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As filed with the Securities and Exchange Commission on June 19, 1996
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________
SCHULLER CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 84-0856796
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
717 17TH STREET
DENVER, COLORADO 80202
(303) 978-2000
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
___________
SCHULLER CORPORATION
DEFERRED COMPENSATION PLAN
(Full title of the plan)
___________
RICHARD B. VON WALD, ESQ.
SCHULLER CORPORATION
717 17TH STREET
DENVER, COLORADO 80202
TEL: (303) 978-2000
FAX: (303) 978-4842
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
___________
CALCULATION OF REGISTRATION FEE
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<CAPTION>
================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered(1) Registered(2) Per Share Price(2) Registration Fee
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<S> <C> <C> <C> <C>
Deferred Compensation Plan
Obligations of Schuller
Corporation $10,023,000 100% $10,023,000 $776.96
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Common Stock, $.01 par value (3) (3) (3) (3)
================================================================================================================
</TABLE>
(1) The Deferred Compensation Obligations are unsecured obligations of
Schuller Corporation to pay deferred compensation in the future in
accordance with the terms of the Schuller Corporation Deferred
Compensation Plan.
(2) Estimate of original amount deferred by participants.
(3) Shares of Common Stock to be issued pursuant to this Plan will come from
the Schuller Corporation 1996 Executive Incentive Compensation Plan or the
Schuller Corporation 1996 Stock Award Plan for which separate registration
statements on Form S-8 have been filed.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
This Registration Statement relates to the registration of obligations of
Schuller Corporation (the "Registrant") under the Schuller Corporation Deferred
Compensation Plan (the "Plan"). The documents containing the information
required by Part I of Form S-8 will be sent or given to participants in the
Plan as specified by Rule 428(b)(1) under the Securities Act of 1933, as
amended (the "Securities Act"). In reliance on Rule 428, such documents (i)
are not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424 and (ii) along with the
documents incorporated by reference into this Registration Statement pursuant
to Item 3 of Part II hereof, constitute a prospectus (the "Prospectus") that
meets the requirements of Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Registrant with the Commission are hereby
incorporated by reference into this Registration Statement.
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1995, filed with the Commission on April 11, 1996, pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996, filed with the Commission on May 15, 1996, pursuant to Section
13(a) of the Exchange Act.
(c) All other reports, if any, filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since December 31, 1995.
(d) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A/A Amendment No. 2, filed with
the Commission on June 19, 1996, pursuant to Section 12 of the Exchange Act,
and any amendment or reports, filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed incorporated by reference into this
Registration Statement and to be a part thereof from the date of the filing of
such documents. Any statement contained in the Prospectus, this Registration
Statement or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
the Prospectus and this Registration Statement to the extent that a statement
contained in any subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of the Prospectus or this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The Common Stock of the Company is registered under Section 12 of the
Exchange Act, accordingly, no description of the Common Stock is included
herein.
Under the Plan, the Registrant will provide eligible employees the
opportunity to defer a specified percentage of their compensation or awards.
The obligations of the Registrant under the Plan (the "Obligations") will be
unsecured general obligations of the Registrant to pay the deferred
compensation in the future in accordance with the terms of the Plan, and will
rank pari passu with other unsecured and unsubordinated indebtedness of the
Registrant from time to time outstanding. However, because the Registrant is a
holding company, the right of the Registrant, hence the right of creditors of
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the Registrant (including participants in the Plan), to participate in any
distribution of the assets of any subsidiary upon its liquidation or
reorganization or otherwise is necessarily subject to the prior claims of
creditors of the subsidiary, except to the extent that claims of the Registrant
itself as a creditor of the subsidiary may be recognized. The Registrant may
authorize the creation of trusts or make other arrangements to meet the
Registrant's obligations under the Plan, which trusts or other arrangements
shall be consistent with the "unfunded" status of the Plan.
The amount of compensation to be deferred by each participant will be
determined in accordance with the Plan based on elections by each participant.
Each Obligation will be payable on a date selected by each participant in
accordance with the terms of the Plan. Earlier payments will also be made in
the event of termination of employment for reasons other then retirement or
disability, a change in control of the Company or possibly for financial
emergencies of the participant. The Obligations will be indexed to one or more
hypothetical investment categories, including Registrant's Common Stock. Each
participant will select the investment category or categories to which his or
her Obligation will be indexed. In the event the Committee establishes one or
more trusts to hold amounts of cash, Common Stock or other property, the
amounts of hypothetical income and appreciation and depreciation in the value
of the deferral amount to which such trust pertains shall be equal to the
actual income on, and appreciation and depreciation of, the assets in such
trust. Each participant's Obligation will be adjusted to reflect the
investment experience, whether positive or negative, of the selected
hypothetical investment vehicles, including any appreciation or depreciation.
The Obligations will be payable in cash or, in the discretion of the Committee,
other assets.
The Administrator may change or discontinue any hypothetical investment
categories available under the Plan, in its sole discretion, and may disregard
the directions of any participant with respect to the hypothetical investment
of his or her deferral account. The Committee or Administrator may, in its
discretion, restrict all allocations into or reallocations by specified
participants into or out of specified hypothetical investment vehicles or
specify minimum amounts that may be allocated or reallocated by certain
participants.
