<PAGE> 1
As filed with the Securities and Exchange Commission on June 19, 1996
Registration No. 333-_________
================================================================================
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)
DELAWARE 84-0856796
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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
1996 EXECUTIVE INCENTIVE 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
<TABLE>
<CAPTION>
=======================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Share(1) Price(1) Registration Fee
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 8,980,325(2) $10.125 $90,925,791 $7,048.51
=======================================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"), solely for the purpose of calculating the
registration fee, and based on the average of the high and low sales
prices for the Registrant's common stock as reported on the New York Stock
Exchange on June 12, 1996.
(2) Includes 2,080,325 shares of Registrant's common stock registered pursuant
to Registrant's Registration Statement on Form S-8, Registration No.
33-29389, for issuance pursuant to the Manville Corporation Stock
Incentive Plan.
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
This Registration Statement relates to the registration of 8,980,325
shares of common stock, $.01 par value, of Schuller Corporation (the "Common
Stock") to be awarded under the Schuller Corporation 1996 Executive Incentive
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.
2
<PAGE> 3
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.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Stock issuable under the 1996 EICP 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.
3
<PAGE> 4
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;
(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
<PAGE> 5
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.
5
<PAGE> 6
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>
6
<PAGE> 7
<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>
7
<PAGE> 8
SCHULLER CORPORATION
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
Exhibit Incorporated Herein by Sequential
No. Description Reference To Filed Herewith Page No.
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
4.1 Amended and Restated Certificate Filed as an exhibit to the
of Incorporation of Schuller Registrant's Form 10-K for the
Corporation year ended December 31, 1995
4.2 Amended and Restated By-Laws of Filed as an exhibit to
Schuller Corporation Registrant's Form 10-Q for the
quarter ended March 31, 1995
4.3 Schuller Corporation 1996 X
Executive Incentive Compensation
Plan
5.1 Opinion of Dion Persson X
regarding the legality of the
shares 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>
8
<PAGE> 1
- --------------------------------------------------------------------------------
SCHULLER CORPORATION
1996 EXECUTIVE INCENTIVE COMPENSATION PLAN
- --------------------------------------------------------------------------------
<PAGE> 2
- --------------------------------------------------------------------------------
SCHULLER CORPORATION
1996 EXECUTIVE INCENTIVE COMPENSATION PLAN
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
1. Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) Authority of the Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Manner of Exercise of Committee Authority . . . . . . . . . . . . . . . . . . . . . 4
4. Stock Subject to Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(a) Overall Number of Shares Available for Delivery . . . . . . . . . . . . . . . . . . 5
(b) Application of Limitation to Grants of Awards . . . . . . . . . . . . . . . . . . . 5
(c) Availability of Shares Not Delivered under Awards . . . . . . . . . . . . . . . . . 5
5. Eligibility; Per-Person Award Limitations . . . . . . . . . . . . . . . . . . . . . . . . 6
6. Specific Terms of Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(a) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(b) Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(c) Stock Appreciation Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(d) Restricted Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(e) Deferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(f) Bonus Stock and Awards in Lieu of Obligations . . . . . . . . . . . . . . . . . . . 10
(g) Dividend Equivalents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(h) Other Stock-Based Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7. Certain Provisions Applicable to Awards . . . . . . . . . . . . . . . . . . . . . . . . . 10
(a) Stand-Alone, Additional, Tandem, and Substitute Awards . . . . . . . . . . . . . . 10
(b) Term of Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(c) Form and Timing of Payment under Awards; Deferrals . . . . . . . . . . . . . . . . 11
(d) Exemptions from Section 16(b) Liability . . . . . . . . . . . . . . . . . . . . . . 11
8. Performance and Annual Incentive Awards . . . . . . . . . . . . . . . . . . . . . . . . . 12
(a) Performance Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(b) Performance Awards Granted to Designated Covered Employees . . . . . . . . . . . . 12
(c) Annual Incentive Awards Granted to Designated Covered Employees . . . . . . . . . . 14
(d) Written Determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(e) Status of Section 8(b) and 8(c) Awards under Code Section 162(m) . . . . . . . . . 16
</TABLE>
i
<PAGE> 3
- --------------------------------------------------------------------------------
SCHULLER CORPORATION
1996 EXECUTIVE INCENTIVE COMPENSATION PLAN
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
9. Change in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(a) Effect of "Change in Control" . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(b) Definition of "Change in Control" . . . . . . . . . . . . . . . . . . . . . . . . . 17
(c) Definition of "Change in Control Price" . . . . . . . . . . . . . . . . . . . . . . 18
10. General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) Compliance with Legal and Other Requirements . . . . . . . . . . . . . . . . . . . . 18
(b) Limits on Transferability; Beneficiaries . . . . . . . . . . . . . . . . . . . . . . 19
(c) Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(d) Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(e) Changes to the Plan and Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(f) Limitation on Rights Conferred under Plan . . . . . . . . . . . . . . . . . . . . . 21
(g) Unfunded Status of Awards; Creation of Trusts . . . . . . . . . . . . . . . . . . . 21
(h) Nonexclusivity of the Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(i) Payments in the Event of Forfeitures; Fractional Shares . . . . . . . . . . . . . . 22
(j) Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(k) Awards under Preexisting Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(l) Plan Effective Date and Stockholder Approval . . . . . . . . . . . . . . . . . . . . 22
</TABLE>
ii
<PAGE> 4
SCHULLER CORPORATION
1996 EXECUTIVE INCENTIVE COMPENSATION PLAN
1. PURPOSE. The purpose of this 1996 Executive Incentive
Compensation Plan (the "Plan") is to assist Schuller Corporation, a Delaware
corporation (the "Company"), and its subsidiaries in attracting, retaining, and
rewarding high-quality executives and other employees, enabling such persons to
acquire or increase a proprietary interest in the Company in order to
strengthen the mutuality of interests between such persons and the Company's
stockholders, and providing such persons with annual and long-term performance
incentives to expend their maximum efforts in the creation of shareholder
value. The Plan is also intended to qualify certain compensation awarded under
the Plan for tax deductibility under Code Section 162(m) (as hereafter defined)
to the extent deemed appropriate by the Committee (or any successor committee)
of the Board of Directors of the Company.
2. DEFINITIONS. For purposes of the Plan, the following terms shall
be defined as set forth below, in addition to such terms defined in Section 1
hereof:
(a) "Annual Incentive Award" means a conditional right granted
to a Participant under Section 8(c) hereof to receive a cash payment,
Stock or other Award, unless otherwise determined by the Committee, after
the end of a specified fiscal year.
(b) "Award" means any Option, SAR (including Limited SAR),
Restricted Stock, Deferred Stock, Stock granted as a bonus or in lieu of
another award, Dividend Equivalent, Other Stock-Based Award, Performance
Award or Annual Incentive Award, together with any other right or
interest granted to a Participant under the Plan.
