As filed with the Securities and Exchange Commission on February
28, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
COMMERCIAL INTERTECH CORP.
(Exact name of registrant as specified in its charter)
Ohio 34-0159880
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification Number)
1775 Logan Avenue, Youngstown, Ohio 44505
(Address of Principal Executive Offices including Zip Code)
Commercial Intertech Corp. Stock Option and Award Plan of 1993
(Full title of plan)
Gilbert M. Manchester
Commercial Intertech Corp.
1775 Logan Avenue
Youngstown, Ohio 44505
(216) 746-8011
(Name, address and telephone number of agent for service)
Copies to:
Herbert S. Wander, Esq.
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661
(312) 902-5200
CALCULATION OF REGISTRATION FEE
Title of securities to be registered(1): Common Stock ($1.00 par
value).................................
Amount to be registered(2): 495,000 shares
Proposed maximum offering price per share(3): $22.4375
Proposed maximum aggregate offering price(3): $11,106,562.50
Amount of registration fee: $3,830.00
(1) Includes an equal number of preferred share purchase rights.
(2) Includes an indeterminate number of shares of Commercial
Intertech Corp. common stock that may be issuable by reason of
stock splits, stock dividends or similar transactions.
(3) The amounts are based upon the high and low sales prices of
Commercial Intertech Corp. common stock as reported on the New York
Stock Exchange on February 24, 1994 and are used solely for the
purpose of calculating the registration fee pursuant to Rule 457(c)
under the Securities Act of 1933.
<PAGE>
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The information called for in Part I of Form S-8 is currently
included in the prospectus for the Commercial Intertech Corp. Stock
Option and Award Plan of 1993 (the "Plan"), and is not being filed
with or included in this Form S-8 in accordance with the rules and
regulations of the Securities and Exchange Commission (the "SEC").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the SEC are incorporated in
this Registration Statement by reference:
1. The Company's annual report on Form 10-K for the fiscal
year ended October 31, 1993.
2. The description of the Company's common stock and
preferred share purchase rights contained in the Registration
Statement on Form 8-A filed under Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (filed
February 6, 1991 and February 28, 1991), including any amendment or
report filed for the purpose of updating such description.
In addition, all documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the
date of this registration statement and prior to the filing of a
post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be
incorporated in this registration statement by reference and to be
a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the
extent that a statement contained herein or in any subsequently
filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement.
The Company hereby undertakes to provide without charge to
each person who has received a copy of the prospectus to which this
registration statement relates, upon the written or oral request of
any such person, a copy of any or all the documents that have been
or may be incorporated by reference into this registration
statement, other than exhibits to such documents (unless such
exhibits are incorporated therein by reference). The Company
hereby further undertakes to deliver or cause to be delivered to
all participants who do not otherwise receive such material, copies
of all reports, proxy statements and other communications
distributed by the Company to its stockholders generally, no later
than the time such materials are first sent to its stockholders.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
<PAGE>
Item 6. Indemnification of Directors and Officers.
Article V of the Company's Code of Regulations provides that
the Company shall indemnify each director, officer or employee,
each former director, officer or employee, and each person who is
serving or has served at the Company's request as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other organization or enterprise, against
expenses (including attorneys' fees), judgments, decrees, fines,
penalties and amounts paid in settlement (whether with or without
court approval) in connection with the defense of any pending or
threatened action, suit, or proceeding, whether criminal, civil,
administrative or investigative, to which he is or may be made a
party by reason of being or having been such director, officer or
employee, or by reason of any action alleged to have been taken or
not taken by him while acting in any such capacity, provided that
a determination is made (a) that he was not and has not been
adjudicated to have been negligent or guilty of misconduct in the
performance of his duty to the corporation, partnership, joint
venture, trust or other enterprise of which he is or was such
director, officer or employee, (b) that he acted in good faith in
what he reasonably believed to be in, or not opposed to, the best
interest of the Company, and (c) that, in any matter the subject of
a criminal action, suit or proceeding, he had no reasonable cause
to believe that his conduct was unlawful. The determination as to
(b) and (c) and, in the absence of an adjudication as to (a) by a
court of competent jurisdiction, the determination as to (a), shall
be made (i) by the directors of the Company acting at a meeting at
which a quorum consisting of directors who are not parties to or
threatened with such action, suit or proceeding is present and on
which determination only such directors vote, or (ii) if such a
quorum is not obtainable to vote on such indemnification, or, even
if obtainable and a quorum of directors qualified to vote so
directs, by independent legal counsel in a written opinion.
Reference is made to Section 1701.13(E) of the Ohio Revised
Code, which sets forth provisions which define the extent to which
a corporation may indemnify directors, officers and employees.
Under an existing policy of insurance, the Company is entitled
to be reimbursed for indemnity payments it is required or permitted
to make to its directors and officers, including directors and
officers of its subsidiaries.
<PAGE>
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.4.1
The Commercial Intertech Corp. Stock Option and Award Plan of
1993.
4.2 Articles of Incorporation of the Company (incorporated
herein by reference to Exhibit I to the Company's Annual Report on
Form 10-K for the year ended December 31, 1992).
5 Opinion of James M. Donchess as to the legality of the
shares of Common Stock being offered under the Plan.
23.1 Consent of Ernst & Young.
23.2 Consent of James M. Donchess (contained in his opinion
filed as Exhibit 5).
<PAGE>
Item 9. Undertakings.
1. The Company hereby undertakes:
(a) 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;
(iii) To include any material information with
respect to the plan of distribution required to be but not
previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not
apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(b) 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.