Other than by will or the laws of descent and distribution, no right,
title or interest of any kind in the Plan shall be transferable or assignable
by a participant or his or her beneficiary or be subject to alienation,
anticipation, encumbrance, garnishment, attachment, levy, execution or other
legal or equitable process, nor subject to the debts, contracts, liabilities or
engagements, or torts of any participant or his or her beneficiary.
The total amounts of Obligations under the Plan and Common Stock offered
under the Plan are not determinable because the amounts will vary depending
upon the level of participation by eligible persons and the investment
categories selected by participants. Likewise, the duration of the Plan is
indefinite because Obligations are to be paid on dates selected by participants
unless certain events occur.
The Obligations are not subject to redemption, in whole or in part, prior
to the individual payment dates specified by each participant, at the option of
the Registrant or through operation of a mandatory or optional sinking fund or
analogous provision. The Registrant reserves the right to amend or terminate
the Plan at any time, except that no such amendment or termination shall
adversely affect the right of each participant to the balance of his or her
deferred account as of the date of such amendment or termination.
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The Obligations are not convertible into another security of
Registrant. The Obligations will not have the benefit of a negative pledge or
any other affirmative or negative covenant on the part of Registrant. No
trustee has been appointed having the authority to take action with respect to
the Obligations and each participant will be responsible for acting
independently with respect to, among other things, the giving of notices,
responding to any requests for consents, waivers or amendments pertaining to
the Obligations, enforcing covenants and taking action upon a default.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The validity of the Obligations and Common Stock issuable under the
Plan has been passed upon for Registrant by Dion Persson, Esq., Associate
General Counsel of Registrant. At June 18, 1996, Mr. Persson owned 1,510
shares of Common Stock and had options and deferred stock granted under
Registrant's employee stock plans relating to 88,810 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Amended and Restated Bylaws of the Registrant require the
Registrant to indemnify its directors and officers to the fullest extent
permitted by Delaware law. In addition, the Registrant's employment agreements
with management employees require the Registrant to indemnify such employees to
the fullest extent permitted by Delaware law. The Registrant also has obtained
insurance policies which provide coverage for the Registrant's directors and
officers in certain situations where the Registrant cannot directly indemnify
such directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. LIST OF EXHIBITS.
See the Exhibit Index following the signature page in this
Registration Statement, which Exhibit Index is incorporated herein by this
reference.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement;
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<PAGE> 6
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that provisions (1)(i) and (1)(ii) of this undertaking are
inapplicable if the information required to be included in a post-effective
amendment by such provisions are contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or 15(d)
of the Exchange Act that are incorporated by reference in this Registration
Statement.
2. That, for the purpose of determining any liability under the Securities
Act, 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.
4. That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act (and each filing of the Plan's annual report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities 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 Securities Act and will be governed
by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirement of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Denver, State of Colorado on June 19, 1996.
SCHULLER CORPORATION
By: /s/ W. Thomas Stephens
----------------------------------
W. Thomas Stephens
Chief Executive Officer and President
Pursuant to the requirement 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:
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ W. Thomas Stephens Chief Executive Officer, President June 19, 1996
- ----------------------- and a Director
W. Thomas Stephens (Principal Executive Officer)
* Senior Vice President and June 19, 1996
- ----------------------- Chief Financial Officer
Kenneth L. Jensen (Chief Financial Officer)
* Controller June 19, 1996
- -----------------------
John M. Rosebery
* Director June 19, 1996
- -----------------------
Leo Benatar
* Director June 19, 1996
- -----------------------
Robert A. Falise
</TABLE>
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<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
* Director June 19, 1996
- ----------------------------
Todd Goodwin
* Director June 19, 1996
- ----------------------------
Michael N. Hammes
* Director June 19, 1996
- ----------------------------
John Nils Hanson
* Director June 19, 1996
- ----------------------------
Kathryn Rudie Harrigan
* Director June 19, 1996
- ----------------------------
Louis Klein, Jr.
* Director June 19, 1996
- ----------------------------
Frank J. Macchiarola
* Director June 19, 1996
- ----------------------------
Christian E. Markey, Jr.
Director
- ----------------------------
William E. Mayer
*By: /s/ Richard B. Von Wald
------------------------
Richard B. Von Wald
Attorney-in-Fact
</TABLE>
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SCHULLER CORPORATION
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
Exhibit Incorporated Herein Filed Sequential
No. Description by Reference To Herewith Page No.
