SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
AMCAST INDUSTRIAL CORPORATION
(Exact name of registrant as specified in its charter)
Ohio 31-0258080
(State of Incorporation) (I.R.S. Employer Identification No.)
AMCAST INDUSTRIAL CORPORATION
7887 Washington Village Drive
Dayton, Ohio 45459
(Address, including zip code, of
registrant's principal executive offices)
AMCAST INDUSTRIAL CORPORATION
1999 STOCK INCENTIVE PLAN
(Full title of the plan)
Denis G. Daly, Esq.
Vice President, General Counsel and Secretary
Amcast Industrial Corporation
7887 Washington Village Drive
Dayton, Ohio 45459
(937) 291-7000
(Name, address and telephone number,
including area code, of agent for service)
<TABLE>
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
================================================================================
<S> <C> <C> <C> <C>
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share (1) Offering Price Fee
- --------------------- ------------ -------------- -------------- ------------
Common Shares,
without par value (2) 425,000(3) $8.625 $3,665,625(3) $968
- --------------------- ------------ -------------- -------------- ------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) on the basis of the average of the high and low
prices reported on the New York Stock Exchange Composite Tape on April 20,
2000.
(2) There are also being registered hereunder an equal number of Series A
Preferred Share Purchase Rights, which are currently attached to and
transferrable only with the Common Shares registered hereunder.
(3) In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of Common Shares
that may be offered or sold as a result of any adjustments from stock
splits, stock dividends or similar events.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated herein by reference as of their
respective dates of filing:
(a) The Annual Report of Amcast Industrial Corporation (the
"Company") on Form 10-K for the fiscal year ended August 31, 1999, filed
pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the
"Exchange Act").
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended November 28, 1999, filed pursuant to Section 13(a) of the Exchange
Act.
(c) The Company's Quarterly Reports on Form 10-Q for the quarter
ended February 27, 2000, filed pursuant to Section 13(a) of the Exchange
Act.
(d) The description of the Company's common shares contained in the
Registration Statement filed pursuant to Section 12 of the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold
hereunder shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Thompson Hine & Flory LLP has provided a legal opinion to the Company
with respect to the common shares of the Company issuable under the Amcast
Industrial Corporation 1999 Stock Incentive Plan and registered hereunder.
Item 6. Indemnification of Directors and Officers.
Article VI of the Code of Regulations of the Company sets forth certain
rights of directors and officers of the Company to indemnification. Such rights
provide indemnification by the Company as permitted by Ohio law. The liabilities
against which a director and officer may be indemnified and factors employed to
determine whether a director and officer is entitled to indemnification in a
particular instance depend on whether the proceedings in which the claim for
indemnification arises were brought (a) other than by and in the right of the
Company ("Third Party Actions") or (b) by and in the right of the Company
("Company Actions").
In Third Party Actions, the Company will indemnify each director and
officer against expenses, including attorneys' fees, judgments, fines, and
amounts paid in settlement actually and reasonably incurred by him in connection
with any threatened or actual proceeding in which he may be involved by reason
of his having acted in such capacity, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Company and with respect to any matter the subject of a criminal proceeding, he
had no reasonable cause to believe that his conduct was unlawful.
In Company Actions, the Company will indemnify each director and officer
against expenses, including attorneys' fees, actually and reasonably incurred by
him in connection with the defense or settlement of any such proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, except that no indemnification is
permitted with respect to (i) any matter as to which such person has been
adjudged to be liable for negligence or misconduct in the performance of his
duty to the Company unless a court determines such person is entitled to
indemnification and (ii) any liability asserted in connection with unlawful
loans, dividends, distribution, distribution of assets and repurchase of Company
shares under Section 1701.95 of the Ohio Revised Code.
<PAGE>
Unless indemnification is ordered by a court, the determination as to
whether or not an individual has satisfied the applicable standards of conduct
(and therefore may be indemnified) is made by the Board of Directors of the
Company by a majority vote of a quorum consisting of directors of the Company
who were not parties to the action; or if such a quorum is not obtainable, or if
a quorum of disinterested directors so directs, by independent legal counsel in
a written opinion; or by the shareholders of the corporation.
The Company maintains insurance policies which presently provide
protection, within the maximum liability limits of the policies and subject to a
deductible amount for each claim, to the Registrant under its indemnification
obligations and to the directors and officers with respect to certain matters
which are not covered by the Registrant's indemnification obligations. The
Company has entered into an indemnification agreement with each director of the
Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Index to Exhibits following signature pages.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, 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
this 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 the undertakings set forth in
paragraphs (i) and (ii) above do not apply if the information required to
be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant with the Securities
Exchange Commission or furnished to the Commission pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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 further undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 and, where applicable, each filing
of an employee benefit plans annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
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.
<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized,in the City of Dayton, State of Ohio,on this 24th day of April, 2000.
