<PAGE>
As filed with the Securities and Exchange Commission on December 9, 1998
Registration No. 33- _____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
CALMAT CO.
----------
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 95-0645790
------------------------------- -------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
3200 SAN FERNANDO ROAD, LOS ANGELES, CALIFORNIA 90065
------------------------------------------------------
(Address of Principal Executive Offices)(Zip Code)
1998 STOCK OPTION PLAN FOR OFFICERS,
DIRECTORS AND KEY EMPLOYEES OF CALMAT CO.
-----------------------------------------
(Full Title of the Plan)
PAUL STANFORD
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
POST OFFICE BOX 2950, LOS ANGELES, CALIFORNIA 90051
----------------------------------------------------
(Name and Address of Agent for Service)
(323) 258-2777
--------------
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Title Of Each Proposed Proposed
Class Of Maximum Maximum
Securities Amount Offering Aggregate Amount of
To Be To Be Price Offering Registration
Registered Registered Per Unit (1) Price Fee
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$1 per share.............. 1,000,000 $30.75 $30,750,000 $8,548.50
- -------------------------------------------------------------------------------------
</TABLE>
(1) For purposes of computing the registration fee (pursuant to Rule 457(h))
only, the price is based on the average of the high and low prices of the
Common Stock on the New York Stock Exchange on December 3, 1998.
================================================================================
Exhibit Index Appears on Page 7
<PAGE>
PART I
ITEM 1. PLAN INFORMATION
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed with this Registration Statement.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Registrant with the Commission are
incorporated herein by reference:
(a) Registrant's Schedule 14D-9 Solicitation/Recommendation Statement
filed with the Commission on November 20, 1998, and Amendment No. 1 thereto,
filed with the Commission on December 4, 1998;
(b) Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(c) Registrant's definitive Proxy Statement filed with the Commission
on April 3, 1998, and mailed to Registrant's stockholders on April 9, 1998;
(d) Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1998;
(e) Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1998;
(f) All other of Registrant's reports filed pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 since December 31, 1997; and
(g) The description of Registrant's Common Stock contained in
Registrant's Registration Statement on Form S-14 filed with the Commission on
May 24, 1984 (File No. 2-91323), including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, after the
date hereof and 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
2
<PAGE>
in this Registration Statement and to be a part thereof from the date of the
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Paul Stanford, Executive Vice President, General Counsel and Secretary
of Registrant, may be granted an unspecified number of options to purchase
shares under the Plan in the future.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Registrant's Restated Certificate of Incorporation eliminates
officers' and directors' liability for monetary damages for breaches of their
fiduciary duty of care, subject to certain exceptions. In addition,
Registrant's Restated Certificate of Incorporation contains a provision
requiring that the Company indemnify its officers and directors to the fullest
extent provided by law. Registrant's By-Laws contain a section which reflects
the current provisions of Section 145 of the General Corporation Law of
Delaware. Section 145 of the Delaware General Corporation Law provides, in
general, that a Delaware corporation shall have power to indemnify directors or
officers against certain expenses, judgements, fines and settlements incurred in
connection with the defense of certain actions to which they are parties by
reason of being or having been directors or officers.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling Registrant pursuant to the foregoing provisions, Registrant has been
informed 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
A list of the exhibits filed with this Registration Statement on Form
S-8 is set forth in the Exhibit Index on Page 7, and is incorporated herein by
reference.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
3
<PAGE>
(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;
(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 information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Securities and Exchange
Commission by 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of Registrant pursuant to the foregoing provisions, or otherwise,
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 Registrant
of expenses incurred or paid by a director, officer or controlling person of
Registrant in the successful defense of any action, suit or
4
<PAGE>
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Los Angeles, State of California, on September 22,
1998.
CALMAT CO.
By /s/ A. Frederick Gerstell
-----------------------------
A. Frederick Gerstell
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ---------------------------- --------------------------------- ------------------
<S> <C> <C>
/s/ A. Frederick Gerstell Chairman of the Board and Chief September 22, 1998
- ---------------------------- Executive Officer and Director
A. Frederick Gerstell
/s/ H. James Gallagher Executive Vice President, September 22, 1998
- ---------------------------- Finance, Chief Financial Officer
H. James Gallagher and Treasurer
/s/ Brent L. Stumme Vice President, Controller September 22, 1998
- ----------------------------
Brent L. Stumme
/s/ John C. Argue Director September 22, 1998
- ----------------------------
John C. Argue
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
- ---------------------------- --------------------------------- ------------------
<S> <C> <C>
/s/ Arthur Brown Director September 22, 1998
- ----------------------------
Arthur Brown
/s/ Denis R. Brown Director September 22, 1998
- ----------------------------
Denis R. Brown
/s/ Harry M. Conger Director September 22, 1998
- ----------------------------
Harry M. Conger
/s/ Rayburn S. Dezember Director September 22, 1998
- ----------------------------
Rayburn S. Dezember
/s/ Richard A. Grant, Jr. Director September 22, 1998
- ----------------------------
Richard A. Grant, Jr.
/s/ Edward A. Landry Director September 22, 1998
- ----------------------------
Edward A. Landry
/s/ Thomas L. Lee Director September 22, 1998
- ----------------------------
Thomas L. Lee
/s/ Thomas M. Linden Director September 22, 1998
- ----------------------------
Thomas M. Linden
/s/ Georgia R. Nelson Director September 22, 1998
- ----------------------------
Georgia R. Nelson
/s/ Stuart T. Peeler Director September 22, 1998
- ----------------------------
Stuart T. Peeler
</TABLE>
6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Page
- --------------- ----
<S> <C> <C>
Exhibit 4.1 1998 Stock Option Plan for Officers, Directors and N/A
Key Employees of CalMat Co. (the "Plan"), filed as
Exhibit "B" to the Company's Definitive Proxy
Statement filed with the Commission on April 3, 1998,
and mailed to the Company's stockholders on April 9,
1998, is incorporated herein by reference
Exhibit 4.2 Form of Director Stock Option Agreement 8
Exhibit 4.3 Form of Incentive Stock Option Agreement (for 18
senior executives)
Exhibit 4.4 Form of Incentive Stock Option Agreement (for other 30
executives)
Exhibit 4.5 Form of Incentive Stock Option Agreement (for key 42
employees)
Exhibit 5 Opinion of Paul Stanford, Esq., regarding legality of 53
the Common Stock being registered
Exhibit 23.1 Consent of PricewaterhouseCoopers LLP (formerly 54
Coopers & Lybrand LLP)
Exhibit 23.2 Consent of Paul Stanford, Esq. (included in Exhibit 5) N/A
</TABLE>
7
<PAGE>
EXHIBIT 4.2
DIRECTOR STOCK OPTION AGREEMENT
-------------------------------
THIS AGREEMENT, dated as of January 26, 1998, is made by and between
CalMat Co., a Delaware corporation, hereinafter referred to as "Company," and
, a director of the Company, hereinafter referred to as "Director";
WHEREAS, the Company wishes to afford the Director the opportunity to
purchase shares of its $1.00 par value Common Stock; and
WHEREAS, the Company wishes to carry out the 1998 Stock Option Plan
for Officers, Directors and Key Employees of CalMat Co. (the terms of which are
hereby incorporated by reference and made a part of this Agreement); and
WHEREAS, the Plan calls for the grant of the Director Stock Option
provided for herein to the Director as an inducement to serve on the Board of
Directors of the Company and as an incentive for increased efforts during such
service, and the Management Development and Compensation Committee of the
Company's Board of Directors (hereinafter referred to as the "Committee"),
appointed to administer said Plan, has advised the Company thereof and
instructed the undersigned officers to issue said Option;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
Whenever the following terms are used in this Agreement, they shall
have the meaning specified below unless the context clearly indicates to the
contrary.
SECTION 1.1 - BOARD
- -------------------
"Board" shall mean the Board of Directors of the Company.
SECTION 1.2 - CODE
- ------------------
"Code" shall mean the Internal Revenue Code of 1986, as amended.
SECTION 1.3 - OPTION
- --------------------
"Option" shall mean the Director Stock Option to purchase Common Stock
of the Company granted under this Agreement.
<PAGE>
SECTION 1.4 - PARENT CORPORATION
- --------------------------------
"Parent Corporation" shall mean any corporation in an unbroken chain
of corporations ending with the Company if each of the corporations other than
the Company then owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one (1) of the other
corporations in such chain.
SECTION 1.5 - PLAN
- ------------------
"Plan" shall mean the 1998 Stock Option Plan for Officers, Directors
and Key Employees of CalMat Co.
SECTION 1.6 - PRONOUNS
- ----------------------
The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates.
SECTION 1.7 - SECRETARY
- -----------------------
"Secretary" shall mean the Secretary of the Company.
SECTION 1.8 - SUBSIDIARY
- ------------------------
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company, if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one (1) of the other corporations in such chain.
SECTION 1.9 - TERMINATION OF DIRECTORSHIP
- -----------------------------------------
"Termination of Directorship" shall mean the time when the Director
ceases to be a director of the Company for any reason, including, but not by way
of limitation, a termination by resignation, failure to be elected, death or
retirement. The Board, in its absolute discretion, shall determine the effect
of all other matters and questions relating to Termination of Directorship.
ARTICLE II
GRANT OF OPTION
---------------
SECTION 2.1 - GRANT OF OPTION
- -----------------------------
In consideration of the Director's agreement to serve as a director of
the Company and for other good and valuable consideration, on the date hereof
the Company irrevocably
2
<PAGE>
grants to the Director the option to purchase any part or all of an aggregate of
3,000 shares of its $1.00 par value Common Stock upon the terms and conditions
set forth in this Agreement.
SECTION 2.2 - PURCHASE PRICE
- ----------------------------
The purchase price of the shares of stock covered by the Option shall
be $26.0625 per share without commission or other charge.