(c) 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.
2. The Company hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each
such post-effective amendment and each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to 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 be deemed to be the initial
bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors and
officers of the Company and subsidiary companies pursuant to the
foregoing provisions, or otherwise, the Company has been informed
that in the opinion of the SEC 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 Company of
expenses incurred or paid by a director, officer or controlling
person of the Company 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
Company 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe
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
Youngstown, State of Ohio, on this 28th day of February, 1994.
COMMERCIAL INTERTECH CORP.
By: /s/ PAUL J. POWERS
Paul J. Powers
Chairman, President and Chief Executive Officer
Each person whose signature appears below hereby constitutes
and appoints Bruce C. Wheatley, Gilbert M. Manchester and Herbert
S. Wander, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution, to sign on his behalf,
individually and in each capacity stated below, all amendments and
post-effective amendments to this Registration Statement on Form S-
8 and to file the same, with all exhibits thereto and any other
documents in connection therewith, with the Securities and Exchange
Commission under the Securities Act of 1933, granting unto said
attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully and to all intents and
purposes as each might or could do in person, hereby ratifying and
confirming each act that said attorneys-in-fact and agents may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities indicated, on February 28, 1994.
SIGNATURE TITLE
_________ ____________________________________
/s/ PAUL J. POWERS Chairman of the Board, President, CEO
_________________________ and Director (Principal Executive
Paul J. Powers Officer)
/s/ PHILIP N. WINKELSTERN Senior Vice President, Chief Financial
_________________________ Officer and Director (Principal
Philip N. Winkelstern Financial and Accounting Officer)
/s/ WILLIAM W. CUSHWA Vice President - Planning, Assistant
_________________________ Treasurer and Director
William W. Cushwa
/s/ CHARLES B. CUSHWA, III Director
_________________________
Charles B. Cushwa, III
/s/ JOHN M. GALVIN Director
_________________________
John M. Galvin
/s/ RICHARD J. HILL Director
_________________________
Richard J. Hill
/s/ NEIL D. HUMPHREY Director
_________________________
Neil D. Humphrey
/s/ KIPTON C. KUMLER Director
_________________________
Kipton C. Kumler
/s/ GERALD C. MCDONOUGH Director
_________________________
Gerald C. McDonough
/s/ JOHN NELSON Director
_________________________
John Nelson
/s/ JOHN F. PEYTON Director
_________________________
John F. Peyton
/s/ DON E. TUCKER Director
_________________________
Don E. Tucker
<PAGE>
EXHIBIT INDEX
Exhibit Sequential
Number Description Page Number
_______ ____________________________________ ___________
4.1 The Commercial Intertech Corp. Stock
Option and Award Plan of 1993.
5 Opinion of James M. Donchess as to the
legality of the shares of Common Stock
being offered under the Plan.
23.1 Consent of Ernst & Young.
23.2 Consent of James M. Donchess (contained
in his opinion filed as Exhibit 5).
EXHIBIT 4.1
COMMERCIAL INTERTECH CORP.
Stock Option and Award Plan of 1993
Section 1. Purpose.
The purpose of the Stock Option and Award Plan of 1993 (the
"Plan") is to assist Commercial Intertech Corp. (the "Company") in
attracting and retaining capable employees and outside directors.
The Plan will provide a long-term incentive to key employees by
encouraging and enabling them to participate in the Company's
future prosperity and growth. The Plan will provide equity
ownership opportunities to better match the interests of key
employees and outside directors with those of shareholders.
These objectives will be promoted through the granting to key
employees of equity instruments including (i) options [Incentive
Stock Options ("ISOs")] which are intended to qualify under Section
422 of the Internal Revenue Code of 1986 (the "Code"); (ii) options
which are not intended to so qualify [Nonqualified Stock Options
("NQSOs")]; (ISOs and NQSOs are referred to together hereinafter as
"Stock Options"); (iii) Stock Appreciation Rights ("SARs"); (iv)
Limited Stock Appreciation Rights ("LSARs"); (v) Restricted Stock;
and (vi) Performance Shares. All members of the Company's Board of
Directors (the "Board") who are not currently employees of the
Company ("Outside Directors") may receive NQSOs from the Plan only
as provided herein.
Section 2. Administration.
The Plan shall be administered by the Compensation Committee
(the "Committee") of the Board which shall have the power and
authority to grant to eligible employees Stock Options, SARs,
LSARs, Restricted Stock and Performance Shares. In particular, the
Committee shall have the authority to: (i) select employees of the
Company as recipients of awards; (ii) determine the number and type
of awards to be granted; (iii) determine the terms and conditions,
not inconsistent with the terms hereof, of any award granted; (iv)
adopt, alter and repeal such administrative rules, guidelines and
practices governing the Plan as it shall, from time to time, deem
advisable; (v) interpret the terms and provisions of the Plan and
any award granted and any agreements relating thereto; and (vi)
otherwise supervise the administration of the Plan. All decisions
made by the Committee pursuant to the provisions hereof shall be
made in the Committee's sole discretion and shall be final and
binding on all persons.
Section 3. Eligibility.
Key employees of the Company, who are responsible for or
contribute to the management, growth and/or profitability of the
business of the Company, are eligible to be granted awards. The
participants under the Plan shall be selected from time to time by
the Committee, in its sole discretion, from among those eligible.
Section 4. Stock Subject to Plan.
