As filed with the Securities and Exchange Commission on May 16,
1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CBI INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3009343
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
(Address of Principal Executive Offices)
CBI INDUSTRIES INC. 1995 STOCK OPTION PLAN
(Full title of the Plan)
Charles O. Ziemer, Esq.
Senior Vice President and General Counsel
800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
(708) 572-7000
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price (1) Fee (1)
Common Stock, par 1,700,000 $25.75 $43,775,000 $15,094.83
value $2.50 per
share
(1) In accordance with Rule 457 calculated on the basis of the
average of the high ($25.875) and low ($25.625) prices for the
Common Stock on the New York Stock Exchange Composite tape on May
15, 1995.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the
Commission (File No. 1-7833) are incorporated by reference in the
registration statement: (i) Annual Report on Form 10-K for the
fiscal year ended December 31, 1994, together with the reports of
independent public accountants which includes an explanatory
paragraph that describes changes in accounting principles with
respect to the methods of accounting for income taxes and for
postretirement benefits other than pensions, (ii) Quarterly Report
on Form 10-Q for the quarter ended March 31, 1995, (iii) the
description of the Common Stock as set forth in Item 1 of the
Company's Registration Statement on Form 8-A filed with the
Commission on April 20,1979, and (iv) the description of preferred
stock purchase rights as set forth in Item 1 of the Company's
Amendment No. 1 to Registration Statement on Form 8-A filed with
the Commission on August 8, 1989, Amendment No. 2 to Registration
Statement on Form 8-A filed with the Commission on December 21,
1994 and Amendment No. 3 to Registration Statement on Form 8-A
filed with the Commission on April 21, 1995.
All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this Registration Statement and prior to the filing of a post-
effective amendment to the registration statement which indicates
that all of the shares of Common Stock offered have been sold or
which deregisters all of the shares then remaining unsold shall be
deemed to be incorporated by reference herein and to be a part
hereof from the date of filing such documents. Any statement
contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the
extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein, modifies or supersedes such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the Securities offered hereby will be
passed upon for the Company by Charles O. Ziemer, Esq., General
Counsel of the Company. As of May 11, 1995, Mr. Ziemer
beneficially owned 31,295 shares of Common Stock and had options to
purchase 56,200 shares of Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 145 of the General Corporation
Law of the State of Delaware which provides generally that a person
sued as a director, officer, employee or agent of a corporation may
be indemnified by the corporation in non-derivative suits for
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement if such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation. In the case of criminal actions and
proceedings such person must also have had no reasonable cause to
believe his conduct was unlawful. Indemnification of expenses is
also authorized in stockholder derivative actions provided such
person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation
and so long as he had not been found liable to the corporation.
Even in this latter instance, the court may determine that in view
of all the circumstances such person is entitled to indemnification
for such expenses as the court deems proper. A person sued as a
director, officer, employee or agent of a corporation who has been
successful in defense of the action must be indemnified by the
corporation against expenses. A corporation may amend its
certificate of incorporation to eliminate or limit personal
liability of a director to the corporation or its stockholders for
monetary damages for breach of the director's fiduciary duty of
care, although such an amendment may not eliminate the liability of
a director for breaching his duty of loyalty, failing to act in
good faith, engaging in intentional misconduct or knowingly
violating a law, declaring an illegal dividend or approving an
illegal stock repurchase, or obtaining an improper personal
benefit.
Article Sixteenth of the Company's Certificate of
Incorporation eliminates director liability to the extent described
in the preceding sentence. Article VIII of the Company's By-Laws
permits indemnification of directors and officers of the Company to
the fullest extent permitted by the Delaware General Corporation
Law, and provides that expenses incurred by a director or officer
in defending certain suits or proceedings may be conditionally paid
by the Company in advance of the final disposition of such actions.
The Company has provided liability insurance for each
director and officer for certain losses arising from claims or
charges made against them while acting in their capacities of
directors or officers of the Company.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
(4)(a) -- CBI Industries Inc. 1995 Stock Option Plan
(b) -- Restated Certificate of Incorporation of the Company
(filed as Exhibit 3 to the Company's Form 10-Q
Quarterly Report dated November 10, 1994 (Commission
File No. 1-7833) and incorporated herein by
reference).
(c) -- By-laws, as amended (filed as Exhibit 3(b) to the
Company's Form 10-Q Quarterly Report dated
May 13, 1994 (Commission File No. 1-7833)
and incorporated by reference herein).