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<S> <C> <C> <C> <C>
4.1 Amended and Restated Filed as an exhibit
Certificate of to the Registrant's
Incorporation of Schuller Form 10-K for the
Corporation year ended December
31, 1995
4.2 Amended and Restated Filed as an exhibit
By-Laws of Schuller to Registrant's
Corporation Form 10-Q for the
quarter ended March
31, 1995
4.3 Schuller Corporation X
Deferred Compensation Plan
5.1 Opinion of Dion Persson X
regarding the obligations
registered pursuant to this
Registration Statement
15 Letter of Coopers & Lybrand L.L.P. X
regarding Registrant's
unaudited interim financial
statements
23.1 Consent of Coopers & Lybrand L.L.P. X
23.2 Consent of Dion Persson
(included in exhibit 5.1)
24.1 Powers of Attorney X
</TABLE>
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<PAGE> 1
EXHIBIT 4.3
SCHULLER CORPORATION
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DEFERRED COMPENSATION PLAN
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SCHULLER CORPORATION
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DEFERRED COMPENSATION PLAN
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<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
1. Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. Deferrals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
6. Deferral Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
7. Deferral of Certain Stock-Denominated Awards . . . . . . . . . . . . . . . . . . . . . . . 5
8. Settlement of Deferral Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
9. Provisions Relating to Section 16 of the Exchange Act
and Section 162(m) of the Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10. Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
11. Sources of Stock: Limitation on Amount of
Stock-Denominated Deferrals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
12. Amendment/Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
13. General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
14. Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
</TABLE>
<PAGE> 3
SCHULLER CORPORATION
DEFERRED COMPENSATION PLAN
1. PURPOSES. The purposes of this Deferred Compensation Plan
(the "Plan") are to provide certain highly compensated employees of Schuller
Corporation (the "Company") and its subsidiaries with the opportunity to elect
to defer receipt of specified portions of compensation and to have such
deferred amounts treated as if invested in specified investment vehicles.
2. DEFINITIONS. In addition to the terms defined in Section 1
above, the following terms used in the Plan shall have the meanings set forth
below:
(a) "Administrator" shall mean the Administrative
Committee set forth in Section 3(b) to whom the Committee has delegated the
authority to take action under the Plan, except as may be otherwise required
under Section 9.
(b) "Beneficiary" shall mean any person (which may
include trusts and is not limited to one person) who has been designated by the
Participant in his or her most recent written beneficiary designation filed
with the Company to receive the benefits specified under the Plan in the event
of the Participant's death. If no Beneficiary has been designated who survives
the Participant's death, then Beneficiary means any person(s) entitled by will
or, in the absence thereof, the laws of descent and distribution to receive
such benefits.
(c) "Cause" shall mean (i) the Participant's willful and
continued failure substantially to perform his or her duties (other than as a
result of total or partial incapacity due to physical or mental illness or by
reason of Participant's prior voluntary termination of employment), (ii) the
Participant's dishonesty in the performance of his or her duties, or (iii) the
Participant's conviction of a felony under the laws of the United States or any
state thereof.
(d) "Change in Control" shall have the meaning given to
such term in the Schuller Corporation 1996 Executive Incentive Compensation
Plan.
(e) "Code" shall mean the Internal Revenue Code of 1986,
as amended. References to any provision of the Code or regulation (including a
proposed regulation) thereunder shall include any successor provisions or
regulations.
(f) "Committee" shall mean the Compensation Committee of
the Board of Directors of the Company or any other directors of the Company
designated as the Committee. Except as may be otherwise required under Section
9 or by applicable law, any function of the Committee may be delegated to the
Administrator.
(g) "Deferral Account" shall mean the account or
subaccount established and maintained by the Company for specified deferrals by
a Participant, as described in Sections 6 and 7. Deferral Accounts will be
maintained solely as bookkeeping entries by the Company to evidence unfunded
obligations of the Company.
<PAGE> 4
(h) "Disability" shall mean a Participant's termination
of employment by the Company or any subsidiary due to physical or mental
incapacity and, therefore, inability for a period of six (6) consecutive months
to perform the Participant's duties.
(i) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended. References to any provision of the Exchange Act or rule
thereunder shall include any successor provisions or rules.
(j) "Participant" shall mean any employee of the Company
or any subsidiary who is designated by the Committee as an eligible Participant
in the Plan and who participates or makes an election to participate in the
Plan.
(k) "Retirement" shall mean a Participant's termination
of employment under circumstances in which the Participant is entitled to
receive an immediately payable benefit, including an early retirement benefit,
under the Company's retirement plan generally applicable to its salaried
employees or under any retirement arrangement established with respect to the
Participant with his or her consent, in either case, whether or not the
Participant commences to receive such benefit at the time of such termination.
(l) "Sale of Participant's Business Unit" shall mean a
sale of the business unit, division or group within which a Participant is
employed, other than to another entity which is directly or indirectly
controlled by the Company, as a result of which the Participant is no longer
employed by an entity which is directly or indirectly controlled by the
Company.
(m) "Stock" shall mean Schuller Corporation Common Stock,
$0.01 par value, or any other equity securities of the Company designated by
the Committee.
(n) "Trust" shall mean any trust or trusts established by
the Company as part of the Plan; provided, however, that the assets of such
trusts shall remain subject to the claims of the general creditors of the
Company.
(o) "Trustee" shall mean the trustee of a Trust.
(p) "Trust Agreement" shall mean the agreement entered
into between the Company and the Trustee to carry out the purposes of the Plan,
as amended or restated from time to time.
(q) "Valuation Date" shall mean the close of business on
the last business day of each calendar quarter; provided, however, that in the
case of termination of employment for reasons other than Retirement, death, or
Disability, the Valuation Date shall mean the close of business on the last
business day of the month in which employment terminates, and in the case of a
Change in Control of the Company, the Valuation Date shall be the date of such
Change in Control.
