<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 21, 1996
Registration Statement No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERISTEEL CORPORATION
(Exact name of Registrant as specified in its charter)
FLORIDA 59-0792436
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
SUITE 312, 5100 WEST LEMON STREET
TAMPA, FLORIDA 33609
(813) 286-8383
(Address, including zip code,
of Registrant's principal executive offices)
AMERISTEEL
EQUITY OWNERSHIP PLAN
(Full title of the plan)
PHILLIP E. CASEY, CHAIRMAN
AMERISTEEL CORPORATION
SUITE 312, 5100 WEST LEMON STREET
TAMPA, FLORIDA 33609
(813) 286-8383
(Name, address, including zip code, and telephone number
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Title of Securities Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
to be Registered Registered Price Per Share(1) Offering Price Registration Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock. . . . . . . 438,852 shs. $12.50 $5,485,650.00 $1,663.00
===========================================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(c), solely for the purpose of
calculating the registration fee. Based upon the most recently
available appraisal for the common stock.
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
By this reference, the following documents filed or to be filed by
AmeriSteel Corporation (the "Company") with the Securities and Exchange
Commission (the "Commission") are incorporated into and made a part of this
Registration Statement:
1. The Company's Annual Report on Form 10-K for the Year Ended March
31, 1996, as filed with the Commission on June 28, 1996.
2. The Company's Quarterly Report on Form 10-Q for the three months
ended June 30, 1996 as filed with the Commission on August 12,
1996.
3. All documents filed by the Company with the Commission subsequent
to the date of this Registration Statement under Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, and
prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be
incorporated into and made a part of this Registration Statement
from the date of filing of such documents with the Commission.
ITEM 4. DESCRIPTION OF SECURITIES.
DESCRIPTION OF THE COMPANY'S EQUITY OWNERSHIP PLAN
The Company's only class of equity securities is common stock, par value
$.01 per share (the "Common Stock"). Each holder of Common Stock is entitled
to one vote for each share owned of record on all matters voted upon by
stockholders, and a majority vote is required for all actions to be taken by
stockholders. In the event of a liquidation, dissolution or winding-up of the
Company, the holders of Common Stock are entitled to share equally and ratably
in the assets of the Company, if any, remaining after the payment of all debts
and liabilities of the Company. The Common Stock has no preemptive rights, no
cumulative voting rights and no redemption, sinking fund or conversion
provisions.
Holders of Common Stock are entitled to receive dividends if, as and
when declared by the Board of Directors out of funds legally available
therefor. No dividend or other distribution (including redemptions or
repurchases of shares of capital stock) may be made if after giving effect to
such distribution, the Company would not be able to pay its debts as they
become due in the usual course of business, or the Company's total assets would
be less than the sum of its total liabilities. In addition, the Company's
ability to pay dividends may be limited by the provisions of applicable loan
agreements.
During the time prior to any public offering of shares pursuant to a
registration statement filed under the Securities Act of 1933, certain shares
of the Company's Common Stock are subject to limitations on transfer.
Specifically, any shares of Common Stock acquired under the Company's Stock
Purchase/Option Plan and Equity Ownership Plan are subject to a right of first
refusal in favor of the Company. Prior to the sale, assignment, transfer,
pledge or other disposition of shares of Common Stock, a stockholder must first
offer to sell such shares to the Company in accordance with the terms and
conditions of the applicable plan.
II-2
<PAGE> 3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Florida Business Corporation Act, as amended (the "Florida Act"),
provides that, in general, a business corporation may indemnify any person who
is or was a party to any proceeding (other than an action by, or in the right
of, the corporation) by reason of the fact that he or she is or was a director
or officer of the corporation, against liability incurred in connection with
such proceeding, including any appeal thereof, provided certain standards are
met, including that such officer or director acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation, and provided further that, with respect to any
criminal action or proceeding, the officer or director had no reasonable cause
to believe his or her conduct was unlawful. In the case of proceedings by or
in the right of the corporation, the Florida Act provides that, in general, a
corporation may indemnify any person who was or is a party to any such
proceeding by reason of the fact that he or she is or was a director or officer
of the corporation against expenses and amounts paid in settlement actually and
reasonably incurred in connection with the defense or settlement of such
proceeding, including any appeal thereof, provided that such person acted in
good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification shall be made in respect of any claim as to which such person
is adjudged liable unless a court of competent jurisdiction determines upon
application that such person is fairly and reasonably entitled to indemnity.
To the extent that any officers or directors are successful on the merits or
otherwise in the defense of any of the proceedings described above, the Florida
Act provides that the corporation is required to indemnify such officers or
directors against expenses actually and reasonably incurred in connection
therewith. However, the Florida Act further provides that, in general,
indemnification or advancement of expenses shall not be made to or on behalf of
any officer or director if a judgment or other final adjudication establishes
that his or her actions, or omissions to act, were material to the cause of
action so adjudicated and constitute: (i) a violation of the criminal law,
unless the director or officer had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe it was unlawful; (ii)
a transaction from which the director or officer derived an improper personal
benefit; (iii) in the case of a director, a circumstance under which the
director has voted for or assented to a distribution made in violation of the
Florida Act or the corporation's articles of incorporation; or (iv) willful
misconduct or a conscious disregard for the best interests of the corporation
in a proceeding by or in the right of the corporation to procure a judgment in
its favor or in a proceeding by or in the right of a shareholder. Article VIII
of the Company's By-laws provides that the Company shall indemnify any
director, officer or employee or any former director, officer or employee in
accordance with the standards and procedures specified therein.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
II-3
<PAGE> 4
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
4.1 AmeriSteel Equity Ownership Plan as amended
4.2 Amended and Restated Articles of Incorporation of Company as amended by amendments dated May 22, 1995 and
March 27, 1996 (Filed as Exhibit 3(I) to the Company's Annual Report on Form 10-K for the year ended March
31, 1996)
4.3 By-Laws of the Company (filed as Exhibit 3.2 to the Company's Annual Report on Form 10-K for the year ended
September 30, 1992
5 Opinion of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Professional Association, as to the
legality of the Common Stock being registered
23.1 Consent of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Professional Association (contained in
Exhibit 5)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Deloitte & Touche LLP
</TABLE>
ITEM 9. UNDERTAKINGS.
i. 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 of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information
with respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
II-4
<PAGE> 5
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for purposes of determining any liability
under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
ii. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
iii. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described in
Item 6, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 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 of 1933 and will be
governed by the final adjudication of such issue.
II-5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Tampa, State of Florida, on the 21st day of
October, 1996.
AMERISTEEL CORPORATION
By: /s/ Thomas G. Creed
------------------------------
Thomas G. Creed, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Phillip E. Casey Chairman, Chief Executive October 21, 1996
--------------------------------------------------------- Officer and Director
Phillip E. Casey (Principal Executive Officer)
/s/ Takeshi Fujimura Chairman of the Executive October 21, 1996
--------------------------------------------------------- Committee and Director
Takeshi Fujimura
/s/ Thomas G. Creed President, Chief Operating October 21, 1996
--------------------------------------------------------- Officer and Director
Thomas G. Creed
/s/ J. Donald Haney Group Vice President - October 21, 1996
--------------------------------------------------------- Fabricated Reinforcing Steel
J. Donald Haney and Director
/s/ Shuzo Hikita Vice President - October 21, 1996
--------------------------------------------------------- Engineering and Director
Shuzo Hikita
</TABLE>
II-6
<PAGE> 7
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Tom J. Landa Vice President, Chief Financial October 21, 1996
---------------------------------------------------- Officer and Secretary
Tom J. Landa (Principal Financial Officer
and Principal Accounting
Officer)
---------------------------------------------------- Director __________, 1996
Koichi Takashima
---------------------------------------------------- Director __________, 1996
Akihiko Takashima
---------------------------------------------------- Director __________, 1996
Hideichiro Takashima
---------------------------------------------------- Director __________, 1996
Ryutaro Yoshioka
</TABLE>
II-7
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page No.
