<PAGE> 1
As filed with the Securities and Exchange Commission on November 30, 1999
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
GENCORP INC.
(Exact Name of Registrant as Specified in Its Charter)
Ohio
(State or Other Jurisdiction of Incorporation or Organization)
34-024400
(I.R.S. Employer Identification No.)
Highway 50 and Aerojet Road,
Rancho Cordova, California 95670
(Address of Principal Executive Offices) (Zip Code)
P.O. Box 537012
Sacramento, California 95853-7012
(Mailing Address) (Zip Code)
GENCORP INC. 1999 EQUITY AND PERFORMANCE INCENTIVE PLAN
(Full Title of the Plan)
William R. Phillips
Secretary
GenCorp Inc.
P.O. Box 537012
Sacramento, California 95853-7012
(Name and Address of Agent For Service)
Telephone Number, Including Area Code, of Agent For Service: 916/355-4000
---------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Title Of Amount Proposed Proposed Amount Of
Securities To Be Maximum Maximum Registration
To Be Registered Offering Aggregate Fee
Registered Price Per Offering
Share (1) Price (1)
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock
Par Value $0.10 (2) 2,700,000 $11.53125 $31,134,375 $8,656
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to paragraphs (c) and (h)(1) of Rule 457 of
the General Rules and Regulations under the Securities Act, on the
basis of the average high and low sale prices for such common stock,
par value $0.10 per share of GenCorp Inc. (the "Common Stock") on the
New York Stock Exchange on November 23, 1999.
(2) One preferred share purchase right (a "Right") will also be issued with
respect to each common share. The Terms of the Rights are described in
Note N to the Registrant's Annual Report on Form 10-K for the fiscal
year ended November 30, 1998.
<PAGE> 2
PART II
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Securities
and Exchange Commission (the "Commission") by the Registrant are incorporated
herein by reference:
(a) the Registrant's Annual Report on Form 10-K for the
fiscal year ended November 30, 1998;
(b) the Registrant's Quarterly Reports on Form 10-Q for
the periods ended February 28, 1999, May 31, 1999 and
August 31, 1999;
(c) the Registrant's Current Reports on Form 8-K filed on
December 22, 1998, July 7, 1999, August 11, 1999,
August 12, 1999 and October 14, 1999;
(d) the Registrant's Annual Reports of Employee Stock
Purchase Plans on Form 11-K filed on April 28, 1999;
(e) the description of the Registrant's capital stock
contained in the Registrant's Registration Statement
on Form 10 dated May 20, 1935, as amended by
Amendment No. 1 on Form 8, dated March 29, 1989; and;
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 herein by reference and to be part hereof from the
date of filing of such documents.
Item 5. Interests of Named Experts and Counsel
The opinion and consent of William R. Phillips, Senior Vice
President, Law; General Counsel and Secretary of the Registrant, addressing
certain legal matters is attached hereto as Exhibit 5.1. As of October 1, 1999,
Mr. Phillips was the beneficial owner of 17,326 shares of the Registrant's
Common Stock.
Item 6. Indemnification of Directors and Officers
Article Two, Section 10 of the Code of Regulations of the
Registrant concerns indemnification of the Registrant's directors and officers
and provides as follows:
INDEMNIFICATION
The Corporation shall indemnify each official against all
expenses, including attorneys' fees, actually and necessarily incurred by him in
connection with the defense of any action by or in the right of the Corporation
to procure a judgment in its favor, or in connection with any appeal therein, to
which he is made or threatened to be made a party by reason of being or having
been an official, except in relation to matters as to which he is adjudged by
the express terms of a judgment rendered in the final determination of the
merits in such action to be liable for negligence or misconduct in the
performance of his duty to the Corporation. Such indemnification shall not
include amounts paid to the Corporation by judgment or in settling or otherwise
disposing of a pending of threatened action.
The Corporation shall indemnify each official made or
threatened to be made a party to any action (other than one by or in the right
of the Corporation to procure a judgment in its favor but including any action
by or in the right of a related corporation) by reason of being or having been
an official, against all judgments, fines, amounts paid in settlement and
expenses, including attorneys' fees, actually and necessarily incurred by him as
a result of such action, or any appeal therein, if he acted, in good faith, for
a purpose which he reasonably believed to be in the best interests of the
Corporation and, in criminal actions, in addition, had no reasonable cause to
believe that this conduct was unlawful. The termination of any such action by
judgment, settlement, conviction or upon a plea of nolo contendere, or its
equivalent, shall not in itself create a presumption that any such official did
not act, in good faith, for a purpose which he reasonably believed to be in the
best interests of the Corporation or that he had reasonable cause to believe
that his conduct was unlawful.