AMCAST INDUSTRIAL CORPORATION
By /s/ John H. Shuey
--------------------------------------
John H. Shuey
President, Chief Executive Officer and
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on behalf of the
registrant and in the capacities and on the dates indicated:
- ------------------------------------------------------------------------------
Name Title Date
- ------------------------------------------------------------------------------
/s/ John H. Shuey President and Chief April 24, 2000
- ----------------- Executive Officer
John H. Shuey (principal executive
officer) and Chairman
of the Board
/s/ Douglas D. Watts Vice President, Finance April 24, 2000
- -------------------- (principal financial
Douglas D. Watts officer)
/s/ Mark D. Mishler Corporate Controller April 24, 2000
- ------------------- (principal accounting
Mark D. Mishler officer)
-------------------------------
*James K. Baker Director April 24, 2000
*Walter E. Blankley Director April 24, 2000
*Peter H. Forster Director April 24, 2000
*Leo W. Ladehoff Director April 24, 2000
*Earl T. O'Loughlin Director April 24, 2000
*Bernard G. Rethore Director April 24, 2000
*William G. Roth Director April 24, 2000
*R. William Van Sant Director April 24, 2000
* The undersigned, by signing his name hereto, executes this
Registration Statement pursuant to powers of attorney executed by the
above-named persons and filed with the Securities and Exchange Commission as an
Exhibit to this Registration Statement.
/s/ John H. Shuey
-----------------
John H. Shuey
Attorney-in-Fact
<PAGE>
INDEX TO EXHIBITS
(4) INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING INDENTURES:
4.1 Articles of Incorporation of Amcast Industrial
Corporation, as amended, incorporated by reference from
the Company's Annual Report on Form 10-K for the fiscal
year ended August 31, 1996.
4.2 Code of Regulations of Amcast Industrial Corporation,
incorporated by reference from the Company's Annual
Report on Form 10-K for the fiscal year ended August 31,
1996.
4.3 Amcast Industrial Corporation 1999 Stock Incentive Plan.
(5) OPINION RE LEGALITY
5.1 Opinion of Thompson Hine & Flory LLP
(23) CONSENTS OF EXPERTS AND COUNSEL:
23.1 Consent of Ernst & Young LLP
23.2 Consent of Thompson Hine & Flory LLP [contained
in their opinion filed as Exhibit 5.1]
(24) POWERS OF ATTORNEY
24.1 Powers of Attorney of each person whose signature on
this registration statement was signed by another
pursuant to a power of attorney.
-------------------------------------
Exhibit 4.3
1999 STOCK INCENTIVE PLAN
Section 1. Purpose
The purpose of this 1999 Stock Incentive Plan (the "Plan") is
to promote the long-term success of Amcast Industrial Corporation (the
"Company") by providing financial incentives to key employees of the Company and
its subsidiaries who are in positions to make significant contributions toward
such success. The Plan is designed to attract individuals of outstanding ability
to employment with the Company and its subsidiaries and to encourage key
employees to acquire a proprietary interest in the Company through stock
ownership, to continue employment with the Company and its subsidiaries, and to
render superior performance during such employment. To accomplish the purposes
of the Plan, the Board of Directors of the Company establishes the Plan and
authorizes the Committee referred to in Section 4 to administer the Plan in such
manner and on such conditions as it deems appropriate, subject to the provisions
of the Plan.
Section 2. Definitions
(a) "Board" means the Board of Directors of the Company.
(b) "Change of Control" means and shall be deemed to have
occurred on (i) the date upon which the Company is provided a copy of a Schedule
13D, filed pursuant to Section 13(d) of the Securities Exchange Act of 1934
indicating that a group or person, as defined in Rule 13d-3 under said Act, has
become the beneficial owner of 20% or more of the outstanding Voting Shares of
the Company or the date upon which the Company first learns that a person or
group has become the beneficial owner of 20% or more of the outstanding Voting
Shares of the Company if a Schedule 13D is not timely filed as required under
the Securities Exchange Act of 1934 or is not required to be filed; (ii) the
date of a change in the composition of the Board of Directors of the Company
such that individuals who were members of the Board of Directors on the date two
years prior to such change (or who were subsequently elected to fill a vacancy
in the Board, or were subsequently nominated for election by the Company's
shareholders, by the affirmative vote of at least two-thirds of the directors
then still in office who were directors at the beginning of such two year
period) no longer constitute a majority of the Board of Directors of the
Company; (iii) the date the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the Voting Shares of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Shares of the surviving entity) at
least 80% of the total voting power represented by the Voting Shares of the
Company or such surviving entity outstanding immediately after such merger or
consolidation; or (iv) the date shareholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all the Company's assets.
(c) "Code" means the Internal Revenue Code of 1986,as amended.
(d) "Committee" means the committee referred to in Section 4.
(e) "Employee" means any full-time key employee of the Company
or any of its Subsidiaries.
(f) "Fair Market Value" means the mean of the high and low
sales prices of a Share on the date when the value of a Share is to be
determined, as reported on the New York Stock Exchange Composite Transactions
Tape; or, if no sale is reported for such date, then on the next preceding date
for which a sale is reported; or if the Shares are no longer listed on such
exchange, the determination of such value shall be made by the Committee in
accordance with applicable provisions of the Code and related regulations
promulgated under the Code.
(g) "Gross Misconduct" means engaging in any act or acts
involving conduct which violates Company policy or is illegal and which results,
directly or indirectly, in personal gain to the individual involved at the
expense of the Company or a Subsidiary.