(d) -- Amendment and Restatement dated as of August 8, 1989
of a Rights Agreement dated as of March 4, 1986
between the Company and First Chicago Trust Company,
as Rights Agent (the "Rights Agreement"), as amended,
filed as exhibit (1) to the Company's Current Report
on Form 8-K dated August 8, 1989 (Commission File No.
1-7833) and incorporated herein by reference).
(e) -- Amendment dated as of December 20, 1994 to the Rights
Agreement filed as exhibit (1) to the Company's Current
Report on Form 8-K dated December 21, 1994 (Commission
File No. 1-7833) and incorporated herein by reference).
(f) -- Amendment dated as of March 8, 1995 to the Rights
Agreement filed as exhibit (1) to the Company's Current
Report on Form 8-K dated April 21, 1995 (Commission
File No. 1-7833) and incorporated herein by reference).
(5) -- Opinion of Charles O. Ziemer, Senior Vice President and
General Counsel of CBI Industries, Inc.
(23)(a) -- Consent of Arthur Andersen & Co.
(b) -- Consent of Charles O. Ziemer (contained in, and
incorporated herein by reference to, Exhibit 5)
(24) -- Power of Attorney (included under the caption entitled
"Power of Attorney" in Part II of this Registration
Statement).
Item 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes as follows:
(a)(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 undertakings (i) and (ii) do not
apply if the information required to be included in a post-
effective amendment is contained in periodic reports filed
by the Registrant pursuant to Sections 13 or 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) 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 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.
(h) 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 provisions described in Item 15 above, 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 Amendment to the Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized,
in the Village of Oak Brook, State of Illinois on May 11, 1995.
CBI INDUSTRIES, INC.
By: /S/ John E. Jones
John E. Jones,
Chairman of the Board,
President and Chief
Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of CBI Industries,
Inc., hereby severally constitute and appoint John E. Jones,
George L. Schueppert, and Buel T. Adams, and each of them, agent
and attorney-in-fact, with full power of substitution and
resubstitution for them and in their names, place and stead, to
sign for us, and in our names in the capacities indicated below,
any and all amendments (including post-effective amendments) to
this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as
fully to all intents and purposes as each of us might or could do
in person, hereby ratifying and confirming all that said
attorney-in-fact and agents, or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Witness our hands on the date set forth below.
__________________________
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities indicated below on May 11, 1995.
Signature Title
/S/ John E. Jones Chairman of the Board,
John E. Jones President and Chief
Executive Officer
(Principal Executive
Officer)
/S/ Lewis E. Akin Executive Vice President
Lewis E. Akin and Director
/S/ Wiley N. Caldwell Director
Wiley N. Caldwell
/S/ E. Hubert Clark, Jr. Director
E. Hubert Clark, Jr.
/S/ Robert J. Daniels Executive Vice President
Robert J. Daniels and Director
/S/ Robert J. Day Director
Robert J. Day
/S/ John T. Horton Director
John T. Horton
/S/ Gary E. MacDougal Director
Gary E. MacDougal
/S/ Stephanie Pace Marshall Director
Stephanie Pace Marshall
/S/ Edward J. Mooney Director
Edward J. Mooney
Director
John F. Riordan
/S/ Robert T. Stewart Director
Robert T. Stewart
/S/ George L. Schueppert Executive Vice President
George L. Schueppert -Finance and Director
(Principal Financial
Officer)
/S/ Alan J. Schneider Vice President and
Alan J. Schneider Controller
(Principal Accounting
Officer)
/S/ Robert G. Wallace Director
Robert G. Wallace
Exhibit No. 5
Attached to and Made Part of
SECURITIES AND EXCHANGE COMMISSION FORM S-8
Filed By
CBI INDUSTRIES, INC.
May 11, 1995
CBI Industries, Inc.
800 Jorie Boulevard
Oak Brook, Illinois 60522-7001
Re: Registration of 1,700,000 Shares of Common Stock, par value
$2.50, of CBI Industries, Inc.