SECTION 2.3 - CONSIDERATION TO THE COMPANY
- ------------------------------------------
In consideration of the granting of this Option by the Company, the
Director agrees to serve as a director of the Company until the next annual
meeting of the stockholders of the Company. Nothing in this Agreement or in the
Plan shall confer upon the Director any right to continue as a director of the
Company, or shall interfere with or restrict in any way the rights of the
Company and its stockholders, which are hereby expressly reserved, to remove the
Director in accordance with applicable law and the Company's Certificate of
Incorporation and By-laws.
SECTION 2.4 - ADJUSTMENTS IN OPTION
- -----------------------------------
In the event that the outstanding shares of the stock subject to the
Option are changed into or exchanged for a different number or kind of shares of
the Company or other securities of the Company by reason of merger,
consolidation, recapitalization, reclassification, stock split up, stock
dividend or combination of shares, the Board shall make an appropriate and
equitable adjustment in the number and kind of shares as to which the Option, or
portions thereof then unexercised, shall be exercisable, to the end that after
such event the Director's proportionate interest shall be maintained as before
the occurrence of such event. Such adjustment in the Option shall be made
without change in the total price applicable to the unexercised portion of the
Option (except for any change in the aggregate price resulting from rounding-off
of share quantities or prices) and with any necessary corresponding adjustment
in the Option price per share. Any such adjustment made by the Board shall be
final and binding upon the Director, the Company and all other interested
persons.
ARTICLE III
PERIOD OF EXERCISABILITY
------------------------
SECTION 3.1 - COMMENCEMENT OF EXERCISABILITY
- --------------------------------------------
(a) Subject to Sections 3.1(b) and 3.4, the Option shall become
exercisable in four (4) cumulative installments as follows:
3
<PAGE>
(i) The first installment shall consist of twenty-five
percent (25%) of the shares covered by the Option and shall become
exercisable on the first anniversary of the date the Option is granted.
(ii) The second installment shall consist of twenty-five
percent (25%) of the shares covered by the Option and shall become
exercisable on the second anniversary of the date the Option is
granted.
(iii) The third installment shall consist of twenty-five
percent (25%) of the shares covered by the Option and shall become
exercisable on the third anniversary of the date the Option is granted.
(iv) The fourth installment shall consist of twenty-five
percent (25%) of the shares covered by the Option and shall become
exercisable on the fourth anniversary of the date the Option is
granted.
(b) No portion of the Option which is unexercisable at
Termination of Directorship shall thereafter become exercisable.
Notwithstanding the foregoing, this Option shall become immediately
exercisable in full upon any retirement of the Director in accordance with
the Company's retirement policy applicable to directors, provided that in
no event shall the shares underlying this Option be sold or otherwise
disposed of, in whole or in part, during the six months after the date such
Option is granted (or the date this Plan is approved by the Company's
stockholders, if later).
SECTION 3.2 - DURATION OF EXERCISABILITY
- ----------------------------------------
The installments provided for in Section 3.1 are cumulative. Each
such installment which becomes exercisable pursuant to Section 3.1 shall remain
exercisable until it becomes unexercisable under Section 3.3.
SECTION 3.3 - EXPIRATION OF OPTION
- ----------------------------------
The Option may not be exercised to any extent by anyone after the
first to occur of the following events:
(a) The expiration of ten (10) years from the date the Option was
granted; or
(b) The expiration of three (3) months from the date of the
Director's Termination of Directorship for any reason other than the
Director's death, unless the Director dies within said three-month period;
or
4
<PAGE>
(c) The expiration of one (1) year from the date of the
Director's death; or
(d) Unless the Option is assumed or an equivalent option is
substituted by a successor corporation pursuant to Section 3.4(a), the
effective date of either the merger or consolidation of the Company with or
into another corporation, or the acquisition by another corporation or
person of all or substantially all of the Company's assets, or eighty
percent (80%) or more of the Company's then outstanding voting stock, or
the liquidation or dissolution of the Company. At least thirty (30) days
prior to the effective date of such merger, consolidation, acquisition,
liquidation or dissolution, the Board shall give the Director notice of
such event if the Option has then neither been fully exercised nor become
unexercisable under this Section 3.3.
SECTION 3.4 - ASSUMPTION OR ACCELERATION OF EXERCISABILITY
- ----------------------------------------------------------
In the event of the merger or consolidation of the Company with or
into another corporation, or the acquisition by another corporation or person of
all or substantially all of the Company's assets, or eighty percent (80%) or
more of the Company's then outstanding voting stock, or the liquidation or
dissolution of the Company, either:
(a) The Option shall be assumed or an equivalent option
substituted by any successor corporation to the Company. The Company
undertakes to make reasonable and adequate provision for such assumption or
substitution of the Option upon or in connection with such merger,
consolidation, acquisition, liquidation or dissolution; or
(b) The Board, by means of the notice referred to in Section
3.3(d), shall provide that the Option shall become exercisable, for a
minimum of thirty (30) days prior to such event, as to all the shares
covered hereby, notwithstanding that this Option may not yet have become
fully exercisable under Section 3.1(a).
The Board may make such determinations and adopt such rules and
conditions as it, in its absolute discretion, deems appropriate in connection
with such assumption, substitution or acceleration of exercisability, including,
but not by way of limitation, provisions to ensure that any such acceleration
and resulting exercise shall be conditioned upon the consummation of the
contemplated corporate transaction, and determinations regarding whether
reasonable and adequate provisions for assumption or substitution have been made
as defined in subsection (a).
5
<PAGE>
ARTICLE IV
EXERCISE OF OPTION
------------------
SECTION 4.1 - PERSON ELIGIBLE TO EXERCISE
- -----------------------------------------
During the lifetime of the Director, only he may exercise the Option
or any portion thereof. After the death of the Director, any exercisable
portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.3, be exercised by his personal representative or
by any person empowered to do so under the Director's will or under the then
applicable laws of descent and distribution.
SECTION 4.2 - PARTIAL EXERCISE
- ------------------------------
Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.3; provided, however, that each partial exercise shall be for not less than
twenty-five (25) shares (or minimum installment set forth in Section 3.1, if a
smaller number of shares) and shall be for whole shares only.
SECTION 4.3 - MANNER OF EXERCISE
- --------------------------------
The Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary or his office of all of the following prior
to the time when the Option or such portion becomes unexercisable under Section
3.3:
(a) Notice in writing signed by the Director or the other person
then entitled to exercise the Option or portion, stating that the Option or
portion is thereby exercised, such notice complying with all applicable
rules established by the Board; and
(b) Full payment for the shares with respect to which such Option
or portion is thereby exercised:
(1) In cash or by check; or
(2) By delivery of shares of the Company's Common Stock
owned by the Director duly endorsed for transfer to the Company with a
fair market value (as determinable under Section 4.2(b) of the Plan) on
the date of delivery equal to the aggregate Option price of the shares
with respect to which such Option or portion is thereby exercised; or
(3) By means of any combination of the consideration
provided in the foregoing subsections (1) and (2); and
6
<PAGE>
(c) A bona fide written representation and agreement, in a form
satisfactory to the Board, signed by the Director or other person then
entitled to exercise such Option or portion, stating that the shares of
stock are being acquired for his own account, for investment and without
any present intention of distributing or reselling said shares or any of
them except as may be permitted under the Securities Act of 1933, as
amended (the "Act"), and then applicable rules and regulations thereunder,
and that the Director or other person then entitled to exercise such Option
or portion will indemnify the Company against and hold it free and harmless
from any loss, damage, expense or liability resulting to the Company if any
sale or distribution of the shares by such person is contrary to the
representation and agreement referred to above. The Board may, in its
absolute discretion, take whatever additional actions it deems appropriate
to ensure the observance and performance of such representation and
agreement and to effect compliance with the Act and any other federal or
state securities laws or regulations. Without limiting the generality of
the foregoing, the Board may require an opinion of counsel acceptable to it
to the effect that any subsequent transfer of shares acquired on an Option
exercise does not violate the Act, and may issue stop-transfer orders
covering such shares. Share certificates evidencing stock issued on
exercise of this Option may bear an appropriate legend referring to the
provisions of this subsection (c) and the agreements herein. The written
representation and agreement referred to in the first sentence of this
subsection (c) shall, however, not be required if the shares to be issued
pursuant to such exercise have been registered under the Act, and such
registration is then effective in respect of such shares; and
(d) In the event the Option or portion shall be exercised
pursuant to Section 4.1 by any person or persons other than the Director,
appropriate proof of the right of such person or persons to exercise the
Option.
SECTION 4.4 - CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
- ----------------------------------------------------------
The shares of stock deliverable upon the exercise of the Option, or
any portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to fulfillment of all the
following conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other qualification of
such shares under any state or federal law or under rulings or regulations
of the Securities and Exchange Commission or of any other governmental
regulatory
7
<PAGE>
body, which the Board shall, in its absolute discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance from any
state or federal governmental agency which the Board shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The lapse of such reasonable period of time following the
exercise of the Option as the Board may from time to time establish for
reasons of administrative convenience.
SECTION 4.5 - RIGHTS AS STOCKHOLDER
- -----------------------------------
The holder of the Option shall not be, nor have any of the rights or
privileges of, a stockholder of the Company with respect to any shares
purchasable upon the exercise of any part of the Option unless and until
certificates representing such shares shall have been issued by the Company to
such holder.
ARTICLE V
MISCELLANEOUS
-------------
SECTION 5.1 - ADMINISTRATION
- ----------------------------
The Board or the Committee shall have the power to interpret the Plan
and this Agreement and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent therewith and to
interpret or revoke any such rules. All actions taken and all interpretations
and determinations made by the Board or the Committee in good faith shall be
final and binding upon the Director, the Company and all other interested
persons. No member of the Board or the Committee shall be personally liable for
any action, determination or interpretation made in good faith with respect to
the Plan or the Option. In its absolute discretion, the Board may, at any time
and from time to time, exercise any and all rights and duties of the Committee
under the Plan and this Agreement, or may at any time and from time to time
delegate to the Committee any and all of its rights and duties under the Plan
and this Agreement.