(h) "Incentive Award" means an Option, Restricted Share Award,
Performance Award, or Stock Appreciation Right granted under the Plan.
(i) "Incentive Stock Option" means an Option that is an
Incentive Stock Option, as defined in Section 422 of the Code.
(j) "Nonqualified Stock Option" means an Option that is not
an Incentive Stock Option.
(k) "Option" means a right to purchase Shares at a specified
price.
(l) "Optionee" means the holder of an Option.
(m) "Participant" means an Employee selected to receive an
Incentive Award.
(n) "Performance Award" means a right to receive Shares, cash,
or a combination thereof, contingent upon the attainment of performance
objectives determined in the discretion of the Committee as more fully set forth
at Section 8 hereof.
(o) "Restricted Share Award" means a right to receive Shares
that is nontransferable and subject to substantial risk of forfeiture until
specific conditions are met; "Restricted Shares" means Shares which are the
subject of a Restricted Share Award; and "Restricted Period" shall have the
meaning ascribed to it at Section 7(a).
(p) "Shares" means the Common Shares of the Company.
(q) "Stock Appreciation Right" shall have the meaning set
forth at Section 9.
(r) "Subsidiary" means any company more than 50% of the voting
stock of which is owned or controlled, directly or indirectly, by the Company.
(s) "Voting Shares" means any securities of the Company which
vote generally in the election of directors.
Section 3. Shares Subject to the Plan
(a) Maximum Number - Aggregate. The maximum number of Shares
that may be subject to Incentive Awards granted pursuant to the Plan shall be
Four Hundred Twenty-five Thousand (425,000), subject to adjustment in accordance
with Section 3(c). The Shares which may be issued pursuant to Incentive Awards
may be authorized and unissued Shares or Shares held in the Company's treasury.
In the event of a lapse,expiration,termination, or cancellation of any Incentive
Award granted under the Plan without the issuance of Shares or the payment of
cash, or if Shares are issued under a Restricted Share Award and are reacquired
by the Company as a result of rights reserved upon the issuance thereof, the
Shares subject to or reserved for such Incentive Award shall no longer be
charged against the 425,000 Share maximum and may again be used for new
Incentive Awards.
(b) Maximum Number-Per Employee. The maximum Incentive Awards
that may be granted to each Employee in each fiscal year of the Company is as
follows:
(i) With respect to Options, no more than 50,000 may
be granted;
(ii) With respect to Restricted Shares (not issued in
connection with Performance Awards), no more than $750,000 of
such Shares may be issued;
(iii) With respect to Performance Awards, no more
than $750,000 of Performance Shares may be granted (based on
the Fair Market Value of Shares on the date the award is
granted, not the date the award is earned or paid); and
(iv) With respect to Stock Appreciation Rights, no
more than 50,000 may be granted.
(c) Recapitalization Adjustment. In the event of any change
affecting the Shares by reason of any share dividend or split, recapitalization,
merger, consolidation, spin-off, combination or exchange of shares or other
corporate change, or any distribution to a holder of Shares other than ordinary
cash dividends, the Committee shall make such adjustment, if any, as it may deem
appropriate to avoid dilution in the number and kind of shares authorized for
issuance under the Plan, in the number and kind of shares covered by Incentive
Awards and, in the case of Options, in the option price.
Section 4. Administration
(a) Committee. The Plan shall be administered by a Committee
of the Board, comprised of three or more directors, who shall from time to time
be appointed by, and serve at the pleasure of, the Board. Each director serving
on the Committee shall be a "non-employee director" within the meaning of Rule
16b-3 promulgated under the Securities Exchange Act of 1934 and an "outside
director" within the meaning of Section 162(m) of the Code.
(b) Authority. The Committee shall have and exercise all the
power and authority granted to it under the Plan. Subject to the provisions of
the Plan, the Committee shall have authority in its sole discretion from time to
time (i) to designate from Employees the persons who shall be granted Incentive
Awards; (ii) to prescribe such limitations, restrictions and conditions upon any
such awards as the Committee shall deem appropriate, including establishing and
administering performance goals and certifying whether the performance goals
have been attained; (iii) to interpret the Plan and to adopt, amend and rescind
rules and regulations relating to the Plan; and (iv) to make all other
determinations and take all other actions necessary or advisable for the
implementation and administration of the Plan.
(c) Committee Actions. A majority of the Committee shall
constitute a quorum, and the acts of a majority of the members present at a
meeting at which a quorum is present, or acts reduced to or approved in writing
by all members of the Committee, shall be acts of the Committee. All such
actions shall be final, conclusive, and binding. No member of the Committee
shall be liable for any action taken or decision made in good faith relating to
the Plan or any Incentive Award thereunder.
(d) Interpretation and Construction. Any provision of this
Plan to the contrary notwithstanding, (i) certain designated Incentive Awards
under this Plan are intended to qualify as performance-based compensation within
the meaning of Code Section 162(m)(4)(C) and (ii) any provision of the Plan that
would prevent a designated Incentive Award from so qualifying shall be
administered, interpreted and construed to carry out such intention and any
provision that cannot be so administered, interpreted and construed shall to
that extent be disregarded.
Section 5. Eligibility and Incentive Awards
(a) Eligible Employees. The Committee may grant Incentive
Awards to officers and other Employees.