The total number of shares of the Company's common stock,
$1.00 par value ("Stock") reserved and available for distribution
pursuant to awards hereunder shall be 495,000 shares. No more than
250,000 such shares shall be granted in the form of Restricted
Stock or Performance Shares. Such shares may consist, in whole or
in part, of authorized and unissued shares or treasury shares.
Subject to Section 6(b)(iv), if any shares of Stock that have
been optioned cease to be subject to a Stock Option, or if any such
shares of Stock that are subject to any Restricted Stock or
Performance Share award granted hereunder are forfeited prior to
the receipt of an economic benefit (e.g., dividends) by the holder,
or any such Stock Option or other award otherwise terminates
without a payment being made to the participant in the form of
Stock, such shares shall again be available for distribution in
connection with future awards under the Plan.
In the event of any stock dividend, stock split, combination
or exchange of shares, recapitalization or other change in the
capital structure of the Company, corporate separation or division
(including, but not limited to, split-up, spin-off, split-off or
distribution to Company shareholders other than a normal cash
dividend), sale by the Company of all or a substantial portion of
its assets, rights offering, merger, consolidation, reorganization
or partial or complete liquidation, or any other corporate
transaction or event having an effect similar to any of the
foregoing, the aggregate number of shares reserved for issuance
under the Plan, the number and option price of shares subject to
outstanding Stock Options, including any SAR or LSAR granted in
connection with such Stock Option, the financial performance goals,
if any, of the Stock contained in a Performance Share award, the
number of shares subject to a Performance Share Award Agreement or
granted by a Restricted Stock Award Agreement, and any other
characteristics or terms of the awards as the Committee shall deem
necessary or appropriate to reflect equitably the effects of such
changes to the holders of awards, shall be appropriately
substituted for new shares or adjusted, as determined by the
Committee in its discretion.
Section 5. Stock Options.
Stock Options may be granted alone or in addition to other
awards granted under the Plan. Any Stock Options granted under the
Plan shall be in such form as the Committee may from time to time
approve and the provisions of Stock Option awards need not be the
same with respect to each optionee. Stock Options granted under
the Plan may be either ISOs or NQSOs. The Committee may grant to
any optionee ISOs, NQSOs or both types of Stock Options (in each
case with or without SARs).
Anything in the Plan to the contrary notwithstanding, without
the consent of the optionee(s) affected, no term of this Plan
relating to ISOs 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 to disqualify any ISO under such Section 422.
Stock Options granted under the Plan shall be subject to the
following terms and conditions and shall contain such additional
terms and conditions not inconsistent with the terms of the Plan,
as the Committee deems appropriate. Each Stock Option grant shall
be evidenced by an agreement executed on behalf of the Company by
an officer designated by the Committee and accepted by the
optionee. Such agreement shall describe the Stock Options and
state that such Stock Options are subject to all the terms and
provisions of the Plan and shall contain such other terms and
provisions, consistent with the Plan, as the Committee may approve.
(a) Exercise Price. The exercise price per share of
Stock purchasable under a Stock Option shall be no less than the
Fair Market Value on the day the Stock Option is granted. Fair
Market Value shall mean the closing price of the Stock on the New
York Stock Exchange ("NYSE") or, if no such sale of Stock occurs on
the NYSE on such date, the Fair Market Value of the Stock as
determined by the Committee in good faith.
(b) Option Term. The term of each Stock Option shall be
fixed by the Committee, but no ISO shall be exercisable more than
ten years after the date such ISO is granted. The length of the
term for NQSOs may be whatever the Committee deems appropriate
given the circumstances.
(c) Exercise of Stock Options. Stock Options shall
become exercisable at such time or times and subject to such terms
and conditions (including, without limitation, installment exercise
provisions) as shall be determined by the Committee, provided,
however, that, except as provided in Section 5(f) or (g) (in the
case of death or disability, respectively) and Section 11, unless
otherwise determined by the Committee at or after grant, no Stock
Option shall be exercisable prior to six months after the date of
the granting of the Stock Option. If the Committee provides that
any Stock Option is exercisable only in installments, the Committee
may waive such installment exercise provisions at any time in whole
or in part based on performance and/or such other factors as the
Committee may determine.
(d) Method of Exercise. Options may be exercised in
whole or in part by giving written notice of exercise to the
Company specifying the number of shares to be purchased. Such
notice shall be accompanied by payment in full of the purchase
price, either by certified or bank check, or such other instrument
as may be permitted in accordance with rules or procedures adopted
by the Committee.
As determined by the Committee, at or after grant,
payment in full or in part may also be made in the form of
unrestricted Stock already owned by the optionee or the tendering
of shares of Stock which would otherwise be issuable to the
optionee upon the exercise of the Stock Option.
No shares of Stock shall be transferred until full
payment therefor has been made. An optionee shall generally have
the rights of a shareholder with respect to shares subject to Stock
Options only when the optionee has given written notice of
exercise, has paid in full for such shares and, if requested, given
the representation described in Section 14(a).
(e) Non-Transferability of Stock Options. No Stock
Options shall be transferable by the optionee other than by will or
by the laws of descent and distribution, and all Stock Options
shall be exercisable, during the optionee's lifetime, only by the
optionee. At the request of an optionee, Stock purchased upon
exercise of a Stock Option may be issued or transferred into the
name of the optionee and another person jointly with rights of
survivorship.
