by
the Company and any entity in which the Company has a significant equity
interest, in either case as determined by the Committee.
Award Agreement: Any written agreement, contract, or other instrument
or document evidencing any Stock Incentive, which may, but need not, be executed
or acknowledged by a Participant.
Board of Directors or Board: The Board of Directors of the
Company.
Code: The Internal Revenue Code of 1986 as now or hereafter
amended.
Change in Control: A Change in Control shall mean:
(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 Exchange
Act, (excluding, for this purpose, the Company or its subsidiaries, or any
employee benefit plan of the Company or its subsidiaries which acquires
beneficial ownership of voting securities of the Company) of beneficial
ownership, (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 15% 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 election by the
Company's shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election of the
Directors of the Company, as such terms are used in Rule 14a-11 of Regulation
<PAGE>
14A promulgated under the Exchange Act) shall be, for purposes of this
Agreement, 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, 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 collectively as a group 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.
If any of the events enumerated in clauses (i) through (iii) occur, the
Board shall determine the effective date of the Change in Control resulting
therefrom, for purposes of the Plan.
Committee: A committee of the Board of Directors of the Company
consisting of not less than three directors, all of whom shall be disinterested
as provided in Section 13 of the Plan.
Common Stock: The Common Stock of the Company, no par value, or such
other class of shares or other securities as may be subject to the Plan as the
result of an adjustment made pursuant to the provisions of Section 10.
Company: Butler Manufacturing Company, a Delaware
corporation.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Executive Officer: At any time, an individual who is an executive
officer of the Company within the meaning of Exchange Act Rule 3b-7 as
promulgated and interpreted by the SEC under the Exchange Act, or any successor
rule or regulation thereto as in effect from time to time, or who is an officer
of the Company within the meaning of Exchange Act rule 16a-1(f) as promulgated
and interpreted by the SEC under the Exchange Act, or any successor rule or
regulation thereto as in effect from time to time.
Fair Market Value: The fair market value of a share of Common Stock on
the date as of which fair market value is to be determined shall be: (a) if the
Common Stock is reported on the NASDAQ National Market System of the National
Association of Securities Dealers, Inc., the last reported sales price of a
share of Common Stock as reported by NASDAQ; or (b) if the Common Stock is
listed on an established securities exchange or exchanges, the highest reported
closing price of a share of Common Stock on such exchange or exchanges. The fair
market value of the Common Stock if not so reported or listed and the fair
market value of any other property on the date as of which fair market value is
to be determined shall mean the fair market value as determined by the Committee
in its sole discretion.
Incentive Compensation: Bonuses, extra and other compensation
payable in addition to a salary or other base amount, whether
contingent or not, whether discretionary or required to be paid
pursuant to an agreement, resolution, arrangement, plan or
<PAGE>
practice, and whether payable currently or on a deferred basis, in cash, Common
Stock or other property.
Incentive Stock Option: A stock option granted hereunder
which satisfies the requirements of Section 422 of the Code.
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Key Employees: A salaried employee of the Company or of an Affiliate,
including an officer or director who is an employee, who in the opinion of the
Committee can contribute significantly to the growth and successful operations
of the Company or an Affiliate. The determination by the Committee that a Stock
Incentive be granted to an employee shall be deemed a determination by the
Committee that such employee is a Key Employee.
Non Qualified Stock Option: A right to purchase Common Stock from the
Company that is granted under Section 6 of the Plan and that is not intended to
be an Incentive Stock Option.
Participant: Any Key Employee selected by the Committee to
receive a Stock Incentive under the Plan.
Performance Award: Stock Incentives which shall consist of
Performance Awards under Section 8.
Prior Plans: The Butler Manufacturing Company Stock Incentive
Plan of 1979, as amended (the "1979 Plan"), and the Butler
Manufacturing Company Stock Incentive Plan of 1987, as amended (the
"1987 Plan").
Option: An option to purchase shares of Common Stock or,
where the context so requires, the instrument which evidences such
an option.
Plan: The Stock Incentive Plan herein set forth as the same
may from time to time be amended.
Restricted Shares: Shares of Common Stock issued or transferred subject
to terms and conditions with respect to payment, transfer or forfeiture as
authorized by paragraph (d) of Section 5.
Stock Appreciation Right: A right to receive a number of shares of
Common Stock, cash, or a combination of the two based on the increase in the
Fair Market Value of shares of Common Stock subject to an Option, as set forth
in Section 7 of the Plan.
Stock Award: An issuance or transfer of shares of Common Stock at the
time a Stock Incentive is granted or as soon thereafter as practicable, or an
undertaking to issue or transfer such shares in the future, including, without
limitation, such an issuance, transfer or undertaking with respect to a Stock
Incentive that is contingent, in whole or in part, upon the attainment of a
specified objective or objectives.
Stock Incentive: A stock incentive granted under the Plan in
one of the forms authorized in Section 3.
<PAGE>
Stock Purchase Right: A right granted as a part of a Stock Award
or Performance Award to purchase for cash shares of the Company's Common
Stock at their fair market value on the date of purchase through a cash payment
or the cancellation of all or a portion of an earned cash bonus.
Subsidiary: A corporation or other form of business
association of which shares (or other ownership interests) having
50% or more of the voting power are owned or controlled, directly
or
A-3
indirectly, by the Company.
Substitute Stock Incentives: Stock Incentives granted
pursuant to Section 14.
3. GRANTS OF STOCK INCENTIVES.
(a) Persons Eligible to Participate. Subject to the
provisions of the Plan, the Committee may at any time grant Stock
Incentives under the Plan to, and only to, Key Employees.
(b) Forms of Stock Incentives. Stock Incentives may be
granted in the following forms:
(i) a Stock Award, in accordance with Section 5, or
(ii) a Stock Option, in accordance with Section 6, or
(iii) a Stock Appreciation Right, in accordance with
Section 7, or
(iv) a Performance Award in accordance with Section 8, or
(v) a combination of any of the foregoing.
(c) Award Agreements. Each Stock Incentive shall be evidenced by a
written Award Agreement that shall be delivered to the Participant and shall
specify the terms and conditions of the Stock Incentive and any rules applicable
thereto. Award Agreements may be executed on behalf of the Company and the Plan
by any Executive Officer of the Company or such other officer of the Company as
the Committee shall designate.
(d) Amendments of Award Agreements. Subject to the terms of the Plan,
the Committee may from time to time authorize the amendment of outstanding Award
Agreements; provided, that any such amendment that would adversely affect the
rights of any Participant or any holder or beneficiary of any Stock Incentive
theretofore granted shall not to that extent be effective without the consent of
the affected Participant, holder or beneficiary.
4. STOCK SUBJECT TO THE PLAN.
(a) Number of Shares Available.