If any official has been wholly successful, on the merits or
otherwise, in the defense of an action of the character described in the first
two paragraphs of this Section 10, he shall be entitled to indemnification as
authorized in such paragraphs. Except as provided in the preceding sentence (and
unless otherwise ordered by a court) any indemnification under such paragraphs
shall be made by the Corporation, if and only if authorized in the specific
case:
<PAGE> 3
(1) By the Board of Directors acting by a quorum consisting of
directors who are not parties to such action or who were
wholly successful in such action on the merits or otherwise,
upon a finding that the official seeking indemnification under
the first paragraph of this Section 10 has not been negligent
or guilty of misconduct in the performance of his duty to the
Corporation as charged in the action, or if seeking
indemnification under the first paragraph of this Section 10
has not been negligent or guilty of misconduct in the
performance of his duty to the Corporation as charged in the
action, or if seeking indemnification under the second
paragraph of this Section 10, has met the standard of conduct
set forth in such paragraph, or,
(2) If such a quorum is not obtainable with due diligence;
(a) By the Board of Directors upon the opinion in
writing of independent legal counsel that
indemnification is proper in the circumstances
because such official has not been negligent or
guilty of misconduct or has met the standard of
conduct set forth in the second paragraph of this
Section 10, as the case may be, or
(b) By a committee, appointed by the Board of
Directors, of two (2) or more shareholders who are
not Directors, officers or employees of the
Corporation, upon a finding that such official has
not been negligent or guilty of misconduct or has met
the standard of conduct set forth in the second
paragraph of this Section 10, as the case may be.
For purposes of this Section 10, (1) a "related corporation"
shall mean any corporation in which the Corporation owns or owned shares or of
which it is or was a creditor, (2) "official" shall mean a Director, officer,
former Director or former officer of the Corporation or any person who serves or
has served at its request as a director or officer of the Corporation or any
person who serves or has served at its request as a director or officer of a
related corporation, and (3) "action" shall mean any civil or criminal action,
suit or proceeding.
Nothing in this Section 10 shall limit the power of the
Corporation to indemnify or agree to indemnify any person not covered by this
Section 10 under these provisions or to indemnify or agree to indemnify any
person in any case not provided for herein.
The provisions of this Section 10 shall be in addition to any
rights to, or eligibility for, indemnification to which any person concerned may
otherwise be or become entitled by agreement, provision of the Articles of
Incorporation, vote of shareholders, court order or otherwise, and shall inure
to the benefit of the heirs, executors, and administrators of each such person.
The provisions of this Section 10 shall apply in respect of
all alleged or actual causes of action or offenses accrued or occurring before,
on or after its adoption.
Section 1701.13(E) of the Ohio General Corporation Law
authorizes a corporation under certain circumstances to indemnify any director,
trustee, officer, employee or agent in respect of expenses and other costs
reasonably incurred by him in connection with any action, suit or proceeding to
which he is made a party or threatened to be made a party by reason of the fact
that he was a director, trustee, officer, employee or agent of the corporation.
In general, indemnification is permissible only if the person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and in any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful, provided that indemnification is not
permitted if the person is adjudged liable for negligence or misconduct in the
performance of his duty to the corporation unless authorized by a court. To the
extent that a director, trustee, officer, employee or agent has been successful
in the defense of any such action, suit or proceeding, he is entitled to be
indemnified against his reasonable expenses incurred in connection therewith by
Section 1701.13(E)(3) of the Ohio General Corporation Law.
The Registrant maintains and pays the premiums on contracts
insuring the Registrant (with certain exclusions) against any liability to
directors and officers it may incur under the above indemnity provisions and
insuring each director and officer of the Registrant (with certain exclusions)
against liability and expense, including legal fees, which he or she may incur
by reason of his or her relationship to the Registrant, even if the Registrant
does not have the obligation or right to indemnify such person against such
liability or expense.
The Registrant has entered into indemnity agreements with
certain of its executive officers and directors to indemnify them against
liability and expenses, including legal fees, which he or she may incur by
reason of his or her relationship to the Registrant.
<PAGE> 4
Item 8. Exhibits.