(c) "Beneficiary" means the person, persons, trust or trusts
which have been designated by a Participant in his or her most recent
written beneficiary designation filed with the Committee to receive the
benefits specified under the Plan upon such Participant's death or to
which Awards or other rights are transferred if and to the extent
permitted under Section 10(b) hereof. If, upon a Participant's death,
there is no designated Beneficiary or surviving designated Beneficiary,
then the term Beneficiary means person, persons, trust or trusts entitled
by will or the laws of descent and distribution to receive such benefits.
(d) "Beneficial Owner" shall have the meaning ascribed to such
term in Rule 13d-3 under the Exchange Act and any successor to such Rule.
(e) "Board" means the Company's Board of Directors.
(f) "Change in Control" means Change in Control as defined with
related terms in Section 9 of the Plan.
(g) "Change in Control Price" means the amount calculated in
accordance with Section 9(c) of the Plan.
(h) "Code" means the Internal Revenue Code of 1986, as amended
from time to time, including regulations thereunder and successor
provisions and regulations thereto.
1
<PAGE> 5
(i) "Committee" means a committee designated by the Board to
administer the Plan; provided, however, that the Committee shall consist
solely of two or more directors, each of whom shall be (i) a
"disinterested person" within the meaning of Rule 16b-3 under the
Exchange Act, unless administration of the Plan by "disinterested
persons" is not then required in order for exemptions under Rule 16b-3 to
apply to transactions under the Plan, and (ii) an "outside director" as
defined under Code Section 162(m), unless administration of the Plan by
"outside directors" is not then required in order to qualify for tax
deductibility under Code Section 162(m).
(j) "Covered Employee" means an Eligible Person who is a Covered
Employee as specified in Section 8(e) of the Plan.
(k) "Deferred Stock" means a right, granted to a Participant
under Section 6(e) hereof, to receive Stock, cash or a combination
thereof at the end of a specified deferral period.
(l) "Dividend Equivalent" means a right, granted to a
Participant under Section 6(g), to receive cash, Stock, other Awards or
other property equal in value to dividends paid with respect to a
specified number of shares of Stock, or other periodic payments.
(m) "Effective Date" means June 7, 1996, the effective date of
the Plan.
(n) "Eligible Person" means each Executive Officer and other
officers and employees of the Company or of any subsidiary, including
such persons who may also be directors of the Company. The foregoing
notwithstanding, no member of the Committee shall be an Eligible Person.
An employee on leave of absence may be considered as still in the employ
of the Company or a subsidiary for purposes of eligibility for
participation in the Plan.
(o) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, including rules thereunder and successor
provisions and rules thereto.
(p) "Executive Officer" means an executive officer of the
Company as defined under the Exchange Act.
(q) "Fair Market Value" means the fair market value of Stock,
Awards or other property as determined by the Committee or under
procedures established by the Committee. Unless otherwise determined by
the Committee, the Fair Market Value of Stock as of any given date shall
be the closing sale price per share reported on a consolidated basis for
stock listed on the principal stock exchange or market on which Stock is
traded on the date as of which such value is being determined or, if
there is no sale on that date, then on the last previous day on which a
sale was reported.
(r) "Incentive Stock Option" or "ISO" means any Option intended
to be and designated as an incentive stock option within the meaning of
Code Section 422 or any successor provision thereto.
(s) "Limited SAR" means a right granted to a Participant under
Section 6(c) hereof.
(t) "Option" means a right, granted to a Participant under
Section 6(b) hereof, to purchase Stock or other Awards at a specified
price during specified time periods.
2
<PAGE> 6
(u) "Other Stock Based Awards" means Awards granted to a
Participant under Section 6(h) hereof.
(v) "Participant" means a person who has been granted an Award
under the Plan which remains outstanding, including a person who is no
longer an Eligible Person.
(w) "Performance Award" means a right, granted to a Participant
under Section 8 hereof, to receive Awards based upon performance criteria
specified by the Committee.
(x) "Person" shall have the meaning ascribed to such term in
Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d)
thereof, and shall include a "group" as defined in Section 13(d) thereof.
(y) "Preexisting Plan" means the Manville Corporation Stock
Incentive Plan.
(z) "Restricted Stock" means Stock granted to a Participant
under Section 6(d) hereof, that is subject to certain restrictions and to
a risk of forfeiture.
(aa) "Rule 16b-3" and "Rule 16a-1(c)(3)" mean Rule 16b-3 and Rule
16a-1(c)(3), as from time to time in effect and applicable to the Plan
and Participants, promulgated by the Securities and Exchange Commission
under Section 16 of the Exchange Act.
(bb) "Stock" means the Company's Common Stock, and such other
securities as may be substituted (or resubstituted) for Stock pursuant to
Section 10(c) hereof.
(cc) "Stock Appreciation Rights" or "SAR" means a right granted
to a Participant under Section 6(c) hereof.
3. ADMINISTRATION.
(a) Authority of the Committee. The Plan shall be administered
by the Committee. The Committee shall have full and final authority, in
each case subject to and consistent with the provisions of the Plan, to
select Eligible Persons to become Participants, grant Awards, determine
the type, number and other terms and conditions of, and all other matters
relating to, Awards, prescribe Award agreements (which need not be
identical for each Participant) and rules and regulations for the
administration of the Plan, construe and interpret the Plan and Award
agreements and correct defects, supply omissions or reconcile
inconsistencies therein, and to make all other decisions and
determinations as the Committee may deem necessary or advisable for the
administration of the Plan.
(b) Manner of Exercise of Committee Authority. The Committee
shall exercise sole and exclusive discretion on any matter relating to a
Participant then subject to Section 16 of the Exchange Act with respect
to the Company to the extent necessary in order that transactions by such
Participant shall be exempt under Rule 16b-3. Any action of the
Committee shall be final, conclusive and binding on all persons,
including the Company, its subsidiaries, Participants, Beneficiaries,
transferees under Section 10(b) hereof or other persons claiming rights
from or through a Participant, and stockholders. The express grant of
any specific power to the Committee, and the taking of any action by the
Committee, shall not be construed as limiting any power or authority of
the Committee. The Committee may delegate to officers or managers of the
3
<PAGE> 7
Company or any subsidiary, or committees thereof, the authority, subject
to such terms as the Committee shall determine, (i) to perform
administrative functions, (ii) with respect to Participants not subject
to Section 16 of the Exchange Act, to perform such other functions as the
Committee may determine, and (iii) with respect to Participants subject
to Section 16, to perform such other functions of the Committee as the
Committee may determine to the extent performance of such functions will
not result in the loss of an exemption under Rule 16b-3 otherwise
available for transactions by such persons, in each case to the extent
permitted under applicable law and subject to the requirements set forth
in Section 8(d). The Committee may appoint agents to assist it in
administering the Plan.
