September 4, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: Quixote Corporation, Registration Statement on Form S-8
Ladies and Gentlemen:
On behalf of Quixote Corporation (the "Company"), following via EDGAR
transmission is a Registration Statement on Form S-8 complete with exhibits.
The required registration fee of $1,412.59 has been paid by the Company by
wire transfer.
The Registration Statement covers a proposed offering of up to 385,000
additional shares of the Company's Common Stock, par value $.01-2/3 per share,
issuable under the Company's 1993 Long Term Stock Ownership Incentive Plan, as
amended, and 1991 Directors Stock Option Plan, as amended, both of which were
approved by the stockholders in November, 1997.
It is our understanding that this Registration Statement will become
effective automatically on filing pursuant to Rule 462 of the Commission.
Should the Staff have any comments or questions or desire any additional
information, please telephone the undersigned at (312) 467-6755.
Sincerely yours,
/s/ Joan R. Riley
------------------
Joan R. Riley
General Counsel
AHS:cp
cc: Anne Hamblin Schiave
As filed with the Securities and Exchange Commission on September 4, 1998
Registration Statement No.
-------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
QUIXOTE CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 36-2675371
(State of Incorporation) (I.R.S. Employer Identification No.)
One East Wacker Drive, Chicago, Illinois 60601
(Address of Principal Executive Offices) (Zip Code)
QUIXOTE CORPORATION 1993 LONG-TERM STOCK OWNERSHIP INCENTIVE
PLAN (FORMERLY KNOWN AS THE 1991 INCENTIVE STOCK OPTION PLAN)
QUIXOTE CORPORATION 1991 DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
Joan R. Riley
Secretary and General Counsel
Quixote Corporation
One East Wacker Drive
Chicago, Illinois 60601
(Name and address of agent for service)
(312) 467-6755
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
Proposed Proposed
Title Maximum Maximum Amount
Securities Amount Offering Aggregate of
to be Being Price Per Offering Registration
Registered Registered Share (1) Price (1) Fee
Common Stock 385,000 $12.4375 $4,788,437.50 $1,412.59
$.01-2/3 Par Shares
(1) Estimated solely for purposes of calculating the registration fee under
Rule 457(h), based upon the average of the high and low prices as reported by
the NASDAQ National Market System on September 1, 1998.
Incorporation of Previously Filed Registration Statement
As provided by General Instruction E to Form S-8, the contents of the
Registration Statement on Form S-8, File No. 33-74488 are incorporated by
reference into this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS
4(a). Quixote Corporation 1991 Directors Stock Option Plan, as amended,
and
4(b). Quixote Corporation 1993 Long-Term Incentive Stock Plan, as amended
5. Opinion of Counsel
23.1 Consent of PricewaterhouseCoopers L.L.P.
23.2* Consent of Joan R. Riley, Esq.
24 Powers of Attorney
*Not filed; incorporated in Exhibit 5
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 of 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 Chicago, State of Illinois on the
21st day of August, 1998.
QUIXOTE CORPORATION
By: /s/ Leslie J. Jezuit
----------------------
Its: President
---------------------
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Philip E. Rollhaus, Jr. Chairman, Chief Executive August 21, 1998
- --------------------------- Officer and Director
Philip E. Rollhaus, Jr. (Principal Executive Officer)
/s/ Daniel P. Gorey Chief Financial Officer August 21, 1998
- ------------------- Vice President and
Daniel P. Gorey Treasurer
/s/ James H. DeVries Director August 21, 1998
- --------------------
James H. DeVries
/s/ William G. Fowler Director August 21, 1998
- ---------------------
William G. Fowler
/s/ Leslie J. Jezuit President and Director August 21, 1998
- --------------------
Leslie J. Jezuit
/s/ Lawrence C. McQuade Director August 21, 1998
- -----------------------
Lawrence C. McQuade
/s/ Robert D. van Roijen, Jr. Director August 21, 1998
- -----------------------------
Robert D. van Roijen, Jr.
Exhibit 4 (a) QUIXOTE CORPORATION
1991 DIRECTOR STOCK OPTION PLAN
Amended August 28, 1997
1. PURPOSE
This Stock Option Plan (the "Plan") is intended as an incentive to encourage
stock ownership by certain Directors of QUIXOTE CORPORATION (the
"Corporation") so that they may acquire or increase their proprietary
interest in the success of the Corporation and to encourage them to continue
to render their services to the Corporation as Directors. It is further
intended that options granted pursuant to this Plan may constitute
"incentive stock options" within the meaning of Section 422A of the Internal
Revenue Code, as amended (the "Code"), if they satisfy the various
requirements specified under Code Sec. 422A. Otherwise, options granted
pursuant to this Plan shall be "nonqualified stock options".
2. ADMINISTRATION
The Plan shall be administered by a committee appointed by the Board of
Directors of the Corporation (the "Committee"). The Committee shall consist
of all members of the Corporation's Board of Directors unless the Board
adopts a resolution naming other individuals to serve on the Committee. The
Board of Directors may from time to time remove members from, or add members
to, the Committee. Vacancies on the Committee, howsoever caused, shall be
filled by the Board of Directors. The Committee shall select one of its
members as Chairman and shall hold meetings at such times and places as it
may determine. A majority of the Committee at which a quorum is present, or
acts reduced to or approved in writing by a majority of the members of the
Committee, shall be the valid acts of the Committee. The Committee shall
from time to time at its discretion recommend to the Board of Directors with
respect to the Directors who shall be granted options and the amount of
stock to be optioned to each.
The interpretation and construction by the Committee of any provisions of
the Plan or of any option granted under it shall be final unless otherwise
determined by the Board of Directors. No member of the Board of Directors or
the Committee shall be liable for any action or determination made in good
faith with respect to the Plan or any option granted under it.
3. ELIGIBILITY
The persons who shall be eligible to receive options shall be Directors of
the Corporation as the Board of Directors shall select from time to time
from among those nominated by the Committee, provided however, that only
Directors who are also employees of the Corporation shall be eligible to
receive "incentive stock options" under this Plan. An optionee may hold more
than one option, but only on the terms and subject to the restrictions
hereafter set forth. No person shall be eligible to receive an option for a
larger number of shares of stock than is recommended for him by the
Committee, and in no event shall any optionee in any calendar year receive
options under this Plan for stock with an aggregate fair market value
(determined at the time of the grant of the option) in excess of the
limitations set forth in Section 5(b) of the Plan. The number of shares of
stock with respect to which option rights under the Plan may be granted to
any individual during the term of the Plan shall not exceed 90,000 shares,
subject to adjustment as provided in Section 5(g) of the Plan.
4. STOCK
The stock subject to options under the Plan shall be shares of the
Corporation's authorized but unissued or reacquired $.01-2/3 par value
common stock, hereafter sometimes called Common Stock. The aggregate number
of shares that may be issued under options shall not exceed 419,445 shares
of Common Stock. The limitations established by each of the preceding
sentences shall be subject to adjustment as provided in Section 5(g) of the
Plan.
In the event that any outstanding option under the Plan for any reason
expires or is terminated, the shares of Common Stock allocable to the
unexercised portion of such option may again be subjected to an option under
the Plan.
5. TERMS AND CONDITIONS OF OPTIONS
Stock options granted under the Plan shall be authorized by the Board of
Directors and shall be evidenced by agreements in such form as the Committee
shall from time to time recommend and the Board of Directors shall from time
to time approve, which agreements shall comply with and be subject to the
following terms and conditions:
(a) Optionee's Agreement
Each optionee shall agree to render to the Corporation his services as a
Director (1) for a period of one year from the date of the option, or (2)
until his death, whichever first occurs, but such agreement shall not impose
upon the Corporation any obligation to retain the optionee in any capacity
for any period; provided, however, the agreement shall permit an optionee to
exercise the option after a "change of control" (as defined at Section 5(g))
notwithstanding the optionee's failure to have served as a Director for one
year from the date of grant.