4.1 Amended Articles of Incorporation of GenCorp Inc., as
amended as of December 7, 1987 (incorporated by
reference to Exhibit A to the Company's Annual Report
on Form 10-K for the fiscal year ended November 30,
1988, File No. 1-1520).
4.2 Code of Regulations of GenCorp Inc., as amended
November 25, 1987 (incorporated by reference to
Exhibit B to the Company's Annual Report on Form 10-K
for the fiscal year ended November 30, 1988, File No.
1-1520).
4.3 Amended and Restated Rights Agreement (with exhibits)
dated as of December 7, 1987 between GenCorp Inc. and
Morgan Shareholder Services Trust Company as Rights
Agent (incorporated by reference to Exhibit D to the
Company's Annual Report on Form 10-K for the fiscal
year ended November 30, 1987, File No. 1-1520).
4.4 Amendment to Rights Agreement among GenCorp Inc., The
First Chicago Trust Company of New York, as resigning
Rights Agent and The Bank of New York, as successor
Rights Agent, dated August 31, 1995 (incorporated by
referenced to Exhibit A to the Company's Annual
Report on Form 10-K for the fiscal year ended
November 30, 1995, File No. 1-1520).
4.5 Amendment to Rights Agreement between GenCorp Inc.
and The Bank of New York as successor Rights Agent,
dated as of January 20, 1997 (incorporated by
reference to Exhibit 4.1 to the Company's Current
Report on Form 8-K Date of Report January 20, 1997,
File No. 1-1520).
4.6 Information relating to the Company's long-term debt
is set forth in Note I of the Company's Quarterly
Report on Form 10-Q for the quarterly period ended
August 31, 1999, which information is incorporated
herein by reference. Instruments defining the rights
of holders of other long-term debt are not filed
herewith since no such single debt item exceeds 10
percent of consolidated assets. The Company agrees,
however, to furnish a copy of any such agreement or
instrument to the Commission upon request.
4.7 GenCorp Inc. 1999 Equity and Performance Incentive
Plan.
5.1 Opinion of Counsel of GenCorp Inc.
23.1 Consent of Counsel of GenCorp Inc. (included in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Powers of Attorney.
Item 9. Undertakings.
(a) 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, represents a
fundamental change in the information set forth in the
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 registration statement is on Form S-3, Form S-8 or form F-3 and
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the 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.
<PAGE> 5
(2) That, for the purpose 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.
(b) 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 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.
(h) 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 foregoing provisions, 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 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 Act and will
be governed by the final adjudication of such issue.
<PAGE> 6
SIGNATURES
The Registrant. 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 Rancho Cordova, State of California, on November 30,
1999.
GENCORP INC.
By: /s/ William R. Phillips
----------------------------------------
William R. Phillips, Senior Vice President,
Law; General Counsel and Secretary
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
date indicated.
SIGNATURE TITLE
* Chairman, Chief Executive Officer
- -------------------------------- and Director (Principal Executive
Robert A. Wolfe Officer)
* Senior Vice President and Chief
- -------------------------------- Financial Officer (Principal
Terry L. Hall Financial Officer and Principal
Accounting Officer)
* Director
- --------------------------------
J. Garry Cooper
* Director
- --------------------------------
William K. Hall
* Director
- --------------------------------
Dr. Robert K. Jaedicke
* Director
- --------------------------------
James M. Osterhoff
* This Registration Statement has been signed on behalf of the above officers
and directors by William R. Phillips, as attorney-in-fact pursuant to a power of
attorney filed as Exhibit 24.1 to this Registration Statement.
Dated: November 30, 1999 By: /s/ William R. Phillips
------------------------------------
William R. Phillips
Senior Vice President, Law;
General Counsel and Secretary
<PAGE> 7
EXHIBIT INDEX
4.1 Amended Articles of Incorporation of GenCorp Inc., as
amended as of December 7, 1987 (incorporated by
reference to Exhibit A to the Company's Annual Report
on Form 10-K for the fiscal year ended November 30,
1988, File No. 1-1520).
4.2 Code of Regulations of GenCorp Inc., as amended
November 25, 1987 (incorporated by reference to
Exhibit B to the Company's Annual Report on Form 10-K
for the fiscal year ended November 30, 1988, File No.
1-1520).
4.3 Amended and Restated Rights Agreement (with exhibits)
dated as of December 7, 1987 between GenCorp Inc. and
Morgan Shareholder Services Trust Company as Rights
Agent (incorporated by reference to Exhibit D to the
Company's Annual Report on Form 10-K for the fiscal
year ended November 30, 1987, File No. 1-1520).