4. STOCK SUBJECT TO PLAN.
(a) Overall Number of Shares Available for Delivery. Subject to
adjustment as provided in Section 10(c) hereof, the total number of
shares of Stock reserved and available for delivery in connection with
Awards under the Plan shall be (i) 6,900,000, plus (ii) the number of
shares of Stock remaining available under the Preexisting Plan at the
effective date of the Plan, plus (iii) shares subject to awards under the
Preexisting Plan which become available after the Plan effective date in
accordance with Section 4(c) hereof. Any shares of Stock delivered under
the Plan may consist, in whole or in part, of authorized and unissued
shares or treasury shares.
(b) Application of Limitation to Grants of Awards. No Award may
be granted if the number of shares of Stock to be delivered in connection
with such Award or, in the case of an Award relating to shares of Stock
but settleable only in cash (such as cash-only SARs), the number of
shares to which such Award relates, exceeds the number of shares of Stock
remaining available under the Plan minus the number of shares of Stock
issuable in settlement of or relating to then-outstanding Awards. The
Committee may adopt reasonable counting procedures to ensure appropriate
counting, avoid double counting (as, for example, in the case of tandem
or substitute awards) and make adjustments if the number of shares of
Stock actually delivered differs from the number of shares previously
counted in connection with an Award.
(c) Availability of Shares Not Delivered under Awards. Shares
of Stock subject to an Award under the Plan or award under a Preexisting
Plan that is cancelled, expired, forfeited, settled in cash or otherwise
terminated without a delivery of shares to the Participant, including (i)
the number of shares withheld in payment of any exercise or purchase
price of an Award or award or taxes relating to Awards or awards, and
(ii) the number of shares surrendered in payment of any exercise or
purchase price of an Award or award or taxes relating to any Award or
award, will again be available for Awards under the Plan, except that if
any such shares could not again be available for Awards to a particular
Participant under any applicable law or regulation, such shares shall be
available exclusively for Awards to Participants who are not subject to
such limitation.
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5. ELIGIBILITY; PER-PERSON AWARD LIMITATIONS. Awards may be granted
under the Plan only to Eligible Persons. In each fiscal year during any part
of which the Plan is in effect, an Eligible Person may not be granted Awards
relating to more than three million shares of Stock, subject to adjustment as
provided in Section 10(c), under each of Sections 6(b), 6(c), 6(d), 6(e), 6(f),
6(g), 6(h), 8(b) and 8(c). In addition, the maximum cash amount that may be
earned under the Plan as a final Annual Incentive Award or other cash annual
Award in respect of any fiscal year by any one Participant shall be $4,000,000,
and the maximum cash amount that may be earned under the Plan as a final
Performance Award or other cash Award in respect of a performance period by any
one Participant shall be $6,000,000.
6. SPECIFIC TERMS OF AWARDS.
(a) General. Awards may be granted on the terms and conditions
set forth in this Section 6. In addition, the Committee may impose on
any Award or the exercise thereof, at the date of grant or thereafter
(subject to Section 10(e)), such additional terms and conditions, not
inconsistent with the provisions of the Plan, as the Committee shall
determine, including terms requiring forfeiture of Awards in the event of
termination of employment by the Participant and terms permitting a
Participant to make elections relating to his or her Award. The
Committee shall retain full power and discretion to accelerate, waive or
modify, at any time, any term or condition of an Award that is not
mandatory under the Plan. Except in cases in which the Committee is
authorized to require other forms of consideration under the Plan, or to
the extent other forms of consideration must by paid to satisfy the
requirements of the Delaware General Corporation Law, no consideration
other than services may be required for the grant (but not the exercise)
of any Award.
(b) Options. The Committee is authorized to grant Options to
Participants on the following terms and conditions:
(i) Exercise Price. The exercise price per share of
Stock purchasable under an Option shall be determined by the
Committee, provided that such exercise price shall be not less
than the Fair Market Value of a share of Stock on the date of
grant of such Option except as provided under Section 7(a) hereof.
(ii) Time and Method of Exercise. The Committee shall
determine the time or times at which or the circumstances under
which an Option may be exercised in whole or in part (including
based on achievement of performance goals and/or future service
requirements), the methods by which such exercise price may be
paid or deemed to be paid, the form of such payment, including,
without limitation, cash, Stock, other Awards or awards granted
under other plans of the Company or any subsidiary, or other
property (including notes or other contractual obligations of
Participants to make payment on a deferred basis), and the methods
by or forms in which Stock will be delivered or deemed to be
delivered to Participants.
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<PAGE> 9
(iii) ISOs. The terms of any ISO granted under the Plan
shall comply in all respects with the provisions of Code Section
422. Anything in the Plan to the contrary notwithstanding, no
term of the Plan relating to ISOs (including any SAR in tandem
therewith) shall be interpreted, amended or altered, nor shall any
discretion or authority granted under the Plan be exercised, so as
to disqualify either the Plan or any ISO under Code Section 422,
unless the Participant has first requested the change that will
result in such disqualification.
(c) Stock Appreciation Rights. The Committee is authorized to
grant SAR's to Participants on the following terms and conditions:
(i) Right to Payment. A SAR shall confer on the
Participant to whom it is granted a right to receive, upon exercise
thereof, the excess of (A) the Fair Market Value of one share of
Stock on the date of exercise (or, in the case of a "Limited SAR,"
the Fair Market Value determined by reference to the Change in
Control Price, as defined under Section 9(c) hereof), over (B) the
grant price of the SAR as determined by the Committee.
(ii) Other Terms. The Committee shall determine at the date
of grant or thereafter, the time or times at which and the
circumstances under which a SAR may be exercised in whole or in
part (including based on achievement of performance goals and/or
future service requirements), the method of exercise, method of
settlement, form of consideration payable in settlement, method by
or forms in which Stock will be delivered or deemed to be delivered
to Participants, whether or not a SAR shall be in tandem or in
combination with any other Award, and any other terms and
conditions of any SAR. Limited SARs that may only be exercised in
connection with a Change in Control or other event as specified by
the Committee may be granted on such terms, not inconsistent with
this Section 6(c), as the Committee may determine. SARs and
Limited SARs may be either freestanding or in tandem with other
Awards.
(d) Restricted Stock. The Committee is authorized to grant
Restricted Stock to Participants on the following terms and conditions:
(i) Grant and Restrictions. Restricted Stock shall be
subject to such restrictions on transferability, risk of
forfeiture and other restrictions, if any, as the Committee may
impose, which restrictions may lapse separately or in combination
at such times, under such circumstances (including based on
achievement of performance goals and/or future service
requirements), in such installments or otherwise, as the Committee
may determine at the date of grant or thereafter. Except to the
extent restricted under the terms of the Plan and any Award
agreement relating to the Restricted Stock, a Participant granted
Restricted Stock shall have all of the rights of a stockholder,
including the right to vote the Restricted Stock and the right to
receive dividends thereon (subject to any mandatory reinvestment
or other requirement imposed by the Committee). During the
restricted period applicable to the Restricted Stock, subject to
Section 10(b) below, the Restricted Stock may not be sold,
transferred, pledged, hypothecated, margined or otherwise
encumbered by the Participant.