------ ----------- ---------
<S> <C>
4.1 AmeriSteel Equity Ownership Plan, as amended
4.2 Amended and Restated Articles of Incorporation of Company as amended by
amendments dated May 22, 1995 and March 27, 1996 (Filed as Exhibit 3(I) to the
Company's Annual Report on Form 10-K for the year ended March 31, 1996)
4.3 By-Laws of the Company (filed as Exhibit 3.2 to the Company's Annual Report on
Form 10-K for the year ended September 30, 1992
5 Opinion of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Professional
Association, as to the legality of the Common Stock being registered
23.1 Consent of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Professional
Association (contained in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Deloitte & Touche LLP
</TABLE>
<PAGE> 1
Exhibit 4.1
AMERISTEEL CORPORATION
EQUITY OWNERSHIP PLAN
ARTICLE 1
ESTABLISHMENT; PURPOSE
1.1 ESTABLISHMENT. AmeriSteel Corporation, a
Florida corporation, (the "Company") hereby establishes an incentive
compensation plan to be known as the "AmeriSteel Equity Ownership Plan" (the
"Plan").
1.2 PURPOSE. The purpose of the Plan is to (a)
attract, retain and motivate participating employees of the Company and its
subsidiaries through awards of shares of the Common Stock of the Company (the
"Shares"), options to purchase Shares (the "Options") and other equity-based
awards, (b) encourage employee ownership of Shares and (c) encourage
participating employees to think and act like owners of the Company.
1.3 MAXIMUM NUMBER OF SHARES. The maximum number
of Shares that may be offered under the Plan is 438,852 subject to adjustment
as provided in Section 10.1. If an Option is surrendered or for any other
reason ceases to be exercisable in whole or in part, the Shares that are
subject to such Option, but as to which the Option has not been exercised,
shall again become available for offering under the Plan. Any awards under the
Plan made other than in Shares or Options shall not reduce the maximum number
of Shares covered by the Plan.
1.4 STATUS. It is the intention of the Company
that ISOs granted under the Plan qualify as "incentive stock options" under
Section 422 of the Code, and the regulations promulgated thereunder. The
provisions of the Plan with respect to ISOs, accordingly, shall be construed in
a manner consistent with such requirements. Except with respect to ISOs, no
other Award under the Plan is intended to qualify for special treatment or
status under the Code.
ARTICLE 2
DEFINITIONS
2.1 DEFINITIONS. The following words and terms
as used herein shall have that meaning set forth therefor in this Article 2
unless a different meaning is clearly required by the context.
2.1.1 "AWARD" shall mean any
Option, Shares, SAR or any cash payment granted or awarded under the Plan.
2.1.2 "AWARD AGREEMENT(S)" shall
mean any document, agreement or certificate deemed by the Board of Directors as
necessary or advisable to be entered into with or delivered to a Participant in
connection with or as a condition precedent to the valid completion of the
grant of an Award under the Plan.
<PAGE> 2
2.1.3 "AWARD SHARE(S)" shall mean
any Shares granted or awarded to a Participant in accordance with the
provisions of Article 8.
2.1.4 "BOARD" OR "BOARD OF
DIRECTORS" shall mean the Board of Directors of the Company.
2.1.5 "CHIEF EXECUTIVE OFFICER"
shall mean the officer so designated from time to time by the Board of
Directors, or if the Board shall fail to so designate an officer to that
position, the President of the Company.
2.1.6 "CODE" shall mean the
Internal Revenue Code of 1986, as amended. Reference to a specific section of
the Code shall include a reference to any successor provision.
2.1.7 "COMPANY" shall mean
AmeriSteel Corporation, a Florida corporation, and its successors.
2.1.8 "EFFECTIVE DATE" shall mean
April 1, 1995.
2.1.9 "ELIGIBLE EMPLOYEE" shall
mean any individual employed by the Company or any Subsidiary. The Board of
Directors shall have the sole power to determine if the eligibility
requirements have been satisfied.
2.1.10 "FAIR MARKET VALUE" of the
Shares shall mean the closing price, on the date in question (or, if no Shares
are traded on such day, on the next preceding day on which Shares were traded),
of the Shares as reported on the Composite Tape, or if not reported thereon,
then such price as reported in the trading reports of the principal securities
exchange in the United States on which such stock is listed, or if such stock
is not listed on a securities exchange in the United States, the mean between
the dealer closing "bid" and "ask" prices on the over-the-counter market as
reported by the National Association of Security Dealers Automated Quotation
System (NASDAQ), or NASDAQ's successor, or if not reported on NASDAQ, the fair
market value of such stock as determined by the Board of Directors in good
faith and based on all relevant factors.
2.1.11 "ISO" shall mean an
incentive stock option granted in accordance with the provisions of Article 5
of the Plan.
2.1.12 "NSO" shall mean a
nonqualified stock option granted in accordance with the provisions of Article
6 of the Plan.
2.1.13 "OPTION" shall mean an ISO
or an NSO.
2.1.14 "OPTIONEE" shall mean an
individual employed by the Company or any Subsidiary to whom an Option is
granted under the Plan.
2.
<PAGE> 3
2.1.15 "PARTICIPANT" shall mean an
Eligible Employee, who in accordance with the terms of the Plan, is first
recommended by the Chief Executive Officer and then approved by the Board of
Directors for participation in the Plan as a recipient of an Award and who
receives an Award.
2.1.16 "PLAN" shall mean the
AmeriSteel Equity Ownership Plan, as set forth herein and as amended from time
to time.
2.1.17 "REGISTRATION DATE" shall
mean the effective date of the first registration statement that becomes
effective under the Securities Act of 1933 (excluding any offering to
employees, whether under the Plan or otherwise, registered under Form S-8) with
respect to any public offering of Shares.
2.1.18 "SAR" shall mean a Stock
Appreciation Right granted in accordance with the provisions of Article 7 of
the Plan, which as to each SAR entitles the Participant to receive payment
equal to the excess of (1) the Fair Market Value of a Share at the time of
payment or exercise over (2) a specified price or value set or established at
the time of grant of the SAR.
2.1.19 "SHARES" shall mean shares
of the common stock of the Company.
2.1.20 "SUBSIDIARY" shall mean any
corporation that at the time qualifies as a subsidiary of the Company under the
definition of "subsidiary corporation" contained in Section 424(f) of the Code.
2.1.21 "10% STOCKHOLDER" shall mean
an individual who owns more than 10% of the total combined voting power of all
classes of stock of the Company or of a parent or subsidiary corporation.
2.2 USAGE. Whenever appropriate, words used in
the singular shall be deemed to include the plural and vice versa, and the
masculine gender shall be deemed to include the feminine gender.
ARTICLE 3
ADMINISTRATION
3.1 BOARD OF DIRECTORS. The Plan shall be
administered by the Board of Directors.
3.2 POWER AND AUTHORITY. Subject to the
provisions of the Plan, the Board of Directors shall have full authority, in
its discretion: (a) to determine from among Eligible Employees those persons
who shall become Participants; (b) to determine the nature, amount and terms
and conditions of all Awards under the Plan, in accordance with and subject to
the specific limitations and requirements set forth in the Plan; and (c) to
interpret the Plan, the terms of all Awards and Award Agreements and any other
agreement or instrument awarded, issued or entered into under the Plan,
3.
<PAGE> 4
and to prescribe, amend and rescind rules and regulations with respect the
administration of the Plan. The interpretation and construction by the Board
of Directors of any provision of the Plan, any Award or any other agreement or
instrument awarded, issued or entered into under the Plan, and all other
determinations and decisions of the Board of Directors pursuant to the
provisions of the Plan, shall be final, conclusive and binding on all
Participants and other affected persons. All actions and policies of the
Board, to the extent they deal with ISOs, shall be consistent with the
qualification of ISOs as incentive stock options under Section 422 of the Code.