The number of shares of Common Stock that may be issued under
the Plan for Awards granted wholly or partly in stock during
<PAGE>
the term of the Plan is six hundred thousand (600,000). Shares of Common Stock
related to Awards under this Plan or a Prior Plan that are forfeited, canceled,
terminated, expire unexercised, settled in cash in lieu of stock or in such
manner that all or some of the shares covered by an Award are not issued to a
Participant, or are exchanged in connection with the receipt of a like number of
shares received in satisfaction of the purchase price, shall also immediately
become available for Awards under the Plan.
If a Stock Award or Stock Performance Award is granted on the
condition that the Participant purchase other shares of the Company's Common
Stock for cash at fair market value on the
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date of purchase under a Stock Purchase Right, then only the shares issued under
the Stock Purchase Award or Stock Award shall be counted against the number of
shares available for awards and not the shares purchased for cash at fair market
value under the Stock Purchase Right.
No further Stock Incentives shall be granted under Prior Plans
following the effective date of this Plan but outstanding options and other
stock incentives under Prior Plans may be exercised in accordance with the terms
thereof.
(b) Use of Treasury and Other Shares. Authorized but unissued shares of
Common Stock and shares of Common Stock held in the treasury, whether acquired
by the Company specifically for use under the Plan or otherwise, may be used, as
the Board of Directors may from time to time determine, for purposes of the
Plan; provided, however, that any shares acquired or held by the Company for the
purposes of the Plan shall, unless and until transferred to a Participant in
accordance with the terms and conditions of a Stock Incentive, be and at all
times remain treasury shares of the Company, available for any corporate
purpose, irrespective of whether such shares are entered in a special account
for purposes of the Plan.
(c) Certain Limitations on Grants. Notwithstanding any provision herein
to the contrary, and subject to adjustment as provided in Section 10, no
Executive Officer of the Company may receive Stock Incentives under the Plan in
any calendar year that relate to more than one hundred thousand (100,000) shares
of Common Stock. In addition, and subject to other provisions of the plan
permitting the expiration of restrictions under certain circumstances, no Stock
Award or Stock Performance Award shall be granted under Section 5 or 8 unless
the shares subject to the Award (other than shares purchased for cash at fair
market value on date of purchase under a related Stock Purchase Right) are
subject to restrictions on transfer and/or ownership specified by the Committee
and the restrictions continue for a period of one year from the date of grant in
the case of Awards that are performance based and continue for a period of three
years from the date of grant in the case of Awards under Section 5 that are not
performance based.
5. STOCK AWARDS.
Stock Incentives in the form of Stock Awards shall be subject
<PAGE>
to the following provisions:
(a) General. A Stock Award shall be granted only (i) in payment of
Incentive Compensation that has been earned or (ii) as Incentive Compensation to
be earned.
(b) Valuation. For the purposes of the Plan, in determining the value
of a Stock Award, all shares of Common Stock subject to such Stock Award shall
be valued at not less than 100% of the Fair Market Value of such shares on the
date such Stock Award is granted, regardless of whether or when such shares are
issued or transferred to the Participant and whether or not such shares are
subject to restrictions which affect their value.
(c) Grant. Shares of Common Stock subject to a Stock Award may be
issued or transferred to a Key Employee at the time the Stock Award is granted,
or at any time subsequent thereto, or in installments from time to time, as the
Committee shall determine. With respect to a Stock Award providing for issuance
or transfer of shares subsequent to the time it is granted, the Committee may
provide for payment to the grantee of amounts not exceeding the cash dividends
which would have
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been payable in respect of such shares (as adjusted under Section 10 of the
Plan) if they had been issued or transferred at the time the Stock Award was
granted. Such payments may be made in cash, shares of Common Stock or a
combination of cash and shares. Such payments may be made at the time the shares
are issued or transferred, or at the time or times the cash dividends would have
been payable if the shares had been issued or transferred at the time the Stock
Award was granted. Any amount payable in shares of Common Stock under the terms
of the Stock Award may be paid in cash on each date on which delivery of shares
would otherwise have been made, in an amount equal to the Fair Market Value on
such date of the shares which would otherwise have been delivered.
(d) Terms Relating to Transfer, Payment or Forfeiture. A
Stock Award may contain such other terms and conditions as the
Committee may determine with respect to transfer, payment or
forfeiture of all or any part of the Stock Award.
(e) Other Terms. A Stock Award may be subject to such other terms and
conditions, including, without limitation, restrictions on sale or other
disposition of the shares issued or transferred pursuant to the Stock Award, as
the Committee may determine; provided, however, that upon the issuance or
transfer of shares pursuant to a Stock Award, the recipient shall, with respect
to such shares, be and become a stockholder of the Company fully entitled to
receive dividends, to vote and to exercise all other rights of a stockholder
except to the extent otherwise provided in the Stock Award. A Stock Award may
also include and be made contingent upon the exercise of a Stock Purchase Right.
6. STOCK OPTIONS.
Stock Incentives granted under the Plan in the form of Stock Options
shall be subject to the following provisions:
<PAGE>
(a) Grant. Subject to the provisions of the Plan, including those
contained in this Section 6, the Committee shall have the sole and complete
authority to determine the Key Employees to whom Options shall be granted, the
number of shares of Common Stock to be covered by each Option, the option price
therefor and the conditions and limitations applicable to the exercise of the
Option. The Committee shall have authority to grant Incentive Stock Options or
to grant Non-Qualified Stock Options, or to grant both types of Options. In the
case of Incentive Stock Options, the amounts, terms and conditions of such
grants shall be subject to and comply with the requirements for Incentive Stock
Options as set forth in Section 422 of the Code, as from time to time amended,
and any regulations implementing such statute.
(b) Date of Grant. The "Date of Grant" of an Option shall be the date
the action of the Committee providing for the grant of the Option is taken, or
such later date as the Committee may provide. An amendment to the terms of an
existing Option shall not constitute the grant of a new Option except to the
extent that the amendment increases the number of shares subject to the Option
other than as the result of an adjustment effected pursuant to adjustment
provisions of the Plan.
(c) Price. The price at which shares of Common Stock may be purchased
under an Option (the "Option Price") shall be specified in the Option and shall
be not less than 100% of the Fair Market Value of such stock on the Date of
Grant of the Option.
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(d) Term. An Option shall be exercisable only during a term (the "Term
of the Option" or "Term") commencing not sooner than six months and one day
after the Date of Grant of the Option and ending (unless the Option shall have
terminated earlier under other provisions of the Plan) on a date fixed by the
Committee and stated in the Option, which date shall not be later than the tenth
anniversary of the Date of Grant. If an Option is granted for an original Term
of less than ten years, the Committee may, at any time prior to the expiration
of the Option, extend its Term for a period ending not later than the tenth
anniversary of the Date of Grant of the Option.
(e) Installments. An Option may provide that it shall be exercisable in
full or in part at any time during the Term of the Option, or that it shall be
exercisable in a specified series of installments. Unless otherwise provided in
the Option, installments or portions thereof not exercised in earlier periods
shall be cumulative and shall be available for exercise in later periods. The
Committee may, by so providing in an Option, require any partial exercise
thereof to be with respect to a specified minimum number of shares.