(b) Number of Shares
Each option shall state the number of shares to which it pertains. Options
granted under this Plan may be considered "incentive stock options" as
defined in Code Sec. 422A to the extent that the aggregate fair market value
of stock (determined at the time the option is granted) with respect to
which any such option is exercisable for the first time in a calendar year
is not more than $100,000.
(c) Option Price
Each option shall state the option price, which shall be not less than 100%
of the current market price of the shares of Common Stock of the Corporation
on the date of the granting of the option; provided, that in the event an
optionee owns stock representing more than ten percent of the voting power
or value of the stock of the Corporation on the date of grant, the option
price of an option which is intended to qualify as an "incentive stock
option" shall not be less than 110% of the current market price of the
shares on the date of grant. The current market price of the Common Stock at
any date shall be deemed to be the average of the daily closing prices for
the thirty (30) consecutive business days before the date in question. The
closing price for each day shall be the last reported sale price determined
in the regular way or, in case no such reported sale takes place on such
day, the average of the last reported bid and asked prices determined in the
regular way, in either case on the principal national securities exchange on
which the Common Stock is admitted to trading or listed, or if not listed or
admitted to trading on any national securities exchange, the average of
highest reported bid and lowest reported asked prices as reported by NASDAQ
or other similar organization if NASDAQ is no longer reporting such
information, or if not so available, the fair market price as determined by
the Board of Directors. Subject to the foregoing, the Board of Directors
and the Committee shall have full authority and discretion in fixing the
option price and be fully protected in doing so.
(d) Medium and Time of Payment
The option price is to be paid in full in United States dollars upon the
exercise of the option and may be paid in cash or by check, or with the
approval of the Committee, by the optionee tendering to the Corporation
shares of common stock of the Corporation owned by him and having a fair
market value (determined at the time the Corporation receives written notice
of the optionee's election to exercise the option) equal to the aggregate
exercise price of the options being exercised. With the approval of the
Board of Directors, the optionee may borrow from the Corporation all or any
portion of the funds needed to pay the option price on such terms and
conditions as the Committee deems appropriate, provided that: (1) the
interest rate for any such loan by the Corporation shall not be less than
the "applicable federal rate" (as defined by Code Section 1274(d)(1)(A) in
effect on the date of such loan or any other rate as necessary to avoid the
imputation of interest under the Code or other applicable law, (2) proceeds
of the loan are used solely to pay the exercise price of an option granted
pursuant to this Plan, and (3) the optionee executes a promissory note and
such other documents as the Committee deems appropriate to evidence the
optionee's indebtedness to the Corporation.
(e) Term and Exercise of Options
Subject to this Section 5(e) and Sections 5(f) and 5(g) of this Plan, no
option shall be exercised either in whole or in part prior to twelve months
from the date it is granted. Subject to the right of cumulation provided in
this Section 5(e), each option granted pursuant to the Plan shall be
exercisable to the extent provided for in the agreement between the
Corporation and each optionee as determined by the Committee in its
discretion. The Committee may provide, however, for the exercise of options
after the initial twelve month period, either as to an increased percentage
of shares per year or as to all remaining shares, if the optionee shall,
with the approval of the Corporation, retire as a Director of the
Corporation. To the extent not exercised, installments shall accumulate and
be exercisable, in whole or in part, in any subsequent period, prior to the
expiration of the term described in the next sentence of this Section 5(e).
No option shall be exercisable after the expiration of ten years from the
date it is granted, provided that in the event the optionee owned stock
representing more than ten percent (10%) of the voting power or value of the
stock of the Corporation on the date the option was granted, any option
which is intended to qualify as an "incentive stock option" must be
exercised within five (5) years from the date of grant. During the
optionee's lifetime, the options granted under this Plan may be exercised
only by him.
(f) Death of Optionee and Transfer of Option
If the optionee shall die and shall not have fully exercised the option, the
entire unexercised portion of the option may be exercised within one year
from the date of the optionee's death by the executors or administrators of
the optionee or by any person or persons who shall have acquired the option
directly from the optionee by bequest or inheritance, subject to the
condition that no option shall be exercisable after the expiration of ten
years (five years for an option which is intended to qualify as an
"incentive stock option" to an optionee who owned more than ten percent of
the value or voting power of the stock of the Corporation on the date of
grant) from the date it is granted.
No option shall be assignable or transferable by the optionee otherwise than
by will or the laws of descent and distribution.
(g) Recapitalization
Subject to any required action by the stockholders, the number of shares of
Common Stock covered by each outstanding option, and the price per share
thereof in each such option, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock of the
Corporation resulting from a subdivision or consolidation of shares or the
payment of a stock dividend (but only on the Common Stock) or any other
increase or decrease in the number of such shares effected without receipt
of consideration by the Corporation.
Subject to any required action by the stockholders, if the Corporation shall
be the surviving corporation in any merger or consolidation, each
outstanding option shall pertain to and apply to the securities to which a
holder of the number of shares of Common Stock subject to the option would
have been entitled. A dissolution or liquidation of the Corporation, or a
merger or consolidation in which the Corporation is not the surviving
corporation, or a change in control of the Corporation, as defined, shall
cause each optionee to have the right to exercise his option in whole or in
part, notwithstanding the provisions of Section 5(e) above: (i) immediately
prior to such dissolution or liquidation or merger or consolidation in which
the Corporation is not the surviving corporation, and thereafter; or (ii)
after such change of control.
"Change of control" of the Corporation shall mean a change in control of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act
of 1934, as amended ("Exchange Act"); provided that, without limitation,
such a change in control shall be deemed to have occurred if (i) any
"person" (as such term is used in Section 13(d) and 14(d) of the Exchange
Act) is, or becomes, the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Corporation
representing twenty percent (20%) or more of the combined voting power of
the Corporation's then outstanding securities; or, (2) during any period of
two consecutive years, individuals who at the beginning of such period
constitute all members of the Board of Directors of the Corporation who are
not employed by the Corporation (the "Outside Directors") shall cease for
any reason to constitute at least a majority of the Outside Directors unless
the election of each Outside Director, who was not an Outside Director at
the beginning of the period, was approved by a vote of at least two-thirds
(2/3) of the Directors then still in office who were Directors at the
beginning of the period; or, (3) there shall be consummated (A) any
consolidation or merger of the Corporation in which the Corporation is not
the continuing or surviving corporation or pursuant to which shares of the
Corporation's Common Stock would be converted into cash, securities or other
property, other than a merger of the Corporation in which the holders of the
Corporation's Common Stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving corporation
immediately after the merger, or (B) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Corporation or, (4) the stockholders
of the Corporation approve a plan or proposal for the liquidation or
dissolution of the Corporation.
To the extent that the foregoing adjustments relate to stock or securities
of the Corporation, such adjustments shall be made by the Committee, whose
determination in that respect shall be final and binding and conclusive;
provided that each option granted pursuant to this Plan which could qualify
as an "incentive stock option" shall not be adjusted in a manner that causes
the option to fail to continue as an "incentive stock option" within the
meaning of Code Section 422A.
Except as hereinbefore expressly provided in this Section 5(g), the optionee
shall have no rights by reason of any subdivision or consolidation of shares
of stock of any class or the payment of any stock dividend or any other
increase or decrease in the number of shares of stock of any class or by
reason of any change of control, dissolution, liquidation, merger, or
consolidation or spin-off of assets or stock of another corporation, and any
issue of the Corporation of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares of Common Stock subject to the option.
The grant of an option pursuant to the Plan shall not affect in any way the
right of power of the Corporation to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure or to merge,
consolidate, dissolve, liquidate, sell, or transfer all or any part of its
business or assets.