(b) Incentive Awards. Incentive Awards may be granted in any
one or more combinations of (i) Incentive Stock Options, (ii) Nonqualified Stock
Options, (iii) Restricted Share Awards, (iv) Performance Awards, and (v) Stock
Appreciation Rights. All Incentive Awards shall be subject to such other terms
and conditions as may be established by the Committee. Determinations by the
Committee under the Plan, including without limitation, designation of
Participants, the form, amount and timing of Incentive Awards, the terms and
provisions of Incentive Awards, and the written agreements evidencing Incentive
Awards, need not be uniform and may be made selectively among Employees who
receive, or are eligible to receive, Incentive Awards hereunder, whether or not
such Employees are similarly situated.
(c) Employment. The Plan and the Incentive Awards granted
hereunder shall not confer upon any Employee the right to continued employment
with the Company or affect in any way the right of the Company to terminate the
employment of an Employee at any time and for any reason.
Section 6. Options
The Committee may grant Incentive Stock Options and
Nonqualified Stock Options and such Options shall be subject to the following
terms and conditions and such other terms and conditions as the Committee may
prescribe:
(a) Option Price. The option price per Share with respect to
each Option shall be determined by the Committee but shall not be less than the
Fair Market Value of a Share on the date the Option is granted.
(b) Period of Option. The period of each Option shall be fixed
by the Committee but in no case may an option be exercised more than ten years
after the date of its grant.
(c) Exercise of Option. An Option may be exercised with
respect to all Shares covered thereby or may be exercised with respect to a
specified number of Shares over a specified period or periods as determined by
the Committee. Any Shares not purchased during a specified period may be
purchased thereafter at any time prior to the expiration of the Option unless
the Committee determines otherwise. Except as otherwise provided herein, an
Option may be exercised only if the Optionee has been continuously employed by
the Company since the date upon which the Option was granted. Whether authorized
leave of absence or absence for military or governmental service shall
constitute a termination of employment shall be determined by the Committee.
(d) Termination of Employment. In the event an Optionee ceases
to be employed by the Company for any reason (other than death or Gross
Misconduct), the Optionee may exercise an Option within three months after such
termination of employment to the extent he was entitled to exercise it on the
date of such termination of employment; provided, however, that if such Optionee
is an officer or director of the Company, such Optionee may exercise an Option
within seven months after such termination of employment.
(e) Retirement. In the event an Optionee ceases to be employed
by the Company because he retires under a retirement plan of the Company or
otherwise retires with the consent of the Company, the Optionee may exercise an
Option within three months after the date of his retirement to the extent the
Option was exercisable on the date of his retirement. The Committee, however, in
its discretion, may provide that any outstanding Option which is not yet
exercisable upon the retirement of the Optionee may become exercisable and may
extend the period after retirement during which any Option may be exercised.
(f) Death. In the event an Optionee shall die while employed
by the Company or after his termination of employment with the Company but at a
time that an Option held by him was exercisable, then the Option may be
exercised within one year after the Optionee's death to the extent that the
Optionee was entitled to exercise it on the date of his death, by the person or
persons (including the Optionee's estate) to whom his rights under such an
Option shall have passed by will or by the laws of descent and distribution.
(g) Limits on Incentive Stock Options. Except as may be
permitted by the Code, the Fair Market Value of Shares (determined at the time
of grant of Options) as to which Incentive Stock Options held by an Optionee
first become exercisable in any calendar year shall not exceed $100,000. In
addition, no Incentive Stock Option shall be granted to an Employee who
possesses, directly or indirectly (within the meaning of Section 424(d) of the
Code), at the time of grant more than 10% of the combined voting power of all
classes of stock of the Company unless the option price is at least 110% of the
Fair Market Value of the Shares subject to the Option on the date such Option is
granted and such Incentive Stock Option is not exercisable after the expiration
of five years from the date of grant.
(h) Notice of Exercise and Payment. An Option granted under
the Plan may be exercised by the Optionee giving written notice of exercise to
the Committee. The Option price for the Shares purchased shall be paid in full
at the time such notice is given. An Option shall be deemed exercised on the
date the Committee receives written notice of exercise, together with full
payment for the Shares purchased. The Option price shall be paid to the Company
either in cash, by delivery to the Company of Shares already-owned by the
Optionee or any combination of cash and such Shares. The Committee may, however,
at any time and in its discretion, adopt guidelines limiting or restricting the
use of already-owned Shares to pay all or any portion of the Option price. In
the event already-owned Shares are used to pay all or a portion of the Option
price, the amount credited to payment of the Option price shall be the Fair
Market Value of the already-owned Shares on the date the Option is exercised.
(i) Fractional Shares. No fractional shares shall be issued
pursuant to the exercise of an Option, nor shall any cash payment be made in
lieu of fractional shares.
Section 7. Restricted Share Awards
The Committee may issue Shares to an Employee which Shares
shall be subject to the following terms and conditions and such other terms and
conditions as the Committee may prescribe in connection with the grant of a
Restricted Share Award:
(a) General. With respect to each grant of Restricted Shares,
the Committee, in its sole discretion, shall determine the period during which
the restrictions set forth at Subsection 7(b) shall apply to the Restricted
Shares (the "Restricted Period").