(f) Exercise. To the extent that the right to purchase shares has
accrued under an Option, the Option may be exercised from time to time by the
optionee or by a person or persons entitled to exercise the Option, by delivery
to the Company of a written notice, in the manner and in such form as may be
prescribed by the Committee, stating the number of shares with respect to which
the Option is being exercised, and by making provision satisfactory to the
Company for the payment in full of the Option
<PAGE>
price of the shares prior to or in connection with the delivery of certificates
evidencing the shares. The Committee may, in its discretion and upon request of
the Participant, issue shares of Common Stock upon the exercise of an Option
directly to a brokerage firm or firms to be approved by the Company, without
payment of the purchase price by the optionee but upon delivery of an
irrevocable guarantee by such brokerage firm or firms of the payment of such
purchase price or upon the participant's issuance to the brokerage firm of
irrevocable instructions to sell or margin a sufficient portion of the shares
and deliver the sale or margin loan proceeds directly to the Company to pay the
exercise price and any withholding taxes. Upon receipt of such notice and
payment arrangement in form satisfactory to the Company, the Company shall
deliver to or upon the order of the optionee, or such other person entitled to
exercise the Option, at the General Office of the Company, or at such place as
shall be mutually acceptable, a certificate of certificates evidencing such
shares. An Option may not be exercised for fractional shares of Common Stock.
(g) Payment in Common Stock. Payment in form satisfactory to the
Company may, at the option of the Company, include payment by transfer to the
Company of other shares of Common Stock owned by the Optionee. Common Stock
transferred to the Company in payment of the option price shall be valued at the
Fair Market Value of the Common Stock on the date of the exercise.
(h) No Stockholder Rights Prior to Exercise. No person shall have any
rights of a stockholder by virtue of an Option except with respect to shares
actually issued to him, and issuance of shares shall not confer retroactive
rights to dividends.
(i) Certain Limits on Incentive Stock Options. The aggregate fair
market value (determined as of the time the option is granted) of the stock for
which any employee may be granted Incentive Stock Options in any calendar year
under this Plan and all such other incentive stock option plans of the Company
and its subsidiaries shall not exceed limits specified from time to time in the
Code for Incentive Stock Options.
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7. STOCK APPRECIATION RIGHTS.
(a) Grant. Stock Appreciation Rights may be granted in connection with
any Option granted under the Plan or Prior Plans, either at the time of the
grant of such Option or at any time thereafter during the term of the Option. A
grant of Stock Appreciation Rights shall either be included in the instrument
evidencing the Option to which they relate or evidenced by a separate instrument
meeting the requirements of Section 3 of the Plan.
(b) Settlement. A person entitled to exercise an Option in connection
with which Stock Appreciation Rights shall have been granted shall be entitled,
at such time or times and subject to such terms and conditions as may be stated
in the granting instrument, to settle all or part of the Option by requesting
the Company to pay, in cancellation of the part of the Option to be settled,
consideration in an amount equal to the number of shares of Common Stock subject
to the canceled part of the Option times
<PAGE>
the amount by which the fair market value of one share on the exercise date
exceeds the Option Price (the "Appreciation"). The election shall be made in a
written instrument, in form satisfactory to the Committee, delivered in the
manner prescribed in Section 6 for the exercise of options.
(c) Form of Consideration. The form of the consideration to be paid for
the Appreciation shall either be cash, shares of Common Stock having an
aggregate market value on the exercise date equal to the Appreciation, or a
combination of cash and shares. Such form of consideration shall be specified
either by the Committee or, subject to the approval of the Committee, by the
person exercising the Stock Appreciation Right, provided that such form of
consideration shall in no event include fractional shares of Common Stock.
(d) Other Terms. An Option in connection with which Stock Appreciation
Rights are granted may prescribe or limit the period or periods of time during
which the Stock Appreciation Rights may be exercised as provided in paragraph
(b) of this Section 7, and may prescribe such additional terms and conditions
applicable to the exercise of the Stock Appreciation Rights as may be determined
by the Committee and as are consistent with the Plan. In no event may Stock
Appreciation Rights be exercised at a time when the Option in connection with
which they were granted is not exercisable.
8. PERFORMANCE AWARDS.
The Committee may grant Performance Awards which shall be denominated
at the time of grant either in shares of Common Stock ("Stock Performance
Award") or in dollar amounts ("Dollar Performance Award"). Payment under a Stock
Performance Award or a Dollar Performance Award shall be made, at the discretion
of the Committee, in shares of Common Stock ("Performance Shares"), or in cash
or in any combination thereof, if the financial performance of the Company or
any subsidiary, division, or other unit of the Company ("Business Unit")
selected by the Company meets certain financial goals established by the
Committee for the Award Period. The following provisions are applicable to
Performance Awards:
(a) Award Period. The Committee shall determine and include
in the Award Agreement for the Performance Award the period of time
(which shall be four or more consecutive fiscal quarters) for which
a Performance Award is made ("Award Period"). Grants of
Performance Awards need not be
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uniform with respect to the length of the Award Period. Award Periods for
different Grants may overlap. A Performance Award may not be granted for a given
Award Period after one half (1/2) or more of such period has elapsed.
(b) Performance Goals and Payment. Before a Performance Award is made,
the Committee shall establish objectives ("Performance Goals") that must be met
by the Business Unit during the Award Period as a condition to payment being
made under the Performance Award. The Performance Goals, which must be set out
in the Award Agreement, are limited to pre-tax earnings per share,
<PAGE>
divisional pre-tax income, net income, or any of the foregoing before the effect
of acquisitions, divestitures, accounting changes, and restructuring and special
changes (determined according to criteria established by the Committee). The
Committee shall also set forth in the Award Agreement the number of Performance
Shares or the amount of payment to be made under a Performance Award if the
Performance Goals are met or exceeded, including the fixing of a maximum payment
[subject to Section 8(f)]. A Performance Award may also include and be made
contingent upon the exercise of a Stock Purchase Right.
(c) Computation of Payment. After an Award Period, the financial
performance of the Business Unit during the Award Period shall be measured
against the Performance Goals. Before payment of any remuneration under an
Award, the Committee shall certify in writing that the performance goals and any
other material terms of the Award were in fact satisfied. The Committee, in its
sole discretion, may elect to pay part or all of the Performance Award in cash
in lieu of issuing or transferring Performance Shares. The cash payment shall be
based on the fair market value of Common Stock on the date of payment [subject
to Section 8(f)]. The Company shall promptly notify each Participant of the
number of Performance Shares and the amount of cash, if any, he or she is to
receive.
(d) Revisions for Significant Events. At any time before payment is
made, the Committee may revise the Performance Goals and the computation of
payment if unforseen events occur during an Award Period which have a
substantial effect on the Performance Goals and which in the judgment of the
Committee make the application of the Performance Goals unfair unless a revision
is made; provided, however, that no such revision shall be made with respect to
a Performance Award to the extent that the Committee determines the revision
would cause payment under the Award to fail to be fully deductible by the
Company under Section 162(m) of the Code.