(h) Rights as a Stockholder
An optionee or a transferee of an option shall have no rights as a
stockholder with respect to any shares covered by his option until the date
of the issuance of a stock certificate to him for such shares. No adjustment
shall be made for dividends (ordinary or extraordinary, whether in cash,
securities or other property) or distributions or other rights for which the
record date is prior to the date such stock certificate is issued, except as
provided in Section 5(g) hereof.
(i) Modification, Extension and Renewal of Options
Subject to the terms and conditions and within the limitations of the Plan,
the Committee, with the approval of the Board of Directors, may modify,
extend or renew outstanding options granted under the Plan, or accept the
surrender of outstanding options (to the extent not theretofore exercised)
and authorize the granting of new options in substitution therefor (to the
extent not theretofore exercised). The Board of Directors shall not,
however, modify any outstanding options so as to specify a lower price or
accept the surrender of outstanding options and authorize the granting of
new options in substitution therefor specifying a lower price.
Notwithstanding the foregoing however no modification of an option shall,
without the consent of the optionee, alter or impair any rights or
obligations under any option theretofore granted under the Plan.
(j) Investment Purpose
Each option under the Plan shall be granted on the condition that the stock
purchased shall be held for investment purposes, and not with a view to
resale or distribution except that in the event the stock subject to such
option is registered under the Securities Act of 1933, as amended, or in the
event a resale of such stock without such registration would otherwise be
permissible, such condition shall be inoperative if in the opinion of
counsel for the Corporation such condition is not required under the
Securities Act of 1933 or any other applicable law, regulation, or rule of
any governmental agency.
(k) Other Provisions
The option agreements authorized under the Plan shall contain such other
provisions, including, without limitation, restrictions upon the exercise of
the option, as the Committee and the Board of Directors of the Corporation
shall deem advisable.
6. TERM OF PLAN
Options may be granted under the Plan from time to time within a period of
ten years from the date the Plan is adopted, or the date the Plan is
approved by the Stockholders, whichever is earlier.
7. INDEMNIFICATION OF COMMITTEE
In addition to such other rights of indemnification as they may have as
Directors or as members of the Committee, the members of the Committee shall
be indemnified by the Corporation against the reasonable expenses, including
attorneys' fees actually and necessarily incurred in connection with the
defense of any action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan or any option
granted thereunder, and against all amounts paid by them in settlement
thereof (provided such settlement is approved by independent legal counsel
selected by the Corporation) or paid by them in satisfaction of a judgment
except in relation to matters as to which it shall be adjudged in such
action, suit or proceeding that such Committee member is liable for
negligence or misconduct in the performance of his duties; provided that
within sixty (60) days after institution of any such action, suit or
proceeding a Committee member shall in writing offer the Corporation the
opportunity at its own expense, to handle and defend the same.
8. AMENDMENT OF THE PLAN
Upon recommendation of the Committee, the Board of Directors of the
Corporation may, insofar as permitted by law, from time to time, with
respect to any shares at the time not subject to options, suspend or
discontinue the Plan or revise or amend it in any respect whatsoever except
that without approval of the stockholders, no such revision or amendment
shall change the number of shares subject to the Plan, change the
designation of the individuals eligible to receive options, decrease the
price at which options may be granted, remove the administration of the Plan
from the Committee, or extend the period during which options may be
granted.
The Board of Directors of the Corporation shall, from time to time, revise,
modify, or amend the Plan, in part or in total, without approval of the
stockholders, as may be necessary to satisfy the requirements of the Code
such that certain stock options which are granted under the Plan may qualify
as "incentive stock options" as defined in Code Section 422A and any
amendments or revisions thereof.
9. APPLICATION OF FUNDS
The proceeds received by the Corporation from the sale of Common Stock
pursuant to options will be used for general corporate purposes.
10. NO OBLIGATION TO EXERCISE OPTION
The granting of an option shall impose no obligation upon the optionee to
exercise such option.
Date Plan was adopted by Board of Directors: August 19, 1991
Date Plan was approved by Stockholders: November 19, 1991
Date Plan was amended by Board of Directors: June 25, 1997
Date Plan was amended by Board of Directors: August 28, 1997
Date amended Plan was approved by Stockholders: November 19, 1997
Exhibit 4(b) QUIXOTE CORPORATION
1993 LONG-TERM STOCK OWNERSHIP INCENTIVE PLAN
As Amended August 28, 1997
THE PLAN. Quixote Corporation, a Delaware corporation (the "Company"),
hereby amends and restates the substantive provisions of the Quixote
Corporation 1991 Incentive Stock Option Plan (the "1991 Plan"), to establish
the Quixote Corporation 1993 Long-Term Stock Ownership Incentive Plan as set
forth herein and as may from time to time be amended (the "Plan"), in order
to add provisions which will provide the Company with the ability to provide
its senior executives with stock-based retirement benefits linked to
increases in the value of the Company's Stock. The Plan is effective as of
June 30, 1993 subject to the approval by a majority of the stockholders at
the first annual meeting of stockholders held after the Effective Date.
Until such time as stockholder approval of the Plan is obtained, the 1991
Plan will continue to exist and operate independently of the Plan. Options
granted and outstanding under the 1991 Plan following stockholder approval
of the Plan shall be governed by the provisions of the Plan. Nothing in
this Plan is intended to, or shall be deemed to, modify, amend or alter any
of the rights and benefits of holders of options granted under the 1991 Plan
or provide any additional benefits to such holders.
1. PURPOSE
The purposes of the Plan are to encourage selected employees of the
Company and its Subsidiaries who are capable of having an impact on the
performance of the Company to acquire a long-term proprietary interest in
the growth and performance of the Company, to generate an increased
incentive to contribute to the Company's future success and prosperity (thus
enhancing the value of the Company for the benefit of its stockholders), and
to enhance the ability of the Company and its Subsidiaries to attract and
retain qualified individuals upon whom the sustained progress, growth, and
profitability of the Company depend. It is further intended that options
issued pursuant to this Plan shall constitute "incentive stock options"
within the meaning of Sec. 422A of the Internal Revenue Code (such options
are referred to herein as "Incentive Stock Options"). In the event that
stock options granted pursuant to this Plan do not satisfy the requirements
specified under Internal Revenue Code Sec. 422A, such options shall be
"nonqualified stock options."
2. DEFINITIONS
As used in the Plan, terms defined immediately after their use shall
have the respective meanings provided by such definitions and the terms set
forth below shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
(a) "Affiliate" is a person that directly or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common
control with the Company.
(b) "Award" means options, Retirement Stock Awards or Retirement Cash
Awards granted under the Plan.
(c) "Award Agreement" has the meaning specified in Section 4(b)(v).
(d) "Board" means the Board of Directors of the Company.
(e) "Code" means the Internal Revenue Code of 1986, as amended. References
to a particular section of the Code shall include references to successor
provisions.
(f) "Committee" means the committee of the Board appointed pursuant to
Section 4.
(g) "Company" has the meaning set forth in the introductory paragraph.
(h) "Current Market Price" of the Stock means at any date the average of
the daily closing prices for thirty (30) consecutive business days
commencing no more than forty-five (45) business days before the day in
question. The closing price for each day shall be the last reported sales
price determined in the regular way or, in case no such reported sales takes
place on such day, the average of the last reported bid and asked prices
determined in the regular way, in either case on the principal national
securities exchange on which the Stock is admitted to trading or listed, or
if not listed or admitted to trading on any national securities exchange,
the average of the closing bid and asked prices as reported by NASDAQ or
other similar organization if NASDAQ is no longer reporting such
information, or if not so available, the fair market price as determined by
the Board.
(i) "Disability" means, as relates to the exercise of an Incentive Stock
Option after termination of employment, a disability within the meaning of
Section 22(e)(3) of the Code, and for all other purposes, a mental or
physical condition which, in the opinion of the Committee, renders a Grantee
unable or incompetent to carry out the job responsibilities which such
Grantee held or the tasks to which such Grantee was assigned at the time the
disability was incurred, and which is expected to be permanent or for an
indefinite duration exceeding one year.