SECTION 5.2 - OPTION NOT TRANSFERABLE
- -------------------------------------
Neither the Option nor any interest or right therein or part
thereof shall be liable for the debts, contracts or engagements of the Director
or his successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means,
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings
8
<PAGE>
(including bankruptcy), and any attempted disposition thereof shall be null and
void and of no effect; provided, however, that this Section 5.2 shall not
prevent transfers by will or by the applicable laws of descent and distribution.
SECTION 5.3 - SHARES TO BE RESERVED
- -----------------------------------
The Company shall at all times during the term of the Option reserve
and keep available such number of shares of stock as will be sufficient to
satisfy the requirements of this Agreement.
SECTION 5.4 - NOTICES
- ---------------------
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Director shall be addressed to him at the address
given beneath his signature thereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Director shall,
if the Director is then deceased, be given to the Director's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 5.4. Any notice shall
be deemed duly given when enclosed in a properly sealed envelope or wrapper
addressed as aforesaid, deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service.
SECTION 5.5 - TITLES
- --------------------
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
SECTION 5.6 - STOCKHOLDER APPROVAL
- ----------------------------------
The Plan will be submitted for approval by the Company's stockholders
within twelve months after the date the Plan was initially adopted by the Board.
This Option may not be exercised to any extent by anyone prior to the time when
the Plan is approved by the stockholders, and if such approval has not been
obtained by the end of said twelve-month period, this Option shall thereupon be
cancelled and become null and void. The Company shall take such actions with
respect to the Plan as may be necessary to satisfy the requirements of Rule 16b-
3(b).
9
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
CALMAT CO.
By ______________________________________
A. Frederick Gerstell
Chairman of the Board and
Chief Executive Officer
By ______________________________________
Paul Stanford
Executive Vice President,
General Counsel and Secretary
___________________________________
Director
___________________________________
___________________________________
Address
10
<PAGE>
EXHIBIT 4.3
INCENTIVE STOCK OPTION AGREEMENT
--------------------------------
THIS AGREEMENT, dated Grant Date, is made by and between CalMat Co., a
Delaware corporation, hereinafter referred to as "Company," and Name, an
employee of the Company or a Subsidiary of the Company, hereinafter referred to
as "Employee";
WHEREAS, the Company wishes to afford the Employee the opportunity to
purchase shares of its $1.00 par value Common Stock; and
WHEREAS, the Company wishes to carry out the Plan (the terms of which
are hereby incorporated by reference and made a part of this Agreement); and
WHEREAS, the Management Development and Compensation Committee of the
Company's Board of Directors (hereinafter referred to as the "Committee"),
appointed to administer said Plan, has determined that it would be to the
advantage and best interest of the Company and its shareholders to grant the
Incentive Stock Option provided for herein to the Employee as an inducement to
remain in the service of the Company or its Subsidiaries and as an incentive for
increased efforts during such service, and has advised the Company thereof and
instructed the undersigned officers to issue said Option;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
Whenever the following terms are used in this Agreement, they shall
have the meaning specified below unless the context clearly indicates to the
contrary.
SECTION 1.1 - CODE
- ------------------
"Code" shall mean the Internal Revenue Code of 1986, as amended.
SECTION 1.2 - OPTION
- --------------------
"Option" shall mean the incentive stock option to purchase common
stock of the Company granted under this Agreement.
<PAGE>
SECTION 1.3 - PARENT CORPORATION
- --------------------------------
"Parent Corporation" shall mean any corporation in an unbroken chain
of corporations ending with the Company if each of the corporations other than
the Company then owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one (1) of the other
corporations in such chain.
SECTION 1.4 - PLAN
- ------------------
"Plan" shall mean the Plan
SECTION 1.5 - PRONOUNS
- ----------------------
The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates.
SECTION 1.6 - SECRETARY
- -----------------------
"Secretary" shall mean the Secretary of the Company.
SECTION 1.7 - SUBSIDIARY
- ------------------------
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company, if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one (1) of the other corporations in such chain.
SECTION 1.8 - TERMINATION OF EMPLOYMENT
- ---------------------------------------
"Termination of Employment" shall mean the time when the employee-
employer relationship between the Employee and the Company or a Subsidiary is
terminated for any reason, including, but not by way of limitation, a
termination by resignation, discharge, death or retirement, but excluding any
termination where there is a simultaneous re-employment by the Company or a
Subsidiary. The Committee, in its absolute discretion, shall determine the
effect of all other matters and questions relating to Termination of Employment,
including, but not by way of limitation, the question of whether a Termination
of Employment resulted from a discharge for good cause, and all questions of
whether particular leaves of absence constitute Termination of Employment;
provided, however, that a leave of absence shall constitute a Termination of
Employment if, and to the extent that, such leave of absence interrupts
employment for purposes of Section 422A(a)(2) of the Code and the then
applicable Regulations and Revenue Rulings under said Section.
2
<PAGE>
ARTICLE II
GRANT OF OPTION
---------------
SECTION 2.1 - GRANT OF OPTION
- -----------------------------
In consideration of the Employee's agreement to remain in the employ
of the Company or its Subsidiaries and for other good and valuable
consideration, on the date hereof the Company irrevocably grants to the Employee
the option to purchase any part or all of an aggregate of No. of shares shares
of its $1.00 par value Common Stock upon the terms and conditions set forth in
this Agreement.
SECTION 2.2 - PURCHASE PRICE
- ----------------------------
The purchase price of the shares of stock covered by the Option shall
be $ Price per share without commission or other charge.
SECTION 2.3 - CONSIDERATION TO THE COMPANY
- ------------------------------------------
In consideration of the granting of this Option by the Company, the
Employee agrees to render faithful and efficient services to the Company or a
Subsidiary, with such duties and responsibilities as the Company shall from time
to time prescribe, for a period of at lease one (1) year from the date this
Option is granted. Nothing in this Agreement or in the Plan shall confer upon
the Employee any right to continue in the employ of the Company or any
Subsidiary, or shall interfere with or restrict in any way the rights of the
Company and its Subsidiaries, which are hereby expressly reserved, to discharge
the Employee at any time for any reason whatsoever, with or without good cause.
SECTION 2.4 - ADJUSTMENTS IN OPTION
- -----------------------------------
In the event that the outstanding shares of the stock subject to the
Option are changed into or exchanged for a different number or kind of shares of
the Company or other securities of the Company by reason of merger,
consolidation, recapitalization, reclassification, stock split up, stock
dividend or combination of shares, the Committee shall make an appropriate and
equitable adjustment in the number and kind of shares as to which the Option, or
portions thereof then unexercised, shall be exercisable, to the end that after
such event Employee's proportionate interest shall be maintained as before the
occurrence of such event. Such adjustment in the Option shall be made without
change in the total price applicable to the unexercised portion of the Option
(except for any change in the aggregate price resulting from rounding-off of
share quantities or prices) and with any necessary corresponding adjustment in
the Option price per share; provided, however, that each such adjustment shall
be made in such manner as not to constitute a "modification" within the meaning
of Section 425(h)(3) of the Code. Any such adjustment made by the Committee
shall be final and binding upon the Employee, the Company and all other
interested persons.
3
<PAGE>
ARTICLE III
PERIOD OF EXERCISABILITY
------------------------
SECTION 3.1 - COMMENCEMENT OF EXERCISABILITY
- --------------------------------------------
(a) Subject to Sections 3.4 and 3.5, the Option shall become
exercisable in four (4) cumulative installments as follows:
(i) The first installment shall consist of twenty-five
percent (25%) of the shares covered by the Option and shall become
exercisable on the first anniversary of the date the Option is
granted.
(ii) The second installment shall consist of twenty-five
percent (25%) of the shares covered by the Option and shall become
exercisable on the second anniversary of the date the Option is
granted.
(iii) The third installment shall consist of twenty-five
percent (25%) of the shares covered by the Option and shall become
exercisable on the third anniversary of the date the Option is
granted.
(iv) The fourth installment shall consist of twenty-five
percent (25%) of the shares covered by the Option and shall become
exercisable on the fourth anniversary of the date the Option is
granted.
(b) No portion of the Option which is unexercisable at
Termination of Employment shall thereafter become exercisable.
SECTION 3.2 - DURATION OF EXERCISABILITY
- ----------------------------------------
The installments provided for in Section 3.1 are cumulative. Each
such installment which becomes exercisable pursuant to Section 3.1 shall remain
exercisable until it becomes unexercisable under Section 3.3. In the event the
provisions of Section 3.4 become applicable, the Option shall remain exercisable
until it becomes unexercisable under Section 3.3.
SECTION 3.3 - EXPIRATION OF OPTION
- ----------------------------------
The Option may not be exercised to any extent by anyone after the
first to occur of the following events:
(a) The expiration of ten (10) years from the date the Option was
granted; or
4
<PAGE>
(b) If the Employee owned (within the meaning of Section 425(d)
of the Code), at the time the Option was granted, more than ten percent
(10%) of the total combined voting power of all classes of stock of the
Company, any Subsidiary or any Parent Corporation, the expiration of five
(5) years from the date the Option was granted; or
(c) The time of the Employees's Termination of Employment, unless
such Termination of Employment results from his death, his retirement, his
disability (within the meaning of Section 22(e)(3) of the Code) or his
being discharged not for good cause; or
(d) The expiration of three (3) months from the date of the
Employee's Termination of Employment by reason of his retirement or his
being discharged not for good cause, unless the Employee dies within said
three-month period; or
(e) The expiration of one (1) year from the date of the
Employee's Termination of Employment by reason of his disability (within
the meaning of Section 22(e)(3) of the Code); or
(f) The expiration of one (1) year from the date of the
Employee's death; or
(g) Unless the Option is assumed or an equivalent option is
substituted by a successor corporation pursuant to Section 3.5(a), the
effective date of either the merger or consolidation of the Company with or
into another corporation, or the acquisition by another corporation or
person of all or substantially all of the Company's assets, or eighty
percent (80%) or more of the Company's then outstanding voting stock, or
the liquidation or dissolution of the Company. At least thirty (30) days
prior to the effective date of such merger, consolidation, acquisition,
liquidation or dissolution, the Committee shall give the Employee notice of
such event if the Option has then neither been fully exercised nor become
unexercisable under this Section 3.3.