In connection with the registration under the Securities Act
of 1933, as amended, of 1,700,000 shares of common stock, par value
$2.50 per share, of CBI Industries, Inc., a Delaware corporation
(hereinafter called the "Company"), I have examined the Restated
Certificate of Incorporation, filed in the office of the Secretary
of State of the State of Delaware on September 27, 1994, and all
amendments thereof to the date of this letter, the minutes of a
meeting of the Company's Board of Directors held on January 11,
1995, evidencing adoption of the CBI Industries, Inc. Stock Option
Plan (1995), as amended, (hereinafter called the "Plan"), the
minutes of the Company's Annual Meeting of Shareholders held on May
11, 1995, evidencing approval of the Plan, and have made such
further examination and inquiry as I deemed necessary in order to
enable me to render the following opinion.
It is my opinion that:
1. The Company is a corporation duly organized and
validly existing under the laws of the State of Delaware:
2. When there has been received by the Company, as
consideration for so many of said 1,700,000 shares which are
presently authorized but unissued as may be sold and issued to
employees of the Company pursuant to their exercise of options to
purchase stock under the Plan as described in the Registration
Statement on Form S-8 and Prospectus, cash or stock for each such
share in an amount equal to the option price for that share
established pursuant to the option and in accordance with the Plan
(which may not be less than $2.50 per share, the par value of each
of such shares), then each of such shares issued by the Company to
the employees of the Company and so paid for by those employees
under and pursuant to the Plan as above set forth will be duly
authorized, legally issued, fully paid and non-assessable.
I hereby consent to the filing of a copy of this opinion with
the Securities and Exchange Commission as an exhibit to the
Company's Registration Statement on Form S-8 relating to said
1,700,000 shares of the Company's common stock, and to the use of
my name in said Registration Statement.
Very truly yours,
/s/ Charles O. Ziemer
Charles O. Ziemer
Senior Vice President and
General Counsel
Exhibit 24
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Form S-8 registration statement
of our report dated February 6, 1995 incorporated by reference in
CBI Industries, Inc.'s Form 10-K for the year ended December 31, 1994.
ARTHUR ANDERSEN LLP
Chicago, Illinois,
May 15, 1995.
CBI INDUSTRIES, INC.
1995 CBI STOCK OPTION PLAN
(Effective January 1, 1995)
1. Purpose of Plan
The purpose of the CBI Industries, Inc., 1995 Stock Option
Plan (the "Plan") is to aid CBI Industries, Inc. and its
Subsidiaries (collectively the "Company") in securing and
retaining Key Employees of outstanding ability by making it
possible to offer them an increased incentive in the form of a
proprietary interest in the Company, to join or continue in the
service of the Company and to increase their efforts for its
welfare.
2. Definitions
As used in this Plan, the following words shall have the
following meanings:
(a) "CBI" means CBI Industries, Inc.;
(b) "Board of Directors" means the Board of Directors of
CBI;
(c) "Common Stock" means common stock of CBI;
(d) "Holder" means either a Participant or a person other
than a Participant to whom an Option or a Right has
been transferred in accordance with Section 8(d)
herein;
(e) "Incentive Stock Option" means an option to purchase
shares of Common Stock which is intended to qualify as
an "incentive stock option" as defined in Section 422A
of the Internal Revenue Code;
(f) "Key Employee" means any person, including officers, in
the regular full-time employment of the Company who, in
the opinion of the Committee referred to in Section 3,
is or is expected to be primarily responsible for the
management, growth or protection of some part or all of
the business of the Company;
(g) "Limited Right" means a right to receive cash in lieu
of the exercise of an Option, if granted pursuant to
Section 5(e);
(h) "Officers Exercise Period" means any period beginning
on the third business day following the date of public
release of a summary statement of CBI's quarterly or
annual sales and earnings and ending on the twelfth
business day following such date;
(i) "Non-Qualified Stock Option" means an option to
purchase shares of Common Stock which is intended not
to qualify as an incentive stock option as defined in
Section 422A of the Internal Revenue Code;
(j) "Option" means an Incentive Stock Option or a
Non-Qualified Stock Option;
(k) "Participant" means a person to whom an Option is
granted that has not terminated and ceased to be
exercisable under the Plan;
(l) "Right" means a stock appreciation right to elect to
receive shares of Common Stock with a fair market
value, at the time of any exercise of such stock
appreciation right, equal to the amount by which the
fair market value of all shares subject to the Option
(or part thereof) in respect of which such stock
appreciation right was granted exceeds the exercise
price of said Option (or part thereof), or to receive
from CBI, in lieu of such shares, the fair market value
thereof in cash, as provided in Section 7; and
(m) "Subsidiary" means any corporation other than CBI in an
unbroken chain of corporations beginning with CBI if
each of the corporations other than the last
corporation in the unbroken chain owns 50% or more of
the voting stock in one of the other corporations in
such chain.