(j) "Effective Date" means June 30, 1993; provided that the Plan and any
Retirement Awards granted prior to the 1993 annual meeting of the Company's
stockholders are subject to approval of the Plan by the stockholders at such
annual meeting.
(k) "Grant Date" means the date on which the Committee grants the Award or
such later date as specified in advance by the Committee; provided however,
that references to the Grant Date of an option under this Plan shall, with
respect to options granted under the 1991 Plan prior to stockholder approval
of the Plan, refer to the date of grant of such option under the 1991 Plan.
(l) "Grantee" means an individual who has been granted an Award.
(m) "Including" or "includes" means "including, without limitation," or
"includes, without limitation."
(n) "1934 Act" means the Securities Exchange Act of 1934, as amended.
References to a particular section of, or rule under, the 1934 Act shall
include references to successor provisions.
(o) "Option Price" means the per share purchase price of Stock subject to
an option.
(p) "Plan" has the meaning set forth in the introductory paragraph.
(q) "Retirement" means a termination of employment with the Company and
its Subsidiaries any time after attaining age 60.
(r) "SEC" means the Securities and Exchange Commission.
(s) "Section 16 Grantee" means a person subject to potential liability
under Section 16(b) of the 1934 Act with respect to transactions involving
equity securities of the Company.
(t) "Stock" means the common stock of the Company, $0.01-2/3 par value.
(u) "Subsidiary" means (i) with respect to Incentive Stock Options, a
corporation as defined in Section 424(f) of the Code with the Company being
treated as the employer corporation for purposes of this definition, and
(ii) for all other purposes any entity in which the Company directly or
through intervening subsidiaries owns at least a majority interest of the
total combined voting power or value of all classes of stock or, in the case
of an unincorporated entity, at least a majority in the capital and profits.
(v) "10% Owner" means a person who owns stock (including stock treated as
owned under Section 424(d) of the Code) possessing more than 10% of the
total combined voting power of all classes of stock of the Company.
3. SCOPE OF THE PLAN
(a) An aggregate of One Million and Fifteen Thousand (1,015,000) shares of
Stock are hereby made available and reserved for delivery on account of
Awards and the exercise of Awards, with Six Hundred Sixty Five Thousand
(665,000) shares of Stock being made available and reserved for delivery on
account of options and Three Hundred Fifty Thousand (350,000) shares of
stock being made available and reserved for delivery on account of
Retirement Stock Awards. The limitations established by the preceding
sentences shall be subject to adjustment as provided in Section 18 of the
Plan.
Such shares may be treasury shares, newly issued shares, or shares
purchased on the open market (including private purchases) in accordance
with applicable securities laws, or any combination of the foregoing, as may
be determined from time to time by the Board or the Committee.
(b) To the extent an Award shall expire or terminate for any reason
without having been exercised in full (including a cancellation and re-grant
of an option), or shall be forfeited, without, in either case, the Grantee
having enjoyed any of the benefits of Stock ownership (other than voting
rights or dividends that are also forfeited), the shares of Stock (including
Retirement Stock) associated with such Award shall become available for
other Awards.
(c) For purposes of this Section 3,
(i) The aggregate number of shares covered by a Retirement Award Agreement
shall be counted on the Grant Date of such Award (without respect to the
timing of the Company's obligation to issue and deliver such shares) against
the aggregate number of shares of Stock available for granting Retirement
Stock Awards under the Plan; and
(ii) the shares of Stock underlying outstanding options (without respect
to any vesting schedule) shall be counted while the Award is outstanding
against the aggregate number of shares of Stock available for granting
Awards under the Plan; and
(iii) in the event of a stock-for-stock exercise of an option, the gross
number of shares of Stock subject to the option exercised, not the net
number of shares actually issued upon exercise shall be counted against the
aggregate number of shares of Stock available for granting Awards under the
Plan.
4. ADMINISTRATION
(a) Subject to Section 4(b), the Plan shall be administered by a committee
("Committee") which shall consist of not less than three persons who are
Directors of the Company and who are not employees of the Company.
Membership on the Committee shall be subject to such other limitations as
the Board deems appropriate to permit transactions in Stock pursuant to the
Plan to be exempt from liability under Section 16(b) of the 1934 Act
pursuant to Rule 16b-3 thereunder. Unless the Board adopts a resolution
naming other individuals to serve on the Committee, the Committee shall
consist of all Directors of the Company who are not employees of the
Company. The Board may from time to time remove members from, or add
members to the Committee. Vacancies on the Committee, however caused, shall
be filled by the Board. The Committee shall select one of its members as
Chairman, and shall hold meetings at such times and places as it may
determine. A majority of the Committee at which a quorum is present, or
acts approved in writing by all of the members of the Committee, shall be
the valid acts of the Committee. No member of the Committee shall be
eligible to receive any grant of any Awards under this Plan.
(b) The Committee, unless otherwise determined by the Board, shall have
full and final authority, in its discretion, but subject to the express
provisions of the Plan, as follows:
(i) to grant Awards;
(ii) to determine (A) when Awards may be granted, and (B) whether or not
specific Awards shall be identified with other specific Awards, and if so,
whether they shall be exercisable cumulatively with or alternatively to such
other specific Awards;
(iii) to interpret the Plan and to make all determinations necessary or
advisable for the administration of the Plan;
(iv) to prescribe, amend, and rescind rules and regulations relating to the
Plan, including rules with respect to the exercisability and non-
forfeitability of Awards upon the termination of employment of a Grantee;
(v) to determine the terms and provisions and any restrictions or
conditions (including specifying such performance criteria as the Committee
deems appropriate, and imposing restrictions with respect to Stock acquired
upon exercise of an option or Retirement Award, which restrictions may
continue beyond the Grantee's termination of employment) of the written
agreements by which all Awards shall be evidenced ("Award Agreements") which
need not be identical and, with the consent of the Grantee where required by
contract law, to modify any such Award Agreement at any time;
(vi) to impose, incidental to an Award, conditions with respect to
competitive employment or other activities, to the extent such conditions do
not conflict with the Plan;
(vii) to cancel, with the consent of the Grantee, outstanding Awards and to
grant new Awards in substitution therefor;
(viii) to accelerate the exercisability of, and to accelerate or waive any
or all of the restrictions and conditions applicable to any Award or any
group of Awards;
(ix) subject to Section 6(c), to extend the time during which any Award or
group of Awards may be exercised;
(x) to make such adjustments or modifications to Awards to Grantees working
outside the United States as are necessary and advisable to fulfill the
purposes of the Plan which are not in conflict with the Plan; and
(xi) to impose such additional conditions, restrictions, and limitations
upon the grant, exercise or retention of Awards as the Committee may, before
or concurrently with the grant thereof, deem appropriate, including
requiring simultaneous exercise of related identified Awards, and limiting
the percentage of Awards which may from time to time be exercised by a
Grantee.
The determination of the Committee on all matters relating to the Plan or
any Award Agreement shall be conclusive and final. No member of the
Committee or the Board shall be liable for any action or determination made
in good faith with respect to the Plan or any Award.
(c) The Board may, in its discretion, reserve to itself or delegate to
another committee of the Board, any or all of the authority and
responsibility of the Committee with respect to Awards to Grantees who are
not Section 16 Grantees at the time any such delegated authority or
responsibility is exercised. Such other committee may consist of two or
more Directors who may, but need not be, officers or employees of the
Company or of any of its Subsidiaries. To the extent that the Board has
reserved to itself or delegated to such other committee the authority and
responsibility of the Committee, all references to the Committee in the Plan
shall be to the Board or such other committee.