SECTION 3.4 - POTENTIAL CHANGE IN CONTROL
- -----------------------------------------
By notice to the Company, the Employee may accelerate the
exercisability of all options to acquire shares covered by this Agreement on (i)
the Employee's Termination of Employment by the Company for any reason or (ii)
the occurrence of a "potential change in control of the Company"; provided,
however, that the Option may not be exercised in whole or in part during the
first year after the Option is granted except (a) in the case of death or
disability (within the meaning of Section 22(e)(3) of the Code) or (b) upon the
merger or consolidation of the Company with or into another corporation, or the
acquisition by another corporation or person of all or substantially all of the
Company's assets or eighty percent (80%)
5
<PAGE>
or more of the Company's then outstanding voting stock or the liquidation or
dissolution of the Company. For purposes of this Section 3.4, a "potential
change in control of the Company" shall be deemed to have occurred if (i) the
Company enters into an agreement or letter of intent, the consummation of which
would result in the occurrence of a "change in control of the Company", as
hereinafter defined, (ii) any person (including the Company) publicly announces
an intention to take or to consider to take actions which, if consummated, would
constitute a "change in control of the Company", or (iii) the Board of Directors
of the Company adopts a resolution to the effect that, for purposes of this
Section 3.4, a "potential change in control of the Company" has occurred. For
the purposes of this provision, a "change in control of the Company" shall be
deemed to have occurred if (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), other than a trustee or other fiduciary holding securities
under any employee benefit plan of the Company, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing twenty-five percent (25%)
or more of the combined voting power of the Company's then outstanding
securities, regardless of whether or not the Board of Directors shall have
approved such change in control, (ii) the shareholders of the Company approve
(a) a merger or consolidation of the Company with any other corporation,
regardless of which entity is the surviving company, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least eighty percent (80%) of the combined voting power of
the voting securities of the Company of such surviving entity outstanding
immediately after such merger or consolidation, or (b) a plan of complete
liquidation of the Company or agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets, (iii) during any
period of two (2) consecutive years, individuals who at the beginning of any
such period constitute the Directors of the Company cease for any reason to
constitute at least a majority thereof, unless the election, or the nomination
for election by the Company's stockholders of each new Director of the Company
was approved by a vote of at least a majority of such Directors of the Company
then still in office who were Directors of the Company at the beginning of any
such period, or (iv) any other event shall occur that would be required to be
reported in response to Item 6(e) (or any successor provision) of Schedule 14A
of Regulation 14A promulgated under the Exchange Act.
SECTION 3.5 - ASSUMPTION OR ACCELERATION OF EXERCISABILITY
- ----------------------------------------------------------
In the event of the merger or consolidation of the Company with or
into another corporation, or the acquisition by another corporation or person of
all or substantially all of the Company's assets, or eighty percent (80%) or
more of the Company's then outstanding voting stock, or the liquidation or
dissolution of the Company, either:
(a) The Option shall be assumed or an equivalent option
substituted by any successor corporation to the Company. The Company
undertakes to make reasonable and adequate provision for such assumption or
6
<PAGE>
substitution of the Option upon or in connection with such merger,
consolidation, acquisition, liquidation or dissolution; or
(b) The Committee, by means of the notice referred to in Section
3.3(g), shall provide that the Option shall become exercisable, for a
minimum of thirty (30) days prior to such event, as to all the shares
covered hereby, notwithstanding that this Option may not yet have become
fully exercisable under Section 3.1(a).
The Committee may make such determinations and adopt such rules and
conditions as it, in its absolute discretion, deems appropriate in connection
with such assumption, substitution or acceleration of exercisability, including,
but not by way of limitation, provisions to ensure that any such acceleration
and resulting exercise shall be conditioned upon the consummation of the
contemplated corporate transaction, and determinations regarding whether
reasonable and adequate provisions for assumption or substitution have been made
as defined in subsection (a).
SECTION 3.6 - SPECIAL TAX CONSEQUENCES
- --------------------------------------
The Employee acknowledges that, to the extent that the aggregate fair
market value of stock with respect to which "incentive stock options" (within
the meaning of Section 422A of the Code, but without regard to Section 422A(d)
of the Code), including the Option, are exercisable for the first time by the
Employee during any calendar year (under the Plan and all other incentive stock
option plans of the Company, any Subsidiary and any Parent Corporation) exceeds
$100,000, such options shall be treated as not qualifying under Section 422A of
the Code but rather shall be taxed as nonqualified options. The Employee
further acknowledges that the rule set forth in the preceding sentence shall be
applied by taking options into account in the order in which they were granted.
For purposes of these rules, the fair market value of stock shall be determined
as of the time the option with respect to such stock is granted.
ARTICLE IV
EXERCISE OF OPTION
------------------
SECTION 4.1 - PERSON ELIGIBLE TO EXERCISE
- -----------------------------------------
During the lifetime of the Employee, only he may exercise the Option
or any portion thereof. After the death of the Employee, any exercisable
portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.3, be exercised by his personal representative or
by any person empowered to do so under the Employee's will or under the then
applicable laws of descent and distribution.
7
<PAGE>
SECTION 4.2 - PARTIAL EXERCISE
- ------------------------------
Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.3; provided, however, that each partial exercise shall be for not less than
twenty-five (25) shares (or minimum installment set forth in Section 3.1, if a
smaller number of shares) and shall be for whole shares only.
SECTION 4.3 - MANNER OF EXERCISE
- --------------------------------
The Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary or his office of all of the following prior
to the time when the Option or such portion becomes unexercisable under Section
3.3:
(a) Notice in writing signed by the Employee or the other person
then entitled to exercise the Option or portion, stating that the Option or
portion is thereby exercised, such notice complying with all applicable
rules established by the Committee; and
(b) Full payment for the shares with respect to which such Option
or portion is thereby exercised:
(1) In cash or by check; or
(2) By delivery of shares of the Company's Common Stock
owned by the Optionee duly endorsed for transfer to the Company with a
fair market value (as determinable under Section 4.2(b) of the Plan) on
the date of delivery equal to the aggregate Option price of the shares
with respect to which such Option or portion is thereby exercised; or
(3) With the consent of the Committee, by delivery of a full
recourse promissory note bearing interest (at at least such rate as
shall then preclude the imputation of interest under the Code or any
successor provision) and payable upon such terms as may be prescribed
by the Committee. The Committee may also prescribe the form of such
note and the security to be given for such note. No Option may,
however, be exercised by delivery of a promissory note or by a loan
from the Company when or where such loan or other extension of credit
is prohibited by law; or
(4) By means of any combination of the consideration
provided in the foregoing subsections (1), (2) and (3); and
8
<PAGE>
(c) A bona fide written representation and agreement, in a form
satisfactory to the Committee, signed by the Employee or other person then
entitled to exercise such Option or portion, stating that the shares of
stock are being acquired for his own account, for investment and without
any present intention of distributing or reselling said shares or any of
them except as may be permitted under the Securities Act of 1933, as
amended (the "Act"), and then applicable rules and regulations thereunder,
and that the Employee or other person then entitled to exercise such Option
or portion will indemnify the Company against and hold it free and harmless
from any loss, damage, expense or liability resulting to the Company if any
sale or distribution of the shares by such person is contrary to the
representation and agreement referred to above. The Committee may, in its
absolute discretion, take whatever additional actions it deems appropriate
to ensure the observance and performance of such representation and
agreement and to effect compliance with the Act and any other federal or
state securities laws or regulations. Without limiting the generality of
the foregoing, the Committee may require an opinion of counsel acceptable
to it to the effect that any subsequent transfer of share acquired on an
Option exercise does not violate the Act, and may issue stop-transfer
orders covering such shares. Share certificates evidencing stock issued on
exercise of this Option may bear an appropriate legend referring to the
provisions of this subsection (c) and the agreements herein. The written
representation and agreement referred to in the first sentence of this
subsection (c) shall, however, not be required if the shares to be issued
pursuant to such exercise have been registered under the Act, and such
registration is then effective in respect of such shares; and
(d) In the event the Option or portion shall be exercised
pursuant to Section 4.1 by any person or persons other than the Employee,
appropriate proof of the right of such person or persons to exercise the
Option.
SECTION 4.4 - CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
- ----------------------------------------------------------
The shares of stock deliverable upon the exercise of the Option, or
any portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to fulfillment of all the
following conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other qualification of
such shares under any state or federal law or under rulings or regulations
of the Securities and Exchange Commission or of any other governmental
regulatory
9
<PAGE>
body, which the Committee shall, in its absolute discretion, deem necessary
or advisable; and
(c) The obtaining of any approval or other clearance from any
state or federal governmental agency which the Committee shall, in its
absolute discretion, determine to be necessary or advisable; and
(d) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may from time to time establish for
reasons of administrative convenience.
SECTION 4.5 - RIGHTS AS SHAREHOLDER
- -----------------------------------
The holder of the Option shall not be, nor have any of the rights or
privileges of, a shareholder of the Company with respect to any shares
purchasable upon the exercise of any part of the Option unless and until
certificates representing such shares shall have been issued by the Company to
such holder.
SECTION 4.6 - PAYMENTS TO OPTIONEES
- -----------------------------------
In its sole and absolute discretion, the Committee may, but shall
not be obligated to, direct that the Company pay to an Employee exercising, or
disposing of stock acquired under an Incentive Stock Option, an amount of cash
(subject to payroll tax withholding) representing all or a portion of the tax
savings, if any, realized by the Company in connection with such exercise or
disposition. Any such payment may, but need not, be made in order to reduce or
eliminate differences in taxation to the Employee between an Incentive Stock
Option and a Nonqualified Stock Option with equivalent terms.
ARTICLE V
MISCELLANEOUS
-------------
SECTION 5.1 - ADMINISTRATION
- ----------------------------
The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and determinations
made by the Committee in good faith shall be final and binding upon the
Employee, the Company and all other interested persons. No member of the
Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or the Option. In
its absolute discretion, the Board may, at any time and from time to time,
exercise any and all rights and duties of the Committee under the Plan and this
Agreement.