4.4 Amendment to Rights Agreement among GenCorp Inc., The
First Chicago Trust Company of New York, as resigning
Rights Agent and The Bank of New York, as successor
Rights Agent, dated August 31, 1995 (incorporated by
referenced to Exhibit A to the Company's Annual
Report on Form 10-K for the fiscal year ended
November 30, 1995, File No. 1-1520).
4.5 Amendment to Rights Agreement between GenCorp Inc.
and The Bank of New York as successor Rights Agent,
dated as of January 20, 1997 (incorporated by
reference to Exhibit 4.1 to the Company's Current
Report on Form 8-K Date of Report January 20, 1997,
File No. 1-1520).
4.6 Information relating to the Company's long-term debt
is set forth in Note I of the Company's Quarterly
Report on Form 10-Q for the quarterly period ended
August 31, 1999, which information is incorporated
herein by reference. Instruments defining the rights
of holders of other long-term debt are not filed
herewith since no such single debt item exceeds 10
percent of consolidated assets. The Company agrees,
however, to furnish a copy of any such agreement or
instrument to the Commission upon request.
4.7 GenCorp Inc. 1999 Equity and Performance Incentive
Plan.
5.1 Opinion of Counsel of GenCorp Inc.
23.1 Consent of Counsel of GenCorp Inc. (included in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Powers of Attorney.
<PAGE> 1
Exhibit 4.7
GENCORP INC.
1999 EQUITY AND PERFORMANCE INCENTIVE PLAN
1. PURPOSE. The purpose of the 1999 Equity and Performance Incentive Plan
is to attract and retain directors, officers and other key employees for GenCorp
Inc., an Ohio corporation and its Subsidiaries and to provide to such persons
incentives and rewards for superior performance.
2. DEFINITIONS. As used in this Plan,
"Appreciation Right" means a right granted pursuant to Section 5 of
this Plan, and shall include both Tandem Appreciation Rights and
Free-Standing Appreciation Rights.
"Base Price" means the price to be used as the basis for determining
the Spread upon the exercise of a Free-Standing Appreciation Right and a
Tandem Appreciation Right.
"Board" means the Board of Directors of the Company and, to the extent
of any delegation by the Board to a committee (or subcommittee thereof)
pursuant to Section 16 of this Plan, such committee (or subcommittee).
"Change in Control" shall have the meaning provided in Section 12 of
this Plan.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Common Shares" means the Common Shares, par value $0.10 per share, of
the Company or any security into which such Common Shares may be changed by
reason of any transaction or event of the type referred to in Section 11 of
this Plan.
"Company" means GenCorp Inc., an Ohio corporation.
"Covered Employee" means a Participant who is, or is determined by the
Board to be likely to become, a "covered employee" within the meaning of
Section 162(m) of the Code (or any successor provision).
"Date of Grant" means the date specified by the Board on which a grant
of Option Rights, Appreciation Rights, Performance Shares or Performance
Units or a grant or sale of Restricted Shares or Deferred Shares shall
become effective which date shall not be earlier than the date on which the
Board takes action with respect thereto.
"Deferral Period" means the period of time during which Deferred
Shares are subject to deferral limitations under Section 7 of this Plan.
"Deferred Shares" means an award made pursuant to Section 7 of this
Plan of the right to receive Common Shares at the end of a specified
Deferral Period.
"Director" means a member of the Board of Directors of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder, as such law, rules and
regulations may be amended from time to time.
"Free-Standing Appreciation Right" means an Appreciation Right granted
pursuant to Section 5 of this Plan that is not granted in tandem with an
Option Right.
"Immediate Family" has the meaning ascribed thereto in Rule 16a-1(e)
under the Exchange Act (or any successor rule to the same effect) as in
effect from time to time.
"Incentive Stock Options" means Option Rights that are intended to
qualify as "incentive stock options" under Section 422 of the Code or any
successor provision.
"Management Objectives" means the measurable performance objective or
objectives established pursuant to this Plan for Participants who have
received grants of Performance Shares or Performance Units or, when so
determined by the Board, Option Rights, Appreciation Rights, Restricted
Shares and dividend
<PAGE> 2
credits pursuant to this Plan. Management Objectives may be described in
terms of Company-wide objectives or objectives that are related to the
performance of the individual Participant or of the Subsidiary, division,
department, region or function within the Company or Subsidiary in which
the Participant is employed. The Management Objectives may be made relative
to the performance of other corporations. The Management Objectives
applicable to any award to a Covered Employee shall be based on specified
levels of or growth in one or more of the following criteria:
1. cash flow;
2. earnings per share;
3. earnings before interest and taxes;
4. earnings per share growth;
5. net income;
6. return on assets;
7. return on assets employed;
8. return on equity;
9. return on invested capital;
10. return on total capital;
11. revenue growth;
12. stock price;
13. total return to stockholders;
14. economic value added; and
15. operating profit growth; or
any combination of the foregoing.