(e) Requirement of Employment. To be entitled to receive payment under
a Performance Award, a Participant must remain in the employment of the Company
to the end of the Award Period, except that the Committee may provide for
partial or complete exceptions to this requirement as it deems equitable in its
sole discretion.
(f) Maximum Payment. No Participant may receive Performance Award
payments in respect of Stock Performance Awards in excess of 100,000 shares of
Common Stock in any calendar year or payments in respect of Dollar Performance
Awards in excess of $900,000 in any calendar year.
9. TERMINATION OR SUSPENSION OF EMPLOYMENT.
The following provisions shall apply in the event of the Participant's
termination of employment unless the Committee shall have provided otherwise,
either at the time of the grant of the Stock Incentive or thereafter:
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(a) Non Qualified Stock Options and Stock Appreciation
Rights.
<PAGE>
(1) Termination of Employment Other than Due to Death,
Disability, Cause or Retirement. If the Participant's employment with the
Company or its Affiliates is terminated for any reason other than death,
permanent and total disability, cause or retirement, the Participant's right to
exercise any Non Qualified Stock Option or Stock Appreciation Right shall
terminate ninety (90) days after the cessation of employment, unless it
terminates earlier by its terms or under other provisions of the Plan. Until the
Option or Right terminates it may be exercised by the optionee, his estate or
legal representatives for all or a portion of the shares as to which the right
of purchase had accrued under the Plan at the time of cessation of employment,
subject to all applicable conditions and restrictions provided in the Plan and
the Option. In no event shall an Option or Right be exercisable later than the
date of expiration of the Term of the Option or Right, and in no event shall an
Option or Right be exercisable for any shares as to which the right of purchase
had not accrued at the time of cessation of employment. Employment for the
purposes of this paragraph shall mean continuous full-time salaried employment.
Vacations, sick leaves and any approved absence on leave shall not constitute a
termination of employment or an interruption of continuous full-time salaried
employment.
(2) Disability or Retirement. If the Participant's employment
with the Company or its Affiliates is terminated by permanent and total
disability or retirement, any Non Qualified Stock Option or Stock Appreciation
Right held by such Participant shall terminate on the earlier of (i) the third
anniversary of such termination of employment or (ii) the date the Option or
Right would have otherwise expired by its terms had it not been for such
termination of employment. Until the Option terminates it may be exercised by
the optionee, his estate or legal representatives for all or a portion of the
shares as to which the right of purchase had accrued as of the date of such
exercise, subject to all applicable conditions and restrictions provided in the
Plan and the Option or Right. In no event shall such Option or Right be
exercisable later than the date of expiration of the term of the Option or
Right, and in no event shall such Option or Right be exercisable for any shares
as to which the right of purchase had not accrued at the time of exercise.
"Retirement" and "permanent and total disability" shall be defined by the
Committee.
(3) Death. If the Participant's employment with the Company or
its Affiliates is terminated by death, and if any Non Qualified Stock Option or
Stock Appreciation Right was in effect at the time of his death (whether or not
its terms had then commenced), the Option or Right may, until the expiration of
one year from the date of death of the Participant or until the earlier
expiration of the Term of the Option or Right, be exercised as and to the extent
it could have been exercised by the Participant had he been living at the time
of exercise, by the legal representatives of the Participant or by any person,
persons or entity to whom his rights under the Option or Right shall have been
transferred pursuant to the provisions of paragraph (g) of Section 14 of the
Plan. Such exercise shall not be limited to the shares as to which the right of
purchase had accrued at the date of death of the Participant, but shall be
subject to all applicable conditions and restrictions prescribed in the Plan and
the Option or Right, including any installment provision.
<PAGE>
(4) Acceleration and Extension of Exercisability.
Notwithstanding the foregoing, the Committee may, in its discretion, provide (A)
that a Non Qualified Stock Option or Stock Appreciation Right granted to a
Participant may terminate at a date earlier than that set forth above, (B) that
a Non Qualified Stock Option or Stock Appreciation Right granted to a
Participant not subject to Section 16 of
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the Exchange Act may terminate at a date later than that set forth above,
provided such date shall not be beyond the date the option or right would have
expired had it not been for the termination of the Participant's employment, and
(C) that a Non Qualified Stock Option or Stock Appreciation Right may become
immediately exercisable when it finds that such acceleration would be in the
best interests of the Company.
(b) Incentive Stock Options. Except as otherwise determined by the
Committee at the time of grant, if the Participant's employment with the Company
is terminated for any reason, the Participant shall have the right to exercise
any Incentive Stock Option and any related Stock Appreciation Right during the
90 days after such termination of employment to the extent it was exercisable at
the date of such termination, but in no event later than the date the option
would have expired had it not been for the termination of such employment. If
the Participant does not exercise such Option or related Stock Appreciation
Right to the full extent permitted by the preceding sentence, the remaining
exercisable portion of such Option automatically will be deemed a Non Qualified
Stock Option, and such Option and any related Stock Appreciation Right will be
exercisable during the period set forth in Section 9(a) of the Plan, provided
that in the event that employment is terminated because of death or the
Participant dies in such 90-day period, the option will continue to be an
Incentive Stock Option to the extent provided by Section 422 of the Code, or any
successor provision, and any regulations promulgated thereunder.
(c) Stock Awards and Performance Awards. Except as otherwise determined
by the Committee at the time of grant, upon termination of employment for any
reason during the restriction period, all shares of Restricted Stock and
Performance Awards still subject to restriction shall be forfeited by the
Participant and reacquired by the Company at the price (if any) paid by the
Participant for such Restricted Stock and Performance Awards, provided that in
the event of a Participant's retirement, permanent and total disability, or
death, or in cases of special circumstances, the Committee may, in its sole
discretion, when it finds that a waiver would be in the best interests of the
Company, waive in whole or in part any or all remaining restrictions with
respect to such participant's shares of Restricted Stock.
(d) Termination for Cause. Notwithstanding the other provisions hereof,
a Stock Incentive granted to a Participant shall expire and the Participant
shall thereupon forfeit all rights thereunder if the Participant is terminated
for cause due to the misconduct of the Participant. The Committee shall, in its
sole discretion, determine whether a termination was for cause due to
<PAGE>
misconduct.
10. ADJUSTMENT PROVISIONS.
In the event of a reorganization of the Company, equitable adjustments
shall be made by the Committee in the Plan and in outstanding Stock Incentives.