3.3 DISCRETIONARY AUTHORITY. The Board of
Directors' decision to authorize the grant of an Award to an Eligible Employee
at any time shall not require the Board of Directors to authorize the grant of
an Award to that employee at any other time or to any other employee at any
time; nor shall its determination with respect to the size, type or terms and
conditions of the Award to be granted to an Eligible Employee at any time
require it to authorize the grant of an Award of the same type or size or with
the same terms and conditions to that employee at any other time or to any
other employee at any time. The Board of Directors shall not be precluded from
authorizing the grant of an Award to any Eligible Employee solely because the
employee previously may have been granted an Award of any kind under the Plan.
3.4 NO LIABILITY. No member of the Board of
Directors shall be liable for any action or determination made in good faith
with respect to the Plan.
ARTICLE 4
EMPLOYEES ELIGIBLE TO PARTICIPATE
4.1 GENERALLY. Any person, including any officer
but not a person who is solely a director, who is in the employ of the Company
or any Subsidiary on the date of a grant of an Award shall be an Eligible
Employee, able to participate in the Plan in accordance with the terms of the
Plan.
4.2 PARTICIPANT STATUS. The Chief Executive
Officer, in his sole discretion, from time to time may select from among
Eligible Employees persons to recommend to the Board of Directors to become
Participants in the Plan. Any Eligible Employee so recommended to the Board
and who remains an Eligible Employee shall become a Participant upon the
approval of such status by the Board of Directors, which approval shall be
conclusively evidenced by the award or grant of an Award to a Participant.
4.3 ISO ELIGIBILITY REQUIREMENT. Notwithstanding
any provision of the Plan to the contrary, no person shall be eligible to
receive any ISOs under the Plan if such person would not be able qualify for
the benefits of incentive stock options under Section 422 of the Code.
4.
<PAGE> 5
ARTICLE 5
TERMS AND CONDITIONS OF INCENTIVE STOCK OPTIONS
5.1 GRANT. Any ISO granted pursuant to the Plan
shall be authorized by the Board of Directors and shall be evidenced by
certificates or agreements in such form as the Board of Directors from time to
time shall approve, which certificates or agreements shall comply with and be
subject to the terms and conditions hereinafter specified. Upon the granting
of any ISO, the Board of Directors shall promptly cause the Optionee to be
notified of the fact that such Option has been granted. The date on which the
Board of Directors approves the grant of an ISO shall be considered to be the
date on which such Option is granted.
5.2 NUMBER OF SHARES. Each ISO shall state the
number of Shares to which it pertains.
5.3 OPTION PRICE. Each ISO shall state the
option price, which option price shall be determined by the Board of Directors
in its discretion. Notwithstanding the foregoing, the option price in no event
shall be less than 100% of the Fair Market Value of the Shares on the date of
grant of the Option; or, in the case of an ISO being issued to an Eligible
Employee who is a 10% Stockholder at the time an ISO is granted, 110% of the
Fair Market Value of the Shares on the date of grant.
5.4 METHOD OF EXERCISE. An Optionee may exercise
an ISO during such time as may be permitted by the Option and the Plan by
providing written notice to the Board of Directors, tendering the purchase
price in accordance with the provisions of Section 5.4, and complying with any
other exercise requirements contained in the Option or promulgated from time to
time by the Board of Directors.
5.5 METHOD OF PAYMENT. Payment of the option
price upon the exercise of the ISO shall be in (a) United States dollars in
cash or by check, bank draft or money order payable to the order of the
Company; (b) in the discretion of and in the manner determined by the Board of
Directors, by the delivery of Shares of Common Stock already owned by the
Optionee; (c) by any other legally permissible means acceptable to the Board of
Directors at the time of grant of the Option (including cashless exercise as
permitted under the Federal Reserve Board's Regulation T, subject to applicable
legal restrictions); or in the discretion of the Board of Directors, through a
combination of (a), (b) and (c) of this Section 5.5. If the option price is
paid in whole or in part through the delivery of Shares, the decision of the
Board of Directors with respect to the fair market value of such Shares shall
be final and conclusive.
5.
<PAGE> 6
5.6 TERM AND EXERCISE OF OPTIONS.
5.6.1 Unless otherwise specified
by the Board of Directors, each ISO shall be exercisable, in whole or in part,
only in accordance with the following chart:
<TABLE>
<CAPTION>
Percentage of
Number of Years from Shares
Date Option is Granted Exercisable
---------------------- ------------
<S> <C>
Less than 2 years 0%
2 years but less than 3 years 331/3%
3 years but less than 4 years 662/3%
4 years or more 100%
</TABLE>
5.6.2 Notwithstanding the
foregoing, an Optionee shall be 100% vested in the number of Shares originally
covered by an ISO in the event the Optionee dies or becomes totally and
permanently disabled (as determined in the sole discretion of the Board of
Directors) while still employed by the Company.
5.6.3 To the extent not exercised,
exercisable installments of ISOs shall be exercisable, in whole or in part, in
any subsequent period, but not later than the expiration date of the Option.
The Board of Directors shall determine the expiration date of the Option at the
time of the grant of the Option; provided, however, that no ISO shall be
exercisable after the expiration of ten (10) years from the date it is granted;
or, in the case of a 10% Stockholder, no ISO shall be exercisable after the
expiration of five (5) years from the date it is granted. Not less than one
hundred (100) Shares may be exercised at any one time unless the number
exercised is the total number at the time exercisable under the Option.
5.6.4 Within the limits described
above, the Board of Directors may impose additional requirements on the
exercise of ISOs. When it deems special circumstances to exist, the Board of
Directors in its discretion may accelerate the time at which an ISO may be
exercised if, under previously established exercise terms, such Option was not
immediately exercisable in full, even if the acceleration would permit the
Option to be exercised more rapidly than the vesting set forth above in the
chart, or as otherwise specified by the Board of Directors, would permit.
5.7 ADDITIONAL LIMITATIONS. The aggregate Fair
Market Value (determined as of the time an ISO is granted) of the Shares with
respect to which ISOs are exercisable for the first time by any Optionee in any
calendar year under the Plan and under all other incentive stock option plans
of the Company and any parent and subsidiary corporations of the Company (as
those terms are defined in Section 424 of the Code) shall not exceed $100,000.
6.
<PAGE> 7
5.8 DEATH OR OTHER TERMINATION OF EMPLOYMENT.
5.8.1 In the event that an
Optionee shall cease to be employed by the Company or a Subsidiary for any
reason other than his or her death, subject to the conditions that no ISO shall
be exercisable after its expiration date, such Optionee shall have the right to
exercise the ISO at any time within thirty (30) days after such termination of
employment to the extent his or her right to exercise such Option had accrued
pursuant to this Article 5 at the date of such termination and had not
previously been exercised; such thirty (30) day period shall be increased to
ninety (90) days if the termination of employment was the retirement or early
retirement of the Optionee (as defined under the Company's qualified Retirement
Plan) and to one (1) year for any Optionee who dies during the thirty (30) day
or ninety (90) day period, whichever may be applicable, and the Option may be
exercised within such extended time limit by the Optionee or, in the case of
death, the personal representative of the Optionee or by any person or persons
who shall have acquired the Option directly from the Optionee by bequest or
inheritance. Whether an authorized leave of absence or absence for military or
governmental service shall constitute termination of employment for purposes of
the Plan shall be determined by the Board of Directors, whose determination
shall be final and conclusive.
5.8.2 In the event that an
Optionee shall die while in the employ of the Company or a Subsidiary and shall
not have fully exercised any ISO, the ISO may be exercised, subject to the
conditions that no ISO shall be exercisable after its expiration date, to the
extent that the Optionee's right to exercise such Option had accrued pursuant
to this Article 5 at the time of his or her death and had not previously been
exercised, at any time within one (1) year after the Optionee's death, by the
personal representative of the Optionee or by any person or persons who shall
have acquired the Option directly from the Optionee by bequest or inheritance.
5.8.3 No ISO shall be transferable
by the Optionee otherwise than by will or the laws of descent and distribution.
5.8.4 During the lifetime of the
Optionee, an ISO shall be exercisable only by him or her and shall not be
assignable or transferable, and no other person shall acquire any rights
therein.