(f) Termination by Death. Subject to Section 5(i), if
an optionee's employment by the Company terminates by reason of
death, any Stock Option held by such optionee may thereafter be
exercised, to the extent it was exercisable at the time of death or
on such accelerated basis as the Committee may determine at or
after grant, by the legal representative of the estate or by the
legatee of the optionee under the will of the optionee, for a
period of one year (or such other period up to three years as the
Committee may specify) from the date of death or until the
expiration of the stated term of such Stock Option, whichever
period is shorter.
(g) Termination by Reason of Disability or Retirement.
Subject to Section 5(i), if an optionee's employment by the Company
terminates by reason of disability, as defined under the Company's
long-term disability plan, or retirement, any Stock Option held by
such optionee will become exercisable upon approval of the
Committee and may thereafter be exercised by the optionee for a
period of three years (or such shorter period as the Committee may
specify at grant) from the date of such termination of employment
or until the expiration of the stated term of such Stock Option,
whichever period is shorter, provided, however, that, if the
optionee dies within such three-year period (or such shorter
period), any unexercised Stock Option held by such optionee shall
thereafter be exercisable, to the extent to which it was
exercisable at the time of death, for a period of one year from the
date of such death or until the expiration of the stated term of
such Stock Option, whichever period is shorter. In the event of
termination of employment by reason of disability or retirement, if
an ISO is exercised after the expiration of the exercise periods
that apply for purposes of Section 422 of the Code, such ISO shall
thereafter be treated as an NQSO.
(h) Other Termination of Employment. Unless otherwise
determined by the Committee at or after grant, if an optionee's
employment by the Company terminates for any reason other than
death, disability or retirement, the optionee will have one month
from the date of termination to exercise any and all Stock Options
that are then exercisable, except that, if the termination was for
Cause, any and all Stock Options shall be immediately cancelled.
For the purpose of the Plan, Cause means a felony conviction of a
participant or the failure of a participant to contest prosecution
for a felony, or a participant's willful misconduct or dishonesty,
any of which is directly and materially harmful to the business or
reputation of the Company, as determined by the Committee.
(i) ISO Limitations. To the extent required for
"incentive stock option" status under Section 422 of the Code, the
aggregate Fair Market Value (determined as of the time of grant) of
the Stock with respect to which ISOs are exercisable for the first
time by the optionee during any calendar year under the Plan and
any other stock option plan of the Company and its affiliates,
shall not exceed $100,000.
The Committee may provide at grant, to the extent
permitted under Section 422 of the Code, that, if (i) a
participant's employment with the Company is terminated by reason
of death, disability or retirement and (ii) the portion of any ISO
that is otherwise exercisable during the post-termination period
specified under Section 5(f), (g) or (h), applied without regard to
this Section 5(i), is greater than the portion of such Stock Option
that is exercisable as an "incentive stock option" during such
post-termination period under Section 422, such post-termination
period shall automatically be extended, but not beyond the original
Stock Option term, to the extent necessary to permit the optionee
to exercise such ISO either as an ISO or, if exercised after the
expiration of the applicable exercise periods under Section 422, as
an NQSO. The Committee is also authorized to provide at grant for
a similar extension of the post-termination exercise period in the
event of a Change in Control or a Potential Change in Control (as
defined below).
Section 6. Stock Appreciation Rights.
(a) Grant and Exercise. SARs may be granted in
conjunction with all or part of any Stock Option granted under the
Plan.
An SAR or applicable portion thereof granted with respect
to a given Stock Option shall terminate and no longer be
exercisable upon the termination or exercise of the related Stock
Option, except that, unless otherwise determined by the Committee
at the time of grant, an SAR granted with respect to less than the
full number of shares covered by a related Stock Option shall not
be reduced until the number of shares covered by an exercise or
termination of the related Stock Option exceeds the number of
shares not covered by the SAR.
An SAR may be exercised by an optionee, in accordance
with Section 6(b), by surrendering the applicable portion of the
related Stock Option in accordance with procedures established by
the Committee for such purposes. Upon such exercise and surrender,
the optionee shall be entitled to receive an amount determined in
the manner prescribed in Section 6(b). Stock Options which have
been so surrendered shall no longer be exercisable to the extent
the related SARs have been exercised.
(b) Terms and Conditions. Each SAR grant shall be
evidenced by an agreement executed on behalf of the Company by an
officer designated by the Committee and accepted by the optionee.
Such agreement shall describe the SAR, specify the related
outstanding Stock Option(s) and state that such SARs are subject to
all the terms and provisions of the Plan and contain such other
terms and provisions, consistent with the Plan, as the Committee
may approve, including the following:
(i) SARs shall be exercisable only at such time or
times and to the extent that the Stock Options to which they relate
are exercisable, in accordance with the provisions of Sections 5
and 6 of the Plan, provided that an SAR shall not be exercisable
during the first six months of its term by any optionee except in
the event of death or disability of the optionee prior to the
expiration of the six-month period.
(ii) Upon the exercise of an SAR, the optionee shall
be entitled to receive an amount in cash, if any, and/or shares of
Stock in the aggregate equal in value to the excess of the Fair
Market Value of one share of Stock over the option price per share
specified in the related Stock Option multiplied by the number of
shares in respect of which the SAR shall have been exercised, with
the Committee having the right to determine the form of payment.
(iii) SARs shall be transferable only when and
to the extent that the underlying Stock Option would be
transferable under Section 5(e) of the Plan.
(iv) Upon the exercise of an SAR, the Stock Option
or part thereof to which the SAR is related shall be deemed to have
been exercised for the purpose of the limitation set forth in
Section 4 of the Plan on the number of shares of Stock to be issued
under the Plan.