10
<PAGE>
SECTION 5.2 - OPTION NOT TRANSFERABLE
- -------------------------------------
Neither the Option nor any interest or right therein or part thereof
shall be liable for the debts, contracts or engagements of the Employee or his
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means,
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 5.2
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
SECTION 5.3 - SHARES TO BE RESERVED
- -----------------------------------
The Company shall at all times during the term of the Option reserve
and keep available such number of shares of stock as will be sufficient to
satisfy the requirements of this Agreement.
SECTION 5.4 - NOTICES
- ---------------------
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Employee shall be addressed to him at the address
given beneath his signature thereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Employee shall,
if the Employee is then deceased, be given to the Employee's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 5.4. Any notice shall
be deemed duly given when enclosed in a properly sealed envelope or wrapper
addressed as aforesaid, deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service.
SECTION 5.5 - TITLES
- --------------------
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
SECTION 5.6 - NOTIFICATION OF DISPOSITION
- -----------------------------------------
The Employee shall give prompt notice to the Company of any
disposition or other transfer of any shares of stock acquired under this
Agreement if such disposition or transfer is made (a) within two (2) years from
the date of granting the Option with respect to such shares or (b) within one
(1) year after the transfer of such shares to him. Such notice shall specify
the date of such disposition or other transfer and the amount realized, in cash,
other property, assumption of indebtedness or other consideration, by the
Employee in such disposition or other transfer.
11
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
CALMAT CO.
By__________________________________
A. Frederick Gerstell
Chairman of the Board and
Chief Executive Officer
By__________________________________
Paul Stanford
Executive Vice President,
General Counsel and Secretary
- --------------------------------------------
Employee
- --------------------------------------------
- --------------------------------------------
Address
Employee's Social Security
Number:
- -------------------------------------------
12
<PAGE>
EXHIBIT 4.4
INCENTIVE STOCK OPTION AGREEMENT
--------------------------------
THIS AGREEMENT, dated Grant Date, is made by and between CALMAT CO., a
Delaware corporation, hereinafter referred to as "Company," and N ame, an
employee of the Company or a Subsidiary of the Company, hereinafter referred to
as "Employee";
WHEREAS, the Company wishes to afford the Employee the opportunity to
purchase No. of shares shares of its $1.00 par value Common Stock; and
WHEREAS, the Company wishes to carry out the Plan (the terms of which
are hereby incorporated by reference and made a part of this Agreement); and
WHEREAS, the Management Development and Compensation Committee of the
Company's Board of Directors (hereinafter referred to as the "Committee"),
appointed to administer said Plan, has determined that it would be to the
advantage and best interest of the Company and its shareholders to grant the
Incentive Stock Option provided for herein to the Employee as an inducement to
remain in the service of the Company or its Subsidiaries and as an incentive for
increased efforts during such service, and has advised the Company thereof and
instructed the undersigned officers to issue said Option;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
Whenever the following terms are used in this Agreement, they shall
have the meaning specified below unless the context clearly indicates to the
contrary.
SECTION 1.1 - CODE
- ------------------
"Code" shall mean the Internal Revenue Code of 1986, as amended.
SECTION 1.2 - OPTION
- --------------------
"Option" shall mean the incentive stock option to purchase common
stock of the Company granted under this Agreement.
<PAGE>
SECTION 1.3 - PARENT CORPORATION
- --------------------------------
"Parent Corporation" shall mean any corporation in an unbroken chain
of corporations ending with the Company if each of the corporations other than
the Company then owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one (1) of the other
corporations in such chain.
SECTION 1.4 - PLAN
- ------------------
"Plan" shall mean the Plan
SECTION 1.5 - PRONOUNS
- ----------------------
The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates.
SECTION 1.6 - SECRETARY
- -----------------------
"Secretary" shall mean the Secretary of the Company.
SECTION 1.7 - SUBSIDIARY
- ------------------------
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company, if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one (1) of the other corporations in such chain.
SECTION 1.8 - TERMINATION OF EMPLOYMENT
- ---------------------------------------
"Termination of Employment" shall mean the time when the employee-
employer relationship between the Employee and the Company or a Subsidiary is
terminated for any reason, including, but not by way of limitation, a
termination by resignation, discharge, death or retirement, but excluding any
termination where there is a simultaneous re-employment by the Company or a
Subsidiary. The Committee, in its absolute discretion, shall determine the
effect of all other matters and questions relating to Termination of Employment,
including, but not by way of limitation, the question of whether a Termination
of Employment resulted from a discharge for good cause, and all questions of
whether particular leaves of absence constitute Termination of Employment;
provided, however, that a leave of absence shall constitute a Termination of
Employment if, and to the extent that, such leave of absence interrupts
employment for purposes of Section 422A(a)(2) of the Code and the then
applicable Regulations and Revenue Rulings under said Section.
2
<PAGE>
ARTICLE II
GRANT OF OPTION
---------------
SECTION 2.1 - GRANT OF OPTION
- -----------------------------
In consideration of the Employee's agreement to remain in the employ
of the Company or its Subsidiaries and for other good and valuable
consideration, on the date hereof the Company irrevocably grants to the Employee
the option to purchase any part or all of an aggregate of No. of shares shares
of its $1.00 par value Common Stock upon the terms and conditions set forth in
this Agreement.
SECTION 2.2 - PURCHASE PRICE
- ----------------------------
The purchase price of the shares of stock covered by the Option shall
be $ Price per share without commission or other charge.
SECTION 2.3 - CONSIDERATION TO THE COMPANY
- ------------------------------------------
In consideration of the granting of this Option by the Company, the
Employee agrees to render faithful and efficient services to the Company or a
Subsidiary, with such duties and responsibilities as the Company shall from time
to time prescribe, for a period of at lease one (1) year from the date this
Option is granted. Nothing in this Agreement or in the Plan shall confer upon
the Employee any right to continue in the employ of the Company or any
Subsidiary, or shall interfere with or restrict in any way the rights of the
Company and its Subsidiaries, which are hereby expressly reserved, to discharge
the Employee at any time for any reason whatsoever, with or without good cause.
SECTION 2.4 - ADJUSTMENTS IN OPTION
- -----------------------------------
In the event that the outstanding shares of the stock subject to the
Option are changed into or exchanged for a different number or kind of shares of
the Company or other securities of the Company by reason of merger,
consolidation, recapitalization, reclassification, stock split up, stock
dividend or combination of shares, the Committee shall make an appropriate and
equitable adjustment in the number and kind of shares as to which the Option, or
portions thereof then unexercised, shall be exercisable, to the end that after
such event Employee's proportionate interest shall be maintained as before the
occurrence of such event. Such adjustment in the Option shall be made without
change in the total price applicable to the unexercised portion of the Option
(except for any change in the aggregate price resulting from rounding-off of
share quantities or prices) and with any necessary corresponding adjustment in
the Option price per share; provided, however, that each such adjustment shall
be made in such manner as not to constitute a "modification" within the meaning
of Section 425(h)(3) of the Code. Any such adjustment made by the Committee
shall be final and binding upon the Employee, the Company and all other
interested persons.
3
<PAGE>
ARTICLE III
PERIOD OF EXERCISABILITY
------------------------
SECTION 3.1 - COMMENCEMENT OF EXERCISABILITY
- --------------------------------------------
(a) Subject to Sections 3.4 and 3.5, the Option shall become
exercisable in four (4) cumulative installments as follows:
(i) The first installment shall consist of twenty-five
percent (25%) of the shares covered by the Option and shall become
exercisable on the first anniversary of the date the Option is
granted.
(ii) The second installment shall consist of twenty-five
percent (25%) of the shares covered by the Option and shall become
exercisable on the second anniversary of the date the Option is
granted.
(iii) The third installment shall consist of twenty-five
percent (25%) of the shares covered by the Option and shall become
exercisable on the third anniversary of the date the Option is
granted.
(iv) The fourth installment shall consist of twenty-five
percent (25%) of the shares covered by the Option and shall become
exercisable on the fourth anniversary of the date the Option is
granted.
(b) No portion of the Option which is unexercisable at
Termination of Employment shall thereafter become exercisable.
SECTION 3.2 - DURATION OF EXERCISABILITY
- ----------------------------------------
The installments provided for in Section 3.1 are cumulative. Each
such installment which becomes exercisable pursuant to Section 3.1 shall remain
exercisable until it becomes unexercisable under Section 3.3. In the event the
provisions of Section 3.4 become applicable, the Option shall remain exercisable
until it becomes unexercisable under Section 3.3.
SECTION 3.3 - EXPIRATION OF OPTION
- ----------------------------------
The Option may not be exercised to any extent by anyone after the
first to occur of the following events:
(a) The expiration of ten (10) years from the date the Option was
granted; or
4
<PAGE>
(b) If the Employee owned (within the meaning of Section 425(d)
of the Code), at the time the Option was granted, more than ten percent
(10%) of the total combined voting power of all classes of stock of the
Company, any Subsidiary or any Parent Corporation, the expiration of five
(5) years from the date the Option was granted; or
(c) The time of the Employees's Termination of Employment, unless
such Termination of Employment results from his death, his retirement, his
disability (within the meaning of Section 22(e)(3) of the Code) or his
being discharged not for good cause; or
(d) The expiration of three (3) months from the date of the
Employee's Termination of Employment by reason of his retirement or his
being discharged not for good cause, unless the Employee dies within said
three-month period; or
(e) The expiration of one (1) year from the date of the
Employee's Termination of Employment by reason of his disability (within
the meaning of Section 22(e)(3) of the Code); or
(f) The expiration of one (1) year from the date of the
Employee's death; or
(g) Unless the Option is assumed or an equivalent option is
substituted by a successor corporation pursuant to Section 3.5(a), the
effective date of either the merger or consolidation of the Company with or
into another corporation, or the acquisition by another corporation or
person of all or substantially all of the Company's assets, or eighty
percent (80%) or more of the Company's then outstanding voting stock, or
the liquidation or dissolution of the Company. At least thirty (30) days
prior to the effective date of such merger, consolidation, acquisition,
liquidation or dissolution, the Committee shall give the Employee notice of
such event if the Option has then neither been fully exercised nor become
unexercisable under this Section 3.3.