5. ELIGIBILITY
Awards may be granted to any key employee (including any officer) of the
Company or any of its Subsidiaries; provided, however, that Retirement
Awards may be granted only to executive officers of the Company or its
Subsidiaries who have completed 10 years of continuous service for the
Company or its Subsidiaries; provided further that the Committee may, under
appropriate circumstances and in its discretion, waive the requirement of
ten years continuous service for a particular executive officer. In
selecting the individuals to whom Awards may be granted, as well as in
determining the number of shares of Stock subject to, and the other terms
and conditions applicable to, each Award, the Committee shall take into
consideration such factors as it deems relevant in promoting the purposes of
the Plan.
6. TERMS AND CONDITIONS OF OPTION GRANTS
Stock options granted by the Committee pursuant to the Plan shall be
evidenced by Award Agreements in such form as the Committee shall from time
to time approve, which agreements shall comply with and be subject to the
following terms and conditions:
(a) Each option shall state the number of shares to which it pertains.
(b) The Option Price of any option shall not be less than 100% of the
Current Market Price of the Stock on the Grant Date.
(c) Any option granted under this Plan may be considered a Incentive Stock
Option to the extent that it:
(i) shall only be granted to individuals who are employed by the Company or
any of its Subsidiaries on the Grant Date;
(ii) shall not be granted to a 10% Owner unless the Option Price is at
least 110% of the Current Market Price of the Stock subject to such option
on the Grant Date and shall be exercisable for a period of not more than
five (5) years from the Grant Date;
(iii) except as provided in (ii) above, shall be exercisable for a period
of not more than 10 years from the Grant Date, and shall be subject to
earlier termination as provided herein or in the applicable Award Agreement;
(iv) shall not have an aggregate fair market value (determined for each
Incentive Stock Option at its Grant Date) of Stock with respect to which
Incentive Stock Options are exercisable for the first time by such Grantee
during any calendar year (under the Plan and any other employee stock option
plan of the Grantee's employer or any parent or Subsidiary thereof
determined in accordance with the provisions of Section 422 of the Code),
which exceeds $100,000; and
(v) shall require the Grantee to notify the Company of any disposition of
any Stock issued pursuant to the exercise of the Incentive Stock Option
under the circumstances described in Section 421(b) of the Code (relating to
certain disqualifying dispositions), within 10 days of such disposition.
Subject to the foregoing, the Committee shall have full authority and
discretion in fixing the Option Price and the terms and conditions of the
option Awards and shall be fully protected in doing so.
(d) All options shall be granted on or before August 19, 2001.
(e) Options shall not be assignable or transferable other than by will or
the laws of descent and distribution and may be exercised during the
Grantee's lifetime only by the Grantee; provided, however, that the Grantee
may, to the extent provided in the Plan in any manner specified by the
Committee, designate in writing a beneficiary to exercise his/her option
after the Grantee's death.
(f) Subject to Section 4(b)(viii) and such terms and conditions as the
Committee may impose, each option shall be exercisable in one or more
installments. Each option shall be exercised by delivery to the Company of
written notice of intent to purchase a specific number of shares of Stock
subject to the option. The Option Price of any shares of Stock as to which
an option shall be exercised shall be paid in full at the time of the
exercise. Payment may, at the election of the Grantee, be made in any one
or any combination of the following:
(i) United States dollars in cash or by check;
(ii) Stock held by the Grantee for at least 6 months prior to exercise of
the option, valued at its Current Market Price on the date of written notice
of optionee's election to exercise the option; or
(iii) with the approval of the Committee, shares of Retirement Stock held
by the Grantee for at least 6 months prior to exercise of the option, valued
at the Current Market Price of a share of Stock on the date of exercise.
(g) Except as expressly provided in this Plan or the Award Agreement, no
option may be exercised prior to twelve months from its Grant Date. Subject
to the right of cumulation provided in the next sentence of this Section
6(g), each option shall be exercisable to the extent provided for in the
Award Agreement as determined by the Committee in its discretion. To the
extent not exercised, installments shall accumulate and be exercisable, in
whole or in part, in any subsequent period, prior to the expiration of the
term described in the Award Agreement, provided that no option may be
exercised more than ten years from its Grant Date. Notwithstanding the
preceding sentence, in the event that the optionee is a 10% Owner
(determined on the Grant Date) of the Company, no option intended to qualify
as an Incentive Stock Option may be exercised more than five years from the
date it is granted. During the lifetime of the optionee, the option shall
be exercisable only by him and shall not be assignable or transferable by
him and no other person shall acquire any rights therein.
(h) In the event that an optionee shall cease to be employed by the Company
for any reason other than his death, Disability, or Retirement, subject to
the condition that no option shall be exercisable after the expiration of
ten years from its Grant Date (five years for an option which is intended to
qualify as an Incentive Stock Option that is granted to a 10% Owner on the
Grant Date), such optionee may, at the discretion of the Committee, be
granted the right to exercise the option at any time within thirty (30) days
after such termination of employment to the extent his right to exercise
such option had not expired pursuant to Section 6(g) of this Plan, had
vested and had not previously been exercised; provided, however, that if the
employment of the optionee is terminated by the Company or any of its
Subsidiaries for cause, fraud, breach of fiduciary duty, or other
dishonesty, the optionee's rights to exercise the option otherwise provided
herein shall expire on the last day of his employment. Whether authorized
leave of absence or absence for military or governmental service, or any
other reason, shall constitute termination of employment, for the purposes
of the Plan, shall be determined by the Committee, which determination shall
be final and conclusive.
(i) (i) In the event an optionee terminates his employment with the
Company or any Subsidiary because of a Disability, the Disabled optionee or
a lawfully appointed custodian thereof may exercise an option granted
pursuant to this Plan for a period of twelve months from the date of
termination of employment to the extent his right to exercise such option
had not expired pursuant to Section 6(g) of this Plan and had not previously
been exercised at the date of such termination.
(ii) If the employment of an optionee with the Company or any Subsidiary is
terminated by reason of the optionee's Retirement and the optionee has been
in the employ of either the Company or a Subsidiary continuously from the
date such option was granted until such Retirement (except for leaves of
absence approved in writing by the President of the Company or the President
of the Subsidiary for which the optionee works), the entire unexercised
portion of such option may be exercised by the optionee at any time or times
in whole or in part during the three-month period after such retirement to
the extent that such three-month period is included in the remainder of such
option's term.
(j) If the optionee shall die while in the employ of the Company or any
Subsidiary and shall not have fully exercised the option, the unexercised
portion of an option may be exercised at any time within one year after the
optionee's death by the executors or administrators of the optionee or by
any person or persons who shall have acquired the option directly from the
optionee by bequest or inheritance, subject to the condition that no option
shall be exercisable after the expiration of ten years from its Grant Date
(five years for an optionee under an Incentive Stock Option who is a 10%
Owner on the Grant Date).
No option shall be transferable by the optionee otherwise than by will or
the laws of descent and distribution.
7. TERMS AND CONDITIONS OF RETIREMENT AWARDS
Grants of Stock and cash Awards intended to fund retirement benefits for
senior executives (the "Retirement Stock Awards" and "Retirement Cash
Awards" (each more fully described below), respectively, and collectively
the "Retirement Awards") pursuant to the Plan shall be authorized by the
Committee and shall be evidenced by agreements in such form as the Committee
shall from time to time approve (each a "Retirement Award Agreement"), which
agreements shall comply with and be subject to the following terms and
conditions:
(a) The Committee may grant Retirement Awards to any individual eligible
under Section 5 to receive such Retirement Awards.
(b) The Committee shall, in its discretion, determine the amount, if any,
that a Grantee shall pay for shares of Retirement Stock. Awards shall be
granted for no cash consideration or for such minimal cash consideration as
may be required by applicable law. If any such cash consideration is
required, payment shall be made in full by the Grantee before the delivery
of the shares and in any event no later than 10 days after the Grant Date
for such shares. In the discretion of the Committee and to the extent
permitted by law, payment may also be made in accordance with Section 11.