3. Administration of Plan
The Plan shall be administered by the Compensation Committee
of the Board of Directors (the "Committee"). None of the members
of the Committee shall be eligible to be selected for the grant
of an Option, Right, Limited Right, or any other option, stock
appreciation right or shares under the Plan or the grant of any
stock or option under any other plan maintained by the Company
during such membership or have been so eligible for selection
within one year prior thereto or thereafter. The Committee may
adopt its own rules of procedure, and the action of a majority of
the Committee, taken at a meeting or taken without a meeting by a
writing signed by such majority, shall constitute action by the
Committee. The Committee shall have the power and authority to
administer, construe and interpret the Plan, to make rules for
carrying it out and to make changes in such rules.
4. Granting of Options
The Committee may from time to time grant Options under the
Plan to such Key Employees and for such numbers of shares as the
Committee may determine. The Committee may grant Options in
such amounts and may impose such conditions on the grant of an
Option as it deems advisable.
5. Terms of Options
The terms of each Option granted under the Plan shall be as
determined from time to time by the Committee and shall be set
forth in an Incentive Stock Option Agreement or a Non-Qualified
Stock Option Agreement, as shall be appropriate, in a form
approved by the Committee, consistent, however, with the
following:
(a) The Option price per share shall not be less than fair
market value at the time the Option is granted.
(b) The Option shall be exercisable in whole or in part
from time to time during the period beginning at the
completion of the required holding period stated in the
Option, if any, and ending at the expiration of ten
years from the date of grant of the Option, unless an
earlier expiration date shall be stated in the Option
or the Option shall cease to be exercisable pursuant to
paragraph (d) of this Section 5.
(c) Payment in full of the Option price shall be made upon
exercise of each Option and may be made in cash, by the
delivery of shares of Common Stock with a fair market
value equal to the Option price, or by a combination of
cash and such shares whose fair market value together
with such cash shall equal the Option price.
(d) If a Participant's employment with the Company
terminates other than by reason of the Participant's
death, retirement for disability or retirement under a
retirement plan of the Company, the Participant's
Option shall terminate and cease to be exercisable. If
a Participant's employment with the Company terminates
by reason of death or retirement due to disability, an
Incentive Stock Option shall terminate and cease to be
exercisable at the earlier of ten years from the date
of grant or one year from the date of death or such
retirement; if by reason of retirement under a plan,
then at the earlier of ten years from the date of grant
or three months from the date of such retirement. The
Committee may, upon written request of a Holder,
convert an Incentive Stock Option into a Non-Qualified
Stock Option, and if such request is granted, the
provisions concerning termination of Non-Qualified
Stock Options shall apply to the Option in question
which has been converted. A Non-Qualified Stock Option
shall terminate at the earlier of ten years from the
date of grant or one year from the date of termination
of employment if such termination is due to death.
Following any retirement of a Participant, a
Non-Qualified Stock Option shall terminate on the
expiration date of the Option. If the terms of an
Option provide for its expiration prior to ten years
from the date of grant, the Committee may at any time
extend the expiration date of the Option but not beyond
ten years from its date of grant. In the event any
date specified herein falls on a day that is not a
business day, then such date shall be deemed to be the
next following business day.
(e) An Option may contain a Limited Right to receive cash
in lieu of shares under conditions to be set forth in
the Option, in the discretion of and as determined by
the Committee, in addition to Rights.
6. Granting of Rights
The Committee, at the time of grant of an Option or at any
time prior to the expiration of the term of an Option may also
grant, subject to the terms and conditions of the Plan, Rights in
respect of all or part of such Option to a Holder, provided that,
if granted to a Participant, the Participant at such time is a
Key Employee.
7. Exercise of Options and Rights
(a) A Holder who decides to exercise an Option or Right in
whole or in part shall give notice in writing to the
Secretary of CBI of such exercise on a form approved by
the Committee. A notice exercising a Right shall also
specify the extent, if any, to which the Holder elects
to receive shares of Common Stock and the extent, if
any, to which the Holder elects to receive cash, but
shall in any event be subject to the determination by
the Committee as provided in paragraph (d) of this
Section 7. Any exercise shall be effective as of the
date specified in the notice of exercise, but not
earlier than the date the notice of exercise is
actually received by the Secretary of CBI, and in the
case of exercise of an Option, when payment in full of
the Option price is actually received by the Secretary
of CBI.