Without limiting the foregoing, the Committee may authorize payments of cash or
other consideration with respect to outstanding Stock Incentives or it may
otherwise adjust the terms of the Stock Incentive with respect to: (a) the
number and class of shares or other securities that may be issued or transferred
pursuant to Stock Incentives in the aggregate or to any individual, (b) the
number and class of shares or other securities which have not been issued or
transferred under outstanding Stock Incentives, (c) the purchase price to be
paid per share under outstanding Options, and (d) the price to be paid per share
by the Company or a subsidiary for shares or other securities issued or
transferred pursuant to Stock Incentives which are
A-11
subject to a right of the Company or an Affiliate to reacquire such shares or
other securities. For this purpose, a "reorganization" shall be deemed to have
occurred in the event:
(i) any recapitalization, reclassification, split-up or
consolidation of shares of Common Stock shall be effected;
(ii) the outstanding shares of Common Stock are, in connection
with a merger or consolidation of the Company or the acquisition by another
corporation of Common Stock or of all or part of the assets of the Company,
exchanged for a different number or class of shares of stock or other securities
of the Company or for shares of the stock or other securities of another
corporation;
(iii) new, different or additional shares or other
securities of the Company or of another corporation are received by
the holders of Common Stock; or
(iv) any distribution other than an ordinary cash
dividend is made to the holders of Common Stock.
In the event of any other change in the capital structure or in the
capital stock of the Company, the Committee shall be authorized to make such
appropriate adjustments in the maximum number of shares of Common Stock
available for issuance under the Plan in the aggregate or to any individual and
any adjustments and/or modifications to outstanding Stock Incentives as it deems
appropriate.
11. CHANGE IN CONTROL.
Unless the Committee shall otherwise provide in the Award Agreement
relating to a Stock Incentive granted under the Plan, upon the occurrence of a
Change in Control:
(a) In the case of Stock Options and Stock Appreciation Rights granted
under the Plan or a Prior Plan (other than an Incentive Stock Option granted
under a Prior Plan) (i) each outstanding option or right that is not then fully
Exercisable
<PAGE>
shall automatically become fully exercisable until the termination of the option
exercise period of the option or right [as modified by subsection (ii) that
follows], and (ii) in the event the Participant's employment is terminated
within two years after a Change in Control, his or her outstanding options or
rights at that date of termination shall be immediately exercisable for a period
of three months following such termination, provided, however, that, to the
extent the option or right by its terms otherwise permits a longer option
exercise period after such termination, such longer period shall govern, and
provided further that in no event shall such option or right be exercisable more
than ten years after the date of grant.
(b) Any restrictions and provisions for forfeiture on all outstanding
Stock Awards shall automatically expire and immediately lapse and all such
awards shall be immediately and fully vested;
(c) Each Grantee of a Performance Award for an Award Period that has
not been completed at the time of the Change in Control shall be deemed to have
earned a minimum Performance Award equal to the product of (i) such
Participant's maximum award opportunity for such Performance Award, and (ii) a
fraction, the numerator of which is the number of full and partial months that
have elapsed since the beginning of such Award Period to the date on which the
Change in Control occurs, and the denominator of which is the total number of
months in such Award Period.
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12. TERM.
(a) Effective Date. The Plan shall become effective upon its approval
by the affirmative vote of the holders of a majority of the shares of the
Company's Common Stock present or represented, and entitled to vote at a meeting
duly held in accordance with applicable law.
(b) Expiration Date. No Stock Incentives shall be granted under the
Plan after December 11, 2005. Unless otherwise expressly provided in the Plan or
in an applicable Award Agreement, any Stock Incentive granted hereunder may, and
the authority of the Board or the Committee to amend, alter, adjust, suspend,
discontinue, or terminate any such Award or to waive any conditions or rights
under any such Stock Incentive shall, continue after the authority for grant of
new Stock Incentives hereunder has been exhausted.
13. ADMINISTRATION.
(a) Committee. The Plan shall be administered by the Committee which
shall consist of not less than three directors of the Company designated by the
Board of Directors; provided, however, that no director shall be designated as
or continue to be a member of the Committee unless he shall at the time of
designation and throughout his service be a "disinterested person" within the
meaning of Rule 16b-3 under the Securities Exchange Act of 1934 (or any
successor rule or statute at the time in effect) and be an "outside director"
for purposes of Section 162(m) of the Code.
<PAGE>
(b) Delegation by the Board. The Board of Directors by adoption of the
Plan delegates to the Committee all of its authority under the Plan, including
the authority to award Stock Incentives, but excluding the authority to amend or
discontinue the Plan.
(c) Authority of the Committee. Subject to the terms of the Plan and
applicable law, and in addition to other express powers and authorizations
conferred on the Committee by the Plan, the Committee shall have full power and
authority to: (i) designate Participants; (ii) determine the type or types of
Stock Incentives to be granted to an eligible employee; (iii) determine the
number of shares of Common Stock to be covered by, or with respect to which
payments, rights, or other matters are to be calculated in connection with,
Stock Incentives; (iv) determine the terms and conditions of any Stock
Incentive; (v) determine whether, to what extent, and under what circumstances
Stock Incentives may be settled or exercised in cash, shares of Common Stock,
other securities, other Stock Incentives or other property, or canceled,
forfeited, or suspended; (vi) determine whether, to what extent, and under what
circumstances cash, shares of Common Stock, other securities, other Stock
Incentives, other property, and other amount payable with respect to a Stock
Incentive shall be deferred either automatically or at the election of the
holder thereof or of the Committee; (vii) interpret and administer the Plan and
any instrument or agreement relating to, or Stock Incentive made under, the
Plan; (viii) establish, amend, suspend, or waive such rules and regulations and
appoint such agents as it shall deem appropriate for the proper administration
of the Plan; and (ix) make any other determination and take any other action
that the Committee deems necessary or desirable for the administration of the
Plan.
(d) Committee Discretion Binding. Unless otherwise expressly
provided in the Plan, all designations, determinations,
interpretations, and other decisions under or with respect to the
Plan or any Stock Incentive shall be within the sole discretion of
the Committee, may be made at any time and
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shall be final, conclusive, and binding upon all persons, including the Company,
any Affiliate, any Participant, any holder or beneficiary of any Stock
Incentive, any stockholder and any employee.
(e) Liability of Committee Members. Members of the Board of Directors
and members of the Committee acting under the Plan shall be fully protected in
relying in good faith upon the advice of counsel and shall incur no liability
except for willful misconduct in the performance of their duties.
(f) Delegation. Subject to the terms of the Plan and applicable law,
the Committee may delegate to one or more officers or managers of the Company or
any Affiliate, or to a committee of such officers or managers, the authority,
subject to such terms and limitations as the Committee shall determine, to grant
Stock Incentives to, or to cancel, modify or waive rights with respect to, or to
alter discontinue, suspend, or terminate Stock Incentives held by, Participants
who are not officers or directors of the Company for purposes of Section 16 of
the Exchange Act, or any
<PAGE>
successor section thereto, or who are otherwise not subject to such
Section.
14. GENERAL PROVISIONS.
(a) No Rights to Employment. Nothing in the Plan nor in any instrument
executed pursuant thereto shall confer upon any Participant any right to
continue in the employ of the Company or an Affiliate or shall affect the right
of the Company or of an Affiliate to terminate the employment of any Participant
with or without cause.