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(ii) Forfeiture. Except as otherwise determined by the
Committee, upon termination of employment during the applicable
restriction period, Restricted Stock that is at that time subject
to restrictions shall be forfeited and reacquired by the Company;
provided that the Committee may provide, by rule or regulation or
in any Award agreement, or may determine in any individual case,
that restrictions or forfeiture conditions relating to Restricted
Stock shall be waived in whole or in part in the event of
terminations resulting from specified causes, and the Committee
may in other cases waive in whole or in part the forfeiture of
Restricted Stock.
(iii) Certificates for Stock. Restricted Stock granted
under the Plan may be evidenced in such manner as the Committee
shall determine. If certificates representing Restricted Stock
are registered in the name of the Participant, the Committee may
require that such certificates bear an appropriate legend
referring to the terms, conditions and restrictions applicable to
such Restricted Stock, that the Company retain physical possession
of the certificates, and that the Participant deliver a stock
power to the Company, endorsed in blank, relating to the
Restricted Stock.
(iv) Dividends and Splits. As a condition to the grant of
an Award of Restricted Stock, the Committee may require that any
cash dividends paid on a share of Restricted Stock be
automatically reinvested in additional shares of Restricted Stock
or applied to the purchase of additional Awards under the Plan.
Unless otherwise determined by the Committee, Stock distributed in
connection with a Stock split or Stock dividend, and other
property distributed as a dividend, shall be subject to
restrictions and a risk of forfeiture to the same extent as the
Restricted Stock with respect to which such Stock or other
property has been distributed.
(e) Deferred Stock. The Committee is authorized to grant
Deferred Stock to Participants, which are rights to receive Stock, cash,
or a combination thereof at the end of a specified deferral period,
subject to the following terms and conditions:
(i) Award and Restrictions. Satisfaction of an Award of
Deferred Stock shall occur upon expiration of the deferral period
specified for such Deferred Stock by the Committee (or, if
permitted by the Committee, as elected by the Participant). In
addition, Deferred Stock shall be subject to such restrictions
(which may include a risk of forfeiture) as the Committee may
impose, if any, which restrictions may lapse at the expiration of
the deferral period or at earlier specified times (including based
on achievement of performance goals and/or future service
requirements), separately or in combination, in installments or
otherwise, as the Committee may determine. Deferred Stock may be
satisfied by delivery of Stock, cash equal to the Fair Market
Value of the specified number of shares of Stock covered by the
Deferred Stock, or a combination thereof, as determined by the
Committee at the date of grant or thereafter.
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(ii) Forfeiture. Except as otherwise determined by the
Committee, upon termination of employment during the applicable
deferral period or portion thereof to which forfeiture conditions
apply (as provided in the Award agreement evidencing the Deferred
Stock), all Deferred Stock that is at that time subject to
deferral (other than a deferral at the election of the
Participant) shall be forfeited; provided that the Committee may
provide, by rule or regulation or in any Award agreement, or may
determine in any individual case, that restrictions or forfeiture
conditions relating to Deferred Stock shall be waived in whole or
in part in the event of terminations resulting from specified
causes, and the Committee may in other cases waive in whole or in
part the forfeiture of Deferred Stock.
(iii) Dividend Equivalents. Unless otherwise determined by
the Committee at date of grant, Dividend Equivalents on the
specified number of shares of Stock covered by an Award of
Deferred Stock shall be either (A) paid with respect to such
Deferred Stock at the dividend payment date in cash or in shares
of unrestricted Stock having a Fair Market Value equal to the
amount of such dividends, or (B) deferred with respect to such
Deferred Stock and the amount or value thereof automatically
deemed reinvested in additional Deferred Stock, other Awards or
other investment vehicles, as the Committee shall determine or
permit the Participant to elect.
(f) Bonus Stock and Awards in Lieu of Obligations. The
Committee is authorized to grant Stock as a bonus, or to grant Stock or
other Awards in lieu of Company obligations to pay cash or deliver other
property under the Plan or under other plans or compensatory
arrangements, provided that, in the case of Participants subject to
Section 16 of the Exchange Act, the amount of such grants remains within
the discretion of the Committee to the extent necessary to ensure that
acquisitions of Stock or other Awards are exempt from liability under
Section 16(b) of the Exchange Act. Stock or Awards granted hereunder
shall be subject to such other terms as shall be determined by the
Committee.
(g) Dividend Equivalents. The Committee is authorized to grant
Dividend Equivalents to a Participant, entitling the Participant to
receive cash, Stock, other Awards, or other property equal in value to
dividends paid with respect to a specified number of shares of Stock, or
other periodic payments. Dividend Equivalents may be awarded on a
free-standing basis or in connection with another Award. The Committee
may provide that Dividend Equivalents shall be paid or distributed when
accrued or shall be deemed to have been reinvested in additional Stock,
Awards, or other investment vehicles, and subject to such restrictions on
transferability and risks of forfeiture, as the Committee may specify.
(h) Other Stock-Based Awards. The Committee is authorized,
subject to limitations under applicable law, to grant to Participants
such other Awards that may be denominated or payable in, valued in whole
or in part by reference to, or otherwise based on, or related to, Stock,
as deemed by the Committee to be consistent with the purposes of the
Plan, including, without limitation, convertible or exchangeable debt
securities, other rights convertible or exchangeable into Stock, purchase
rights for Stock, Awards with value and payment contingent upon
performance of the Company or any other factors designated by the
Committee, and Awards valued by reference to the book value of Stock or
the value of securities of or the performance of specified subsidiaries.
The Committee shall determine the terms and conditions of such Awards.
Stock delivered pursuant to
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<PAGE> 12
an Award in the nature of a purchase right granted under this Section
6(h) shall be purchased for such consideration, paid for at such times,
by such methods, and in such forms, including, without limitation, cash,
Stock, other Awards, or other property, as the Committee shall determine.
Cash awards, as an element of or supplement to any other Award under the
Plan, may also be granted pursuant to this Section 6(h).
7. CERTAIN PROVISIONS APPLICABLE TO AWARDS.
(a) Stand-Alone, Additional, Tandem, and Substitute Awards.
Awards granted under the Plan may, in the discretion of the Committee, be
granted either alone or in addition to, in tandem with, or in
substitution or exchange for, any other Award or any award granted under
another plan of the Company, any subsidiary, or any business entity to be
acquired by the Company or a subsidiary, or any other right of a
Participant to receive payment from the Company or any subsidiary. Such
additional, tandem, and substitute or exchange Awards may be granted at
any time. If an Award is granted in substitution or exchange for another
Award or award, the Committee shall require the surrender of such other
Award or award in consideration for the grant of the new Award. In
addition, Awards may be granted in lieu of cash compensation, including
in lieu of cash amounts payable under other plans of the Company or any
subsidiary, in which the value of Stock subject to the Award is
equivalent in value to the cash compensation (for example, Deferred Stock
or Restricted Stock), or in which the exercise price, grant price or
purchase price of the Award in the nature of a right that may be
exercised is equal to the Fair Market Value of the underlying Stock minus
the value of the cash compensation surrendered (for example, Options
granted with an exercise price "discounted" by the amount of the cash
compensation surrendered).