3. ADMINISTRATION.
(a) Authority. Both the Committee and the Administrator
(subject to the ability of the Committee to restrict the Administrator) shall
administer the Plan in accordance with its terms, and shall have all powers
necessary to accomplish such purpose, including the power and authority to
construe and interpret the Plan, to define the terms used herein, to
- 2 -
<PAGE> 5
prescribe, amend and rescind rules and regulations, agreements, forms, and
notices relating to the administration of the Plan, and to make all other
determinations necessary or advisable for the administration of the Plan. Any
actions of the Committee or the Administrator with respect to the Plan shall be
conclusive and binding upon all persons interested in the Plan, except that any
action of the Administrator will not be binding on the Committee. The
Committee and Administrator may each appoint agents and delegate thereto powers
and duties under the Plan, except as otherwise limited by the Plan.
(b) Administrator. The Administrative Committee shall
consist of such number of members as shall be determined by the Committee, each
of whom shall be appointed by, shall remain in office at the will of, and may
be removed, with or without cause, by the Committee. Any member of the
Administrative Committee may resign at any time. No member of the
Administrative Committee shall be entitled to act on or decide any matter
relating solely to himself or herself or any of his or her rights or benefits
under the Plan. The members of the Administrative Committee shall not receive
any special compensation for serving in their capacities as members of the
Administrative Committee but shall be reimbursed for any reasonable expenses
incurred in connection therewith. No bond or other security need be required
of the Administrative Committee or any member thereof in any jurisdiction.
(c) Limitation of Liability. Each member of the
Committee and the Administrator shall be entitled to, in good faith, rely or
act upon any report or other information furnished to him or her by any officer
or other employee of the Company or any subsidiary, the Company's independent
certified public accountants, or any executive compensation consultant, legal
counsel, or other professional retained by the Company to assist in the
administration of the Plan. To the maximum extent permitted by law, no member
of the Committee or the Administrator, nor any person to whom ministerial
duties have been delegated, shall be liable to any person for any action taken
or omitted in connection with the interpretation and administration of the
Plan.
4. PARTICIPATION. The Administrator will notify each person of
his or her participation or eligibility to participate in the Plan not later
than 15 days (or such lesser period as may be practicable in the circumstances)
prior to any deadline for filing an election form.
5. DEFERRALS. To the extent authorized by the Committee, a
Participant may elect to defer compensation or awards which may be in the form
of cash, Stock, Stock-denominated awards or other property to be received from
the Company or a subsidiary, including salary, annual incentive award, long
term award, shares issuable on stock option exercise and compensation payable
under other plans and programs (such as the Schuller International Group, Inc.
1994 Long Term Cash Incentive Compensation Plan), employment agreements or
other arrangements, or otherwise, as may be provided under the terms of such
plans, programs and arrangements or as designated by the Committee; provided,
however, that a Participant who is an employee of the Company or a subsidiary
may defer, with respect to a given year, receipt of only that portion of the
Participant's salary, annual incentive award, long term award, shares issuable
on stock option exercise and compensation payable under other plans and
programs, employment agreements or other arrangements that exceeds the FICA
maximum taxable wage base plus the amount necessary to satisfy Medicare and all
other payroll taxes (other than Federal, state or local income tax withholding)
imposed on the wages of such Participant from the Company and its subsidiaries.
In addition to such limitation, and any terms and conditions of deferral set
forth under plans, programs or arrangements from which receipt of compensation
or awards is deferred, the Committee may impose limitations on the amounts
- 3 -
<PAGE> 6
permitted to be deferred and other terms and conditions on deferrals under the
Plan. Any such limitations, and other terms and conditions of deferral, shall
be set forth in the rules relating to the Plan or election forms, other forms,
or instructions published by the Committee and/or the Administrator.
(a) Elections. Once an election form, properly
completed, is received by the Company, the elections of the Participant shall
be irrevocable; provided, however, that the Committee and/or the Administrator
may, in its discretion, permit a Participant to elect a further deferral of
amounts credited to a Deferral Account by filing a later election form;
provided, further, that, unless otherwise approved by the Committee, any
election to further defer amounts credited to a Deferral Account must be made
at least one (1) year prior to the date such amounts would otherwise be
payable.
(b) Date of Election. An election to defer compensation
or awards hereunder must be received by the Administrator prior to the date
specified by the Administrator. Under no circumstances may a Participant defer
compensation or awards to which the Participant has attained, at the time of
deferral, a legally enforceable right to current receipt of such compensation
or awards.
6. DEFERRAL ACCOUNTS. The following provisions will apply to
Deferral Accounts other than those established under Section 7:
(a) Establishment; Crediting of Amounts Deferred. One or
more Deferral Accounts will be established for each Participant, as determined
by the Administrator. The amount of compensation or awards deferred with
respect to each Deferral Account will be credited to such Account as of the
date on which such amounts would have been paid to the Participant but for the
Participant's election to defer receipt hereunder. The amounts of hypothetical
income and appreciation and depreciation in value of such account will be
credited and debited to such Account from time to time. Unless otherwise
determined by the Administrator, cash amounts credited to a Deferral Account
shall be deemed invested in a hypothetical investment as of the date of
deferral.
(b) Hypothetical Investment Vehicles. Subject to the
provisions of Sections 6(c) and 9, amounts credited to a Deferral Account shall
be deemed to be invested, at the Participant's direction, in one or more
investment vehicles as may be specified from time to time by the Administrator.