5.9 DELIVERY OF CERTIFICATES REPRESENTING SHARES.
5.9.1 As soon as practicable after
the exercise of an ISO, the Company shall deliver or cause to be delivered to
the Optionee exercising the ISO a certificate or certificates representing the
Shares purchased upon the exercise. Certificates representing Shares to be
delivered to a Optionee will be registered in the name of the Optionee.
5.9.2 If determined by the Company
in its discretion appropriate to administer the right of first refusal
provisions of Article 9, but only for so long as such provisions remain in
effect, certificates representing Shares shall not be delivered to Participants
but shall be delivered to the Company to be held by the Company as safekeeping
agent for the benefit of each Participant. A written safekeeping receipt
evidencing the Shares so held in safekeeping, bearing the name of the
7.
<PAGE> 8
Participant, indicating the number of the certificate or certificates and the
number of Shares so represented shall be delivered promptly to each Participant.
In its capacity as safekeeping agent for Participants, the Company shall act in
accordance with instructions received from such Participants, which instructions
are to be confirmed in writing if deemed appropriate by the Company. The
safekeeping agency shall not affect the rights of Participants as owners of
Shares.
5.9.3 Upon the expiration of the
right of first refusal provisions of Article 9, any safekeeping agency
arrangement adopted pursuant to Section 5.9.2 shall terminate and the
certificates representing the Shares owned by Participants, registered in the
name(s) of the Participants, shall be delivered promptly to such Participants.
5.10 RIGHTS AS A STOCKHOLDER. An Optionee shall
have no rights as a stockholder with respect to any Shares covered by his or
her ISO until the date on which he or she becomes a record owner of the Shares
purchased upon the exercise of the Option (the "record ownership date"). No
adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property), distributions, or other rights for which
the record date is prior to the record ownership date, except as provided in
Article 10.
5.11 MODIFICATION, EXTENSION AND RENEWAL OF
OPTIONS. Subject to the terms and conditions and within the limitations of the
Plan, the Board of Directors may modify outstanding ISOs granted under the
Plan, or accept the surrender of outstanding ISOs (to the extent not
theretofore exercised) and authorize the granting of new Options in
substitution therefor (to the extent not theretofore exercised). The Board of
Directors shall not, however, modify any outstanding ISO so as to specify a
lower option price or accept the surrender of outstanding ISOs and authorize
the granting of new Options in substitution therefor specifying a lower option
price. Notwithstanding the foregoing, however, no modification of an ISO
shall, without the consent of the Optionee, alter or impair any of the rights
or obligations under any ISO theretofore granted under the Plan.
5.12 LISTING AND REGISTRATION OF SHARES. Each ISO
shall be subject to the requirement that if at any time the Board of Directors
shall determine, in its discretion, that the listing, registration or
qualification of the Shares covered thereby upon any securities exchange or
under any state or federal laws, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition of, or in connection
with, the granting of such ISO or the issuance or purchase of Shares
thereunder, such ISO may not be exercised unless and until such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Board of Directors.
Notwithstanding anything in the Plan to the contrary, if the provisions of this
Section 5.12 become operative, and if, as a result thereof, the exercise of an
ISO is delayed, then and in that event, the term of the ISO shall not be
affected.
5.13 OTHER PROVISIONS. The ISO certificates or
agreements authorized under the Plan shall contain such other provisions,
including, without limitation, restrictions upon the exercise of the Option, as
the Board of Directors shall deem advisable. Any such certificate or agreement
shall contain such limitations and restrictions upon the exercise of the ISO
as shall be necessary in order
8.
<PAGE> 9
that such Option will be an incentive stock option as defined in Section 422 of
the Code, or to conform to any change in the law.
ARTICLE 6
TERMS AND CONDITIONS OF NONQUALIFIED STOCK OPTIONS
6.1 GRANT. Any NSO granted pursuant to the Plan
shall be authorized by the Board of Directors and shall be evidenced by
certificates or agreements in such form as the Board of Directors from time to
time shall approve, which certificates or agreements shall comply with and be
subject to the terms and conditions hereinafter specified. Upon the granting
of any NSO, the Board of Directors shall promptly cause the Optionee to be
notified of the fact that such Option has been granted. The date on which the
Board of Directors approves the grant of a NSO shall be considered to be the
date on which such Option is granted.
6.2 NUMBER OF SHARES. Each NSO shall state the
number of Shares to which it pertains.
6.3 OPTION PRICE. Each NSO shall state the
option price, which option price shall be determined by the Board of Directors
in its discretion. Notwithstanding the foregoing, the option price shall in no
event be less than 100% of the Fair Market Value of the Shares on the date of
grant of the Option.
6.4 METHOD OF EXERCISE. An Optionee may exercise
a NSO during such time as may be permitted by the Option and the Plan by
providing written notice to the Board of Directors, tendering the purchase
price in accordance with the provisions of Section 6.4, and complying with any
other exercise requirements contained in the Option or promulgated from time to
time by the Board of Directors.
6.5 METHOD OF PAYMENT. Payment of the option
price upon the exercise of the NSO shall be (a) in United States dollars in
cash or by check, bank draft or money order payable to the order of the
Company; (b) in the discretion of and in the manner determined by the Board of
Directors, by the delivery of Shares already owned by the Optionee; (c) by any
other legally permissible means acceptable to the Board of Directors at the
time of grant of the Option (including cashless exercise as permitted under the
Federal Reserve Board's Regulation T, subject to applicable legal
restrictions); or in the discretion of the Board of Directors, through a
combination of (a), (b) and (c) of this Section 6.5. If the option price is
paid in whole or in part through the delivery of Shares, the decision of the
Board of Directors with respect to the fair market value of such Shares shall
be final and conclusive.
9.
<PAGE> 10
6.6 TERM AND EXERCISE OF OPTIONS.
6.6.1 Unless otherwise specified
by the Board of Directors, each NSO shall be exercisable, in whole or in part,
only in accordance with the following chart:
<TABLE>
<CAPTION>
Percentage of
Number of Years from Shares
Date Option is Granted Exercisable
---------------------- -------------
<S> <C>
Less than 2 years 0%
2 years but less than 3 years 331/3%
3 years but less than 4 years 662/3%
4 years or more 100%
</TABLE>
6.6.2 Notwithstanding the
foregoing, an Optionee shall be 100% vested in the number of Shares originally
covered by a NSO in the event the Optionee dies or becomes totally and
permanently disabled (as determined in the sole discretion of the Board of
Directors) while still employed by the Company.
6.6.3 To the extent not exercised,
exercisable installments of NSOs shall be exercisable, in whole or in part, in
any subsequent period, but not later than the expiration date of the Option.
The Board of Directors shall determine the expiration date of the Option at the
time of the grant of the Option; provided, however, that no NSO shall be
exercisable after the expiration of ten (10) years from the date it is granted.
Not less than one hundred (100) Shares may be exercised at any one time unless
the number exercised is the total number at the time exercisable under the
Option.
6.6.4 Within the limits described
above, the Board of Directors may impose additional requirements on the
exercise of NSOs. When it deems special circumstances to exist, the Board of
Directors in its discretion may accelerate the time at which a NSO may be
exercised if, under previously established exercise terms, such Option was not
immediately exercisable in full, even if the acceleration would permit the
Option to be exercised more rapidly than the vesting set forth above in the
chart, or as otherwise specified by the Board of Directors, would permit.
6.7 DEATH OR OTHER TERMINATION OF EMPLOYMENT.
6.7.1 In the event that an
Optionee shall cease to be employed by the Company or a Subsidiary for any
reason other than his or her death, subject to the conditions that no NSO shall
be exercisable after its expiration date, such Optionee shall have the right to
exercise the NSO at any time within thirty (30) days after such termination of
employment to the extent his or her right to exercise the NSO had accrued
pursuant to this Article 6 at the date of such termination and had not
previously been exercised; such thirty (30) day period shall be increased to
such thirty (30) day limit shall be increased to ninety (90) days if the
termination of employment was the retirement or early retirement of the Optionee
(as defined under the Company's qualified Retirement Plan) and to one
10.