(b) Term of Awards. The term of each Award shall be for such
period as may be determined by the Committee; provided that in no event
shall the term of any Option or SAR exceed a period of ten years (or such
shorter term as may be required in respect of an ISO under Code Section
422).
(c) Form and Timing of Payment under Awards; Deferrals. Subject
to the terms of the Plan and any applicable Award agreement, payments to
be made by the Company or a subsidiary upon the exercise of an Option or
other Award or settlement of an Award may be made in such forms as the
Committee shall determine, including, without limitation, cash, Stock,
other Awards or other property, and may be made in a single payment or
transfer, in installments, or on a deferred basis. The settlement of any
Award may be accelerated, and cash paid in lieu of Stock in connection
with such settlement, in the discretion of the Committee or upon
occurrence of one or more specified events (in addition to a Change in
Control). Installment or deferred payments may be required by the
Committee (subject to Section 10(e) of the Plan, including the consent
provisions thereof in the case of any deferral of an outstanding Award
not provided for in the original Award agreement) or permitted at the
election of the Participant on terms and conditions established by the
Committee. Payments may include, without limitation, provisions for the
payment or crediting of reasonable interest on installment or deferred
payments or the grant or crediting of Dividend Equivalents or other
amounts in respect of installment or deferred payments denominated in
Stock.
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(d) Exemptions from Section 16(b) Liability. It is the intent
of the Company that this Plan as currently in effect on the date of
adoption comply in all respects with applicable provisions of Rule 16b-3
or Rule 16a-1(c)(3) to the extent necessary to ensure that neither the
grant of any Awards to nor other transaction by a Participant who is
subject to Section 16 of the Exchange Act is subject to liability under
Section 16(b) thereof (except for transactions acknowledged in writing to
be non-exempt by such Participant). Accordingly, if any provision of
this Plan or any Award agreement does not comply with the requirements of
Rule 16b-3 or Rule 16a-1(c)(3) as then applicable to any such
transaction, such provision will be construed or deemed amended to the
extent necessary to conform to the applicable requirements of Rule 16b-3
or Rule 16a-1(c)(3) so that such Participant shall avoid liability under
Section 16(b).
8. PERFORMANCE AND ANNUAL INCENTIVE AWARDS.
(a) Performance Conditions. The right of a Participant to
exercise or receive a grant or settlement of any Award, and the timing
thereof, may be subject to such performance conditions as may be
specified by the Committee. The Committee may use such business criteria
and other measures of performance as it may deem appropriate in
establishing any performance conditions, and may exercise its discretion
to reduce or increase the amounts payable under any Award subject to
performance conditions, except as limited under Sections 8(b) and 8(c)
hereof in the case of a Performance Award or Annual Incentive Award
intended to qualify under Code Section 162(m).
(b) Performance Awards Granted to Designated Covered Employees.
If the Committee determines that a Performance Award to be granted to an
Eligible Person who is designated by the Committee as likely to be a
Covered Employee should qualify as "performance-based compensation" for
purposes of Code Section 162(m), the grant, exercise and/or settlement of
such Performance Award shall be contingent upon achievement of
preestablished performance goals and other terms set forth in this
Section 8(b).
(i) Performance Goals Generally. The performance goals
for such Performance Awards shall consist of one or more business
criteria and a targeted level or levels of performance with
respect to each of such criteria, as specified by the Committee
consistent with this Section 8(b). Performance goals shall be
objective and shall otherwise meet the requirements of Code
Section 162(m) and regulations thereunder (including Regulation
1.162-27 and successor regulations thereto), including the
requirement that the level or levels of performance targeted by
the Committee result in the achievement of performance goals being
"substantially uncertain." The Committee may determine that such
Performance Awards shall be granted, exercised and/or settled upon
achievement of any one performance goal or that two or more of the
performance goals must be achieved as a condition to grant,
exercise and/or settlement of such Performance Awards.
Performance goals may differ for Performance Awards granted to any
one Participant or to different Participants.
(ii) Business Criteria. One or more of the following
business criteria for the Company, on a consolidated basis, and/or
for specified subsidiaries or business units of the Company
(except with respect to the total stockholder return and earnings
per share criteria), shall be used exclusively by the Committee in
establishing performance goals for such Performance Awards: (1)
earnings per share; (2) revenues; (3) cash flow; (4) cash flow
return on investment; (5) return on assets, return on investment,
return on capital, return on equity; (6) economic value added; (7)
operating margin; (8) net income; pretax earnings; pretax earnings
before interest, depreciation and amortization; pretax operating
earnings
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after interest expense and before incentives, service fees, and
extraordinary or special items; operating earnings; (9) total
stockholder return; and (10) any of the above goals as compared to
the performance of a published or special index deemed applicable
by the Committee including, but not limited to, the Standard &
Poor's 500 Stock Index or the Standard & Poor's Building Materials
Index. One or more of the foregoing business criteria shall also
be exclusively used in establishing performance goals for Annual
Incentive Awards granted to a Covered Employee under Section 8(c)
hereof.
(iii) Performance Period; Timing for Establishing
Performance Goals. Achievement of performance goals in respect of
such Performance Awards shall be measured over a performance
period of up to ten years, as specified by the Committee.
Performance goals shall be established not later than 90 days
after the beginning of any performance period applicable to such
Performance Awards, or at such other date as may be required or
permitted for "performance-based compensation" under Code Section
162(m).
(iv) Performance Award Pool. The Committee may establish
a Performance Award pool, which shall be an unfunded pool, for
purposes of measuring Company performance in connection with
Performance Awards. The amount of such Performance Award pool
shall be based upon the achievement of a performance goal or goals
based on one or more of the business criteria set forth in Section
8(b)(ii) hereof during the given performance period, as specified
by the Committee in accordance with Section 8(b)(iii) hereof. The
Committee may specify the amount of the Performance Award pool as
a percentage of any of such business criteria, a percentage
thereof in excess of a threshold amount, or as another amount
which need not bear a strictly mathematical relationship to such
business criteria.
(v) Settlement of Performance Awards; Other Terms.
Settlement of such Performance Awards shall be in cash, Stock,
other Awards or other property, in the discretion of the
Committee. The Committee may, in its discretion, reduce the
amount of a settlement otherwise to be made in connection with
such Performance Awards, but may not exercise discretion to
increase any such amount payable to a Covered Employee in respect
of a Performance Award subject to this Section 8(b). The
Committee shall specify the circumstances in which such
Performance Awards shall be paid or forfeited in the event of
termination of employment by the Participant prior to the end of a
performance period or settlement of Performance Awards.