The Administrator may change or discontinue any hypothetical investment vehicle
available under the Plan in its discretion; provided, however, that, subject to
the authority of the Administrator to disregard the directions of any
Participant, each affected Participant is given the opportunity, without
limiting or otherwise impairing any other right of such Participant regarding
changes in investment directions, to redirect the allocation of his or her
Deferral Account deemed invested in the discontinued investment vehicle among
the other hypothetical investment vehicles, including any replacement vehicle.
(c) Allocation and Reallocation of Hypothetical
Investments. A Participant may allocate amounts credited to his or her
Deferral Account to one or more of the hypothetical investment vehicles
authorized under the Plan. Subject to the rules established by the
Administrator, a Participant may reallocate amounts credited to his or her
Deferral Account as of the Valuation Date following the Participant's election
to one or more of such hypothetical investment vehicles, by filing with the
Administrator a notice, in such form as may be specified by the Administrator,
not later than the 15th of the month preceding such Valuation Date. The
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<PAGE> 7
Committee or Administrator may, in its discretion, restrict allocation into or
reallocation by specified Participants into or out of specified investment
vehicles or specify minimum amounts that may be allocated or reallocated by
Participants.
(d) Trusts. The Committee may, in its discretion,
establish one or more Trusts (including sub-accounts under such Trusts), and
deposit therein amounts of cash, Stock, or other property not exceeding the
amount of the Company's obligations with respect to a Participant's Deferral
Account established under this Section 6. In such case, the amounts of
hypothetical income and appreciation and depreciation in value of such Deferral
Account shall be equal to the actual income on, and appreciation and
depreciation of, the assets in such Trusts. Other provisions of this Section 6
notwithstanding, the timing of allocations and reallocations of assets in such
a Deferral Account, and the investment vehicles available with respect to such
Deferral Account, may be varied to reflect the timing of actual investments of
the assets of such Trust and the actual investments available to such Trust.
7. DEFERRAL OF CERTAIN STOCK-DENOMINATED AWARDS.
(a) Establishment. Subject to any terms and conditions
imposed by the Committee, Participants may elect to defer, under the Plan,
awards denominated in Stock specified in Section 7(d) or otherwise specified by
the Committee or Administrator. In connection with such deferral of a
Stock-denominated award, a Deferral Account shall be established for such
Participant and a Trust (including sub-accounts under such Trust) may also be
established, on terms determined by the Committee, into which the Company may
deposit a number of whole shares of Stock equal to the number of shares subject
to such deferred award. With respect to any fractional shares of Stock or
Stock-denominated awards, the Administrator, in its sole discretion, shall pay
such fractional shares to the Participant in cash or credit the Deferral
Account with cash in lieu of depositing fractional shares into the Deferral
Account. In such case, the amounts of hypothetical income and appreciation and
depreciation in value of such Deferral Account shall be equal to the actual
income on, and appreciation and depreciation of, the assets in the Trust.
(b) Investment of Trust Assets. The Trustee of each
Trust, which shall be a party not under the control of the Company, shall be
authorized, upon written instructions received from the Administrator or
investment manager appointed by the Administrator, to invest and reinvest the
assets of the Trust in accordance with the applicable Trust Agreement,
including the disposition of such Stock and reinvestment of the proceeds in one
or more investment vehicles designated by the Administrator; provided that,
except as may be permitted under Section 7(c), no such disposition shall be
made until the date that the shares of Stock subject to the deferred award are
no longer subject to a risk of forfeiture by the Participant.
(c) Cashless Exercise. If and to the extent permitted by
the Committee, and subject to such terms and conditions as may be established
by the Committee from time to time, a Participant may submit a request to the
Administrator to surrender Stock allocated to his or her Deferral Account to
pay the purchase price of any stock options of the Company granted to the
Participant under another plan, program or arrangement.
(d) LTCIP Cycle I. To the extent Participants elect, in
accordance with election forms approved by the Committee and/or Administrator,
(i) to defer receipt of amounts otherwise payable pursuant to the award for the
1994 to 1996 Performance Period under the Schuller International Group, Inc.
1994 Long Term Cash Incentive Compensation Plan and (ii) to have such amounts
credited to the Participant's Deferral Account hereunder in the form of
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<PAGE> 8
Stock (the "LTCIP Cycle I Stock Deferral"), the Company shall credit the
Participant's Deferral Account with an additional number of shares of Stock
(the "LTCIP Cycle I Premium") equal to 15% of the number of shares constituting
the LTCIP Cycle I Stock Deferral. The number of shares of Stock constituting
the LTCIP Cycle I Premium (together with any appreciation and dividends
thereon) shall become vested and nonforfeitable only if (i) the related shares
constituting the LTCIP Cycle I Stock Deferral remain credited to the
Participant's Deferral Account in the form of Stock for at least two years and
(ii) the Participant's employment with the Company is not terminated for any
reason other than death, Disability, Retirement, the Sale of Participant's
Business Unit, or by the Company without Cause prior to the expiration of such
two-year period. Shares of Stock constituting the LTCIP Cycle I Premium shall
be forfeited in the event the preceding conditions are not satisfied.