<PAGE> 11
(1) year for any Optionee who dies during the thirty (30) day or ninety (90) day
period, whichever may be applicable, and the Option may be exercised within such
extended time limit by the Optionee or, in the case of death, the personal
representative of the Optionee or by any person or persons who shall have
acquired the Option directly from the Optionee by bequest or inheritance.
Whether an authorized leave of absence or absence for military or governmental
service shall constitute termination of employment for purposes of the Plan
shall be determined by the Board of Directors, whose determination shall be
final and conclusive.
6.7.2 No NSO shall be transferable
by the Optionee otherwise than by will or the laws of descent and distribution.
6.7.3 During the lifetime of the
Optionee, an NSO shall be exercisable only by him or her and shall not be
assignable or transferable, and no other person shall acquire any rights
therein.
6.8 DELIVERY OF CERTIFICATES REPRESENTING SHARES.
6.8.1 As soon as practicable after
the exercise of a NSO, the Company shall deliver or cause to be delivered to
the Optionee exercising the NSO a certificate or certificates representing the
Shares purchased upon the exercise. Certificates representing Shares to be
delivered to a Optionee will be registered in the name of the Optionee.
6.8.2 If determined by the Company
in its discretion appropriate to administer the right of first refusal
provisions of Article 9, but only for so long as such provisions remain in
effect, certificates representing Shares shall not be delivered to Participants
but shall be delivered to the Company to be held by the Company as safekeeping
agent for the benefit of each Participant. A written safekeeping receipt
evidencing the Shares so held in safekeeping, bearing the name of the
Participant, indicating the number of the certificate or certificates and the
number of Shares so represented shall be delivered promptly to each
Participant. In its capacity as safekeeping agent for Participants, the
Company shall act in accordance with instructions received from such
Participants, which instructions are to be confirmed in writing if deemed
appropriate by the Company. The safekeeping agency shall not affect the rights
of Participants as owners of Shares.
6.8.3 Upon the expiration of the
right of first refusal provisions of Article 9, any safekeeping agency
arrangement adopted pursuant to Section 6.8.2 shall terminate and the
certificates representing the Shares owned by Participants, registered in the
name(s) of the Participants, shall be delivered promptly to such Participants.
6.9 RIGHTS AS A STOCKHOLDER. An Optionee shall
have no rights as a stockholder with respect to any Shares covered by his or
her NSO until the date on which he or she becomes a record owner of the Shares
purchased upon the exercise of the Option (the "record ownership date"). No
adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property), distributions, or other rights for which
the record date is prior to the record ownership date, except as provided in
Article 10.
11.
<PAGE> 12
6.10 MODIFICATION, EXTENSION AND RENEWAL OF
OPTIONS. Subject to the terms and conditions and within the limitations of the
Plan, the Board of Directors may modify outstanding NSOs granted under the
Plan, or accept the surrender of outstanding NSOs (to the extent not
theretofore exercised) and authorize the granting of new Options in
substitution therefor (to the extent not theretofore exercised). The Board of
Directors shall not, however, modify any outstanding NSO so as to specify a
lower option price or accept the surrender of outstanding NSOs and authorize
the granting of new Options in substitution therefor specifying a lower option
price. Notwithstanding the foregoing, however, no modification of an NSO
shall, without the consent of the Optionee, alter or impair any of the rights
or obligations under any NSO theretofore granted under the Plan.
6.11 LISTING AND REGISTRATION OF SHARES. Each NSO
shall be subject to the requirement that if at any time the Board of Directors
shall determine, in its discretion, that the listing, registration or
qualification of the Shares covered thereby upon any securities exchange or
under any state or federal laws, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition of, or in connection
with, the granting of such NSO or the issuance or purchase of shares
thereunder, such NSO may not be exercised unless and until such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Board of Directors.
Notwithstanding anything in the Plan to the contrary, if the provisions of this
Section 6.11 become operative, and if, as a result thereof, the exercise of a
NSO is delayed, then and in that event, the term of the NSO shall not be
affected.
6.12 OTHER PROVISIONS. The NSO certificates or
agreements authorized under the Plan shall contain such other provisions,
including, without limitation, restrictions upon the exercise of the Option, as
the Board of Directors shall deem advisable.
ARTICLE 7
STOCK APPRECIATION RIGHTS
7.1 GRANT. The Board of Directors, in its sole
discretion, from time to time may authorize the grant of SARs to a Participant.
An SAR may be granted in connection with all or any portion of a previously or
contemporaneously granted Award (other than an SAR), or by itself and not in
connection with any other Award. An SAR may be granted at the time of grant of
the related Option and shall be subject to the same terms and conditions as the
related Option, except as this Article 7 may otherwise provide. The grant of
SAR shall be evidenced either by provisions in the Option to which it relates
or by a separate written agreement between the Company and the Participant,
which shall comply with and be subject to the terms and conditions of the Plan
and shall be in such form as the Board of Directors from time to time shall
approve (an "SAR Agreement"). The SAR Agreement may contain such additional
terms, conditions or limitations, not inconsistent with the specific provisions
of the Plan, as may be approved by the Board of Directors in it sole discretion.
7.2 TERMS AND CONDITIONS. Each SAR granted under
the Plan shall be exercisable or payable at such time or times, or upon the
occurrence of such event or events, and in such amounts
12.
<PAGE> 13
or types of consideration (including cash or Shares) as the Board of Directors
shall specify in the SAR Agreement. Subsequent to the grant of an SAR, the
Board of Directors, at any time before complete termination of such SAR, may
accelerate the time or times at which such SAR may be exercised or paid in whole
or in part.
7.3 EXERCISE.
7.3.1 An SAR shall be exercised by
surrendering the SAR Agreement or, if the SAR was granted in connection with an
Option, the surrender of the related Option together with any SAR Agreement, or
the portion(s) thereof pertaining to the Shares with respect to which the SAR
is exercised, and providing the Company with a written notice in such form and
containing such information (including the number of Shares with respect to
which the SAR is being exercised) as the SAR Agreement or the Board of
Directors may specify. The date on which the Company receives such surrender
and notice shall be the date on which the related Option, or portion thereof,
shall be deemed surrendered and the SAR shall be deemed exercised.
7.3.2 An SAR granted in connection
with an Option shall be exercisable only at such time or times, to such extent
and by such persons as the Option to which it relates shall be exercisable,
provided that an SAR granted in connection with an ISO shall not be exercisable
on any date on which the Fair Market Value of a Share is less than or equal to
the per share exercise price of the ISO. An SAR shall be canceled when, and to
the extent that, any related Option is exercised, and an Option shall be
canceled when, and to the extent that, the Option is surrendered to the Company
upon the exercise of a related SAR.
7.4 PAYMENT. To effect payment or exercise of an
SAR, the Company shall make payment to the Participant in cash or Shares
(valued at their Fair Market Value on the date of payment or exercise) or in
combination of cash and Shares as provided in the SAR Agreement. If payment is
to be made in Shares, upon such exercise, the Participant shall be entitled to
receive that number of Shares which have an aggregate Fair Market Value on the
exercise date equal to the amount by which the Fair Market Value of one Share
on the exercise date exceeds the Option price per share of any related Option
or the Fair Market Value on the date of grant of the SAR, as the case may be,
multiplied by the number of Shares covered by the related Option or the SAR, as
the case may be, or portion thereof, surrendered in connection with the
exercise of the SAR.
7.5 EXPIRATION. An SAR granted in connection
with or related to an Option, unless previously exercised or canceled, shall
expire upon the expiration of the Option to which it relates. Any other SAR,
unless previously exercised or canceled, shall expire upon the tenth
anniversary of its grant. The exercise of an SAR granted in connection with an
Option shall result in a pro rata surrender or cancellation of any related
Option to the extent the SAR has been exercised.