If the Committee determines that a change in the business, operations,
corporate structure or capital structure of the Company, or the manner in
which it conducts its business, or other events or circumstances render the
Management Objectives unsuitable, the Committee may in its discretion
modify such Management Objectives or the related minimum acceptable level
of achievement, in whole or in part, as the Committee deems appropriate and
equitable, except in the case of a Covered Employee where such action would
result in the loss of the otherwise available exemption of the award under
Section 162(m) of the Code. In such case, the Committee shall not make any
modification of the Management Objectives or minimum acceptable level of
achievement.
"Market Value" means (i) the closing price for Common Shares as
reported in the New York Stock Exchange Composite Transactions in the Wall
Street Journal or similar publication selected by the Board for the
relevant date if Common Shares were traded on such day or, if none were
then traded, the last prior day on which Common Shares were so traded, or
(ii), if clause (i) does not apply, the fair market value of the Common
Stock as determined by the Board.
"Nonemployee Director" means a Director who is not an employee of the
Company or any Subsidiary.
"Optionee" means the optionee named in an agreement evidencing an
outstanding Option Right.
"Option Price" means the purchase price payable on exercise of an
Option Right.
"Option Right" means the right to purchase Common Shares upon exercise
of an option granted pursuant to Section 4 or Section 9 of this Plan.
"Participant" means a person who is selected by the Board to receive
benefits under this Plan and who is at the time an officer or other key
employee of the Company or any one or more of its Subsidiaries, or who has
agreed to commence serving in any of such capacities within 30 days of the
Date of Grant, and shall also include each Nonemployee Director who
receives an award of Option Rights or Restricted Shares.
<PAGE> 3
"Performance Period" means, in respect of a Performance Share or
Performance Unit, a period of time established pursuant to Section 8 of
this Plan within which the Management Objectives relating to such
Performance Share or Performance Unit are to be achieved.
"Performance Share" means a bookkeeping entry that records the
equivalent of one Common Share awarded pursuant to Section 8 of this Plan.
"Performance Unit" means a bookkeeping entry that records a unit
equivalent to $1.00 awarded pursuant to Section 8 of this Plan.
"Plan" means this GenCorp Inc. 1999 Equity and Performance Incentive
Plan.
"Restricted Shares" means Common Shares granted or sold pursuant to
Section 6 or Section 9 of this Plan as to which neither the substantial
risk of forfeiture nor the prohibition on transfers referred to in such
Section 6 has expired.
"Rule 16b-3" means Rule 16b-3 under the Exchange Act (or any successor
rule to the same effect) as in effect from time to time.
"Spread" means the excess of the Market Value per Share on the date
when an Appreciation Right is exercised, or on the date when Option Rights
are surrendered in payment of the Option Price of other Option Rights, over
the Option Price or Base Price provided for in the related Option Right or
Free-Standing Appreciation Right, respectively.
"Subsidiary" means a corporation, company or other entity (i) more
than 50 percent of whose outstanding shares or securities (representing the
right to vote for the election of directors or other managing authority)
are, or (ii) which does not have outstanding shares or securities (as may
be the case in a partnership, joint venture or unincorporated association),
but more than 50 percent of whose ownership interest representing the right
generally to make decisions for such other entity is, now or hereafter,
owned or controlled, directly or indirectly, by the Company except that for
purposes of determining whether any person may be a Participant for
purposes of any grant of Incentive Stock Options, "Subsidiary" means any
corporation in which, at the time, the Company owns or controls, directly
or indirectly, more than 50 percent of the total combined voting power
represented by all classes of stock issued by such corporation.
"Tandem Appreciation Right" means an Appreciation Right granted
pursuant to Section 5 of this Plan that is granted in tandem with an Option
Right.
"Voting Power" means at any time, the total votes relating to the
then-outstanding securities entitled to vote generally in the election of
Directors.