(b) Restrictions. At the time of grant of Restricted Shares to
an Employee, a certificate representing the number of Shares granted shall be
registered in his name but shall be held by the Company for the account of the
Employee. The Employee shall have the entire beneficial ownership interest in,
and all rights and privileges of a shareholder as to, such Restricted Shares,
including the right to receive dividends and the right to vote such Restricted
Shares, subject to the following restrictions: (i) subject to Section 7(c), the
Employee shall not be entitled to delivery of the Share certificate until the
expiration of the Restricted Period; (ii) none of the Restricted Shares may be
sold, transferred, assigned, pledged, or otherwise encumbered or disposed of
during the Restricted Period; and (iii) all of the Restricted Shares shall be
forfeited and all rights of the Employee to such Restricted Shares shall
terminate without further obligation on the part of the Company unless the
Employee remains in the continuous employment of the Company for the entire
Restricted Period in relation to which such Restricted Shares were granted,
except as provided by Section 7(c). Any Shares received with respect to
Restricted Shares as a result of a recapitalization adjustment pursuant to
Section 3(c) shall be subject to the same restrictions as such Restricted
Shares.
(c) Termination of Employment.
(i) Retirement. If an Employee ceases to be employed
by the Company prior to the end of a Restricted Period by
reason of normal retirement under a retirement plan of the
Company or the Employee otherwise retires with the consent of
the Company, the number of Restricted Shares granted to such
Employee for such Restricted Period shall be reduced in
proportion to the Restricted Period (determined on a quarterly
basis) remaining after the Employee ceases to be an Employee
and all restrictions on such reduced number of Shares shall
lapse. A certificate for such Shares shall be delivered to the
Employee in accordance with the provisions of Section 7(d)
hereof. The Committee may, if it deems appropriate, direct
that the Employee receive a greater number of Shares free of
all restrictions but not exceeding the number of Restricted
Shares then subject to the restrictions of Section 7(b).
(ii) Death. If an Employee ceases to be employed by
the Company prior to the end of a Restricted Period by reason
of death, the Restricted Shares granted to such Employee shall
immediately vest in his beneficiary or estate and all
restrictions applicable to such Shares shall lapse. A
certificate for such Shares shall be delivered to the
Employee's beneficiary or estate in accordance with the
provisions of Subsection 7(d).
(iii) All Other Terminations. If an Employee ceases
to be an Employee prior to the end of a Restricted Period for
any reason other than retirement or death, the Employee shall
immediately forfeit all Restricted Shares then subject to the
restrictions of Section 7(b) in accordance with the provisions
thereof, except that the Committee may, if it finds that the
circumstances in the particular case so warrant, allow an
Employee whose employment has so terminated to retain any or
all of the Restricted Shares then subject to the restrictions
of Section 7(b) and all restrictions applicable to such
retained shares shall lapse. A certificate for such retained
shares shall be delivered to the Employee in accordance with
the provisions of Section 7(d).
(d) Payment of Restricted Shares. At the end of the Restricted
Period or at such earlier time as provided for in Subsection 7(c), all
restrictions applicable to the Restricted Shares shall lapse and a Share
certificate for a number of Shares equal to the number of Restricted Shares,
free of all restrictions, shall be delivered to the Employee or his beneficiary
or estate, as the case may be. The Company shall not be required to deliver any
fractional Share but will pay, in lieu thereof, the Fair Market Value (measured
as of the date the restrictions lapse) of such fractional Share to the Employee
or his beneficiary or estate, as the case may be.
Section 8. Performance Awards
The Committee may grant to Employees Performance Awards which
shall be subject to the following terms and conditions and such other terms and
conditions as the Committee may prescribe in connection with the grant of a
Performance Award:
(a) Award Period and Performance Goals. The Committee shall
determine and include in a Performance Award the period of time during which a
Performance Award may be earned ("Award Period"). The Committee may also
establish performance objectives ("Performance Goals") to be met by the Company,
Subsidiary or division during the Award Period as a condition to payment of the
Performance Award. The Performance Goals may include minimum and optimum
objectives or a single set of objectives.
With respect to Performance Awards that are intended to
qualify as "performance based" within the meaning of Code Section 162(m)(4)(C),
the Committee shall (i) select the Employees for such Incentive Awards, (ii)
establish in writing the applicable performance goals no later than 90 days
after the commencement of the period of service to which the performance goals
relate (or such earlier or later date as may be the applicable deadline for
compensation payable hereunder to qualify as "performance based" within the
meaning of Code Section 162(m)(4)(C)), and (iii) designate the Performance
Awards that are to qualify as "performance based" within the meaning of Code
Section 162(m)(4)(C).