Notwithstanding the foregoing, in the event of a Change in Control, shares of
Stock constituting the LTCIP Cycle I Premium that have not previously been
forfeited shall automatically become 100% vested and nonforfeitable and
distributed in accordance with the Plan. Shares credited to a Participant's
Deferral Account in connection with the LTCIP Cycle I Stock Deferral and LTCIP
Cycle I Premium shall be deemed to be awards under the Schuller Corporation
1996 Executive Incentive Compensation Plan if the Participant is an executive
officer at the time of crediting, or the Schuller Corporation 1996 Stock Award
Plan, as determined by the Committee.
8. SETTLEMENT OF DEFERRAL ACCOUNTS.
(a) Form of Payment. The Company shall settle a
Participant's Deferral Account, and discharge all of its obligations to pay
deferred compensation under the Plan with respect to such Deferral Account, by
payment of cash or, in the discretion of the Committee, by delivery of other
assets (including Stock) having a fair market value equal to the amount
credited to the Deferral Account.
(b) Forfeited Shares. To the extent that Stock (i) is
deposited in a Trust pursuant to Section 7 in connection with a deferral of
Stock or a Stock-denominated award under another plan, program, employment
agreement or other arrangement and (ii) is forfeited pursuant to the terms of
such plan, program, agreement or arrangement, the Participant shall not be
entitled to the value of such Stock and other property related thereto
(including without limitation, dividends and distributions thereon). Any Stock
or Stock-denominated awards and other property forfeited shall be returned to
the Company.
(c) Timing of Payments. Payments in settlement of a
Deferral Account shall be made as soon as practicable after the date or dates
(including upon the occurrence of specified events), and in such number of
installments, as may be directed by the Participant in his or her election
relating to such Deferral Account, or earlier in the following circumstances:
(i) In the event of termination of employment for reasons
other than Retirement or Disability, a single lump sum payment in
settlement of any Deferral Account (including a Deferral Account with
respect to which one or more installment payments have previously been
made) shall be made as promptly as practicable following the next
Valuation Date, unless otherwise determined by the Administrator; or
(ii) In the event of a Change in Control, payments in
settlement of any Deferral Account (including a Deferral Account with
respect to which one or more installment payments have previously been
made) shall be made within fifteen (15) business days following such
Change in Control.
- 6 -
<PAGE> 9
(d) Financial Emergency and Other Payments. Other
provisions of the Plan (except Section 9) notwithstanding, if, upon the written
application of a Participant, the Committee determines that the Participant has
a financial emergency of such a substantial nature and beyond the individual's
control that payment of amounts previously deferred under the Plan is
warranted, the Committee may direct the payment to the Participant of all or a
portion of the balance of a Deferral Account and the time and manner of such
payment.
9. PROVISIONS RELATING TO SECTION 16 OF THE EXCHANGE ACT AND SECTION
162(M) OF THE CODE.
(a) Compliance with Section 16. With respect to a
Participant who is then subject to the reporting requirements of Section 16(a)
of the Exchange Act, the Committee and Administrator shall implement
transactions under the Plan and administer the Plan in a manner that will
ensure that each transaction by such a Participant is exempt from liability
under Rule 16b-3, except that such a Participant may be permitted to engage in
a non-exempt transaction under the Plan if written notice is given to the
Participant regarding the non-exempt nature of such transaction.
(b) Compliance with Code Section 162(m). It is the
intent of the Company that any compensation (including any award) deferred
under the Plan by a person who is, with respect to the year of payout, deemed
by the Committee to be a "covered employee" within the meaning of Code Section
162(m) and regulations thereunder, which compensation constitutes "qualified
performance-based compensation" within the meaning of Code Section 162(m) and
regulations thereunder, shall not, as a result of deferral hereunder, become
compensation with respect to which the Company in fact would not be entitled to
a tax deduction under Code Section 162(m). Accordingly, unless otherwise
determined by the Committee, if any compensation would become so disqualified
under Section 162(m) as a result of deferral hereunder, the terms of such
deferral shall be automatically modified to the extent necessary to ensure that
the compensation would not, at the time of payout, be so disqualified.
10. STATEMENTS. The Administrator will furnish statements to each
Participant reflecting the amount credited to a Participant's Deferral Accounts
and transactions therein not less frequently than once each calendar year.
11. SOURCES OF STOCK: LIMITATION ON AMOUNT OF STOCK-DENOMINATED
DEFERRALS. If Stock is deposited under the Plan in a Trust pursuant to Section
7 in connection with a deferral of a Stock-denominated award under another
plan, program, employment agreement or other arrangement that provides for the
issuance of shares, the shares so deposited shall be deemed to have originated,
and shall be counted against the number of shares reserved, under such other
plan, program or arrangement. Stock actually delivered in settlement of
Deferral Accounts shall be originally issued shares or treasury shares, in the
discretion of the Committee.
12. AMENDMENT/TERMINATION. The Committee may, with prospective or
retroactive effect, amend, alter, suspend, discontinue, or terminate the Plan
at any time without the consent of Participants, stockholders, or any other
person; provided, however, that, without the consent of a Participant, no such
action shall materially and adversely affect the rights of such Participant
with respect to any rights to payment of amounts credited to such Participant's
Deferral Account. Notwithstanding the foregoing, the Committee may, in its
sole discretion,
- 7 -
<PAGE> 10
terminate the Plan (in whole or in part) and distribute to Participants (in
whole or in part) the amounts credited to their Deferral Accounts.