7.6 DEATH OR OTHER TERMINATION OF EMPLOYMENT.
7.6.1 In the event that a
Participant shall cease to be employed by the Company or a Subsidiary for any
reason other than his or her death, subject to the conditions that no SAR shall
13.
<PAGE> 14
be exercisable after its expiration date, such Participant shall have the right
to exercise the SAR at any time within thirty (30) days after such termination
of employment to the extent his or her right to exercise such SAR had accrued
pursuant to this Article 7 at the date of such termination and had not
previously been exercised; such thirty (30) day period shall be increased to
ninety (90) days if the termination of employment was the retirement or early
retirement of a Participant (as defined under the Company's qualified
Retirement Plan) and to one (1) year for any Participant who dies during the
thirty (30) day or ninety (90) day period, whichever may be applicable, and the
SAR may be exercised within such extended time limit by a Participant, or, in
the case of death, the personal representative of a Participant or by any
person or persons who shall have acquired the SAR directly from a Participant
by bequest or inheritance. Whether an authorized leave of absence or absence
for military or governmental service shall constitute termination of employment
for purposes of the Plan shall be determined by the Board of Directors, whose
determination shall be final and conclusive.
7.6.2 In the event that a
Participant shall die while in the employ of the Company or a Subsidiary and
shall not have fully exercised any SAR, the SAR may be exercised, subject to
the conditions that no SAR shall be exercisable after its expiration date, to
the extent that a Participant's right to exercise such SAR had accrued in
accordance with the provisions of this Article 7 at the time of his or her
death and had not previously been exercised, at any time within one (1) year
after a Participant's death, by the personal representative of a Participant or
by any person or persons who shall have acquired the SAR directly from a
Participant by bequest or inheritance.
7.6.3 No SAR shall be transferable
by a Participant otherwise than by will or the laws of descent and
distribution.
7.6.4 During the lifetime of a
Participant, an SAR shall be exercisable only by him or her and shall not be
assignable or transferable, and no other person shall acquire any rights
therein.
7.7 DELIVERY OF CERTIFICATES REPRESENTING SHARES.
7.7.1 As soon as practicable after
the exercise or payment of an SAR payable in whole or in part in Shares, the
Company shall deliver or cause to be delivered to the Participant exercising
the SAR for Shares a certificate or certificates representing the Shares
issuable upon such purchase or exercise. Certificates representing Shares to
be delivered to a Participant will be registered in the name of the
Participant.
7.7.2 If determined by the Company
in its discretion appropriate to administer the right of first refusal
provisions of Article 9, but only for so long as such provisions remain in
effect, certificates representing Shares issued in respect of SAR payment or
exercise shall not be delivered to Participants but shall be delivered to the
Company to be held by the Company as safekeeping agent for the benefit of each
Participant. A written safekeeping receipt evidencing the Shares so held in
safekeeping, bearing the name of the Participant, indicating the number of the
certificate or certificates and the number of Shares so represented shall be
delivered promptly to each Participant. In its capacity as safekeeping agent
for Participants, the Company shall act in accordance with instructions received
from such Participants, which instructions are to be confirmed in writing if
14.
<PAGE> 15
deemed appropriate by the Company. The safekeeping agency shall not affect the
rights of Participants as owners of Shares.
7.7.3 Upon the expiration of the
right of first refusal provisions of Article 9, any safekeeping agency
arrangement adopted pursuant to Section 7.7.2 shall terminate and the
certificates representing the Shares owned by Participants, registered in the
name(s) of the Participants, shall be delivered promptly to such Participants.
7.8 LISTING AND REGISTRATION OF SHARES. Each SAR
shall be subject to the requirement that if at any time the Board of Directors
shall determine, in its discretion, that the listing, registration or
qualification of any Shares covered thereby upon any securities exchange or
under any state or federal laws, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition of, or in connection
with, the granting of such Option or the issuance or purchase of shares
thereunder, such SAR may not be paid or exercised unless and until such
listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Board of
Directors. Notwithstanding anything in the Plan to the contrary, if the
provisions of this Section 7.8 become operative, and if, as a result thereof,
the exercise of an SAR is delayed, then and in that event, the term of the SAR
shall not be affected.
7.9 RIGHTS AS A STOCKHOLDER. In general, the
holder of an SAR shall have no rights as a stockholder. The holder of an SAR
under which Shares are issuable upon payment or exercise shall have no rights
as a stockholder of the Company until the date on which he or she becomes a
record owner of the Shares issued upon the payment or exercise of the SAR (the
"record ownership date"). No adjustment shall be made for dividends (ordinary
or extraordinary, whether in cash, securities or other property),
distributions, or other rights for which the record date is prior to the record
ownership date, except as provided in Article 10.
ARTICLE 8
AWARD SHARES
8.1 GENERAL. The Board of Directors, in its sole
discretion, from time to time may authorize the grant of Award Shares to a
Participant. In making any such grant of Award Shares, the Board of Directors
may grant Award Shares without the requirement of any cash payment or may
require a cash payment from a Participant in an amount no greater than the
aggregate Fair Market Value of the Award Shares as of the date of grant in
exchange for, or as a condition precedent to, the completion of the grant and
the issuance of the Award Shares.
8.2 RESTRICTION PERIOD. All Award Shares issued
under Article 8 shall be subject to certain restrictions as set forth in
Section 8.3, which restrictions shall continue in effect for such period of
time as is specified in the Award Agreement entered into at the time of the
grant (the "Restriction Period"). The Award Agreement may contain such
additional terms, conditions or
15.
<PAGE> 16
limitations, not inconsistent with the specific provisions of the Plan, as may
be approved by the Board of Directors in it sole discretion.
8.3 CERTAIN RESTRICTIONS. Until the expiration
of the Restriction Period, Award Shares shall be subject to the following
restrictions and any additional restrictions included in the Award Agreement
that the Board of Directors, in its sole discretion, may from time to time deem
desirable in furtherance of the objectives of the Plan: (a) the Participant
shall not be entitled to take possession of the certificate or certificates
representing the Shares; (b) the Award Shares may not be sold, transferred,
assigned, pledged, conveyed, hypothecated or otherwise disposed of (other than
by operation of law); and (c) the Shares may be forfeited immediately as
provided in Section 8.4.
8.4 TERMINATION OF EMPLOYMENT. If the employment
of a Participant is terminated for any reason other than the retirement or
early retirement (as defined under the Company's qualified Retirement Plan),
disability or death of a Participant in service before the expiration of the
Restriction Period, the Award Shares shall be forfeited immediately and all
rights of a Participant to such Shares shall terminate immediately without
further obligation on the part of the Company. If a Participant's employment
is terminated by reason of the retirement or early retirement of a Participant
(as defined under the Company's qualified Retirement Plan), disability or death
of a Participant in service before the expiration of the Restriction Period,
(a) the number of Award Shares held by the Company for a Participant's account
pursuant to Section 8.6 shall be reduced by partial forfeiture in an amount of
Award Shares in proportion equal to the percentage of the total Restriction
Period remaining after a Participant's termination of employment, (b) the
restrictions on the unforfieted balance of such Award Shares shall lapse on the
date a Participant's employment terminated and (c) subject to the safekeeping
provisions of Section 8.6, the certificate or certificates representing the
Shares upon which the restrictions have lapsed shall be delivered to a
Participant (or, in the event of a Participant's death, to his or her legal
representative).
8.5 DISTRIBUTION OF AWARD SHARES. If a
Participant to whom Award Shares have been issued pursuant to Article 8 remains
in the continuous employment of the Corporation or a Subsidiary until the
expiration or waiver by the Board of the Restriction Period and the
satisfaction of any other conditions imposed by the Award Agreement, all
restrictions applicable to the Restricted Shares at that time still outstanding
and registered in the name of a Participant shall lapse and, subject to the
safekeeping provisions of Section 8.6, the certificate or certificates
representing the Shares that were granted to the Participant shall be delivered
to the Participant.
8.6 DELIVERY OF CERTIFICATES REPRESENTING SHARES.
8.6.1 As soon as practicable after
a grant of Award Shares, the Company shall issue certificates representing the
Award Shares registered in the name of the holder of Award Shares.