The Committee shall establish in writing the Performance Goals
for each Award Period which shall be based on any of the following performance
criteria, either alone or in any combination, on either a consolidated or
business unit or divisional level, and which shall include or exclude
discontinued operations and acquisition expenses (e.g., pooling of interests),
as the Committee may determine: level of sales, earnings per share, income
before income taxes and cumulative effect of accounting changes, income before
cumulative effect of accounting changes, net income, return on assets, return on
equity, return on capital employed, total stockholder return, market valuation,
cash flow and completion of acquisitions. The foregoing criteria shall have any
reasonable definitions that the Committee may specify, which may include or
exclude any or all of the following items, as the Committee may specify:
extraordinary, unusual or non-recurring items; effects of accounting changes;
effects of currency fluctuations; effects of financing activities (e.g., effect
on earnings per share of issuing convertible debt securities); expenses for
restructuring or productivity initiatives; non-operating items; acquisition
expenses (e.g., pooling of interests); and effects of divestitures. Any such
performance criterion or combination of such criteria may apply to the
participant's award opportunity in its entirety or to any designated portion or
portions of the award opportunity, as the Committee may specify.
(b) No Discretion. With respect to Performance Awards that are
intended to qualify as "performance based" within the meaning of Code Section
162(m)(4)(C), the Committee has no discretion to increase the amount of the
award due upon attainment of the applicable performance goals. No provision of
this Plan shall preclude the Committee from exercising negative discretion with
respect to any award hereinafter (i.e., to reduce or eliminate the award
payable) within the meaning of Treasury Regulation Section
1.162-27(e)(2)(iii)(A).
(c) Performance Award Earned. The Performance Awards shall be
expressed in terms of Shares and referred to as "Performance Shares." With
respect to each Performance Award, the Committee shall fix the number of
allocable Performance Shares. The level of Performance Goals attained will
determine the percentage of Performance Shares earned for an Award Period. After
completion of the Award Period, the Committee shall certify in writing the
extent to which the Performance Goals and other material terms applicable to
such award are attained. Unless and until the Committee so certifies, the
Performance Award shall not be paid.
(d) Performance Award Payment. The Committee, in its
discretion, may elect to make payment of the Performance Award in Restricted
Shares, Shares, cash or any combination of the foregoing. If the Performance
Award is paid in Shares or Restricted Shares, the Company shall issue one Share
or Restricted Share for each Performance Share earned. If the Performance Award
is paid in cash, the cash payable shall be equal to the Fair Market Value of the
Performance Shares earned as of the last day of the Award Period.
(e) Requirement of Employment. A grantee of a Performance
Award must remain in the employment of the Company until the completion of the
Award Period in order to be entitled to payment under the Performance Award;
provided that the Committee may, in its sole discretion, provide for a partial
or full payment of the Performance Award that would have been payable if the
grantee had continued employment for the entire Award Period, which shall be
paid at the same time as would have been paid if no termination of employment
occurred, but only if and to the extent the exercise of such discretion does not
prevent any designated Incentive Award from qualifying as "performance based"
within the meaning of Code Section 162(m)(4)(C).
(f) Dividends. The Committee may, in its discretion, at the
time of the granting of a Performance Award, provide that any dividends declared
on Shares during the Award Period, and which would have been paid with respect
to Performance Shares had they been owned by a grantee, be (i) paid to the
grantee, or (ii) accumulated for the benefit of the grantee and used to increase
the number of Performance Shares of the grantee.
Section 9. Stock Appreciation Rights
The Committee may, at any time, in its discretion, grant a
right to receive the appreciation in the Fair Market Value of Shares ("Stock
Appreciation Right") either separately or in tandem with Options. Stock
Appreciation Rights shall be subject to the following terms and conditions and
such other terms and conditions as the Committee may prescribe:
(a) Time and Period of Grant. If a Stock Appreciation Right is
granted in tandem with an Option, it may be granted at the time the Option is
granted or at any time thereafter but prior to the expiration of the Option. If
a Stock Appreciation Right is granted in tandem with an Option, at the time the
Stock Appreciation Right is granted, the Committee may limit the exercise period
for such Stock Appreciation Right, before and after which period no Stock
Appreciation Right shall attach to the related Option. If a Stock Appreciation
Right is granted separately from an Option, the period for exercise of the Stock
Appreciation Right shall not exceed ten years from the date of grant.
(b) Value of Stock Appreciation Right. If a Stock Appreciation
Right is granted in tandem with an Option, the Optionee will be entitled to
surrender the Option which is then exercisable and receive in exchange therefor
an amount in cash equal to the excess of the Fair Market Value of a Share on the
date the election to surrender is received by the Committee over the Option
price multiplied by the number of Shares covered by the Option or portion
thereof which is surrendered. In the event a Stock Appreciation Right granted in
tandem with an Option is exercised, the right of the Optionee to exercise the
related Option shall be canceled to the extent Shares covered by such Option are
used to calculate cash paid upon exercise of the related Stock Appreciation
Right. If a Stock Appreciation Right is granted separately from an Option, the
Optionee will receive upon exercise of the Stock Appreciation Right an amount in
cash equal to the excess of the Fair Market Value of a Share on the date the
election to exercise such Stock Appreciation Right is received by the Committee
over the Fair Market Value of a Share on the date of grant multiplied by the
number of Shares as to which the Stock Appreciation Right is being exercised.
(c) Exercise of Rights and Payment. A Stock Appreciation Right
which is in tandem with an Option may be exercised when the related Option is
exercisable, provided, however, such a Stock Appreciation Right may only be
exercised on a date or dates on which the Fair Market Value of a Share exceeds
the option price per Share applicable to the related option. A Stock
Appreciation Right which is granted separate from an Option may be exercised at
such times as specified in the written instrument evidencing such right.