(c) Each Retirement Award Agreement shall state the number of shares of
Stock and the amount of cash to which it pertains.
(d) The Retirement Award Agreement shall provide for an aggregate Award of
Retirement Stock which the Company will agree to issue and deliver to the
Grantee. Such Retirement Stock Award will be issued and delivered to the
Grantee in equal annual installments commencing with the Grant Date and
continuing over a period of years to be determined by the Committee and set
forth in the Retirement Award Agreement, subject to the requirement that the
Grantee be employed by the Company or any Subsidiary on the last day of the
fiscal year in which Retirement Stock is issued and delivered; provided
however, the Retirement Award Agreement may include a provision which
excepts from this requirement the Grantee's death, disability or other
involuntary termination of employment (excluding for cause) which occurs
during the same fiscal year. Unless otherwise provided in the Agreement,
the Retirement Award Agreement will have an initial term of five (5) years.
In its discretion, the Committee may provide that the term of a Retirement
Award Agreement be automatically extended for additional one-year periods
until the Company gives the Grantee notice of its intention not to extend
the Agreement at the end of its then-current term.
(e) The Grantee may not sell, transfer, pledge, hypothecate, or otherwise
transfer any shares of Retirement Stock he or she receives under the Plan
during any period in which he or she is employed by the Company or any
Subsidiary; provided, however, that following the earlier of (i) termination
of the employment of the Grantee with the Company or any Subsidiary or (ii)
the Grantee's attainment of normal retirement age (whether or not Grantee
actually retires), all such restrictions with respect to Retirement Stock
which has been issued and delivered to such Grantee prior to such time shall
terminate. Notwithstanding the above, no Grantee may sell, transfer,
pledge, hypothecate any shares of Retirement Stock he or she receives during
the six months immediately following the later of Grant Date or the date the
Plan is approved by the Company's stockholders unless the Grantee dies
before the expiration of the six month period. Each share of Retirement
Stock subject to such restrictions shall bear an appropriate legend
specifying that such share is non-transferable and subject to the
restrictions set forth in the Plan and the Retirement Award Agreement. When
all applicable restrictions have ended, the Company shall cause certificates
for such shares to be issued or reissued without such legend.
(f) In connection with any Retirement Stock Award, the Committee may grant
cash bonus awards ("Retirement Cash Awards") to Grantees solely in order to,
and in an amount it determines will, cover the federal and state income tax
liability, and any other tax liability, to the Grantee, created by, or
arising in connection with, the receipt of the Retirement Award by the
Grantee. The Retirement Award Agreement shall provide that Retirement Cash
Awards will be calculated annually at the time of the issuance of an annual
installment of Retirement Stock to which the Retirement Cash Award relates
by using the same maximum marginal federal and state income tax percentage
which was used in the prior year and the Current Market Price of the
Retirement Stock being issued in such year on the date of such issuance
(unless the Committee approves an adjustment to that formula).
(g) The Retirement Award shall be issued and delivered to the Grantee in
accordance with the terms set forth in the Retirement Award Agreement;
provided, however, that the Company shall have no obligation to issue or
deliver any Retirement Award under a Retirement Award Agreement to any
Grantee following (i) the termination of his employment with the Company or
its Subsidiaries or (ii) any breach of the Grantee's obligations under the
Retirement Award Agreement.
(h) Any other provision of the Plan or the Retirement Award Agreement to
the contrary notwithstanding, the Committee may at any time remove or limit
any restrictions, if it determines that conditions, including but not
limited to, changes in the economy, changes in competitive conditions,
changes in laws or government regulations, changes in generally accepted
accounting principles, changes in the Company's accounting policies,
acquisitions or dispositions, or the occurrence of other unusual, unforseen,
or extraordinary events, so warrant.
(i) Notwithstanding the fact that the Company delivers notice of its
intention not to extend the term of a Retirement Award Agreement at the end
of its then current term (if such Agreement provides for such a notice), the
Company shall remain obligated to issue and deliver all scheduled annual
Retirement Awards in accordance with the Retirement Award Agreement.
8. NOTIFICATION UNDER CODE SECTION 83(b)
The Committee may, on the Grant Date or any later date, prohibit a Grantee
from making the election described in this Section 8. If the Committee has
not prohibited such Grantee from making such election, and the Grantee, in
connection with the exercise of any option or the grant of Retirement Stock,
makes the election permitted under Section 83(b) of the Code (i.e., an
election to include in such Grantee's gross income in the year of transfer
the amounts specified in Section 83(b) of the Code), such Grantee shall
notify the Company of such election within 10 days of filing notice of the
election with the Internal Revenue Service, in addition to any filing and
notification required pursuant to regulations issued under the authority of
Section 83(b) of the Code.
9. MANDATORY WITHHOLDING OF TAXES
(a) Whenever under the Plan, cash or shares of Stock are to be delivered
upon exercise or payment of an Award or any other event occurs which
subjects the Grantee to income taxes with respect to rights and benefits
hereunder, the Company shall be entitled to require as a condition of
delivery of the Award (i) that the Grantee remit an amount sufficient to
satisfy all federal, state, and local withholding tax requirements related
thereto, (ii) the withholding of such sums from compensation otherwise due
to the Grantee or from any shares of Stock due to the Grantee under the
Plan, or (iii) any combination of the foregoing.
(b) If any disqualifying disposition described in Section 6(c)(v) is made
with respect to shares of Stock acquired by exercising an Incentive Stock
Option granted pursuant to the Plan or any election described in Section 8
is made, then the person making such disqualifying disposition or election
shall remit to the Company an amount sufficient to satisfy all federal,
state, and local withholding taxes thereby incurred; provided that, in lieu
of or in addition to the foregoing, the Company shall have the right to
withhold such sums from compensation otherwise due to the Grantee or from
any shares of Stock due to the Grantee under the Plan.
10. LOANS
With the approval of the Committee, the Grantee may borrow from the Company
all or any portion of the funds needed to pay the Option Price or to pay for
Retirement Stock on such terms and conditions as the Committee deems
appropriate, provided that (i) the interest rate for any such loan by the
Company shall not be less than the "applicable federal rate" (as defined by
Code Section 1274(d)(1)(A)) in effect on the date of such loan or any other
rate as necessary to avoid the imputation of interest under the Code or
other applicable law, (ii) proceeds of the loan are used solely to pay
either the exercise price of an option or to pay for Retirement Stock
granted pursuant to this Plan, and (iii) the Grantee executes a promissory
note and such other documents as the Committee deems appropriate to evidence
the Grantee's indebtedness to the Company, and pledges the Stock received in
exchange for such borrowed funds as Collateral for such loan.
11. SECURITIES LAW MATTERS
(a) If the Committee deems it necessary to comply with the Securities Act
of 1933, Committee may require a written investment intent representation by
the Grantee and may require that a restrictive legend be affixed to
certificates for shares of Stock.
(b) If, based upon the opinion of counsel for the Company, the Committee
determines that the exercise or non-forfeitability of, or delivery of
benefits pursuant to, any Award would violate any applicable provision of
(i) federal or state securities laws or (ii) the listing requirements of any
national securities exchange on which are listed any of the Company's equity
securities, then the Committee may postpone any such exercise, non-
forfeitability or delivery, as the case may be, but the Company shall use
its best efforts to cause such exercise, non-forfeitability or delivery to
comply with all such provisions at the earliest practicable date.
(c) With respect to Section 16 Grantees, transactions under this Plan are
intended to comply with all applicable conditions of Rule 16b-3 or its
successors under the 1934 Act. To the extent that any provision of the Plan
or action by the Committee fails to so comply, it shall be deemed null and
void, to the extent permitted by law and deemed advisable by the Committee.
12. FUNDING; RESERVES
Cash benefits payable under the Plan to any person shall be paid directly by
the Company. The Company shall not be required to fund, or otherwise
segregate assets to be used for payment of, cash benefits under the Plan.