13. GENERAL PROVISIONS.
(a) Limits on Transfer of Awards. Other than by will or the laws
of descent and distribution, no right, title or interest of any kind in the
Plan shall be transferable or assignable by a Participant or his or her
Beneficiary or be subject to alienation, anticipation, encumbrance,
garnishment, attachment, levy, execution or other legal or equitable process,
nor subject to the debts, contracts, liabilities or engagements, or torts of
any Participant or his or her Beneficiary. Any attempt to alienate, sell,
transfer, assign, pledge, garnish, attach or take any other action subject to
legal or equitable process or encumber or dispose of any interest in the Plan
shall be void.
(b) Receipt and Release. Payments (in any form) to any
Participant or Beneficiary in accordance with the provisions of the Plan shall,
to the extent thereof, be in full satisfaction of all claims for the
compensation or awards deferred and relating to the Deferral Account to which
the payments relate against the Company or any subsidiary thereof, the
Committee, or the Administrator, and the Administrator may require such
Participant or Beneficiary, as a condition to such payments, to execute a
receipt and release to such effect. In the case of any payment under the Plan
of less than all amounts then credited to an account in the form of Stock, the
amounts paid shall be deemed to relate to the Stock credited to the account at
the earliest time.
(c) Unfunded Status of Awards; Creation of Trusts. The Plan is
intended to constitute an "unfunded" plan for deferred compensation and
Participants shall rely solely on the unsecured promise of the Company for
payment hereunder. With respect to any payment not yet made to a Participant
under the Plan, nothing contained in the Plan shall give a Participant any
rights that are greater than those of a general unsecured creditor of the
Company; provided, however, that the Committee may authorize the creation of
Trusts, including but not limited to the Trusts referred to in Sections 6 and 7
hereof, or make other arrangements to meet the Company's obligations under the
Plan, which Trusts or other arrangements shall be consistent with the
"unfunded" status of the Plan unless the Committee otherwise determines with
the consent of each affected Participant.
(d) Compliance. A Participant in the Plan shall have no right to
receive payment (in any form) with respect to his or her Deferral Account until
legal and contractual obligations of the Company relating to establishment of
the Plan and the making of such payments shall have been complied with in full.
In addition, the Company shall impose such restrictions on Stock delivered to a
Participant hereunder and any other interest constituting a security as it may
deem advisable in order to comply with the Securities Act of 1933, as amended,
the requirements of the New York Stock Exchange or any other stock exchange or
automated quotation system upon which the Stock is then listed or quoted, any
state securities laws applicable to such a transfer, any provision of the
Company's Certificate of Incorporation or Bylaws, or any other law, regulation,
or binding contract to which the Company is a party.
(e) Other Participant Rights. No Participant shall have any of
the rights or privileges of a stockholder of the Company under the Plan,
including as a result of the crediting of Stock equivalents or other amounts to
a Deferral Account, or the creation of any Trust and deposit of such Stock
therein, except at such time as Stock may be actually delivered in settlement
of a Deferral Account. No provision of the Plan or transaction hereunder shall
confer upon any
- 8 -
<PAGE> 11
Participant any right to be employed by the Company or a subsidiary thereof, or
to interfere in any way with the right of the Company or a subsidiary to
increase or decrease the amount of any compensation payable to such
Participant. Subject to the limitations set forth in Section 13(a) hereof, the
Plan shall inure to the benefit of, and be binding upon, the parties hereto and
their successors and assigns.
(f) Tax Withholding. The Company and any subsidiary shall have
the right to deduct from amounts otherwise payable in settlement of a Deferral
Account any sums that federal, state, local or foreign tax law requires to be
withheld with respect to such payment. Shares may be withheld to satisfy such
obligations in any case where taxation would be imposed upon the delivery of
shares, except that shares issued or delivered under any plan, program,
employment agreement or other arrangement may be withheld only in accordance
with the terms of such plan, program, employment agreement or other arrangement
and any applicable rules, regulations, or resolutions thereunder.
(g) Governing Law. The validity, construction, and effect of the
Plan and any rules and regulations relating to the Plan shall be determined in
accordance with the laws of the State of Delaware, without giving effect to
principles of conflicts of laws, and applicable provisions of federal law.
(h) Limitation. A Participant and his or her Beneficiary shall
assume all risk in connection with any decrease in value of the Deferral
Account and neither the Company, the Committee nor the Administrator shall be
liable or responsible therefor.
(i) Construction. The captions and numbers preceding the sections
of the Plan are included solely as a matter of convenience of reference and are
not to be taken as limiting or extending the meaning of any of the terms and
provisions of the Plan. Whenever appropriate, words used in the singular shall
include the plural or the plural may be read as the singular.
(j) Severability. In the event that any provision of the Plan
shall be declared illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining provisions of the Plan but shall be
fully severable, and the Plan shall be construed and enforced as if said
illegal or invalid provision had never been inserted herein.