Section 7. Limited Stock Appreciation Rights.
(a) The Committee may at any time and from time to time
grant LSARs in respect to all or any part of any outstanding Stock
Option and may define the terms of such LSARs with respect to the
value of Stock covered by the related outstanding Stock Option.
(b) LSARs may be exercised only (i) when the Fair Market
Value of one share of stock is greater than the option price per
share specified in the related Stock Option; (ii) after the
expiration of six months from the date of grant of the LSAR, except
as provided in Section 11(a)(i); (iii) during the 30-day period
beginning on the first day after the date of a Change in Control or
Potential Change in Control of the Company, as defined in Section
11(b) and 11(c); (iv) at a time when the holder of the related
outstanding Stock Option is, directly or indirectly, subject to
Section 16(b) of the Securities Exchange Act of 1934 (the "Exchange
Act"); (v) at a time and to the same extent as the related
outstanding Stock Option is exercisable; and (vi) by surrender to
the Company, unexercised, of the related outstanding Stock Option
or any applicable portion thereof.
(c) LSARs shall entitle the optionee to receive from the
Company, upon surrender of the related outstanding Stock Option, or
any portion thereof, an amount equal to 100% of the excess of the
highest closing sale price per share on the NYSE (or the principal
exchange on which the Stock is listed or quoted) on any one day
during the period beginning on the sixtieth day prior to the date
on which such LSARs are exercised and ending on the date on which
such LSARs are exercised over the option price per share of Stock
subject to the related Stock Option, multiplied by the number of
shares in respect of which the LSARs have been exercised. Such
amount shall be paid by the Company in cash.
(d) Each grant of an LSAR shall be evidenced by an
agreement executed on behalf of the Company by an officer
designated by the Committee and accepted by the optionee. Such
agreement shall describe the LSARs, specify the related outstanding
Stock Option(s) and state that such LSARs are subject to all the
terms and provisions of the Plan and contain such other terms and
provisions, consistent with the Plan, as the Committee may approve.
(e) LSARs shall not be granted in respect of outstanding
Stock Options to purchase in excess of the number of shares of
Stock reserved for the Plan in Section 4.
Section 8. Restricted Stock.
The provisions of Restricted Stock awards need not be the same
with respect to each recipient. Restricted Stock awards shall
consist of awards of Company Stock and shall be subject to the
following restrictions and conditions.
(a) Price. The purchase price for shares of Restricted
Stock shall be set by the Committee and may be zero.
(b) Restricted Stock Award Agreement. Awards of
Restricted Stock must be accepted by an employee within a period of
60 days (or such shorter periods as the Committee may specify at
grant) after the award date, by executing a Restricted Stock Award
Agreement and paying whatever price, if any, is required under
Section 8(a).
The prospective recipient of a Restricted Stock award
shall not have any rights with respect to such award, unless and
until such recipient has executed an agreement evidencing the award
and has delivered a fully executed copy thereof to the Company, and
has otherwise complied with the applicable terms and conditions of
such award.
(c) Stock Certificate and Legends. Each participant
receiving a Restricted Stock award shall be issued a stock
certificate in respect of such shares of Restricted Stock. Such
certificate shall be registered in the name of such participant,
and shall bear an appropriate legend referring to the terms,
conditions and restrictions applicable to such award, substantially
in the following form:
The transferability of this certificate and the
shares of stock represented hereby are subject to the terms and
conditions (including forfeiture) of Commercial Intertech Corp.'s
Stock Option and Award Plan of 1993 and an Agreement entered into
between the registered owner and Commercial Intertech Corp. Copies
of such Plan and Agreement are on file in the offices of Commercial
Intertech Corp.
The Committee may require that the stock certificates
evidencing such shares be held in custody by the Company until the
restrictions thereon shall have lapsed, and that, as a condition of
any Restricted Stock award, the participant shall have delivered a
stock power, endorsed in blank, relating to the Stock covered by
such award.
(d) Stock Restrictions. Subject to the provisions of
this Plan and the applicable Restricted Stock Award Agreement,
during a period set by the Committee commencing with the date of
such award (the "Restriction Period"), the participant shall not be
permitted to sell, transfer, pledge, assign or otherwise encumber
shares of Restricted Stock awarded under the Plan.
Based on procedures set forth by the Committee, the
Committee may, however, at or after grant provide for the lapse of
such restrictions in installments and/or may accelerate or waive
such restrictions in whole or in part, or as provided in Section
12.
(e) Shareholder Rights. Except as provided in this
Section 8, the recipient shall have, with respect to the shares of
Restricted Stock covered by any award, all of the rights of a
shareholder of the Company, including the right to vote the shares,
and the right to receive any dividends, provided, however, that
unless otherwise determined by the Committee, any dividends on such
shares shall be automatically deferred and reinvested in additional
Restricted Stock subject to the same restrictions as the underlying
award to the extent shares are available under Section 4.
(f) Termination of Employment. Except as otherwise
provided in this Section 8 and in the applicable Restricted Stock
Award Agreement, upon termination of a participant's employment
with the Company because of death, disability or retirement, the
Committee, at its discretion, may provide for waiver of all or a
portion of the restrictions applicable to unvested Restricted Stock
awards. If termination occurs for any other reason during the
Restriction Period for a given award, all shares still subject to
restriction shall be forfeited by the participant, provided,
however, that the Committee at its discretion may provide for
waiver of all or a portion of the remaining restrictions.