8.6.2 To administer the
restrictions imposed on Award Shares under the Plan and the Award Agreement
(and if determined in the discretion of the Board of Directors, the right of
first refusal provisions of Article 9, but only for so long as such provisions
remain in effect), certificates representing Award Shares shall not be
delivered to Participants but shall be delivered to the
16.
<PAGE> 17
Company to be held by the Company as safekeeping agent for the benefit of each
Participant. A written safekeeping receipt evidencing the Shares so held in
safekeeping, bearing the name of the Participant, indicating the number of the
certificate or certificates and the number of Shares so represented shall be
delivered promptly to each Participant. In its capacity as safekeeping agent
for Participants, the Company shall act in accordance with instructions received
from such Participants, which instructions are to be confirmed in writing if
deemed appropriate by the Company. The safekeeping agency shall not affect the
rights of Participants as owners of Award Shares, nor shall such agency affect
the restrictions imposed on Award Shares under the Plan or the Award Agreement.
8.6.3 Upon the last to occur of
(a) the lapse, satisfaction or waiver of the Restriction Period and any other
restrictions imposed on Award Shares under the Plan or the Award Agreement and
(b) the expiration of the right of first refusal provisions of Article 9, any
safekeeping agency arrangement adopted pursuant to Section 8.6.2 shall
terminate and the certificates representing the Shares owned by Participants,
registered in the name(s) of the Participants, shall be delivered promptly to
such Participants.
8.7 WAIVER OF RESTRICTIONS. The Board of
Directors, in its sole discretion, may at any time waive or accelerate the
expiration of any or all restrictions with respect to Award Shares issued
pursuant to this Article 8..
8.8 RIGHTS AS A STOCKHOLDER. A Participant
receiving Award Shares shall have no rights as a stockholder with respect to
any Award Shares grant to him or her under the Plan until the date on which he
or she becomes a record owner of the Award Shares (the "record ownership
date"). No adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property), distributions, or other rights
for which the record date is prior to the record ownership date, except as
provided in Article 10.
ARTICLE 9
LIMITATIONS ON TRANSFER; REPURCHASE OF SHARES
9.1 RIGHT OF FIRST REFUSAL. As a condition to
receiving Shares under the Plan, each Participant shall agree that he or she
will not sell, assign, transfer, pledge, or otherwise dispose of any Shares he
or she may acquire under the Plan (including by the exercise of an Option
granted under Article 5 or Article 6, upon payment or exercise of an SAR under
Article 7, by the receipt of Award Shares under Article 8, or otherwise), or
attempt to so, without first offering to sell the Shares to the Company in
accordance with the terms and conditions of this Article 9, and any disposition
or attempted disposition of Shares in violation hereof shall be null and void.
17.
<PAGE> 18
9.2 VOLUNTARY DISPOSITION.
9.2.1 If the record owner of
Shares shall desire to sell, assign, transfer, pledge, or otherwise dispose of
any Share, such owner shall first serve notice (the "Offer to Sell") to that
effect upon the Company, offering to sell such Shares to the Company in
accordance with the terms of this Article 9. The Company shall have the right
(but not the obligation) to purchase all or any part of the Shares so offered
within thirty (30) days after receipt by the Company of the Offer to Sell;
provided, that if acceptance would result in a default by the Company under any
loan covenants applicable to it, the Company shall have one hundred eighty
(180) days rather than thirty (30) days within which to exercise its purchase
rights.
9.2.2 Subject to the right of the
Board of Directors of the Company in its sole discretion to discontinue or
modify its repurchase program, including solely with respect to a record owner,
for any reason or for no reason at any time, the Company agrees to repurchase
any and all Shares held by a record owner at the request of the record owner
within the time specified in Section 9.2.1 above. Subject to change or
modification at any time and from time to time by the Board of Directors, the
repurchase price shall be equal to the appraised value of the Shares as of the
end of the immediately preceding fiscal year as determined by the Board of
Directors based on an appraisal made at the request of the Company (or based on
the latest such appraised value if an appraisal has been obtained by the
Company as of a date after the end of the immediately preceding fiscal year).
9.2.3 If for any reason the
Company shall fail to exercise its right to purchase all of such Shares offered
for sale pursuant to Section 9.2.1, the record owner may offer the Shares for
sale to a third party and complete the sale within 60 (sixty) days after he or
she receives notice of the Company's failure to repurchase. Any person
acquiring the Shares from the record owner in such event will be required,
among other things, to consent to the imposition of the restrictions on resales
included in this Article 9 and to enter into a similar arrangement with the
Company.
9.3 TERMINATION OF EMPLOYMENT. If the employment
of the record owner with the Company shall terminate for any reason, whether by
action of the Company, by death of the employee, the resignation or retirement
of the employee, or otherwise, the record owner shall be deemed to have made an
Offer to Sell under the provisions of Section 9.2.1 as of the date the
employee's employment terminates. If the termination occurs by reason of the
death of the employee, or if the employee should die after otherwise making or
being deemed to have made an Offer to Sell, the offer shall be binding upon his
estate, and the employee's duly appointed and acting personal representative
shall act in his or her behalf.
9.4 EXPIRATION OF PROVISIONS. The provisions of
this Article 9 shall be applicable only during the time prior to the
Registration Date; and the provisions of this Article 9 shall expire as of the
Registration Date.
18.
<PAGE> 19
ARTICLE 10
MISCELLANEOUS
10.1 STOCK ADJUSTMENTS.
10.1.1 In the event of any increase
or decrease in the number of issued Shares resulting from a stock split or
other division or consolidation of shares or the payment of a stock dividend
(but only on Shares) or any other increase or decrease in the number of Shares
effected without any receipt of consideration by the Company, then, in any such
event, the number of Shares that remain available under the Plan, the number of
Shares covered by each outstanding Option, the exercise price per Share covered
by each outstanding Option, the number of Shares covered by each outstanding
SAR and the price per Share and the number and any purchase price for any Award
Shares granted but not yet issued, in each case, shall be proportionately and
appropriately adjusted for any such increase or decrease.
10.1.2 Subject to any required
action by the stockholders, if any change occurs in the Shares by reason of any
recapitalization, reorganization, merger, consolidation, split-up, combination
or exchange of shares, or of any similar change affecting Shares, then, in any
such event, the number and type of Shares then covered by each outstanding
Option, the purchase price per Share covered by each outstanding Option, the
number of Shares covered by each outstanding SAR and the exercise price per
Share and the number and any purchase price for any Award Shares granted but
not yet issued, in each case, shall be proportionately and appropriately
adjusted for any such change.
10.1.3 In the event of a change in
the Shares as presently constituted that is limited to a change of all of its
authorized shares with par value into the same number of shares with a
different par value or without par value, the shares resulting from any change
shall be deemed to be Shares within the meaning of the Plan.
10.1.4 To the extent that the
foregoing adjustments relate to stock or securities of the Company, such
adjustments shall be made by, and in the discretion of, the Board of Directors,
whose determination in that respect shall be final, binding and conclusive;
provided, however, that any Option granted pursuant to Article 5 shall not be
adjusted in a manner that causes such Option to fail to continue to qualify as
an incentive stock option within the meaning of Section 422 of the Code.
10.1.5 Except as hereinabove
expressly provided in this Section 10.1, an Eligible Employee or a Participant
shall have no rights by reason of any division or consolidation of shares of
stock of any class or the payment of any stock dividend or any other increase
or decrease the number of shares of stock of any class or by reason of any
dissolution, liquidation, merger or consolidation, or spin-off of assets or
stock of another corporation; and any issuance by the Company of shares of
stock of any class, securities convertible into shares of stock of any class,
or warrants or options for shares of stock of any class shall not affect, and
no adjustment by reason thereof shall be made with respect to, the number or
price of Shares, any Option, any SAR or any Award Shares granted but not yet
issued.
19.