(k) Status. The establishment and maintenance of, or allocations
and credits to, the Deferral Account of any Participant shall not vest in any
Participant any right, title or interest in and to any Plan assets or benefits
except at the time or times and upon the terms and conditions and to the extent
expressly set forth in the Plan and in accordance with the terms of the Trust.
14. EFFECTIVE DATE. The Plan shall be effective as of June 7, 1996.
- 9 -
<PAGE> 1
EXHIBIT 5.1
June 19, 1996
Schuller Corporation
717 17th Street
Denver, CO 80202
Dear Sirs:
I have acted as counsel for Schuller Corporation, a Delaware corporation
(the "Company"), in connection with the filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, of a registration
statement on Form S-8 (the "Registration Statement") for the purpose of
registering $10,023,000 of the Company's obligations under its Deferred
Compensation Plan (the "Plan"), which represent unsecured obligations of the
Company, and shares of Common Stock, $.01 par value, of the Company which may
be issued in connection with the Plan. These shares, if issued to participants
in the Plan, are to be deemed Common Stock awarded under the Company's 1996
Executive Incentive Compensation Plan (the "1996 EICP") or the Company's 1996
Stock Award Plan (the "Stock Award Plan"). I have examined the Amended and
Restated Certificate of Incorporation and Amended and Restated By-Laws of the
Company, the Plan, resolutions of the Company's Board of Directors and such
other documents as I have deemed necessary or appropriate for purposes of the
opinions expressed below.
Based upon the foregoing, I am of the opinion that when issued in
accordance with the provisions of the Plan, the Deferred Compensation Plan
obligations of the Company will be valid and binding obligations of the
Company, enforceable in accordance with the their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other laws of general
applicability relating to or affecting enforcement of creditors' rights or by
general equity principles.
Further, I am of the opinion that the shares of Common Stock of the Company
described above have been duly authorized for issuance by the Company and when
issued in accordance with the 1996 EICP, the Stock Award Plan and the Plan, will
be validly issued, fully paid and non-assessable; provided that the
consideration for each share of Common Stock is not less than the par value
thereof.
I consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to me in the Registration Statement and any
amendments thereto.
Very truly yours,
/s/ D. Dion Persson
D. Dion Persson
Associate General Counsel - Corporate
<PAGE> 1
EXHIBIT 15
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Schuller Corporation
Registration on Form S-8
We are aware that our report dated May 13, 1996 on our review of interim
financial information of Schuller Corporation for the quarterly period ended
March 31, 1996, and included in the Schuller Corporation's quarterly report on
Form 10-Q for the quarter then ended is incorporated by reference in this
registration statement. Pursuant to Rule 436(c) under the Securities Act of
1933, this report should not be considered a part of the registration statement
prepared or certified by us within the meaning of Sections 7 and 11 of that Act.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
June 19, 1996
Denver, Colorado
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of Schuller Corporation Form S-8 of our report dated April 5, 1996 on
our audits of the consolidated financial statements and financial statement
schedule of Schuller Corporation as of December 31, 1995 and 1994, and for the
years ended December 1995, 1994, and 1993, which report is incorporated by
reference in the Schuller Corporation Annual Report on Form 10-K for the year
ended December 31, 1995.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
June 19, 1996
Denver, Colorado
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Kenneth L. Jensen and Richard B. Von Wald and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his or her name, place and
stead, in any and all capacities, to sign the Registration Statements on Form
S-8 relating to the Schuller Corporation 1996 Executive Incentive Compensation
Plan and Schuller Corporation 1996 Stock Award Plan and the Schuller
Corporation Deferred Compensation Plan and any and all amendments (including
post-effective amendments), 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 and about the premises as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-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.
Pursuant to the requirement 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:
<TABLE>
<CAPTION>
SIGNATURES TITLE DA
---------- ----- ----
<S> <C> <C>
/s/ W. Thomas Stephens Chief Executive Officer, President June 19, 1996
- ------------------------ and a Director
W. Thomas Stephens (Principal Executive Officer)
/s/ Kenneth L. Jensen Senior Vice President and June 19, 1996
- ------------------------ Chief Financial Officer
Kenneth L. Jensen (Chief Financial Officer)
/s/ John M. Rosebery Controller June 19, 1996
- ------------------------
John M. Rosebery
/s/ Leo Benatar Director June 19, 1996
- ------------------------
Leo Benatar
/s/ Robert A. Falise Director June 19, 1996
- ------------------------
Robert A. Falise
</TABLE>
<PAGE> 2
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ Todd Goodwin Director June 19, 1996
- ----------------------------
Todd Goodwin
/s/ Michael N. Hammes Director June 19, 1996
- ----------------------------
Michael N. Hammes
/s/ John Nils Hanson Director June 19, 1996
- ----------------------------
John Nils Hanson
/s/ Kathryn Rudie Harrigan Director June 19, 1996
- ----------------------------
Kathryn Rudie Harrigan
/s/ Louis Klein, Jr. Director June 19, 1996
- ----------------------------
Louis Klein, Jr.
/s/ Frank J. Macchiarola Director June 19, 1996
- ----------------------------
Frank J. Macchiarola
/s/ Christian E. Markey, Jr. Director June 19, 1996
- ----------------------------
Christian E. Markey, Jr.
Director
- ----------------------------
William E. Mayer
</TABLE>