Notwithstanding the foregoing, an officer or director of the Company may only
exercise a Stock Appreciation Right in accordance with the provisions of Rule
16b-3 promulgated under the Securities Exchange Act of 1934. An Employee may
exercise a Stock Appreciation Right by giving written notice of exercise,
specifying the number of Shares as to which the right is exercised, to the
Committee. Provided the exercise is valid and in accordance with the terms of
the Plan, the Company shall promptly, after the receipt of such a notice, pay to
the Employee the cash to which he is entitled.
Section 10. Non-Assignability of Incentive Awards
No Incentive Award granted under the Plan shall be assigned,
transferred, pledged, or otherwise encumbered by an Employee, otherwise than by
will, by designation of a beneficiary after death, or by the laws of descent and
distribution, or be made subject to execution, attachment or similar process.
Each Incentive Award shall be exercisable during the Employee's lifetime only by
the Employee or, if permissible under applicable law, by the Employee's guardian
or legal representative.
Section 11. Change of Control
(a) General. In order to maintain all of the Employee's rights
in the event of a Change of Control of the Company, the Committee, in its sole
discretion, may, as to any Incentive Award, either at the time that an Incentive
Award is made or any time thereafter, take any one or more of the following
actions:
(i) provide for the acceleration of any time periods
relating to the exercise or realization of any such award, so
that such award may be exercised or realized in full on or
before a date fixed by the Committee,
(ii) provide for the purchase of any such award by
the Company, upon an Employee's request, for an amount of cash
equal to the amount that could have been attained upon the
exercise of such award or realization of such Employee's
rights had such award been currently exercisable or payable,
(iii) make such adjustment to any such award then
outstanding as the Committee deems appropriate to reflect a
Change of Control, or
(iv) cause any such award then outstanding to be
assumed, or new rights substituted therefor, by the acquiring
or surviving corporation, if any, in connection with a Change
of Control.
(b) Options. All outstanding Options which are not yet exer-
cisable shall become immediately exercisable in full in the event of a Change of
Control of the Company.
Section 12. Taxes
(a) Withholding for Taxes. The Company shall be entitled, if
necessary or desirable, to withhold the amount of any tax attributable to any
amounts payable under any Incentive Award and the Company may defer making
payment of any Incentive Award if any such tax, charge, or assessment may be
pending until indemnified to its satisfaction.
(b) Use of Shares for Tax Withholding Payments. With the
approval of the Committee, Shares may be used in lieu of cash to pay all or any
part of the mandatory federal, state or local withholding tax payments to be
made by the Employee in connection with an Incentive Award, as follows:
(i) Nonqualified Stock Options. (a) The holder of a
Nonqualified Stock Option may elect to have the Company
retain from the Shares to be issued upon exercise of such
an option Shares having a Fair Market Value equal to the
withholding tax to be paid; or (b) the holder of a
Nonqualified Stock Option may deliver to the Company
already-owned Shares having a Fair Market Value equal to
the withholding tax to be paid and in such case, the
election to use already-owned Shares for such purpose and
the exercise of the Nonqualified Stock Option may occur at
any time.
(ii) Restricted Share Awards. If withholding taxes
are required to be paid at the time Restricted Shares are
delivered to an Employee or at the expiration of the
Restricted Period, then the Employee may pay such taxes by
delivering to the Company already-owned Shares having a
Fair Market Value equal to the amount of the withholding
tax being paid by the use of already-owned Shares.
(iii) Performance Shares. If withholding taxes are
required to be paid at the time Shares are delivered to an
Employee as a Performance Award, then the Employee may pay
such taxes by delivering to the Company already-owned
Shares having a Fair Market Value equal to the amount of
the withholding tax being paid by the use of already-owned
Shares.
Section 13. Compliance With Laws and Exchange Requirements
No Option or Stock Appreciation Right shall be granted and no
Shares shall be issued in connection with any Incentive Award unless the grant
of the Option or the Stock Appreciation Right and the issuance and delivery of
Shares or cash pursuant to the Incentive Award shall comply with all relevant
provisions of state and federal law, including, without limitation, the
Securities Act of 1933, the Securities Exchange Act of 1934, the rules and
regulations promulgated thereunder, and the requirements of any stock exchange
upon which the Shares may then be listed.
Section 14. Amendment and Termination of Plan
(a) Amendment. The Board may from time to time amend the Plan,
or any provision thereof, in such respects as the Board may deem advisable
except that it may not amend the Plan without shareholder approval so as to:
(i) increase the maximum number of Shares that may be
issued under the Plan except in accordance with Section 3(c);
(ii) permit the granting of Options with exercise
prices lower than those specified in Section 6;
(iii) materially modify the requirements as to eligi-
bility for participation in the Plan; or
(iv) prevent future grant of Incentive Awards to
qualify as "performance based" within the meaning of Section
162(m)(4)(C) of the Code.
(b) Termination. The Board may at any time terminate the Plan
(c) Effect of Amendment or Termination. Any amendment or the
termination of the Plan shall not adversely affect any Incentive Award
previously granted nor disqualify an Incentive Award from being treated as
"performance based" within the meaning of Section 162(m)(4)(C) of the Code.