(g) Waiver of Restrictions. In the event of hardship or
other special circumstances of a participant whose employment with
the Company is involuntarily terminated (other than for Cause), the
Committee may waive in whole or in part any or all remaining
restrictions with respect to any or all of the participant's
Restricted Stock, based on such factors and criteria as the
Committee may deem appropriate.
(h) Expiration of Restriction Period. If and when the
Restriction Period expires without a prior forfeiture of the
Restricted Stock subject to such Restriction Period, unrestricted
certificates for such shares shall be delivered to the participant.
Section 9. Performance Shares.
The provisions of Performance Share awards need not be the
same with respect to each recipient. Performance Share awards
shall consist of awards of Company Stock and shall be subject to
the following terms and conditions.
(a) Price. The purchase price for Performance Shares
shall be specified by the Committee and may be zero.
(b) Performance Share Agreement. Awards of Performance
Shares will be specified in a Performance Share Award Agreement
executed between the recipient and the Committee.
(c) Restrictions. Each Performance Share award shall be
subject to restrictions related to (i) time; and (ii) Company
financial performance. Such time periods (the "Performance
Period") and financial performance goals shall be set by the
Committee in its sole discretion.
(d) Performance Share Restrictions. The Committee has
the authority to decide when to grant Performance Shares during the
Performance Period. A recipient shall become vested in Performance
Shares upon the lapse of the Performance Period and the attainment
of the associated financial performance goals set forth in the
agreement between the recipient and the Company. A recipient may
vest in more or less than the number of Performance Shares
originally awarded. The number of Performance Shares that vest
shall be based on the level of attainment of the financial
performance objectives and shall be specified in the Performance
Share Award Agreement, subject to the discretion of the Committee.
(e) Shareholder Rights. Subject to the provisions of
this Plan and the applicable award agreement, Performance Share
awards may not be sold, transferred, pledged, assigned or otherwise
encumbered during the Performance Period specified by the
Committee. At the expiration of the Performance Period, share
certificates shall be delivered to the participant, or his legal
representative, in a number equal to the number of shares earned
under the Performance Share award.
The Committee may, however, at or after grant, accelerate
the vesting of all or part of any Performance Share award and/or
waive the limitations for all or any part of such award.
(f) Termination of Employment. Except to the extent
otherwise provided in this Section 9 and in the applicable
Performance Share Award Agreement, upon termination of a
participant's employment with the Company for any reason during the
Performance Period for a given award, the Performance Shares
covered by such award shall be forfeited by the participant,
provided, however, the Committee may provide for accelerated
vesting in the event of termination of employment due to death,
disability or retirement.
(g) Waiver of Restrictions. In the event of hardship or
other special circumstances of a participant whose employment with
the Company is involuntarily terminated (other than for Cause), the
Committee may waive in whole or in part any or all of the remaining
limitations imposed hereunder with respect to any or all of the
participant's Performance Shares, based on such factors and
criteria as the Committee deems appropriate.
(h) Expiration of Performance Period. If and when the
Performance Period expires without a prior forfeiture of the
Performance Shares subject to such Performance Period, unrestricted
certificates for the number of shares of Stock earned under the
award shall be delivered to the participant.
Section 10. Awards to Board of Directors.
(a) Administration. All Outside Directors shall be
eligible to participate in the Plan only as expressly set forth in
this Section 10. The full Board of Directors shall have all of the
duties and responsibilities normally vested in the Committee as
defined in Section 2 hereof with respect to awards to Outside
Directors provided, however, that the Board shall have no power to
determine which Outside Directors may receive Stock Options, the
amount of such Stock Options, or the terms of such Stock Options to
the extent provided below.
(b) Eligibility and Grant of Options. Upon each Outside
Director's election by shareholders to a new three-year term during
the term of the Plan, each Outside Director shall receive a Stock
Option to purchase 1,500 shares of the Company's Stock.
(c) Terms of Options. All Stock Options granted to
Outside Directors shall be NQSOs and shall be issued at Fair Market
Value as defined in Section 5(a). All other terms applicable to
Stock Options, as defined in Section 5 [with the exception of the
provisions of Section 5(c) which apply to the exercisability of the
Stock Options and Section 5(i)] and in other sections of this Plan
are applicable to Outside Director Stock Options.
(d) Exercisability of Stock Options. The Stock Options
granted to Outside Directors shall become exercisable in three
equal installments, commencing on the first anniversary of the date
of grant and annually thereafter. Each Stock Option granted under
the Plan shall expire ten years from the date of the grant, and
shall be subject to earlier termination as hereinafter provided.
(e) Prorated Stock Option Grants. All continuing
Outside Directors who are not up for election in 1993 shall receive
a prorated grant of Stock Options upon approval of this Plan by
shareholders as follows: (i) Outside Directors who have two years
remaining in their current term shall receive 1,000 Stock Options
which will become exercisable in two equal installments commencing
on the first anniversary of the date of grant and annually
thereafter; (ii) Outside Directors with one year remaining in their
current term shall receive 500 Stock Options which will become
exercisable in one installment on the first anniversary of the date
of grant. Each prorated Stock Option granted shall expire ten
years from the date of the grant, and shall be subject to earlier
termination as hereinafter provided.
Section 11. Change in Control Provisions.
(a) Impact of Event. In the event of:
(x) a "Change in Control" as defined in Section
11(b),
or
(y) a "Potential Change in Control" as defined in
Section 11(c),
the Committee may provide that one or more of the following
acceleration and valuation provisions shall apply:
(i) Any or all SARs or LSARs outstanding on the
date that such Change in Control or Potential Change in Control is
determined to have occurred and any or all Stock Options awarded
under this Plan not previously exercisable and vested shall become
fully exercisable and vested.