(c) Annual Incentive Awards Granted to Designated Covered
Employees. If the Committee determines that an Annual Incentive Award to
be granted to an Eligible Person who is designated by the Committee as
likely to be a Covered Employee should qualify as "performance-based
compensation" for purposes of Code Section 162(m), the grant, exercise
and/or settlement of such Annual Incentive Award shall be contingent upon
achievement of preestablished performance goals and other terms set forth
in this Section 8(c).
(i) Annual Incentive Award Pool. The Committee may
establish an Annual Incentive Award pool, which shall be an
unfunded pool, for purposes of measuring Company performance in
connection with Annual Incentive Awards. The amount of such
Annual Incentive Award pool shall be based upon the achievement of
a performance goal or goals based on one or more of the business
criteria set forth in Section 8(b)(ii) hereof during the
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given performance period, as specified by the Committee in
accordance with Section 8(b)(iii) hereof. The Committee may
specify the amount of the Annual Incentive Award pool as a
percentage of any of such business criteria, a percentage thereof
in excess of a threshold amount, or as another amount which need
not bear a strictly mathematical relationship to such business
criteria.
(ii) Potential Annual Incentive Awards. Not later than
the end of the 90th day of each fiscal year, or at such other date
as may be required or permitted in the case of Awards intended to
be "performance-based compensation" under Code Section 162(m), the
Committee shall determine the Eligible Persons who will
potentially receive Annual Incentive Awards, and the amounts
potentially payable thereunder, for that fiscal year, either out
of an Annual Incentive Award pool established by such date under
Section 8(c)(i) hereof or as individual Annual Incentive Awards.
In the case of individual Annual Incentive Awards intended to
qualify under Code Section 162(m), the amount potentially payable
shall be based upon the achievement of a performance goal or goals
based on one or more of the business criteria set forth in Section
8(b)(ii) hereof in the given performance year, as specified by the
Committee; in other cases, such amount shall be based on such
criteria as shall be established by the Committee. In all cases,
the maximum Annual Incentive Award of any Participant shall be
subject to the limitation set forth in Section 5 hereof.
(iii) Payout of Annual Incentive Awards. After the end of
each fiscal year, the Committee shall determine the amount, if
any, of (A) the Annual Incentive Award pool, and the maximum
amount of potential Annual Incentive Award payable to each
Participant in the Annual Incentive Award pool, or (B) the amount
of potential Annual Incentive Award otherwise payable to each
Participant. The Committee may, in its discretion, determine that
the amount payable to any Participant as a final Annual Incentive
Award shall be increased or reduced from the amount of his or her
potential Annual Incentive Award, including a determination to
make no final Award whatsoever, but may not exercise discretion to
increase any such amount in the case of an Annual Incentive Award
intended to qualify under Code Section 162(m). The Committee
shall specify the circumstances in which an Annual Incentive Award
shall be paid or forfeited in the event of termination of
employment by the Participant prior to the end of a fiscal year or
settlement of such Annual Incentive Award.
(d) Written Determinations. All determinations by the Committee
as to the establishment of performance goals, the amount of any
Performance Award pool or potential individual Performance Awards and as
to the achievement of performance goals relating to Performance Awards
under Section 8(b), and the amount of any Annual Incentive Award pool or
potential individual Annual Incentive Awards and the amount of final
Annual Incentive Awards under Section 8(c), shall be made in writing in
the case of any Award intended to qualify under Code Section 162(m). The
Committee may not delegate any responsibility relating to such
Performance Awards or Annual Incentive Awards.
(e) Status of Section 8(b) and Section 8(c) Awards under Code
Section 162(m). It is the intent of the Company that Performance Awards
and Annual Incentive Awards under Sections 8(b) and 8(c) hereof granted
to persons who are designated by the Committee as likely to be Covered
Employees within the meaning of Code Section 162(m) and regulations
thereunder (including Regulation 1.162-27 and successor regulations
thereto) shall, if so designated by the Committee, constitute "qualified
performance-based compensation" within the meaning of Code
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<PAGE> 16
Section 162(m) and regulations thereunder. Accordingly, the terms of
Sections 8(b), (c), (d) and (e), including the definitions of Covered
Employee and other terms used therein, shall be interpreted in a manner
consistent with Code Section 162(m) and regulations thereunder. The
foregoing notwithstanding, because the Committee cannot determine with
certainty whether a given Participant will be a Covered Employee with
respect to a fiscal year that has not yet been completed, the term
Covered Employee as used herein shall mean only a person designated by
the Committee, at the time of grant of Performance Awards or an Annual
Incentive Award, as likely to be a Covered Employee with respect to that
fiscal year. If any provision of the Plan as in effect on the date of
adoption or any agreements relating to Performance Awards or Annual
Incentive Awards that are designated as intended to comply with Code
Section 162(m) does not comply or is inconsistent with the requirements
of Code Section 162(m) or regulations thereunder, such provision shall be
construed or deemed amended to the extent necessary to conform to such
requirements.
9. CHANGE IN CONTROL.
(a) Effect of "Change in Control." In the event of a "Change in
Control," as defined in Section 9(b), the following provisions shall
apply unless otherwise provided in the Award agreement:
(i) Any Award carrying a right to exercise that was not
previously exercisable and vested shall become fully exercisable
and vested as of the time of the Change in Control and shall
remain exercisable and vested for the balance of the stated term
of such Award without regard to any termination of employment by
the Participant, subject only to applicable restrictions set forth
in Section 10(a) hereof;
(ii) Any optionee who holds an Option shall be entitled to
elect, during the 60-day period immediately following a Change in
Control, in lieu of acquiring the shares of Stock covered by such
Option, to receive, and the Company shall be obligated to pay, in
cash the excess of the Change in Control Price over the exercise
price of such Option, multiplied by the number of shares of Stock
covered by such Option; provided, however, that no optionee who is
subject to Section 16 with respect to the Company at the time of
the Change in Control shall be entitled to make such an election
if the acquisition of the right to make such election would
represent a non-exempt purchase under Section 16(b) by such
optionee;
(iii) The restrictions, deferral of settlement, and
forfeiture conditions applicable to any other Award granted under
the Plan shall lapse and such Awards shall be deemed fully vested
as of the time of the Change in Control, except to the extent of
any waiver by the Participant and subject to applicable
restrictions set forth in Section 10(a) hereof; and
(iv) With respect to any outstanding Award subject to
achievement of performance goals and conditions under the Plan,
such performance goals and other conditions will be deemed to be
met if and to the extent so provided by the Committee in the Award
agreement relating to such Award.