Incentive Awards outstanding at the time that the Plan is amended or terminated
shall remain in full force and effect as if the Plan had not been amended or
terminated.
Section 15. Notices
Each notice relating to the Plan shall be in writing and
delivered in person or by certified or registered mail to the proper address.
Each notice to the Committee shall be addressed as follows: Amcast Industrial
Corporation, 7887 Washington Village Drive, Post Office Box 98, Dayton, Ohio
45401-0098, Attention: Compensation Committee. Each notice to a Participant
shall be addressed to the Participant at the address of the Participant
maintained by the Company on its books and records. Anyone to whom a notice may
be given under this Plan may designate a new address by written notice to the
other party to that effect.
Section 16. Benefits of Plan
This Plan shall inure to the benefit of and be binding upon
each successor of the Company. All rights and obligations imposed upon a
Participant and all rights granted to the Company under this Plan shall be
binding upon the Participant's heirs, legal representatives and successors.
Section 17. Pronouns and Plurals
All pronouns shall be deemed to refer to the masculine,
feminine, singular or plural, as the identity of the person or persons may
require.
Section 18. Shareholder Approval and Term of Plan
(a) The Plan shall become effective upon its adoption by the
Board. No payment of cash or Shares in connection with an Incentive Award shall
be made, and no Option shall be exercised, prior to the approval of the Plan by
the affirmative vote of the holders of a majority of the outstanding Shares
present, in person or by proxy, and entitled to vote at an annual meeting of the
shareholders of the Company. Unless the Plan shall be so approved by the
shareholders of the Company at the next annual meeting after its adoption by the
Board, the Plan shall terminate and all Incentive Awards granted under the Plan
shall be canceled.
(b) Unless sooner terminated under Section 14, the Plan shall
be in effect from the date of its adoption by the Board and automatically
terminate on the tenth anniversary of its adoption by the Board.
- ---------------------
(1) The Plan was approved by the Board on August 25, 1999.
Exhibit 5.1
Thompson Hine & Flory LLP
2000 Courthouse Plaza, N.E.
P.O. Box 8801
Dayton, Ohio 45401-8801
(937) 443-6600
April 26, 2000
Amcast Industrial Corporation
7887 Washington Village Drive
Dayton, Ohio 45401
Ladies and Gentlemen:
We have acted as counsel to Amcast Industrial Corporation, an Ohio corporation
(the "Company"), in connection with the Amcast Industrial Corporation 1999
Stock Incentive Plan (the "Plan") and the preparation of the Company's
Registration Statement on Form S-8 being filed with the Securities and Exchange
Commission in connection therewith.
Please be advised that we have examined such proceedings and records of the
Company, and have made investigation of such other matters, as in our judgment
permits us to render an informed opinion on the matters set forth herein.
Based upon the foregoing, it is our opinion that the common shares of the
Company to be offered and sold under the Plan have been duly authorized and
when sold in accordance with the terms of the Plan, will be fully paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Company's
Registration Statement on Form S-8 with respect to the Plan.
Very truly yours,
/s/ Thompson Hine & Flory LLP
DAN:JMR:lsh
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Amcast Industrial Corporation 1999 Stock
Incentive Plan of our report dated October 19, 1999 with respect to the
consolidated financial statements and schedules of Amcast Industrial
Corporation incorporated by reference in its Annual Report (Form 10-K) for the
year ended August 31, 1999 filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
---------------------
Ernst & Young LLP
Dayton, Ohio
April 17, 2000
Exhibit 24.1
AMCAST INDUSTRIAL CORPORATION
LIMITED POWER OF ATTORNEY
WHEREAS, Amcast Industrial Corporation, an Ohio corporation (the
"Company"), intends to file with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "Act"), a Registration Statement on
Form S-8 covering 425,000 of its common shares, without par value, that may be
issued under the Company's 1999 Stock Incentive Plan the "Registration
Statement").
NOW THEREFORE, the undersigned, in his capacity as a director of
the Company, hereby appoints John H. Shuey and Denis G. Daly and each of them
to be his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, to execute his name, place and stead, as
aforesaid, the Registration Statements and any post-effective amendments
thereto, and any and all other instruments necessary or incidental in
connection therewith, and to file the same with the Securities and Exchange
Commission. Said attorney shall have full power and authority to do and
perform, in the name and on behalf of the undersigned, every act whatsoever
necessary or desirable to be done, as fully to all intents and purposes as the
undersigned might or could do in person. The undersigned hereby ratifies and
approves the acts of said attorney.
IN WITNESS WHEREOF, the undersigned has executed this instrument
this 22nd day of March, 2000.
/s/ James K. Baker /s/ Leo W. Ladehoff
---------------------- -------------------
James K. Baker Leo W. Ladehoff
/s/ Walter E. Blankley /s/ Earl T. O'Loughlin
---------------------- -----------------------
Walter E. Blankley Earl T. O'Loughlin
/s/ Peter H. Forster /s/ William G. Roth
---------------------- -----------------------
Peter H. Forster William G. Roth
/s/ Bernard G. Rethore /s/ R. William Van Sant
---------------------- -----------------------
Bernard G. Rethore R. William Van Sant