SECTION 3.4 - CHANGE IN CONTROL
- -------------------------------
By notice to the Company, the Employee may accelerate the
exercisability of all options to acquire shares covered by this Agreement on (i)
the Employee's Termination of Employment by the Company after a Change in
Control of the Company for any reason other than Cause (as such terms are
defined in the Employee's Employment Agreement with the Company, executed Date
executed, and made effective effective date); or (ii) the occurrence of a
"Change in Control of the Company"; provided, however, that the Option may not
be exercised in whole or in part during the first year after the Option is
granted except (a) in the case of death or disability (within the meaning of
Section 22(e)(3) of the Code) or (b)
5
<PAGE>
upon the merger or consolidation of the Company with or into another
corporation, or the acquisition by another corporation or person of all or
substantially all of the Company's assets or eighty percent (80%) or more of the
Company's then outstanding voting stock or the liquidation or dissolution of the
Company. For purposes of this Section 3.4, a "Change in Control of the Company"
or "Change in Control" shall be deemed to have occurred if (i) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act)), other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company, is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing fifty percent
(50%) or more of the combined voting power of the Company's then outstanding
securities, regardless of whether or not the Board of Directors shall have
approved such Change in Control, (ii) the shareholders of the Company approve
(a) a merger or consolidation of the Company with any other corporation,
regardless of which entity is the surviving company, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the combined voting power of
the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation or (b) a plan of complete
liquidation of the Company or agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets, or (iii) during any
period of two (2) consecutive years, individuals who at the beginning of any
such period constitute the Directors of the Company cease for any reason to
constitute at least a majority thereof, unless the election, or the nomination
for election by the Company's stockholders, of each new Director of the Company
was approved by a vote of at least a majority of such Directors of the Company
then still in office who were Directors of the Company at the beginning of any
such period.
SECTION 3.5 - ASSUMPTION OR ACCELERATION OF EXERCISABILITY
- ----------------------------------------------------------
In the event of the merger or consolidation of the Company with or
into another corporation, or the acquisition by another corporation or person of
all or substantially all of the Company's assets, or eighty percent (80%) or
more of the Company's then outstanding voting stock, or the liquidation or
dissolution of the Company, either:
(a) The Option shall be assumed or an equivalent option
substituted by any successor corporation to the Company. The Company
undertakes to make reasonable and adequate provision for such assumption or
substitution of the Option upon or in connection with such merger,
consolidation, acquisition, liquidation or dissolution; or
(b) The Committee, by means of the notice referred to in Section
3.3(g), shall provide that the Option shall become exercisable, for a
minimum of thirty (30) days prior to such event, as to all the shares
covered hereby,
6
<PAGE>
notwithstanding that this Option may not yet have become fully exercisable
under Section 3.1(a).
The Committee may make such determinations and adopt such rules and
conditions as it, in its absolute discretion, deems appropriate in connection
with such assumption, substitution or acceleration of exercisability, including,
but not by way of limitation, provisions to ensure that any such acceleration
and resulting exercise shall be conditioned upon the consummation of the
contemplated corporate transaction, and determinations regarding whether
reasonable and adequate provisions for assumption or substitution have been made
as defined in subsection (a).
SECTION 3.6 - SPECIAL TAX CONSEQUENCES
- --------------------------------------
The Employee acknowledges that, to the extent that the aggregate fair
market value of stock with respect to which "incentive stock options" (within
the meaning of Section 422A of the Code, but without regard to Section 422A(d)
of the Code), including the Option, are exercisable for the first time by the
Employee during any calendar year (under the Plan and all other incentive stock
option plans of the Company, any Subsidiary and any Parent Corporation) exceeds
$100,000, such options shall be treated as not qualifying under Section 422A of
the Code but rather shall be taxed as nonqualified options. The Employee
further acknowledges that the rule set forth in the preceding sentence shall be
applied by taking options into account in the order in which they were granted.
For purposes of these rules, the fair market value of stock shall be determined
as of the time the option with respect to such stock is granted.
ARTICLE IV
EXERCISE OF OPTION
------------------
SECTION 4.1 - PERSON ELIGIBLE TO EXERCISE
- -----------------------------------------
During the lifetime of the Employee, only he may exercise the Option
or any portion thereof. After the death of the Employee, any exercisable
portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.3, be exercised by his personal representative or
by any person empowered to do so under the Employee's will or under the then
applicable laws of descent and distribution.
SECTION 4.2 - PARTIAL EXERCISE
- ------------------------------
Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.3; provided, however, that each partial
7
<PAGE>
exercise shall be for not less than twenty-five (25) shares (or minimum
installment set forth in Section 3.1, if a smaller number of shares) and shall
be for whole shares only.
SECTION 4.3 - MANNER OF EXERCISE
- --------------------------------
The Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary or his office of all of the following prior
to the time when the Option or such portion becomes unexercisable under Section
3.3:
(a) Notice in writing signed by the Employee or the other person
then entitled to exercise the Option or portion, stating that the Option or
portion is thereby exercised, such notice complying with all applicable
rules established by the Committee; and
(b) Full payment for the shares with respect to which such Option
or portion is thereby exercised:
(1) In cash or by check; or
(2) By delivery of shares of the Company's Common Stock
owned by the Optionee duly endorsed for transfer to the Company with a
fair market value (as determinable under Section 4.2(b) of the Plan)
on the date of delivery equal to the aggregate Option price of the
shares with respect to which such Option or portion is thereby
exercised; or
(3) With the consent of the Committee, by delivery of a
full recourse promissory note bearing interest (at at least such rate
as shall then preclude the imputation of interest under the Code or
any successor provision) and payable upon such terms as may be
prescribed by the Committee. The Committee may also prescribe the form
of such note and the security to be given for such note. No Option
may, however, be exercised by delivery of a promissory note or by a
loan from the Company when or where such loan or other extension of
credit is prohibited by law; or
(4) By means of any combination of the consideration
provided in the foregoing subsections (1), (2) and (3); and
(c) A bona fide written representation and agreement, in a form
satisfactory to the Committee, signed by the Employee or other person then
entitled to exercise such Option or portion, stating that the shares of
stock are being acquired for his own account, for investment and without
any present intention of distributing or reselling said shares or any of
them except as may be permitted under the Securities Act of 1933, as
amended (the "Act"), and then
8
<PAGE>
applicable rules and regulations thereunder, and that the Employee or other
person then entitled to exercise such Option or portion will indemnify the
Company against and hold it free and harmless from any loss, damage,
expense or liability resulting to the Company if any sale or distribution
of the shares by such person is contrary to the representation and
agreement referred to above. The Committee may, in its absolute discretion,
take whatever additional actions it deems appropriate to ensure the
observance and performance of such representation and agreement and to
effect compliance with the Act and any other federal or state securities
laws or regulations. Without limiting the generality of the foregoing, the
Committee may require an opinion of counsel acceptable to it to the effect
that any subsequent transfer of share acquired on an Option exercise does
not violate the Act, and may issue stop-transfer orders covering such
shares. Share certificates evidencing stock issued on exercise of this
Option may bear an appropriate legend referring to the provisions of this
subsection (c) and the agreements herein. The written representation and
agreement referred to in the first sentence of this subsection (c) shall,
however, not be required if the shares to be issued pursuant to such
exercise have been registered under the Act, and such registration is then
effective in respect of such shares; and
(d) In the event the Option or portion shall be exercised
pursuant to Section 4.1 by any person or persons other than the Employee,
appropriate proof of the right of such person or persons to exercise the
Option.
SECTION 4.4 - CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
- ----------------------------------------------------------
The shares of stock deliverable upon the exercise of the Option, or
any portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to fulfillment of all the
following conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other qualification of
such shares under any state or federal law or under rulings or regulations
of the Securities and Exchange Commission or of any other governmental
regulatory body, which the Committee shall, in its absolute discretion,
deem necessary or advisable; and
(c) The obtaining of any approval or other clearance from any
state or federal governmental agency which the Committee shall, in its
absolute discretion, determine to be necessary or advisable; and
9
<PAGE>
(d) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may from time to time establish for
reasons of administrative convenience.
SECTION 4.5 - RIGHTS AS SHAREHOLDER
- -----------------------------------
The holder of the Option shall not be, nor have any of the rights or
privileges of, a shareholder of the Company with respect to any shares
purchasable upon the exercise of any part of the Option unless and until
certificates representing such shares shall have been issued by the Company to
such holder.
SECTION 4.6 - PAYMENTS TO OPTIONEES
- -----------------------------------
In its sole and absolute discretion, the Committee may, but shall
not be obligated to, direct that the Company pay to an Employee exercising, or
disposing of stock acquired under an Incentive Stock Option, an amount of cash
(subject to payroll tax withholding) representing all or a portion of the tax
savings, if any, realized by the Company in connection with such exercise or
disposition. Any such payment may, but need not, be made in order to reduce or
eliminate differences in taxation to the Employee between an Incentive Stock
Option and a Nonqualified Stock Option with equivalent terms.
ARTICLE V
MISCELLANEOUS
-------------
SECTION 5.1 - ADMINISTRATION
- ----------------------------
The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and determinations
made by the Committee in good faith shall be final and binding upon the
Employee, the Company and all other interested persons. No member of the
Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or the Option. In
its absolute discretion, the Board may, at any time and from time to time,
exercise any and all rights and duties of the Committee under the Plan and this
Agreement.
SECTION 5.2 - OPTION NOT TRANSFERABLE
- -------------------------------------
Neither the Option nor any interest or right therein or part
thereof shall be liable for the debts, contracts or engagements of the Employee
or his successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means,
whether such disposition be voluntary or involuntary or by operation of law
10
<PAGE>
by judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 5.2
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
SECTION 5.3 - SHARES TO BE RESERVED
- -----------------------------------
The Company shall at all times during the term of the Option reserve
and keep available such number of shares of stock as will be sufficient to
satisfy the requirements of this Agreement.