Neither the Plan nor any Award shall create or be construed to create a
trust or separate fund of any kind or a fiduciary relationship between the
Company or any Subsidiary and a Grantee or any other person. To the extent
that any person acquires a right to receive payments from the Company or any
Subsidiary pursuant to an Award, such right shall be no greater than the
right of an unsecured general creditor of the Company or any Subsidiary.
The Board shall cause the Company to reserve shares of Stock from its
authorized but unissued shares for the purpose of making available shares of
Stock to fund the Awards.
13. NO EMPLOYMENT RIGHTS
Neither the establishment of the Plan, nor the granting of any Award nor the
execution of an Award Agreement shall be construed to (a) give any Grantee
the right to remain employed by the Company or any of its Subsidiaries or to
any benefits not specifically provided by the Plan or an Award Agreement, or
(b) in any manner modify the right of the Company or any of its Subsidiaries
to modify, amend, or terminate any of its employee benefit plans. Further,
the Company or Subsidiary may at any time dismiss a Grantee from employment,
free from any liability, or any claim under the Plan, unless otherwise
expressly provided in the Plan or in any Award Agreement.
14. RIGHTS AS A STOCKHOLDER
A Grantee shall not, by reason of any Award have any right as a stockholder
of the Company with respect to the shares of Stock which may be deliverable
in the future upon exercise of such Award, or otherwise as provided in an
Award Agreement, until Stock has been actually issued and delivered to the
Grantee. Shares of Retirement Stock issued and delivered to a Grantee in
accordance with the Retirement Award Agreement shall confer on the Grantee
all rights of a stockholder of the Company, except as otherwise provided in
the Plan or the specific Retirement Award Agreement.
15. NATURE OF PAYMENTS
Any and all grants, payments of cash, or deliveries of shares of Stock
hereunder shall constitute special incentive payments to the Grantee and
shall not be taken into account in computing the amount of salary or
compensation of the Grantee for the purposes of determining any pension,
retirement, death or other benefits under (a) any pension, retirement,
profit-sharing, bonus, life insurance or other employee benefit plan of the
Company or any of its Subsidiaries or (b) any agreement between the Company
or any Subsidiary, on the one hand, and the Grantee, on the other hand,
except as such plan or agreement shall otherwise expressly provide.
16. NON-UNIFORM DETERMINATIONS
Determinations made by the Committee or the Board under the Plan do not need
to be uniform and may be made by the Committee or the Board selectively
among persons who receive, or are eligible to receive, Awards (whether or
not such persons are similarly situated). Without limiting the generality
of the foregoing, the Committee shall be entitled, among other things, to
make non-uniform and selective determinations and to enter into non-uniform
and selective Award Agreements, as to (a) the identity of the Grantees, (b)
the terms and provisions of Awards, and (c) the treatment under Section 13
of terminations of employment. Notwithstanding the foregoing, the
Committee's interpretation of Plan provisions shall be uniform as to
similarly situated Grantees.
17. ADJUSTMENTS FOR CHANGES IN CAPITALIZATION
(a) Subject to any required action by the Stockholders, the Committee shall
make such adjustment, as it shall deem equitable, to any or all of:
(i) the aggregate numbers of shares of Stock available under Sections 3(a)
and 3(b);
(ii) the number of shares of Stock subject to an option or shares of
Retirement Stock covered by an Award;
(iii) the Option Price;
(iv) the Retirement Cash Award;
(v) any other terms or provisions of any outstanding grants of options or
Retirement Awards:
to reflect a stock dividend, stock split, reverse stock split, share
combination, recapitalization, merger, consolidation, acquisition of
property or shares, separation, asset spin-off, reorganization, stock rights
offering, liquidation or similar event, of or by the Company, or, if deemed
appropriate, the Committee may make provisions for a cash payment to the
holder of an outstanding Award; provided, however, if the Company shall be
the surviving corporation in any merger or consolidation, each outstanding
option or Award Agreement shall pertain to and apply to the securities to
which a holder of the number of shares of Stock subject to the option or
Award Agreement would have been entitled; and provided further, upon a
dissolution or liquidation of the Company, or a merger or consolidation in
which the Company is not the surviving corporation, or a change in control
of the Company, as defined in subsection (b) below, each optionee shall have
the right to exercise his option in whole or in part notwithstanding the
provisions of Section 6(g) above: (i) immediately prior to such dissolution
or liquidation or merger or consolidation in which the Company is not the
surviving corporation, and thereafter; or (ii) after such change of control.
However, with respect to Awards of Incentive Stock Options no such
adjustment shall be authorized to the extent that the authority to make such
adjustments would cause the Plan to violate Section 422(b)(1) of the Code or
any successor provision thereto and the number of shares subject to any
Award denominated in shares of Stock shall always be a whole number.
(b) "Change of control" of the Company shall mean a change in control of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act
of 1934 ("Exchange Act"); provided that, without limitation, such a change
in control shall be deemed to have occurred if: (i) any person (as that term
is defined in Section 13(d) and Section 14(d) of the Exchange Act) is or
becomes the beneficial owner, directly or indirectly, of securities of the
Company representing 20 percent, or more of the combined voting power of the
Company's then outstanding securities; or (ii) during any period of two
consecutive years, individuals who at the beginning of such period
constitute all members of the Board who are not employed by the Company (the
"Outside Directors") shall cease for any reason to constitute at least a
majority of the Outside Directors, unless the election of each Outside
Director, who was not an Outside Director at the beginning of such period,
was approved by a vote of at least two-thirds of the directors then still in
office who were directors at the beginning of such period; or, (iii) there
shall be consummated (A) any consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or pursuant to
which shares of the Company's Common Stock would be converted into cash,
securities or other property, other than a merger of the Company in which
the holders of the Company's Stock immediately prior to the merger have the
same proportionate ownership of common stock of the surviving corporation
immediately after the merger, or (B) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company, or, (iv) the stockholders
of the Company approve a plan or proposal for the liquidation or dissolution
of the Company.
(c) In the event of a change in the Stock of the Company as presently
constituted, which is limited to a change of all of its authorized shares
with par value into the same number of shares with a different par value or
without par value, the shares resulting from any such change shall be deemed
to be the Stock within the meaning of the Plan.
(d) Except as hereinbefore expressly provided in this Section 18, the
Grantee shall have no rights by reason of any subdivision or consolidation
of shares of stock of any class or the payment of any stock dividend or any
other increase or decrease in the number of shares of stock of any class or
by reason of any change of control, dissolution, liquidation, merger, or
consolidation or spin-off of assets or stock of another corporation, and any
issue of the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares of Stock subject to Awards.
The grant of an Award pursuant to the Plan shall not affect in any way the
right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure or to merge,
consolidate, dissolve, liquidate, sell, or transfer all or any part of its
business or assets.
18. AMENDMENT OF THE PLAN
Upon recommendation of the Committee, the Board of Directors of the Company
may insofar as permitted by law, from time to time, with respect to any
shares at the time not subject to options or Award Agreements, suspend or
discontinue the Plan or revise or amend it in any respect whatsoever except
that, without approval of the stockholders, no such revision or amendment
shall: change the number of shares subject to the Plan; change the
designation of the class of employees eligible to receive Awards; decrease
the price at which Options may be granted; remove the administration of the
Plan from the Committee other than as expressly provided by the Plan; extend
the period during which Awards may be granted; or render any member of the
Committee eligible to receive an Awards under the Plan while serving
thereon. Furthermore, the Plan may not without the approval of the
stockholders be amended in any manner that will cause Options issued under
it to fail to qualify as Incentive Stock Options.
Except as provided in this Section 19, the Board shall, from time to time,
revise, modify, or amend the Plan, in part or in total, without approval of
the stockholders, as may be necessary to satisfy the requirements of the
Code and any amendments or revisions thereof, such that certain stock
options which are granted under the Plan may qualify as Incentive Stock
Options, and to satisfy all other applicable laws and regulations.