<PAGE> 20
10.1.6 The existence of the Plan,
or the grant of an Option, SAR or Award Shares under the Plan, shall not affect
in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate, or to dissolve, to liquidate, to sell,
or to transfer all or any part of its business or assets.
10.2 TAX ABSORPTION PAYMENTS. The Company may,
but is not required to, make a cash payment, either directly to any Participant
or on a Participant's behalf, in an amount that the Board of Directors
estimates to be equal (after taking into account any federal and state taxes
that the Board of Directors estimates to be applicable to such cash payment) to
any additional federal and state income taxes that are imposed upon a
Participant as a result of the granting of any Award under the Plan (a "Tax
Absorption Payment"). In determining the amount of any Tax Absorption Payment,
the Board of Directors may adopt such methods and assumptions as it considers
appropriate, and it shall not be required to examine the individual tax
liability of any Participant. The decision to make any Tax Absorption Payment
shall be made by the Board of Directors at the same time as the grant of the
Award to which it relates.
10.3 AMENDMENT OF THE PLAN; TERMINATION. The
Board shall have the right to revise, amend or terminate the Plan at any time
without notice, provided that no Participant's existing rights are adversely
affected thereby without the consent of such person, and provided further that,
without approval of the stockholders of the Company, no such revision or
amendment shall (a) increase the total number of Shares subject to the Plan;
(b) decrease the price at which Options may be granted; (c) materially modify
the requirements as to eligibility for participation in the Plan; (d) otherwise
materially increase the benefits under the Plan; or (e) remove the
administration of the Plan from the Board of Directors. In addition, the
provisions of Article 5, Article 6, Article 7 and Article 8 may not be amended
more frequently than once every six (6) months other than to comply with
applicable provisions of the Code or the Employee Retirement Income Security
Act of 1974, as amended, or the rules promulgated thereunder. The limitation
specified in the preceding sentence is intended to satisfy the requirements of
Rule 16b-3(c)(2)(ii)(B) under the Securities Exchange Act of 1934, as currently
in effect. The foregoing prohibitions in this Section 10.4 shall not be
affected by adjustments in shares and purchase price made in accordance with
the provisions of Section 9.1.
10.4 APPLICATION OF FUNDS. The proceeds received
by the Company from the sale of Shares or the exercise of Options pursuant to
the Plan will be used for general corporate purposes.
10.5 NO IMPLIED RIGHTS TO EMPLOYEES. The
existence of the Plan and the granting of Awards under the Plan shall in no way
give any employee the right to continued employment, give any employee the
right to receive any additional Awards or any additional compensation under the
Plan, or otherwise provide any employee any rights not specifically set forth
in the Plan or in any Option, SAR or Award Agreement.
10.6 WITHHOLDING. Whenever the Company proposes
or is required to issue or transfer Awards under the Plan, the Company shall
have the right to require a Participant to remit to the Company an amount
sufficient to satisfy any federal, state or local withholding tax liability
prior to
20.
<PAGE> 21
the delivery of any certificate or certificates for such shares. Whenever under
the Plan payments are to be made in cash, such payments shall be made net of an
amount sufficient to satisfy any federal, state or local withholding tax
liability.
10.7 CONDITIONS PRECEDENT TO EFFECTIVENESS. The
Plan shall become effective upon the satisfaction of all the following
conditions, with the Effective Date of the Plan after the completion of such
adoption procedures being April 1, 1995, regardless of the date that the last
of the following conditions is satisfied:
10.7.1 the adoption of the Plan by
the Board of Directors; and
10.7.2 the approval of the Plan by
the stockholders of the Company within twelve (12) months after its adoption by
the Board.
21.
<PAGE> 1
Exhibit 5
TRENAM, KEMKER, SCHARF, BARKIN, FRYE, O'NEILL & MULLIS
PROFESSIONAL ASSOCIATION
ATTORNEYS AT LAW
TAMPA OFFICE ST. PETERSBURG OFFICE
2700 BARNETT PLAZA 2100 BARNETT TOWER
101 EAST KENNEDY BOULEVARD ONE PROGRESS PLAZA
POST OFFICE BOX 1102 POST OFFICE BOX 2245
TAMPA, FLORIDA 33601-1102 ST. PETERSBURG, FLORIDA 33731-2245
TELEPHONE (813) 223-7474 TELEPHONE (813) 898-7474
TELEFAX (813) 229-6553 TELEFAX (813) 229-6553
October 21, 1996
Securities and Exchange Commission
450 5th Street, N.W.
Judiciary Plaza
Washington, DC 20549
Re: AmeriSteel 1996 Equity Ownership Plan
Registration Statement on Form S-8
Ladies and Gentlemen:
We have represented AmeriSteel Corporation (the "Company") in
connection with the Company's Registration Statement on Form S-8 (the "S-8
Registration Statement") relating to the offering by the Company (the
"Offering") of 438,852 shares of the Company's Common Stock under the Company's
1996 Equity Ownership Plan (the "Plan"). This opinion is being provided as
Exhibit 5 to the S-8 Registration Statement.
In our capacity as counsel to the Company in connection with the S-8
Registration Statement and the Offering, we have examined and are familiar
with: (1) the Company's Articles of Incorporation and Bylaws, each as currently
in effect, (2) the Plan, (3) the S-8 Registration Statement and (4) such other
corporate records and documents and instruments as in our opinion are necessary
or relevant as the basis for the opinions expressed below.
As to various questions of fact material to our opinion, we have
relied without independent investigation on statements or certificates of
officials and representatives of the Company, the Department of State of the
State of Florida and others. In all such examinations, we have assumed the
genuineness of all signatures on original and certified documents and the
conformity to original and certified documents of all copies submitted to us as
conformed, photostatic or other exact copies.
We express no opinion as to the law of any jurisdiction other than of
the State of Florida and the federal laws of the United States of America.
<PAGE> 2
SECURITIES AND EXCHANGE COMMISSION OCTOBER 21, 1996
PAGE 2
- --------------------------------------------------------------------------------
Based upon and in reliance on the foregoing, we are of the opinion
that:
1. The Company is a validly existing corporation under the laws
of the State of Florida and its status is active.
2. The Plan has been duly and legally authorized by all required
corporate action.
3. When the following events shall have occurred:
a. the S-8 Registration Statement shall have become
effective in accordance with the Securities Act of
1933, as amended;
b. the shares of Common Stock shall have been awarded
and issued and any restrictions or conditions with
respect to such shares shall have been satisfied, as
the case may be, as contemplated in the Plan;
c. the options covering shares of Common Stock shall
have been granted and exercised as contemplated in
the Plan;
d. the consideration specified in the Plan and (i) in
the award agreement for the purchase of Common Stock
or (ii) in the instrument of grant covering options
granted under the Plan, as the case may be, shall
have been received; and
e. the certificates representing such shares of Common
Stock shall have been duly executed, counter-signed
and issued by or on behalf of the Company,
the shares of Common Stock so offered and sold in the Offering will be duly
authorized, validly issued, fully paid and non-assessable shares of the capital
stock of the Company.
This firm hereby consents to the filing of this opinion as an Exhibit
to the S-8 Registration Statement.
Sincerely,
TRENAM, KEMKER, SCHARF, BARKIN, FRYE,
O'NEILL & MULLIS
Professional Association
By: /s/ Richard Leisner
Richard M. Leisner
<PAGE> 1
Exhibit 23.2
CONSENT TO USE OF REPORT OF
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-8 of our
report dated April 26, 1996, except for included in AmeriSteel Corporation's
Form 10-K for the year ended March 31, 1996, and to all references to our Firm
included in this registration statement.
/s/ Arthur Andersen LLP
Tampa, Florida
October 17, 1996
<PAGE> 1
Exhibit 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
AmeriSteel Corporation (formerly Florida Steel Corporation) (the "Company") on
Form S-8 of our report dated June 6, 1994 appearing in the Annual Report Form
10-K of the Company for the year ended March 31, 1996.
/s/ Deloitte & Touche LLP
Tampa, Florida
October 17, 1996