SECTION 5.4 - NOTICES
- ---------------------
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Employee shall be addressed to him at the address
given beneath his signature thereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Employee shall,
if the Employee is then deceased, be given to the Employee's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 5.4. Any notice shall
be deemed duly given when enclosed in a properly sealed envelope or wrapper
addressed as aforesaid, deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service.
SECTION 5.5 - TITLES
- --------------------
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
SECTION 5.6 - NOTIFICATION OF DISPOSITION
- -----------------------------------------
The Employee shall give prompt notice to the Company of any
disposition or other transfer of any shares of stock acquired under this
Agreement if such disposition or transfer is made (a) within two (2) years from
the date of granting the Option with respect to such shares or (b) within one
(1) year after the transfer of such shares to him. Such notice shall specify
the date of such disposition or other transfer and the amount realized, in cash,
other property, assumption of indebtedness or other consideration, by the
Employee in such disposition or other transfer.
11
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
CALMAT CO.
By__________________________________
A. Frederick Gerstell
Chairman of the Board and
Chief Executive Officer
By__________________________________
Paul Stanford
Executive Vice President,
General Counsel and Secretary
- --------------------------------------------
Employee
- --------------------------------------------
- --------------------------------------------
Address
Employee's Social Security
Number:
- -------------------------------------------
12
<PAGE>
EXHIBIT 4.5
INCENTIVE STOCK OPTION AGREEMENT
--------------------------------
THIS AGREEMENT, dated Grant Date, is made by and between CALMAT CO., a
Delaware corporation, hereinafter referred to as "Company," and Name, an
employee of the Company or a Subsidiary of the Company, hereinafter referred to
as "Employee";
WHEREAS, the Company wishes to afford the Employee the opportunity to
purchase No. of shares shares of its $1.00 par value Common Stock; and
WHEREAS, the Company wishes to carry out the Plan (the terms of which
are hereby incorporated by reference and made a part of this Agreement); and
WHEREAS, the Management Development and Compensation Committee of the
Company's Board of Directors (hereinafter referred to as the "Committee"),
appointed to administer said Plan, has determined that it would be to the
advantage and best interest of the Company and its shareholders to grant the
Incentive Stock Option provided for herein to the Employee as an inducement to
remain in the service of the Company or its Subsidiaries and as an incentive for
increased efforts during such service, and has advised the Company thereof and
instructed the undersigned officers to issue said Option;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
Whenever the following terms are used in this Agreement, they shall
have the meaning specified below unless the context clearly indicates to the
contrary.
SECTION 1.1 - CODE
- ------------------
"Code" shall mean the Internal Revenue Code of 1986, as amended.
SECTION 1.2 - OPTION
- --------------------
"Option" shall mean the incentive stock option to purchase common
stock of the Company granted under this Agreement.
<PAGE>
SECTION 1.3 - PARENT CORPORATION
- --------------------------------
"Parent Corporation" shall mean any corporation in an unbroken chain
of corporations ending with the Company if each of the corporations other than
the Company then owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one (1) of the other
corporations in such chain.
SECTION 1.4 - PLAN
- ------------------
"Plan" shall mean the Plan
SECTION 1.5 - PRONOUNS
- ----------------------
The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates.
SECTION 1.6 - SECRETARY
- -----------------------
"Secretary" shall mean the Secretary of the Company.
SECTION 1.7 - SUBSIDIARY
- ------------------------
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company, if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one (1) of the other corporations in such chain.
SECTION 1.8 - TERMINATION OF EMPLOYMENT
- ---------------------------------------
"Termination of Employment" shall mean the time when the employee-
employer relationship between the Employee and the Company or a Subsidiary is
terminated for any reason, including, but not by way of limitation, a
termination by resignation, discharge, death or retirement, but excluding any
termination where there is a simultaneous re-employment by the Company or a
Subsidiary. The Committee, in its absolute discretion, shall determine the
effect of all other matters and questions relating to Termination of Employment,
including, but not by way of limitation, the question of whether a Termination
of Employment resulted from a discharge for good cause, and all questions of
whether particular leaves of absence constitute Termination of Employment;
provided, however, that a leave of absence shall constitute a
2
<PAGE>
Termination of Employment if, and to the extent that, such leave of absence
interrupts employment for purposes of Section 422A(a)(2) of the Code and the
then applicable Regulations and Revenue Rulings under said Section.
ARTICLE II
GRANT OF OPTION
---------------
SECTION 2.1 - GRANT OF OPTION
- -----------------------------
In consideration of the Employee's agreement to remain in the employ
of the Company or its Subsidiaries and for other good and valuable
consideration, on the date hereof the Company irrevocably grants to the Employee
the option to purchase any part or all of an aggregate of No. of shares shares
of its $1.00 par value Common Stock upon the terms and conditions set forth in
this Agreement.
SECTION 2.2 - PURCHASE PRICE
- ----------------------------
The purchase price of the shares of stock covered by the Option shall
be $ Price per share without commission or other charge.
SECTION 2.3 - CONSIDERATION TO THE COMPANY
- ------------------------------------------
In consideration of the granting of this Option by the Company, the
Employee agrees to render faithful and efficient services to the Company or a
Subsidiary, with such duties and responsibilities as the Company shall from time
to time prescribe, for a period of at least one (1) year from the date this
Option is granted. Nothing in this Agreement or in the Plan shall confer upon
the Employee any right to continue in the employ of the Company or any
Subsidiary, or shall interfere with or restrict in any way the rights of the
Company and its Subsidiaries, which are hereby expressly reserved, to discharge
the Employee at any time for any reason whatsoever, with or without good cause.
SECTION 2.4 - ADJUSTMENTS IN OPTION
- -----------------------------------
In the event that the outstanding shares of the stock subject to the
Option are changed into or exchanged for a different number or kind of shares of
the Company or other securities of the Company by reason of merger,
consolidation, recapitalization, reclassification, stock split up, stock
dividend or combination of shares, the Committee shall make an appropriate and
equitable adjustment in the number and kind of shares as to which the Option, or
portions
3
<PAGE>
thereof then unexercised, shall be exercisable, to the end that after such event
Employee's proportionate interest shall be maintained as before the occurrence
of such event. Such adjustment in the Option shall be made without change in the
total price applicable to the unexercised portion of the Option (except for any
change in the aggregate price resulting from rounding-off of share quantities or
prices) and with any necessary corresponding adjustment in the Option price per
share; provided, however, that each such adjustment shall be made in such manner
as not to constitute a "modification" within the meaning of Section 425(h)(3) of
the Code. Any such adjustment made by the Committee shall be final and binding
upon the Employee, the Company and all other interested persons.
ARTICLE III
PERIOD OF EXERCISABILITY
------------------------
SECTION 3.1 - COMMENCEMENT OF EXERCISABILITY
- --------------------------------------------
(a) Subject to Section 3.4(b), the Option shall become
exercisable in four (4) cumulative installments as follows:
(i) The first installment shall consist of twenty-five
percent (25%) of the shares covered by the Option and shall become
exercisable on the first anniversary of the date the Option is granted.
(ii) The second installment shall consist of twenty-five
percent (25%) of the shares covered by the Option and shall become
exercisable on the second anniversary of the date the Option is
granted.
(iii) The third installment shall consist of twenty-five
percent (25%) of the shares covered by the Option and shall become
exercisable on the third anniversary of the date the Option is granted.
(iv) The fourth installment shall consist of twenty-five
percent (25%) of the shares covered by the Option and shall become
exercisable on the fourth anniversary of the date the Option is
granted.
(b) No portion of the Option which is unexercisable at
Termination of Employment shall thereafter become exercisable.
4
<PAGE>
SECTION 3.2 - DURATION OF EXERCISABILITY
- ----------------------------------------
The installments provided for in Section 3.1 are cumulative. Each
such installment which becomes exercisable pursuant to Section 3.1 shall remain
exercisable until it becomes unexercisable under Section 3.3.
SECTION 3.3 - EXPIRATION OF OPTION
- ----------------------------------
The Option may not be exercised to any extent by anyone after the
first to occur of the following events:
(a) The expiration of ten (10) years from the date the Option was
granted; or
(b) If the Employee owned (within the meaning of Section 425(d)
of the Code), at the time the Option was granted, more than ten percent
(10%) of the total combined voting power of all classes of stock of the
Company, any Subsidiary or any Parent Corporation, the expiration of five
(5) years from the date the Option was granted; or
(c) The time of the Employees's Termination of Employment, unless
such Termination of Employment results from his death, his retirement, his
disability (within the meaning of Section 22(e)(3) of the Code) or his
being discharged not for good cause; or
(d) The expiration of three (3) months from the date of the
Employee's Termination of Employment by reason of his retirement or his
being discharged not for good cause, unless the Employee dies within said
three-month period; or
(e) The expiration of one (1) year from the date of the
Employee's Termination of Employment by reason of his disability (within
the meaning of Section 22(e)(3) of the Code); or
(f) The expiration of one (1) year from the date of the
Employee's death; or
(g) Unless the Option is assumed or an equivalent option is
substituted by a successor corporation pursuant to Section 3.4(a), the
effective date of either the merger or consolidation of the Company with or
into another corporation, or the acquisition by another corporation or
person of all or substantially all of the Company's assets, or eighty
percent (80%) or more of the Company's then outstanding voting stock, or
the liquidation or dissolution of the
5
<PAGE>
Company. At least thirty (30) days prior to the effective date of such
merger, consolidation, acquisition, liquidation or dissolution, the
Committee shall give the Employee notice of such event if the Option has
then neither been fully exercised nor become unexercisable under this
Section 3.3.
SECTION 3.4 - ASSUMPTION OR ACCELERATION OF EXERCISABILITY
- ----------------------------------------------------------
In the event of the merger or consolidation of the Company with or
into another corporation, or the acquisition by another corporation or person of
all or substantially all of the Company's assets, or eighty percent (80%) or
more of the Company's then outstanding voting stock, or the liquidation or
dissolution of the Company, either:
(a) The Option shall be assumed or an equivalent option
substituted by any successor corporation to the Company. The Company
undertakes to make reasonable and adequate provision for such assumption or
substitution of the Option upon or in connection with such merger,
consolidation, acquisition, liquidation or dissolution; or
(b) The Committee, by means of the notice referred to in Section
3.3(g), shall provide that the Option shall become exercisable, for a
minimum of thirty (30) days prior to such event, as to all the shares
covered hereby, notwithstanding that this Option may not yet have become
fully exercisable under Section 3.1(a).