19. TERMINATION OF THE PLAN
The Plan shall terminate on the tenth (10th) anniversary of the Effective
Date or at such earlier time as the Board may determine. Any termination,
whether in whole or in part, shall not affect any Award then outstanding
under the Plan.
20. OTHER COMPENSATION PLANS
Nothing contained in the Plan shall prevent the Company or any Affiliate
from adopting or continuing in effect other or additional compensation
arrangements, and such arrangements may be either generally applicable or
applicable only in specific cases.
21. NO ILLEGAL TRANSACTIONS
The Plan and all Awards granted pursuant to it are subject to all laws and
regulations of any governmental authority which may be applicable thereto;
and notwithstanding any provision of the Plan or any Award, Grantees shall
not be entitled to exercise Awards or receive the benefits thereof and the
Company shall not be obligated to deliver any Stock or pay any benefits to a
Grantee if such exercise, delivery, receipt or payment of benefits would
constitute a violation by the Grantee or the Company of any provision of any
such law or regulation.
22. CONTROLLING LAW
The law of the State of Illinois, except its law with respect to choice of
law and except as to matters relating to corporate law (in which case the
corporate law of the State of Delaware shall control), shall be controlling
in all matters relating to the Plan.
23. TAX LITIGATION
The Company shall have the right, but not the obligation, to contest, at its
expense, any tax ruling or decision, administrative or judicial, on any
issue that is related to the Plan and that the Company believes to be
important to Grantees and to conduct any such contest or any litigation
arising therefrom to a final decision.
24. SEVERABILITY
If all or any part of the Plan is declared by any court or governmental
authority to be unlawful or invalid, such unlawfulness or invalidity shall
not serve to invalidate any portion of the Plan not declared to be unlawful
or invalid. Any Section or part of a Section so declared to be unlawful or
invalid shall, if possible, be construed in a manner in which will give
effect to the terms of such Section or part of a Section to the fullest
extent possible while remaining lawful and valid.
25. INDEMNIFICATION
Each person who is or at any time serves as a member of the Board or the
Committee shall be indemnified and held harmless by the Company against and
from: (i) any loss, cost, liability or expense, including attorneys' fees
actually and necessarily incurred in connection with the defense of any
action, suit or proceeding, or in connection with any appeal therein, that
may be imposed upon or reasonably incurred by such person in connection with
or resulting from any claim, action, suit, or proceeding to which such
person may be a party or in which such person may be involved by reason of
any action or failure to act under the Plan; and (ii) any and all amounts
paid by such person in satisfaction of judgment in any such action, suit or
proceeding relating to the Plan. Each person covered by this
indemnification provision shall give the Company an opportunity, at its own
expense, to handle and defend the same before such person undertakes to
handle and defend it on such person's own behalf. The foregoing right of
indemnification shall not be exclusive of any other rights of
indemnification to which such persons may be entitled under the By-Laws of
the Company, as a matter of law, or otherwise, or any power that the Company
may have to indemnify such person or hold such person harmless.
26. RELIANCE ON REPORTS
Each member of the Board and the Committee shall be fully justified in
relying or acting in good faith upon any report made by the independent
public accountants of, or counsel for, the Company and upon any other
information furnished in connection with the Plan. In no event shall any
person who is or shall have been a member of the Board or the Committee be
liable for any determination made or other action taken or any failure to
act in reliance upon any such report or information or for any action taken,
including the furnishing of information, or failure to act, if done in good
faith.
27. EXPENSES
The Company shall bear all expenses of administering the Plan.
28. TITLES AND HEADINGS
The titles and headings of the sections in the Plan are for convenience of
reference only, and in the event of any conflict, the text of the Plan,
rather than such titles or headings, shall control.
29. APPLICATION OF FUNDS
The proceeds received by the Company from the sale of Stock pursuant to any
Awards will be used for general corporate purposes.
Date Plan was adopted by Board of Directors: June 30, 1993
Date Plan was approved by Stockholders: November 16, 1993
Date Plan was amended by Board of Directors: June 25, 1997
Date Plan was amended by Board of Directors: August 28, 1997
Date amended Plan was approved by Stockholders: November 19, 1997
EXHIBIT 5
Quixote Corporation
One East Wacker Drive
Chicago, Illinois 60601
September 4, 1998
Ladies and Gentlemen:
I am the General Counsel of Quixote Corporation (the "Company"), a
Delaware corporation, and I am rendering this opinion in connection with the
preparation of a Registration Statement on Form S-8 ("Registration
Statement") under the Securities Act of 1933, as amended (the "Act"), in
connection with the registration under the Act of 385,000 shares (the
"Shares") of the Common Stock, par value $.01-2/3 per share, of the Company
to be issued pursuant to the Company's 1991 Directors Stock Option Plan, as
amended, and the 1993 Long-Term Stock Ownership Incentive Plan, as amended
(the "Plans").
In this connection, I have examined originals or copies identified to
my satisfaction of such documents, corporate and other records,
certificates, and other papers as deemed necessary to examine for purposes
of this Opinion, including but not limited to the Restated Certificate of
Incorporation of the Company, as amended, the By-Laws of the Company, as
amended, resolutions of the Board of Directors of the Company, the Plan, and
the forms of award agreements for the Plans.
It is my opinion that, when issued and paid for in accordance with the
Plans, the Shares will be legally issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Joan R. Riley
-----------------
Joan R. Riley, Esq.
General Counsel
AHS/ghs
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement of Quixote Corporation and its Subsidiaries on Form S-8 of our
report dated August 8, 1997, on our audits of the consolidated financial
statements and financial statement schedules of Quixote Corporation and
its Subsidiaries as of June 30, 1997 and 1996, and for the years ended
June 30, 1997, 1996 and 1995.
/s/ PricewaterhouseCoopers, LLP
- --------------------------------
PRICEWATERHOUSECOOPERS L.L.P.
Chicago, Illinois
August 27, 1998
Exhibit 24
POWER OF ATTORNEY
Each of the undersigned directors and officers of Quixote Corporation,
hereby severally, constitutes and appoints Philip E. Rollhaus, Jr., Leslie J.
Jezuit, and Daniel P. Gorey, or any one of them, each with full power of
substitution and resubstitution, such person's true and lawful attorney-in-
fact and agent, in such person's name and on such person's behalf, in any and
all capacities, to execute a registration statement on Form S-8 relating to
the common stock of Quixote Corporation, and any and all amendments (including
any post-effective amendments) to such registration statement, and to file
with the same all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each of
said attorneys-in-fact and agents full power and authority to perform each and
every act necessary to be done as fully to all intents and purposes as he
could do in person, hereby ratifying and confirming all that said attorneys-
in-fact and agents or any of them, or their substitutes, may lawfully do or
cause to be done by virtue thereof.
SIGNATURE TITLE DATE
- --------- ------ ----
/s/ Philip E. Rollhaus, Jr. Chairman and Chief Executive August 21, 1998
- --------------------------- Officer, Director (Principal
Philip E. Rollhaus, Jr. Executive Officer)
/s/ Leslie J. Jezuit President and Chief Operating August 21, 1998
- -------------------- Officer, Director
Leslie J. Jezuit
/s/ Daniel P. Gorey Chief Financial Officer, August 21, 1998
- ------------------- Vice President and Treasurer
Daniel P. Gorey
/s/ James H. DeVries Director August 21, 1998
- --------------------
James H. DeVries
/s/ William G. Fowler Director August 21, 1998
- ---------------------
William G. Fowler
/s/ Lawrence C. McQuade Director August 21, 1998
- -----------------------
Lawrence C. McQuade
/s/ Robert D. van Roijen, Jr. Director August 21, 1998
- -----------------------------
Robert D. van Roijen, Jr.