(ii) The restrictions applicable to any or all
Restricted Stock and Performance Share awards shall lapse and such
shares and awards shall be fully vested.
(b) Definition of "Change in Control" for purposes of
Section 11(a), a "Change in Control" shall be deemed to have
occurred if:
(i) there shall be consummated (A) any
consolidation or merger of the Company in which the Company is not
the continuing or surviving corporation or pursuant to which shares
of the Company's Common Stock would be converted to cash,
securities or other property, other than a merger of the Company in
which the holders of the Company's Common Stock immediately prior
to the merger have substantially the same proportionate ownership
of common stock of the surviving corporation immediately after the
merger, or (B) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all the assets
of the Company, or
(ii) the shareholders of the Company shall approve
any plan or proposal for the liquidation or dissolution of the
Company, or
(iii) any person (as such term is used in
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), other than the Company or a
subsidiary or any employee benefit plan sponsored by the Company or
a subsidiary, shall become the beneficial owner (within the meaning
of Rule 13d-3 under the Exchange Act) of securities of the Company
representing 30% or more of the combined voting power of the
Company's then outstanding securities ordinarily (and apart from
rights accruing in special circumstances) having the right to vote
in the election of directors, as a result of a tender or exchange
offer, open market purchases, privately negotiated purchases or
otherwise, or
(iv) at any time during a period of two consecutive
years, individuals who at the beginning of such period constituted
the Board of Directors of the Company shall cease for any reason to
constitute at least a majority thereof, unless the election or the
nomination for election by the Company's shareholders of each new
director during such two-year period was approved by a vote of at
least two-thirds of the directors then still in office who were
directors at the beginning of such two-year period.
For purposes hereof, ownership of voting securities shall
take into account and shall include ownership as determined by
applying the provisions of Rule 13d-3(d)(1)(l) (as in effect on the
Approval Date) pursuant to the Exchange Act.
(c) Definition of "Potential Change in Control" for
purposes of Section 11(a), a "Potential Change in Control" means
the happening of any one of the following:
(i) The entering into of an agreement by the
Company, the consummation of which would result in a Change of
Control of the Company as defined in Section 11(b); or
(ii) The acquisition of beneficial ownership,
directly or indirectly, by any entity, person or group (other than
the Company or any Company employee benefit plan, including any
trustee of such plan acting as such trustee) of securities of the
Company representing 5% or more of the combined voting power of the
Company's outstanding securities, and the adoption by the Board of
a resolution to the effect that a "Potential Change in Control" of
the Company has occurred for the purposes of this Plan.
(d) Change in Control Price. For the purposes of this
Section 11, "Change in Control Price" means the highest price per
share paid in any transaction reported on the NYSE (or the
principal exchange on which the Stock is listed or quoted), or paid
or offered in any bona fide transaction related to an actual or
Potential Change in Control of the Company, at any time during the
preceding sixty-day period as determined by the Committee.
Section 12. Amendments and Termination.
The Board may amend, alter or discontinue the Plan, but no
amendment, alteration or discontinuation shall be made which would
impair the rights of an optionee or participant under any award
theretofore granted, without the optionee's or participant's
consent, or which, without the approval of the Company's
stockholders, would:
(a) except as expressly provided in the Plan, increase
the total number of shares reserved for purposes of the Plan;
(b) change the class of employees eligible to
participate in the Plan;
(c) extend the maximum option period under Section 5(b)
of the Plan; or
(d) increase materially the benefits under the Plan.
The Committee may amend the terms of any Stock Option or other
award theretofore granted, prospectively or retroactively, but no
such amendment shall impair the rights of any holder without the
holder's consent.
The provisions regarding Stock Options granted to Outside
Directors pursuant to Section 10 above shall not in any case be
amended more often than once in any six-month period other than to
comply with changes in the Code or the Employee Retirement Income
Security Act, or the rules thereunder.
Subject to the above provisions, the Board shall have
authority to amend the Plan to take into account changes in
applicable tax and securities laws and accounting rules, as well as
other developments.
Section 13. Unfunded Status of Plan.
The Plan is intended to constitute an "unfunded" plan for
incentive and deferred compensation. With respect to any payments
or deliveries of Stock not yet made to a participant or optionee by
the Company, nothing contained herein shall give any such
participant or optionee any rights that are greater than those of
a general creditor of the Company. The Committee may authorize the
creation of trusts or other arrangements to meet the obligations
created under the Plan to deliver Stock or payments hereunder
consistent with the foregoing.
Section 14. General Provisions.
(a) Share Transfer and Distribution. The Committee may
require each person purchasing shares pursuant to a Stock Option or
Restricted Stock award under the Plan to represent to and agree
with the Company in writing that the optionee or participant is
acquiring the shares without a view to the distribution thereof.
The certificates for such shares may include any legend which the
Committee deems appropriate to reflect any restrictions on
transfer.
All certificates for shares of Stock or other securities
delivered under the Plan shall be subject to such stock-transfer
orders and other restrictions as the Committee may deem advisable
under the rules, regulations and other requirements of the
Securities and Exchange Commission, any stock exchange upon which
the Stock is then listed and any applicable federal or state
securities law, and the Committee may cause a legend or legends to
be put on any such certificates to make appropriate reference to
such restrictions.