The Committee may make such determinations and adopt such rules and
conditions as it, in its absolute discretion, deems appropriate in connection
with such assumption, substitution or acceleration of exercisability, including,
but not by way of limitation, provisions to ensure that any such acceleration
and resulting exercise shall be conditioned upon the consummation of the
contemplated corporate transaction, and determinations regarding whether
reasonable and adequate provisions for assumption or substitution have been made
as defined in subsection (a).
SECTION 3.5 - SPECIAL TAX CONSEQUENCES
- --------------------------------------
The Employee acknowledges that, to the extent that the aggregate fair
market value of stock with respect to which "incentive stock options" (within
the meaning of Section 422A of the Code, but without regard to Section 422A(d)
of the Code), including the Option, are exercisable for the first time by the
Employee during any calendar year (under the Plan and all other incentive stock
option plans of the Company, any Subsidiary and any Parent Corporation) exceeds
$100,000, such options shall be treated as not qualifying under Section 422A of
the Code but rather shall be taxed as nonqualified options. The Employee
further acknowledges that the rule set forth in the preceding sentence shall be
applied by taking options
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into account in the order in which they were granted. For purposes of these
rules, the fair market value of stock shall be determined as of the time the
option with respect to such stock is granted.
ARTICLE IV
EXERCISE OF OPTION
------------------
SECTION 4.1 - PERSON ELIGIBLE TO EXERCISE
- -----------------------------------------
During the lifetime of the Employee, only he may exercise the Option
or any portion thereof. After the death of the Employee, any exercisable
portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.3, be exercised by his personal representative or
by any person empowered to do so under the Employee's will or under the then
applicable laws of descent and distribution.
SECTION 4.2 - PARTIAL EXERCISE
- ------------------------------
Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.3; provided, however, that each partial exercise shall be for not less than
twenty-five (25) shares (or minimum installment set forth in Section 3.1, if a
smaller number of shares) and shall be for whole shares only.
SECTION 4.3 - MANNER OF EXERCISE
- --------------------------------
The Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary or his office of all of the following prior
to the time when the Option or such portion becomes unexercisable under Section
3.3:
(a) Notice in writing signed by the Employee or the other person
then entitled to exercise the Option or portion, stating that the Option or
portion is thereby exercised, such notice complying with all applicable
rules established by the Committee; and
(b) Full payment for the shares with respect to which such Option
or portion is thereby exercised:
(1) In cash or by check; or
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(2) By delivery of shares of the Company's Common Stock owned
by the Optionee duly endorsed for transfer to the Company with a fair
market value (as determinable under Section 4.2(b) of the Plan) on the
date of delivery equal to the aggregate Option price of the shares with
respect to which such Option or portion is thereby exercised; or
(3) With the consent of the Committee, by delivery of a full
recourse promissory note bearing interest (at at least such rate as
shall then preclude the imputation of interest under the Code or any
successor provision) and payable upon such terms as may be prescribed
by the Committee. The Committee may also prescribe the form of such
note and the security to be given for such note. No Option may,
however, be exercised by delivery of a promissory note or by a loan
from the Company when or where such loan or other extension of credit
is prohibited by law; or
(4) By means of any combination of the consideration provided
in the foregoing subsections (1), (2) and (3); and
(c) A bona fide written representation and agreement, in a form
satisfactory to the Committee, signed by the Employee or other person then
entitled to exercise such Option or portion, stating that the shares of
stock are being acquired for his own account, for investment and without
any present intention of distributing or reselling said shares or any of
them except as may be permitted under the Securities Act of 1933, as
amended (the "Act"), and then applicable rules and regulations thereunder,
and that the Employee or other person then entitled to exercise such Option
or portion will indemnify the Company against and hold it free and harmless
from any loss, damage, expense or liability resulting to the Company if any
sale or distribution of the shares by such person is contrary to the
representation and agreement referred to above. The Committee may, in its
absolute discretion, take whatever additional actions it deems appropriate
to ensure the observance and performance of such representation and
agreement and to effect compliance with the Act and any other federal or
state securities laws or regulations. Without limiting the generality of
the foregoing, the Committee may require an opinion of counsel acceptable
to it to the effect that any subsequent transfer of shares acquired on an
Option exercise does not violate the Act, and may issue stop-transfer
orders covering such shares. Share certificates evidencing stock issued on
exercise of this Option may bear an appropriate legend referring to the
provisions of this subsection (c) and the agreements herein. The written
representation and agreement referred to in the first sentence of this
subsection (c) shall, however, not be required if the shares to be issued
pursuant to such exercise have been registered under the Act, and such
registration is then effective in respect of such shares; and
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(d) In the event the Option or portion shall be exercised
pursuant to Section 4.1 by any person or persons other than the Employee,
appropriate proof of the right of such person or persons to exercise the
Option.
SECTION 4.4 - CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
- ----------------------------------------------------------
The shares of stock deliverable upon the exercise of the Option, or
any portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other qualification of
such shares under any state or federal law or under rulings or regulations
of the Securities and Exchange Commission or of any other governmental
regulatory body, which the Committee shall, in its absolute discretion,
deem necessary or advisable; and
(c) The obtaining of any approval or other clearance from any
state or federal governmental agency which the Committee shall, in its
absolute discretion, determine to be necessary or advisable; and
(d) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may from time to time establish for
reasons of administrative convenience.
SECTION 4.5 - RIGHTS AS SHAREHOLDER
- -----------------------------------
The holder of the Option shall not be, nor have any of the rights or
privileges of, a shareholder of the Company with respect to any shares
purchasable upon the exercise of any part of the Option unless and until
certificates representing such shares shall have been issued by the Company to
such holder.
SECTION 4.6 - PAYMENTS TO OPTIONEES
- -----------------------------------
In its sole and absolute discretion, the Committee may, but shall
not be obligated to, direct that the Company pay to an Employee exercising, or
disposing of stock acquired under an Incentive Stock Option, an amount of cash
(subject to payroll tax withholding) representing
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all or a portion of the tax savings, if any, realized by the Company in
connection with such exercise or disposition. Any such payment may, but need
not, be made in order to reduce or eliminate differences in taxation to the
Employee between an Incentive Stock Option and a Nonqualified Stock Option with
equivalent terms.
ARTICLE V
MISCELLANEOUS
-------------
SECTION 5.1 - ADMINISTRATION
- ----------------------------
The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and determinations
made by the Committee in good faith shall be final and binding upon the
Employee, the Company and all other interested persons. No member of the
Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or the Option. In
its absolute discretion, the Board may, at any time and from time to time,
exercise any and all rights and duties of the Committee under the Plan and this
Agreement.
SECTION 5.2 - OPTION NOT TRANSFERABLE
- -------------------------------------
Neither the Option nor any interest or right therein or part
thereof shall be liable for the debts, contracts or engagements of the Employee
or his successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means,
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 5.2
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
SECTION 5.3 - SHARES TO BE RESERVED
- -----------------------------------
The Company shall at all times during the term of the Option reserve
and keep available such number of shares of stock as will be sufficient to
satisfy the requirements of this Agreement.
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SECTION 5.4 - NOTICES
- ---------------------
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Employee shall be addressed to him at the address
given beneath his signature thereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Employee shall,
if the Employee is then deceased, be given to the Employee's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 5.4. Any notice shall
be deemed duly given when enclosed in a properly sealed envelope or wrapper
addressed as aforesaid, deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service.
SECTION 5.5 - TITLES
- --------------------
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
SECTION 5.6 - NOTIFICATION OF DISPOSITION
- -----------------------------------------
The Employee shall give prompt notice to the Company of any
disposition or other transfer of any shares of stock acquired under this
Agreement if such disposition or transfer is made (a) within two (2) years from
the date of granting the Option with respect to such shares or (b) within one
(1) year after the transfer of such shares to him. Such notice shall specify
the date of such disposition or other transfer and the amount realized, in cash,
other property, assumption of indebtedness or other consideration, by the
Employee in such disposition or other transfer.
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EXHIBIT 5
[LETTERHEAD OF CALMAT CO]
September 8, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: CALMAT CO. COMMON STOCK
REGISTRATION STATEMENT ON FORM S-8
----------------------------------
Ladies and Gentlemen:
This opinion is being rendered in connection with the Registration on Form
S-8 of 1,000,000 shares of common stock, par value $1 per share (the "Shares"),
of CalMat Co., a Delaware corporation (the "Company"), issuable in connection
with the 1998 Stock Option Plan for Officers, Directors and Key Employees of
CalMat Co. (the "Plan"). I am familiar with the proceedings undertaken by the
Company in connection with the issuance of the Shares under the Plan and the
authorization of such issuance thereunder, and have examined such documents and
such questions of law and fact as I have deemed necessary in order to express
the opinion hereinafter stated.
Based on the foregoing, I am of the opinion that the Shares have been duly
authorized, and upon issuance of the Shares under the terms of the Plan and
delivery and payment therefor of legal consideration in excess of the aggregate
par value of the Shares issued, such Shares will be validly issued, fully paid
and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ PAUL STANFORD
Paul Stanford
<PAGE>
[Letterhead of PricewaterhouseCoopers LLP]
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We consent to the incorporation by reference in this Registration Statement
of CalMat Co. on Form S-8 (File No. 33- ) of our report dated February 20,
1998, on our audits of the consolidated financial statements and the financial
statement schedule of CalMat Co. and subsidiaries as of December 31, 1997 and
1996, and for the years ended December 31, 1997, 1996, and 1995, which report is
included in the CalMat Co. Annual Report on Form 10-K (File No. 0-1162).
/s/ PRICEWATERHOUSECOOPERS LLP
September 14, 1998