(b) Share Issuance Subject to Compliance with Applicable Law. No shares
of Common Stock shall be issued or transferred pursuant to a Stock Incentive
unless the Company is satisfied that there has been compliance with all legal
requirements applicable to the issuance or transfer of such shares. In
connection with any such issuance or transfer, the person acquiring the shares
shall, if requested by the Company, give assurances satisfactory to the Company
that the shares are being acquired for investment and not with a view to resale
or distribution thereof and assurances in respect of such other matters as the
Company may deem desirable to assure compliance with all applicable legal
requirements.
(c) No Rights as Stockholder. Subject to the provisions of the
applicable Stock Incentive, no Participant (individually or as a member of a
group), and no beneficiary or other person claiming under or through him, shall
have any right, title or interest in or to any shares of Common Stock allocated
or reserved for the purposes of the Plan or subject to any Stock Incentive,
except as to such shares of Common Stock, if any, as shall have been issued or
transferred to him.
(d) Grants of Stock Incentives to Future Employees. The Company or
Affiliate may, with the approval of the Committee, enter into an agreement or
other commitment to grant a Stock Incentive in the future to a person who is or
will be at the time of grant a Key Employee, and, notwithstanding any other
provision of the Plan, any such agreement or commitment shall not be deemed the
grant of a Stock Incentive until the date on which the Committee takes action to
implement such agreement or commitment, which date shall for the purpose of the
Plan be the date of grant.
(e) Implementation of Stock Incentives by Affiliates. In the
case of a grant of a Stock Incentive to any employee of an
Affiliate, such grant may, if the Committee so directs, be
implemented by the Company issuing or transferring the shares, if
any, covered by the Stock Incentive to the
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Affiliate, for such lawful consideration as the Committee may specify, upon the
condition or understanding that the Affiliate will transfer the shares to the
employee in accordance with the terms of the Stock Incentive. Notwithstanding
any other provision hereof, such Stock Incentive may be issued by and in the
name of the Affiliate and shall be deemed granted on the date it is approved by
the Committee or on such later date as the Committee shall specify.
<PAGE>
(f) Withholding and Payment of Taxes. The Company or an Affiliate may
make such provisions as it may deem appropriate for the withholding of any taxes
which the Company or Affiliate determines it is permitted or required to
withhold in connection with any Stock Incentive. Such provisions may include a
requirement that all or part of the amount of such taxes be paid to the Company
or Affiliate, in cash, at the time of settlement. Such provisions may also
permit the payment of such taxes through the withholding of shares of Common
Stock to be issued under a Stock Incentive or the delivery of shares owned by
the Participant.
(g) Nontransferability. No Stock Incentive and no rights under a Stock
Incentive or under the Plan, contingent or otherwise, shall, by operation of law
or otherwise, be transferable or assignable or subject to any encumbrance,
pledge, hypothecation or charge of any nature, or to execution, attachment or
other legal process, except that, in the event of the death of the holder of a
Stock Incentive, the holder's rights under the Stock Incentive may pass, as
provided by law, to the legal representatives of the holder, and such legal
representatives may transfer any rights in respect of such Stock Incentive to
the person or persons or entity (including a trust) entitled thereto under the
will of the holder of such Stock Incentive, or in the case of intestacy, under
the applicable laws relating to intestacy. During the life of a holder of a
Stock Incentive, the Stock Incentive shall be exercisable only by such holder.
Notwithstanding the foregoing, a Stock Incentive may be transferable, to the
extent set forth in the applicable Award Agreement, (i) if such Award Agreement
provisions do not disqualify such Award for exemption under Rule 16b-3 or (ii)
if such Stock Incentive is not intended to qualify for exemption under such
rule.
(h) Other Compensation. Nothing in the Plan is intended to be a
substitute for, or shall preclude or limit the establishment or continuation of,
any other plan, practice or arrangement for the payment of compensation or
fringe benefits to employees generally, or to any class or group of employees,
which the Company or any Affiliate now has or may hereafter lawfully put into
effect, including, without limitation, any retirement, pension, profit-sharing,
insurance, stock purchase, incentive compensation or bonus plan; provided, that
upon adoption of the Plan, the 1987 Plan shall terminate, except with respect to
rights then outstanding.
(j) Place of Administration. The place of administration of the Plan
shall conclusively be deemed to be within the State of Missouri and the
validity, construction, interpretation and administration of the Plan and of any
rules and regulations or determinations or decisions made thereunder, and the
rights of any and all persons having or claiming to have any interest therein or
thereunder, shall be governed by and be determined exclusively and solely in
accordance with, the laws of the State of Missouri. Without limiting the
generality of the foregoing, the period within which any action arising under or
in connection with the Plan, or any payment or award made or purportedly made
under or in connection therewith, must be commenced, shall be governed by the
laws of the State of Missouri, irrespective of the place where the act or
omission complained of took place and of the residence of any party to such
action and irrespective of the place where the action may be brought.
A-15
<PAGE>
(k) Substitute Options. Stock Incentives may be granted under the Plan
from time to time in substitution for stock incentives held by employees of
other corporations who are about to become employees of the Company or an
Affiliate as the result of a merger or consolidation of the employing
corporation with the Company or an Affiliate, or the acquisition by the Company
or an Affiliate of the assets of the employing corporation, or the acquisition
by the Company or an Affiliate of stock of the employing corporation as the
result of which it becomes an Affiliate. The terms and conditions of the
substitute options so granted may vary from the terms and conditions set forth
in this Plan to such extent as the Committee at the time of grant may deem
appropriate to conform, in whole or in part, to the provisions of the stock
incentives in substitution for which they are granted.
15. AMENDMENT OR DISCONTINUANCE OF PLAN.
(a) Amendment. The Plan may be amended by the Board of Directors at any
time, provided that without the affirmative vote of the holders of a majority of
the shares of the Company's Common Stock present or represented, and entitled to
vote at a meeting duly held in accordance with applicable law, no amendment
shall be made which (i) increases the aggregate number of shares of Common Stock
that may be issued or transferred pursuant to Stock Incentives as provided in
paragraph (a) of Section 4, (ii) amends the provisions of paragraph (a) of
Section 13 with respect to eligibility and disinterest of members of the
Committee, (iii) permits any person who does not meet the eligibility
requirements of the Plan to be granted a Stock Incentive, (iv) amends the
provisions of Sections 5, 6, 7 or 8 to permit shares to be valued or to be
optioned at less than 100% of Fair Market Value, (v) amends Section 12. to
extend the term of the Plan, or (vi) amends this Section 15.
(b) Discontinuance. The Board of Directors may by resolution
adopted by a majority of the entire Board of Directors discontinue
the Plan.
(c) Consents. No amendment or discontinuance of the Plan by the Board
of Directors or the stockholders of the Company shall adversely affect, without
the consent of the holder thereof, any Stock Incentive theretofore granted.