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(b) Definition of "Change in Control." A "Change in Control"
shall be deemed to have occurred if:
(i) any Person (other than the Company, any trustee or
other fiduciary holding securities under any employee benefit plan
of the Company, or any company owned, directly or indirectly, by
the stockholders of the Company in substantially the same
proportions as their ownership of the common stock of the Company)
becomes the Beneficial Owner (except that a Person shall be deemed
to be the Beneficial Owner of all shares that any such Person has
the right to acquire pursuant to any agreement or arrangement or
upon exercise of conversion rights, warrants or options or
otherwise, without regard to the sixty day period referred to in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company or any Significant Subsidiary (as
defined below), representing 30 percent or more of the combined
voting power of the Company's or such subsidiary's then
outstanding securities; provided, however, that such event shall
not constitute a Change in Control unless or until the percentage
of such securities owned beneficially, directly or indirectly, by
such Person is equal to or more than all such securities owned
beneficially, directly or indirectly, by Manville Personal Injury
Settlement Trust;
(ii) during any period of two consecutive years (not
including any period prior to the adoption of the Plan),
individuals who at the beginning of such period constitute the
Board, and any new director (other than a director designated by a
person who has entered into an agreement with the Company to
effect a transaction described in clause (i), (iii), or (iv) of
this paragraph) whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote of
at least two-thirds of the directors then still in office who
either were directors at the beginning of the two-year period or
whose election or nomination for election was previously so
approved but excluding for this purpose any such new director
whose initial assumption of office occurs as a result of either an
actual or threatened election contest (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act)
or other actual or threatened solicitation of proxies or consents
by or on behalf of an individual, corporation, partnership, group,
associate or other entity or Person other than the Board, cease
for any reason to constitute at least a majority of the Board;
provided, however, that such event shall not constitute a Change
in Control unless or until the percentage of voting securities of
the Company owned beneficially, directly or indirectly, by
Manville Personal Injury Settlement Trust is less than 50 percent
of all such outstanding securities;
(iii) the consummation of a merger or consolidation of the
Company or any subsidiary owning directly or indirectly all or
substantially all of the consolidated assets of the Company (a
"Significant Subsidiary") with any other corporation, other than a
merger or consolidation which would result in the voting
securities of the Company or a Significant Subsidiary outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving or resulting entity) more than 50 percent of the
combined voting power of the surviving or resulting entity
outstanding immediately after such merger or consolidation;
14
<PAGE> 18
(iv) the stockholders of the Company or any affiliate
approve a plan or agreement for the sale or disposition of all or
substantially all of the consolidated assets of the Company (other
than such a sale or disposition immediately after which such
assets will be owned directly or indirectly by the stockholders of
the Company in substantially the same proportions as their
ownership of the common stock of the Company immediately prior to
such sale or disposition) in which case the Board shall determine
the effective date of the Change in Control resulting therefrom;
or
(v) any other event occurs which the Board determines, in
its discretion, would materially alter the structure of the
Company or its ownership.
(c) Definition of "Change in Control Price." The "Change in
Control Price" means an amount in cash equal to the higher of (i) the
amount of cash and fair market value of property that is the highest
price per share paid (including extraordinary dividends) in any
transaction triggering the Change in Control under Section 9(b) hereof or
any liquidation of shares following a sale of substantially all assets of
the Company, or (ii) the highest Fair Market Value per share at any time
during the 60-day period preceding and 60-day period following the Change
in Control.
10. GENERAL PROVISIONS.
(a) Compliance with Legal and Other Requirements. The Company
may, to the extent deemed necessary or advisable by the Committee,
postpone the issuance or delivery of Stock or payment of other benefits
under any Award until completion of such registration or qualification of
such Stock or other required action under any federal or state law, rule
or regulation, listing or other required action with respect to any stock
exchange or automated quotation system upon which the Stock or other
Company securities are listed or quoted, or compliance with any other
obligation of the Company, as the Committee may consider appropriate, and
may require any Participant to make such representations, furnish such
information and comply with or be subject to such other conditions as it
may consider appropriate in connection with the issuance or delivery of
Stock or payment of other benefits in compliance with applicable laws,
rules, and regulations, listing requirements, or other obligations. The
foregoing notwithstanding, in connection with a Change in Control, the
Company shall take or cause to be taken no action, and shall undertake or
permit to arise no legal or contractual obligation, that results or would
result in any postponement of the issuance or delivery of Stock or
payment of benefits under any Award or the imposition of any other
conditions on such issuance, delivery or payment, to the extent that such
postponement or other condition would represent a greater burden on a
Participant than existed on the 90th day preceding the Change in Control.
(b) Limits on Transferability; Beneficiaries. No Award or other
right or interest of a Participant under the Plan, including any Award or
right which constitutes a derivative security as generally defined in
Rule 16a-1(c) under the Exchange Act, shall be pledged, hypothecated or
otherwise encumbered or subject to any lien, obligation or liability of
such Participant to any party (other than the Company or a subsidiary),
or assigned or transferred by such Participant otherwise than by will or
the laws of descent and distribution or to a Beneficiary upon the death
of a Participant, and such Awards or rights that may be exercisable shall
be exercised during the lifetime of the Participant only by the
Participant or his or her guardian or legal representative, except that
Awards and other rights (other than ISOs and SARs in tandem therewith)
may be transferred to one or more Beneficiaries or other transferees
during the lifetime of the Participant, and may be exercised by such
transferees in accordance with the terms of such Award, but only if
15
<PAGE> 19
and to the extent such transfers are permitted by the Committee pursuant
to the express terms of an Award agreement (subject to any terms and
conditions which the Committee may impose thereon); provided, however,
that, for so long as the Company is relying on Rule 16b-3 as in effect
prior to May 1, 1991 for exemptions for Plan transactions, Awards may be
granted that are transferable (and thus are not exempted under such
version of Rule 16b-3) only on terms that do not preclude other grants of
Awards under the Plan that are exempt under such version of Rule 16b-3.
A Beneficiary, transferee, or other person claiming any rights under the
Plan from or through any Participant shall be subject to all terms and
conditions of the Plan and any Award agreement applicable to such
Participant, except as otherwise determined by the Committee, and to any
additional terms and conditions deemed necessary or appropriate by the
Committee.