(b) Additional Arrangements. Nothing contained in this
Plan shall prevent the Company from adopting other or additional
compensation arrangements for its employees.
(c) No Right to Employment. The adoption of the Plan
shall not confer upon any employee of the Company any right to
continued employment with the Company nor shall it interfere in any
way with the right of the Company to terminate the employment of
any of its employees at any time.
(d) Tax Withholding. It shall be a condition to the
performance of the Company's obligations to issue or transfer
Shares upon exercise of a Stock Option, that the optionee pay or
make provision satisfactory to the Company for the payment of any
taxes (other than stock transfer taxes) which the Company is
obligated to collect with respect to the issuance of such Shares
upon such exercise. Optionees may elect to have the Company
withhold Shares otherwise issuable upon the exercise of a Stock
Option to cover federal and state withholding obligations incident
to such exercise and to request that shares be withheld to pay
withholding taxes in excess of the statutory minimum, as long as
the amount does not exceed the participant's estimated total
federal, state and local tax obligations associated with the
transaction, including FICA taxes to the extent applicable.
The optionee's elections are subject to the following
restrictions:
(1) elections must be made on or prior to the date as
of which the amount of tax to be withheld is determined;
(2) elections are irrevocable; and
(3) elections are subject to the disapproval of the
Committee.
Participants subject to Section 16(b) of the Securities
Act of 1934 are subject to additional restrictions, as required
pursuant to the securities laws, and the rules and regulations
promulgated thereunder.
(e) Beneficiaries. The Committee shall establish such
procedures as it deems appropriate for a participant to designate
a beneficiary to whom any amounts payable in the event of the
participant's death are to be paid.
(f) Laws Governing. The Plan and all awards made and
actions taken thereunder shall be governed by and construed in
accordance with the laws of the State of Ohio.
Section 15. Effective Date of Plan.
The Plan shall be effective on the date it is approved by the
stockholders of the Company. Grants made prior to such stockholder
approval shall be contingent on such approval.
Section 16. Term of Plan.
No award shall be granted pursuant to the Plan on or after the
tenth anniversary of the effective date of the Plan, but awards
granted prior to such tenth anniversary may extend beyond that
date.
Section 17. Miscellaneous.
For purposes of this Plan, the term retirement shall mean (1)
termination of employment with a pension under the provisions of
any retirement plan for employees of Commercial Intertech Corp. or
a domestic or foreign subsidiary corporation or (2) termination of
employment following attainment of age 65 regardless of eligibility
for pension.
EXHIBIT 5
Commercial Intertech Corp.
1775 Logan Avenue
P.O. Box 239
Youngstown, OH 44501-0239
Phone: (216) 746-8011
Fax: (216) 746-1148
Telex: 433-2153
February 23, 1994
Commercial Intertech Corp.
1775 Logan Avenue
Youngstown, OH 44505
RE:Registration Statement on Form S-8
Ladies and Gentlemen:
I acted as counsel for Commercial Intertech Corp., an Ohio
corporation (the "Company"), in connection with the preparation and
filing of a Registration Statement on Form S-8 (the "Registration
Statement") with the Securities and Exchange Commission under the
Securities Act of 1933, as amended. The Registration Statement
relates to 495,000 shares of the Company's Class A Common Stock,
$1.00 par value per share (the "Common Stock").
In connection with this opinion, I have relied as to matters
of fact, without investigation, upon certificates of public
officials and others and upon affidavits, certificates and written
statements of directors, officers and employees of, and the
accountants for, the Company. I have also examined originals or
copies, certified or otherwise identified to my satisfaction, of
such instruments, documents and records as I have deemed relevant
and necessary to examine for the purpose of this opinion, including
(a) the Registration Statement, (b) the Articles of Incorporation,
as amended, of the Company, (c) the Code of Regulations, as
amended, of the Company, (d) resolutions adopted by the Board of
Directors of the Company, and (e) the Company's Stock Option and
Award Plan of 1993 (the "Plan").
In connection with this opinion, I have assumed the accuracy
and completeness of all documents and records that I have reviewed,
the genuineness of all signatures, the due authority of the parties
signing such documents, the authenticity of the documents submitted
to me as originals and the conformity to authentic original
documents of all documents submitted to me as certified, conformed
or reproduced copies.
Based upon and subject to the foregoing, it is my opinion that
the up to 495,000 shares of Common Stock covered by the
Registration Statement, to the extent issued by the Company after
the date hereof, when issued and sold by the Company and paid for
in accordance with the provisions of the Plan, will be validly
issued, fully paid and nonassessable shares of Common Stock.
My opinion expressed above is limited to the laws of the State
of Ohio, and I do not express any opinion herein concerning any
other laws. This opinion is solely for the information of the
addressee hereof and is not to be quoted in full or in part or
otherwise referred to, nor is it to be filed with any governmental
agency or any other person without my prior written consent. This
opinion is given as of the date hereof and I assume no obligation
to advise you of changes that may hereafter be brought to my
attention.
I hereby consent to the use of this opinion for filing as
Exhibit 5 to the Registration Statement.
Very truly yours,
James M. Donchess
Corporate Attorney
JMD/dc
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Commercial Intertech Corp.
Stock Option and Award Plan of 1993 of our report dated December
10, 1993, with respect to the consolidated financial statements and
schedules of Commercial Intertech Corp. and subsidiaries included
in its Annual Report (Form 10-K) for the year ended October 31,
1993, filed with the Securities and Exchange Commission.
Ernst & Young
Cleveland, Ohio
February 21, 1994