<PAGE>
<PAGE>
EXHIBIT 4(b)
BUTLER MANUFACTURING COMPANY
DIRECTOR STOCK COMPENSATION PROGRAM
1.Purpose. The purpose of this Director Stock Compensation Program
("Program") is to enable members of the Board of Directors (the "Board") of
Butler Manufacturing Company (the "Company") who are not employees of the
Company ("Outside Directors") to increase their proprietary interest in the
success and progress of the Company through their ownership of additional shares
of the Common Stock, no par value, of the Company (the "Common Stock").
2. Participation. Each person becoming an Outside Director of the Company shall
participate in the Program commencing on the later of the date of adoption of
this Program by the stockholders or the date the person becomes an Outside
Director and shall continue to participate until the resignation,
non-reelection, death or disability of any such Outside Director
("Participant").
3. Payment of Annual Cash Retainer In Stock.
(a) Payment of Retainer. The dollar amount of the annual retainer
payable to Outside Directors as established by the Board from time to time shall
be credited in Common Stock to accounts for each Participant ("Stock Account")
maintained by the Board Organization Committee of the Board of Directors ("the
Committee"). The amount of the credit for each calendar quarter for each
Participant shall be such number of shares of Common Stock of the Company as is
equal to one fourth of the dollar amount of the annual retainer payable to each
Participant divided by the Fair Market Value of one share of Common Stock on the
date the credit is made. The credit shall be made on the fifth (5th) Business
Day of each calendar quarter.
(b) Dividends, etc. An amount equal to any cash dividends payable on
shares of Common Stock shall also be credited to a Participant's Stock Account
in shares of Common Stock on the payment date for such dividend on all shares of
Common Stock. The amount of such credit to each Participant's Stock Account for
cash dividends shall be such number of shares of Common Stock as is equal to the
amount of the cash dividend payable on shares of Common Stock credited to the
Participant's Stock Account divided by the Fair Market Value of one share of
Common Stock on the date the credit is made. The number of shares credited to
Participant Stock Accounts shall be adjusted to reflect any stock split, stock
dividend, the issuance of stock purchase rights or similar transactions effected
prior to the issuance of stock certificates.
(c) Fair Market Value. The Fair Market Value of a share of Common Stock
shall mean the last sale price for the Company's Common Stock on the NASDAQ
National Market, or if the Company's Common Stock is not traded on that day, on
the next preceding day on which the Common Stock was so traded.
4. Issue of Stock Certificates. The Company shall issue from the
Treasury or from authorized but unissued shares a certificate to
each Participant in the amount of whole shares of Common Stock
credited to the Participant's Stock Account (a) annually on the
10th Business Day after the last calendar quarter of each year, (b)
<PAGE>
upon termination of participation or (c) upon termination of the
Program.
B-1
Until the issuance of the stock certificate, no right to vote or receive
dividends or other rights as a stockholder shall exist as to the shares of
Common Stock credited to a Participant's Stock Account, except to the extent
specified in Section 3. Upon any termination of Participation, termination of
the Program or any other distribution of a Participant's Stock Account in whole,
any fraction of a share of Common Stock shall be distributed in cash equal to
the Fair Market Value of the fractional share. Any other property credited to
the Participant's Stock Account other than shares of Common Stock shall be
distributed in kind or in cash equal to the fair market value thereof as
determined by the Committee.
5. Amount of Annual Retainer. The amount of the Annual Retainer
shall be determined by the full Board of Directors from time to
time, but not more frequently than annually.
6. Administration. The Program shall be administered by the Committee, which
shall have full power and authority to construe and administer the Program. Any
action taken under the provisions of the Program by the Committee arising out of
or in connection with the administration, construction, or effect of the Program
or any rules adopted thereunder shall, in each case, lie within the discretion
of the Committee and shall be conclusive and binding upon the Company and upon
all Participants, and all persons claiming under or through any of them.
7. Beneficiary Designation. A Participant shall designate a beneficiary or
beneficiaries who, upon the Participant's death, shall receive the Shares and
any other items credited to a Participant's Stock Accounts that otherwise would
have been delivered to the Participant. All designations shall be in writing and
signed by the Participant. The designation shall be effective only if an when
delivered to the Company during the lifetime of the Participant. The Participant
also may change beneficiaries by a signed, written instrument delivered to the
Company. The delivery of Shares shall be in accordance with the last unrevoked
written designation of beneficiary that has been signed and delivered to the
Secretary of the Company. In the event the Participant does not designate a
beneficiary, in the event that all of the beneficiaries named pursuant to this
section predecease the Participant, or if for any reason such designation is
ineffective in whole or in part, the Shares and other items credited to the
Participant's account that otherwise would have been delivered to the
Participant shall be delivered to the Participant's estate, and in such event,
the term "beneficiary" shall include such estate.
8. Transferability. The rights and privileges conferred under this Program shall
not be subject to execution, attachment or similar process and may not be
transferred, assigned, pledged or hypothecated in any manner (whether by
operation of law or otherwise) other than by will or the laws of descent and
distribution or a "qualified domestic relations order" as defined in the
Internal Revenue Code, as amended from time to time.
<PAGE>
9. Approval; Effective Date. This Program shall become effective
when approved by the holders of a majority of the Common Stock
present or represented and entitled to vote at a meeting of
stockholders.
10. Amendment and Termination. Subject to the provisions of Section 5, this
Program may be amended by the Board of Directors of the Company from time to
time, and may be terminated by the Board of Directors or Stockholders, except
that any such action shall not adversely affect any Participant's rights under
the Program that had accrued prior to such amendment or termination.
B-2
11. Expenses of the Program. All costs and expenses of the
Program shall be borne by the Company and none of such expense
shall be charged to any Participant.
12. Compliance with Rule 16b-3. It is the intention of the Company that the
operation of the Program comply in all respects with Rule 16b-3 under Section
16(b) of the Securities Exchange Act of 1934, as amended, and that all
Participants remain Disinterested Persons as defined by such Rule. Accordingly,
if any Program provision is later found to cause any crediting of Common Stock
to fail to qualify under Rule 16b-3 for an exemption from the operation of
Section 16(b) or if any Program provision would disqualify Participants from
remaining Disinterested Directors under Rule 16b-3, that provision shall be
deemed null and void, and in all events the Program shall be construed in favor
of its meeting the requirements of Rule 16b-3.
B-3
<PAGE>
<PAGE>
EXHIBIT 5
LAW OFFICES
LATHROP & GAGE L.C.
