<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 STOCK AWARD 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>
====================================================================================================================
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 1,000,000 $10.125 $10,125,000 $784.88
====================================================================================================================
</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.
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
This Registration Statement relates to the registration of 1,000,000
shares of common stock, $.01 par value, of Schuller Corporation (the "Common
Stock") to be awarded under the Schuller Corporation 1996 Stock Award 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 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.
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:
SIGNATURES TITLE DATE
- ------------------------ ---------------------------------- -------------
/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
6
<PAGE> 7
SIGNATURES TITLE DATE
- ------------------------ ---------------------------------- -------------
* 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
7
<PAGE> 8
SCHULLER CORPORATION
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
Incorporated Herein
Exhibit No. Description by Reference To Filed Herewith Sequential Page No.
- ----------- ---------------------------- -------------------- -------------- -------------------
<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 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
EXHIBIT 4.3
SCHULLER CORPORATION
- --------------------------------------------------------------------------------
1996 Stock Award Plan
- --------------------------------------------------------------------------------
<PAGE> 2
SCHULLER CORPORATION
- --------------------------------------------------------------------------------
1996 STOCK AWARD PLAN
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
1. Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Authority of the Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(b) Manner of Exercise of Committee Authority . . . . . . . . . . . . . . . . . . . . 3
4. Stock Subject to Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Overall Number of Shares Available for Delivery . . . . . . . . . . . . . . . . . 3
(b) Application of Limitation to Grants of Awards . . . . . . . . . . . . . . . . . . 3
(c) Availability of Shares Not Delivered Under Awards . . . . . . . . . . . . . . . . 4
5. Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6. Specific Terms of Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(c) Stock Appreciation Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(d) Restricted Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(e) Deferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(f) Bonus Stock and Awards in Lieu of Obligations . . . . . . . . . . . . . . . . . . 7
(g) Dividend Equivalents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(h) Other Stock-Based Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7. Certain Provisions Applicable to Awards . . . . . . . . . . . . . . . . . . . . . . . . . 7
(a) Stand-Alone, Additional, Tandem, and Substitute Awards . . . . . . . . . . . . . 7
(b) Term of Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(c) Form and Timing of Payment Under Awards; Deferrals . . . . . . . . . . . . . . . 8
8. Performance Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9. Change in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(a) Effect of "Change in Control" . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(b) Definition of "Change in Control" . . . . . . . . . . . . . . . . . . . . . . . . 9
(c) Definition of "Change in Control Price" . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
<PAGE> 3
SCHULLER CORPORATION
- --------------------------------------------------------------------------------
1996 STOCK AWARD PLAN
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
10. General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(a) Compliance With Legal and Other Requirements . . . . . . . . . . . . . . . . . 10
(b) Limits on Transferability; Beneficiaries . . . . . . . . . . . . . . . . . . . 11
(c) Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(d) Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(e) Changes to the Plan and Awards . . . . . . . . . . . . . . . . . . . . . . . . 12
(f) Limitation on Rights Conferred Under Plan . . . . . . . . . . . . . . . . . . 12
(g) Unfunded Status of Awards; Creation of Trusts . . . . . . . . . . . . . . . . 12
(h) Nonexclusivity of the Plan . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(i) Payments in the Event of Forfeitures; Fractional Shares . . . . . . . . . . . 13
(j) Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(k) Plan Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
<PAGE> 4
SCHULLER CORPORATION
1996 STOCK AWARD PLAN
1. Purpose. The purpose of this 1996 Stock Award Plan (the "Plan") is
to assist Schuller Corporation, a Delaware corporation (the "Company"), and its
subsidiaries in attracting, retaining, and rewarding high-quality employees,
other than executive officers, 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 incentives to expend their maximum efforts in the creation of
shareholder value.
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) "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, or Other Stock-Based Award,
together with any other right or interest granted to a Participant
under the Plan.
(b) "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.
(c) "Beneficial Owner" shall have the meaning ascribed to such
term in Rule 13d-3 under the Exchange Act and any successor to such
Rule.
(d) "Board" means the Company's Board of Directors.
(e) "Change in Control" means Change in Control as defined with
related terms in Section 9 of the Plan.
(f) "Change in Control Price" means the amount calculated in
accordance with Section 9(c) of the Plan.