(c) Adjustments. In the event that any dividend or other
distribution (whether in the form of cash, Stock, or other property),
recapitalization, forward or reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase, share exchange,
liquidation, dissolution or other similar corporate transaction or event
affects the Stock such that an adjustment is determined by the Committee
to be appropriate under the Plan, then the Committee shall, in such
manner as it may deem equitable, adjust any or all of (i) the number and
kind of shares of Stock which may be delivered in connection with Awards
granted thereafter, (ii) the number and kind of shares of Stock by which
annual per-person Award limitations are measured under Section 5 hereof,
(iii) the number and kind of shares of Stock subject to or deliverable in
respect of outstanding Awards and (iv) the exercise price, grant price or
purchase price relating to any Award and/or make provision for payment of
cash or other property in respect of any outstanding Award. In addition,
the Committee is authorized to make adjustments in the terms and
conditions of, and the criteria included in, Awards (including
Performance Awards and performance goals, and Annual Incentive Awards and
any Annual Incentive Award pool or performance goals relating thereto) in
recognition of unusual or nonrecurring events (including, without
limitation, events described in the preceding sentence, as well as
acquisitions and dispositions of businesses and assets) affecting the
Company, any subsidiary or any business unit, or the financial statements
of the Company or any subsidiary, or in response to changes in applicable
laws, regulations, accounting principles, tax rates and regulations or
business conditions or in view of the Committee's assessment of the
business strategy of the Company, any subsidiary or business unit
thereof, performance of comparable organizations, economic and business
conditions, personal performance of a Participant, and any other
circumstances deemed relevant; provided that no such adjustment shall be
authorized or made if and to the extent that such authority or the making
of such adjustment would cause Options, SARs, Performance Awards granted
under Section 8(b) hereof or Annual Incentive Awards granted under
Section 8(c) hereof to Participants designated by the Committee as
Covered Employees and intended to qualify as "performance-based
compensation" under Code Section 162(m) and regulations thereunder to
otherwise fail to qualify as "performance-based compensation" under Code
Section 162(m) and regulations thereunder.
(d) Taxes. The Company and any subsidiary is authorized to
withhold from any Award granted, any payment relating to an Award under
the Plan, including from a distribution of Stock, or any payroll or other
payment to a Participant, amounts of withholding and other taxes due or
potentially payable in connection with any transaction involving an
Award, and to take such other action as the Committee may deem advisable
to enable the Company and Participants to satisfy obligations for the
payment of withholding taxes and other tax obligations relating to any
Award. This authority shall include authority to withhold or receive
Stock or other property and to make cash payments in respect thereof in
satisfaction of a Participant's tax obligations, either on a mandatory or
elective basis in the discretion of the Committee.
16
<PAGE> 20
(e) Changes to the Plan and Awards. The Board may amend, alter,
suspend, discontinue or terminate the Plan or the Committee's authority
to grant Awards under the Plan without the consent of stockholders or
Participants, except that any amendment or alteration to the Plan shall
be subject to the approval of the Company's stockholders not later than
the annual meeting next following such Board action if such stockholder
approval is required by any federal or state law or regulation or the
rules of any stock exchange or automated quotation system on which the
Stock may then be listed or quoted, and the Board may otherwise, in its
discretion, determine to submit other such changes to the Plan to
stockholders for approval; provided that, without the consent of an
affected Participant, no such Board action may materially and adversely
affect the rights of such Participant under any previously granted and
outstanding Award. The Committee may waive any conditions or rights
under, or amend, alter, suspend, discontinue or terminate any Award
theretofore granted and any Award agreement relating thereto, except as
otherwise provided in the Plan; provided that, without the consent of an
affected Participant, no such Committee action may materially and
adversely affect the rights of such Participant under such Award.
Notwithstanding anything in the Plan to the contrary, if any right under
this Plan would cause a transaction to be ineligible for pooling of
interest accounting that would, but for the right hereunder, be eligible
for such accounting treatment, the Committee may modify or adjust the
right so that pooling of interest accounting shall be available,
including the substitution of Stock having a Fair Market Value equal to
the cash otherwise payable hereunder for the right which caused the
transaction to be ineligible for pooling of interest accounting.
(f) Limitation on Rights Conferred under Plan. Neither the Plan
nor any action taken hereunder shall be construed as (i) giving any
Eligible Person or Participant the right to continue as an Eligible
Person or Participant or in the employ of the Company or a subsidiary,
(ii) interfering in any way with the right of the Company or a subsidiary
to terminate any Eligible Person's or Participant's employment at any
time, (iii) giving an Eligible Person or Participant any claim to be
granted any Award under the Plan or to be treated uniformly with other
Participants and employees, or (iv) conferring on a Participant any of
the rights of a stockholder of the Company unless and until the
Participant is duly issued or transferred shares of Stock in accordance
with the terms of an Award.
(g) Unfunded Status of Awards; Creation of Trusts. The Plan is
intended to constitute an "unfunded" plan for incentive and deferred
compensation. With respect to any payments not yet made to a Participant
or obligation to deliver Stock pursuant to an Award, nothing contained in
the Plan or any Award shall give any such Participant any rights that are
greater than those of a general creditor of the Company; provided that
the Committee may authorize the creation of trusts and deposit therein
cash, Stock, other Awards or other property, or make other arrangements
to meet the Company's obligations under the Plan. Such 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. The trustee of such trusts may be authorized to
dispose of trust assets and reinvest the proceeds in alternative
investments, subject to such terms and conditions as the Committee may
specify and in accordance with applicable law.
(h) Nonexclusivity of the Plan. Neither the adoption of the
Plan by the Board nor its submission to the stockholders of the Company
for approval shall be construed as creating any limitations on the power
of the Board or a committee thereof to adopt such other incentive
arrangements as it may deem desirable including incentive arrangements
and awards which do not qualify under Code Section 162(m).
17
<PAGE> 21
(i) Payments in the Event of Forfeitures; Fractional Shares.
Unless otherwise determined by the Committee, in the event of a
forfeiture of an Award with respect to which a Participant paid cash or
other consideration, the Participant shall be repaid the amount of such
cash or other consideration. No fractional shares of Stock shall be
issued or delivered pursuant to the Plan or any Award. The Committee
shall determine whether cash, other Awards or other property shall be
issued or paid in lieu of such fractional shares or whether such
fractional shares or any rights thereto shall be forfeited or otherwise
eliminated.
(j) Governing Law. The validity, construction and effect of the
Plan, any rules and regulations under the Plan, and any Award agreement
shall be determined in accordance with the Delaware General Corporation
Law, without giving effect to principles of conflicts of laws, and
applicable federal law.
(k) Awards under Preexisting Plan. Upon approval of the Plan by
stockholders of the Company, as required under Section 10(l) hereof, no
further Awards shall be granted under any Preexisting Plan.
(l) Plan Effective Date and Stockholder Approval. The Plan
shall become effective on June 7, 1996, subject to approval at the
Company's 1996 Annual Meeting of Stockholders, by stockholders of the
Company eligible to vote in the election of directors, by a vote
sufficient to meet the requirements of Code Sections 162(m) and 422, Rule
16b-3 under the Exchange Act, Section 312.03 of the Listed Company Manual
of the New York Stock Exchange, Inc., and other laws, regulations, and
obligations of the Company applicable to the Plan. Awards may be granted
subject to stockholder approval, but may not be exercised or otherwise
settled in the event stockholder approval is not obtained.
18
<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 8,980,325 shares of Common Stock, $.01 par value, of the Company
which may be issued under the 1996 Executive Incentive Compensation Plan (the
"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 the 8,980,325 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 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 Company'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 DATE
---------- ----- ----
<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>