(b) To the extent an Option is exercised in whole or in
part, any Right granted in respect of such Option (or
part thereof) shall terminate and cease to be exer-
cisable. To the extent a Right is exercised in whole
or in part, the Option (or part thereof) in respect of
which such Right was granted shall terminate and cease
to be exercisable.
(c) Subject to Section 6, a Right shall be exercisable only
during the period in which the Option (or part thereof)
in respect of which such Right was granted is exer-
cisable and, in addition, if the Holder of such Right
is an officer of CBI and elects to receive cash for all
or part of the payments upon exercise, or who exercises
for such cash, such Holder may so elect or exercise
such Right only during an Officer's Exercise Period.
For this purpose only, the fair market value of shares
of CBI stock shall be deemed to be the average of the
closing prices for public trading on the largest
national securities exchange on which such shares trade
for all of the business days within such Officer's
Exercise Period.
(d) The Committee shall have sole discretion to determine
the form in which payment will be made following
exercise of a Right. All or any part of the obligation
arising out of an exercise of a Right may be settled:
(i) by payment in shares of Common Stock with a fair
market value equal to the cash that would
otherwise be paid,
(ii) by payment in cash, or
(iii) by payment in a combination of such shares
and cash.
(e) To the extent that any Right shall not have been
exercised or cancelled or become non-exercisable, it
shall be deemed to have been exercised automatically,
without any notice of exercise, on the last day on
which the Right's related Option is exercisable, or, in
the case of officers of CBI, on the last day of the
Officer's Exercise Period before the last day on which
the Right's related Option is exercisable, provided
that any other conditions or limitations on the Right's
exercise other than notice of exercise are satisfied
and the Right shall then have value. Such exercise
shall be deemed to specify that, subject to
determination by the Committee as provided in paragraph
(d) of this Section 7, the Holder elects to receive
cash and that such exercise of a Right shall be
effective as of the time of the exercise.
(f) The aggregate fair market value of the shares for which
any Key Employee may exercise Incentive Stock Options
in any calendar year under all plans of CBI shall not
exceed the sum of $100,000 plus the amount which may be
carried forward to that year. For purposes of the
preceding sentence, the aggregate fair market value
shall be determined as of the time an Incentive Stock
Option is granted, and the amount which may be carried
forward from each previous calendar year is $100,000
minus the amount of Incentive Options first exercisable
and actually exercised in that previous calendar year.
This provision shall be applied by taking options into
account in the order in which they were granted.
(g) To the extent the receipt of shares of Common Stock
pursuant to the exercise of any Option or Right is
subject to the withholding of any income or employment
taxes by CBI for which CBI requires reimbursement from
the recipient, the recipient may elect to reimburse CBI
with shares of Common Stock withheld from the shares to
be received, or cash, or a combination of such shares
and cash, of sufficient value to make such
reimbursement. Any such withholding or reimbursement
shall comply with all applicable governing laws and
regulations.
8. Limitations and Conditions
(a) The total number of shares of Common Stock that may be
optioned or issued or transferred upon exercise of
Rights under the Plan is 1,700,000 shares. Such total
number of shares may consist, in whole or in part, of
unissued shares or reacquired shares. The foregoing
number of shares may be increased or decreased by the
events set forth in of Section 10.
(b) Any shares that have been optioned that cease to be
subject to an Option (other than by reason of exercise
of the Option) shall again be available for option and
shall not be considered as having been theretofore
optioned. Any shares subject to an Option (or part
thereof) that is cancelled upon exercise of a Right
shall be treated as if the Option itself were exercised
and such shares shall no longer be available for grant.
(c) No Option or Right shall be granted under the Plan
after January 1, 2005 but Options and Rights
theretofore granted may extend beyond that date. At
the time an Option or Right is granted or amended or
the terms or conditions of an Option or Right are
changed, the Committee may provide for limitations or
conditions on the exercisability of the Option or
Right.
(d) (i) A Non-Qualified Stock Option shall be non-
transferrable unless the Committee designates
otherwise. An Incentive Stock Option or a Right
associated therewith shall not be transferable by
the Participant otherwise than by will or by the
laws of descent and distribution or by the
provisions for the designation of a beneficiary in
accordance with (ii) below. A Right shall never
be transferred except to the transferee of the
related Option. During the lifetime of the
Participant, an Incentive Stock Option or a Right
associated therewith shall only be exercisable by
the Participant.