A LIMITED LIABILITY COMPANY
2345 GRAND BOULEVARD, SUITE 2600
KANSAS CITY, MISSOURI 64108-2684
(816) 292-2000
LATHROPLAW BBS: (816) 472-3378
JOHN H. CALVERT, DIRECT DIAL: FAX NUMBERS:
816/472-3220 MISSOURI (816) 421-0500
Internet Address: KANSAS (913) 451-0875
[email protected]
Compuserve Address:
72741,3656
KANSAS OFFICE
1050/40 CORPORATE WOODS
9401 INDIAN CREEK PARKWAY
OVERLAND PARK, KANSAS 66210-2007
(913) 451-0820
April 16, 1996
Butler Manufacturing Company
BMA Tower, Penn Valley Park
P.O. Box 419917
Kansas City, Missouri 64141
Ladies and Gentlemen:
This relates to the legality of the shares of Common Stock of the
Company to be distributed pursuant to the Butler Manufacturing Company Stock
Incentive Plans of 1979, 1987 and 1996 and Directors Stock Compensation Program
(the "Plans"), which shares of Common Stock you are seeking to register with the
Securities and Exchange Commission under the provisions of the Securities Act of
1933, as amended on Form S-8 (the "Registration Statement").
We have acted as counsel to the Company in connection with the adoption
of the Plans, the incorporation of the Company, the authorization and issuance
of the Company's Common Stock and the registration of shares of Common Stock of
the Company under the Registration Statement.
In rendering the opinions hereinafter expressed, we have examined and
relied upon such records, documents, instruments, certificates of public
officials, and certificates of officers of the Company, as we have deemed
appropriate, including the Registration Statement, the Plans, certified
resolutions authorizing the Plans, and copies of the Articles of Incorporation
and Bylaws of the Company.
Our opinions below are limited to the matters expressly set forth in
this opinion letter, and no opinion is to be implied or may be inferred beyond
the matters expressly so stated.
We disclaim any obligation to update this opinion letter for events
occurring after the date of this opinion letter.
Our opinions below are limited to the effect of the laws of the state
of Missouri, the Delaware General Corporation Law and the Federal laws of the
United States. We express no opinion with respect to the effect of the laws of
<PAGE>
any other jurisdiction on the
April 16, 1996
Page 2
transactions contemplated by the Registration Statement, the
prospectus under the Registration Statement or the Plans.
Based on the foregoing, it is our opinion that:
(1) the Plans have been duly adopted by the Company and
approved by the Stockholders of the Company;
(2) if authorized but previously unissued shares of Common Stock of the
Company or issued shares of Common Stock that are held by the Company in its
treasury shall be issued by the Company pursuant to the Plans in accordance with
the terms thereof, and the said shares shall be distributed to the participants
in the Plans pursuant to the provisions thereof, the said shares of Common Stock
will be legally issued, validly outstanding, and fully paid and non-assessable.
We hereby consent to be named, in the Registration Statement, and
amendments thereto, by which the securities to be issued pursuant to the Plans
are registered with the Securities and Exchange Commission, and in any
prospectus relating to the Plans, as counsel for the Company who has passed upon
the legality of the securities registered thereby. We further consent to the
filing of this opinion as an exhibit to the registration statement.
Very truly yours,
LATHROP & GAGE L.C.
By: s/John H. Calvert
John H. Calvert
<PAGE>
<PAGE>
Exhibit 23(b)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTS
Board of Directors
Butler Manufacturing Company
We consent to the incorporation by reference in the Registration Statement
on Form S-8 being filed under the Securities Act of 1933 by Butler Manufacturing
Company with respect to its Stock Incentive Plans of 1979, 1987 and 1996 and its
Directors Stock Compensation Program (the "Plans"), to be used in registering
shares of Butler Manufacturing Company Common Stock, of our reports dated
February 2, 1996, on our audits of the consolidated financial statements and
consolidated financial statement schedule of Butler Manufacturing Company and
consolidated subsidiaries as of December 31, 1995 and 1994, and for each of the
three years in the period ended December 31, 1995, which reports are
incorporated by reference or included in the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1995.
s/KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Kansas City, Missouri
April 15, 1996
<PAGE>
<PAGE>
Exhibit 24(a)
CERTIFIED COPY OF
RESOLUTIONS ADOPTED BY THE
EXECUTIVE COMMITTEE OF
THE BOARD OF DIRECTORS
BUTLER MANUFACTURING COMPANY
The undersigned, Secretary of Butler Manufacturing Company, a corporation
organized and existing under the laws of the State of Delaware, does hereby
certify that effective March 28, 1996, the Executive Committee of the Board of
Directors of Butler Manufacturing Company (the "Company") adopted the following
Resolution by Unanimous Written Consent in accordance with the Bylaws, Articles
of Incorporation and applicable corporate laws of the State of Delaware, and
that the Resolution adopted is still in effect and has not been rescinded or
modified as of the date hereof:
"BE IT FURTHER RESOLVED, that the Richard O. Ballentine and John Huey, and
each of them, are authorized to sign registration statements on Form S-8 under
the Securities Act of 1933 with respect to the proposed offering of shares of
the Company's Common Stock, no par value under the Plans, the Stock Incentive
Plans of 1979, 1987 and 1996, the Directors Stock Compensation Program, an
employees stock award plan (the "Shares") and interests in the Plans, and any
and all amendments thereto on behalf of the principal executive officer,
principal accounting officer, principal financial officer and directors of the
Company pursuant to a power or powers of attorney duly executed by the persons
holding such offices;"
IN WITNESS WHEREOF, I have hereunto set my hand this 16th day of April,
1996.
BUTLER MANUFACTURING COMPANY
s/Richard O. Ballentine
By____________________________
Richard O. Ballentine,
Secretary
<PAGE>
<PAGE>
Exhibit 24(b)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Richard O. Ballentine and John Huey, and each of
them, his or her true and lawful attorneys-in-fact and agents, with full power
of substitution and re-substitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign a registration statement on
Form S-8 covering the offering of shares of Common Stock of Butler Manufacturing
Company under Butler Manufacturing Company Stock Incentive Plans and the Butler
Manufacturing Company Director Stock Compensation Program and any and all
amendments (including post effective amendments) to such 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 attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite or 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
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Name Title Date
---- ----- ----
s/Robert H. West
____________________ Chairman of the Board April 16, 1996
Robert H. West (Principal Executive
Officer)
s/John J. Holland
____________________ Vice President - Finance April 16, 1996
John J. Holland (Principal Financial
Officer)
s/John T. Cole
____________________ Controller (Principal April 16, 1996
John T. Cole Accounting Officer)
s/Harold G. Bernthal
____________________ Director April 16, 1996
Harold G. Bernthal
s/Robert E. Cook
____________________ Director April 16, 1996
Robert E. Cook
s/Alan M. Hallene
____________________ Director April 16, 1996
Alan M. Hallene
s/C.L. William Haw
____________________ Director April 16, 1996
C.L. William Haw
s/George E. Powell, Jr.
____________________ Director April 16, 1996
George E. Powell, Jr.
s/Donald H. Pratt
____________________ Director April 16, 1996
Donald H. Pratt
s/Robert J. Reintjes, Sr.
____________________ Director April 16, 1996
Robert J. Reintjes, Sr.
s/Judith A. Rogala
____________________ Director April 16, 1996
Judith A. Rogala
<PAGE>