(g) "Code" means the Internal Revenue Code of 1986, as amended
from time to time, including regulations thereunder and successor
provisions and regulations thereto.
(h) "Committee" means a committee designated by the Board to
administer the Plan.
(i) "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.
(j) "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.
<PAGE> 5
(k) "Effective Date" means June 7, 1996, the effective date of
the Plan.
(l) "Eligible Person" means each employee of the Company or of
any subsidiary. The foregoing notwithstanding, no executive officer of
the Company 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.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, including rules thereunder and successor
provisions and rules thereto.
(n) "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.
(o) "Limited SAR" means a right granted to a Participant under
Section 6(c) hereof.
(p) "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. All Options granted under the
Plan shall be non-qualified stock options and shall not be "incentive
stock options" as defined in Section 422 of the Code.
(q) "Other Stock Based Awards" means Awards granted to a
Participant under Section 6(h) hereof.
(r) "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.
(s) "Performance Award" means a right, granted to a Participant
under Section 8 hereof, to receive Awards based upon performance
criteria specified by the Committee.
(t) "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.
(u) "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.
(v) "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.
(w) "Stock Appreciation Rights" or "SAR" means a right granted
to a Participant under Section 6(c) hereof.
- 2 -
<PAGE> 6
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. 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 Company or any subsidiary, or committees thereof, the
authority, subject to such terms as the Committee shall determine, (i)
to perform administrative functions and (ii) to perform such other
functions of the Committee as the Committee may determine, in each case
to the extent permitted under applicable law. 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 1,000,000. Any shares of Stock
delivered under the Plan may consist, in whole or in part, of
authorized and unissued shares or treasury shares. If, at the time
shares of Stock are to be delivered under the Plan to a Participant
(including upon exercise of an Option), the shares are listed on the
New York Stock Exchange and such Participant is a "director" or
"officer" of the Company within the meaning of Sections 312.03 and
703.09 of the Listed Company Manual of the New York Stock Exchange,
such that the Participant's acquisition of shares originally issued by
the Company would be subject to the requirement of stockholder approval
under then-applicable stock exchange rules, the shares to be
distributed to such Participant shall consist only of either shares
issued under the Company's 1996 Executive Incentive Compensation Plan,
if so specified by the committee then administering such plan, or
treasury shares then held by the Company. The Company shall use its
best efforts to obtain and have available, at any time that such
treasury shares are required to be distributed in connection with an
Award, a sufficient number of treasury shares, not reserved for other
uses, to be able to make prompt delivery in connection with any such
Award.
(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
- 3 -
<PAGE> 7
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 that is canceled, 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
taxes relating to Awards, and (ii) the number of shares surrendered in
payment of any exercise or purchase price of an Award or taxes relating
to any 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.
5. Eligibility. Awards may be granted under the Plan only to Eligible
Persons.
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.
- 4 -
<PAGE> 8
(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.
(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.
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<PAGE> 9
(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.
(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
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<PAGE> 10
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. 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 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
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<PAGE> 11
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.
(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.
8. Performance Awards. 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.
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
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<PAGE> 12
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 of the Exchange Act 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) of the
Exchange Act 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.
(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
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<PAGE> 13
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;
(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
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<PAGE> 14
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. In addition, the Committee is authorized to
modify Awards that are then held by a Participant who has become or is
expected to become subject to Section 16 of the Exchange Act with
respect to the Company to limit the risk to such Participant of
incurring liability under Section 16(b) while substantially maintaining
the value of the Award to such Participant.
(b) Limits on Transferability; Beneficiaries. No Award or other
right or interest of a Participant under the Plan 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 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 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). 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 subject to or deliverable in respect of outstanding Awards and
(iii) 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), 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
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<PAGE> 15
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.
(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.
(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
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<PAGE> 16
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. The adoption of the Plan by the
Board shall not 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.
(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) Plan Effective Date. The Plan shall become effective on
June 7, 1996.
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<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 1,000,000 shares of Common Stock, $.01 par value, of the Company
which may be issued under the 1996 Stock Award 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 1,000,000 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:
SIGNATURES TITLE DATE
- ---------------------------- ---------------------------------- -------------
/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
<PAGE> 2
SIGNATURES TITLE DATE
- ---------------------------- ---------------------------------- -------------
/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