(ii) Upon the death of a Participant, any outstanding
and unexercised Options or Rights held by such
Participant on the date of death shall be
transferred to such beneficiary or beneficiaries
as have been effectively designated by the
Participant or, if none, then to the deceased
Participant's surviving spouse or, if none, then
to the Participant's lawful descendants, per
stirpes as defined by common law, or, if none,
then to the deceased Participant's estate. Any
such transfer shall be effective as of the date of
death of the Participant. To be effective, the
designation of such beneficiary must be filed with
the Committee or its designate in such written
form as it requires and may include secondary,
successive or contingent beneficiaries. Any
Participant may change a beneficiary designation
at any time by filing with the Committee a new
beneficiary designation meeting the above require-
ments. The determination of the Committee as to
the identity of a beneficiary, or whether a
beneficiary is living or dead, pursuant to any
determinations of rights under this Plan shall be
conclusive and binding on all concerned.
(e) No person shall have any rights of a stockholder (i) as
to shares under option until, after proper exercise of
the Option, such shares shall have been recorded on
CBI's official stockholder records as having been
issued or transferred or (ii) as to shares to be
delivered following exercise of a Right until, after
proper exercise of the Right and determination by the
Committee to make payment therefor in shares, such
shares shall have been recorded on CBI's official
stockholder records as having been issued or
transferred.
(f) CBI shall not be obligated to deliver any shares until
they have been listed (or authorized for listing upon
official notice of issuance) upon each stock exchange
upon which outstanding shares of such class at the time
are listed nor until there has been compliance with
such laws or regulations as CBI may deem applicable.
CBI shall use its best efforts to effect such listing
and compliance. No fractional shares shall be
delivered.
(g) The total number of shares of Common Stock that may be
optioned to a Participant in any year shall not exceed
100,000 shares.
9. Transfers and Leaves of Absence
For the purposes of the Plan: (a) a transfer of a
Participant's employment without an intervening period from CBI
to a Subsidiary or vice versa, or from one Subsidiary to another,
shall not be deemed a termination of employment, and (b) a
Participant who is granted in writing a leave of absence shall be
deemed to have remained in the employ of the Company during such
leave of absence.
10. Stock Adjustments
In the event of any merger, consolidation, stock dividend,
split-up, combination or exchange of shares or recapitalization
or change in capitalization, the total number of shares set forth
in paragraph (a) of Section 8 shall be proportionately and
appropriately adjusted. In any such case, the number and kind
of shares that are subject to any Option (including any Option
outstanding after termination of employment), the Option price
per share and the number of Rights granted in connection
therewith, if any, shall be proportionately and appropriately
adjusted by the Committee without any change in the aggregate
Option price to be paid therefor upon exercise of the Option.
11. Amendment and Termination
(a) The Board of Directors shall have the power to amend
the Plan, including the power to change the amount of
the aggregate fair market value of the shares for which
any Key Employee may exercise Incentive Stock Options
under Section 4 to the extent provided in Section 422A,
or any successor provision, of the Internal Revenue
Code. It shall not, however, except as otherwise
provided in the Plan, increase the maximum number of
shares authorized for the Plan, nor reduce the basis
upon which the minimum Option price is determined, nor
extend the period within which Options or Rights under
the Plan may be granted, nor change the basis upon
which shares or cash may be distributed upon exercise
of a Right, nor provide for an Option or Right that is
exercisable more than ten years from the date of grant.
It shall have no power (without the consent of the
person or persons at the time entitled to exercise the
Option) to change the terms and conditions of any
Option in a manner that would adversely affect the
rights of such person or persons except to the extent,
if any, provided in the Option.
(b) The Board of Directors may suspend or terminate the
Plan at any time. No such suspension or termination
shall affect Options or Rights then in effect.
12. Effective Date
The Plan shall be effective as of January 1, 1995, subject
to its approval by the stockholders of CBI and subject to any
modification that may be made herein prior to such stockholder
approval that may be deemed required or appropriate by the Board
of Directors to meet legal requirements. All Options, together
with related Rights or Limited Rights, if any, which have been or
may be granted under the Plan prior to stockholder approval,
shall be conditioned upon, and may not be exercised until after,
such stockholder approval.