3. SHARES AVAILABLE UNDER THE PLAN. Subject to adjustment as provided in
Section 3(b) and Section 11 of this Plan, the number of Common Shares that may
be issued or transferred (i) upon the exercise of Option Rights or Appreciation
Rights, (ii) as Restricted Shares and released from substantial risks of
forfeiture thereof, (iii) as Deferred Shares, (iv) in payment of Performance
Shares or Performance Units that have been earned, (v) as awards to Nonemployee
Directors or (vi) in payment of dividend equivalents paid with respect to awards
made under the Plan shall not exceed in the aggregate 2,700,000 (Two Million
Seven Hundred Thousand) Common Shares, plus any shares described in Section
3(b). Such shares may be shares of original issuance or treasury shares or a
combination of the foregoing.
(b) The number of shares available in Section 3(a) above shall be
adjusted to account for shares relating to awards that expire, are
forfeited or are transferred, surrendered or relinquished upon the payment
of any Option Price by the transfer to the Company of Common Shares or upon
satisfaction of any withholding amount. Upon payment in cash of the benefit
provided by any award granted under this Plan, any shares that were covered
by that award shall again be available for issue or transfer hereunder.
(c) Notwithstanding anything in this Section 3, or elsewhere in this
Plan, to the contrary and subject to adjustment as provided in Section 11
of this Plan, (i) the aggregate number of Common Shares actually issued or
transferred by the Company upon the exercise of Incentive Stock Options
shall not exceed 1,000,000 Common Shares; (ii) no Participant shall be
granted Option Rights and Appreciation Rights, in
<PAGE> 4
the aggregate, for more than 1,000,000 Common Shares during any period of 3
consecutive years; (iii) the number of shares issued as Restricted Shares,
Deferred Shares or Performance Shares shall not in the aggregate exceed
900,000 Common Shares; (iv) during any period of three consecutive fiscal
years, the maximum number of Common Shares covered by awards of Restricted
Shares, Deferred Shares or Performance Shares granted to any one
Participant shall not exceed 900,000 Common Shares; and (v) no Nonemployee
Director shall be granted Option Rights, Appreciation Rights and Restricted
Shares, in the aggregate, for more than 100,000 Common Shares during any
fiscal year of the Company.
(d) Notwithstanding any other provision of this Plan to the contrary,
in no event shall any Participant in any one calendar year receive an award
of Performance Shares of Performance Units having an aggregate maximum
value as of their respective Dates of Grant in excess of $2,000,000.
4. OPTION RIGHTS. The Board may, from time to time and upon such terms and
conditions as it may determine, authorize the granting to Participants of
options to purchase Common Shares. Each such grant may utilize any or all of the
authorizations, and shall be subject to all of the requirements contained in the
following provisions:
(a) Each grant shall specify the number of Common Shares to which it
pertains subject to the limitations set forth in Section 3 of this Plan.
(b) Each grant shall specify an Option Price per share, which may not
be less than the Market Value per Share on the Date of Grant.
(c) Each grant shall specify whether the Option Price shall be payable
(i) in cash or by check acceptable to the Company, (ii) by the actual or
constructive transfer to the Company of Common Shares owned by the Optionee
for at least 6 months (or other consideration authorized pursuant to
Section 4(d) ) having a value at the time of exercise equal to the total
Option Price, or (iii) by a combination of such methods of payment.
(d) The Board may determine, at or after the Date of Grant, that
payment of the Option Price of any Option Right (other than an Incentive
Stock Option) may also be made in whole or in part in the form of
Restricted Shares or other Common Shares that are forfeitable or subject to
restrictions on transfer, Deferred Shares, Performance Shares (based, in
each case, on the Market Value per Share on the date of exercise), other
Option Rights (based on the Spread on the date of exercise) or Performance
Units. Unless otherwise determined by the Board at or after the Date of
Grant, whenever any Option Price is paid in whole or in part by means of
any of the forms of consideration specified in this Section 4(d) , the
Common Shares received upon the exercise of the Option Rights shall be
subject to such risks of forfeiture or restrictions on transfer as may
correspond to any that apply to the consideration surrendered, but only to
the extent, determined with respect to the consideration surrendered, of
(i) the number of shares or Performance Shares, (ii) the Spread of any
unexercisable portion of Option Rights, or (iii) the stated value of
Performance Units.
(e) Any grant may provide for deferred payment of the Option Price
from the proceeds of sale through a bank or broker on a date satisfactory
to the Company of some or all of the shares to which such exercise relates.
(f) Any grant may provide for payment of the Option Price, at the
election of the Optionee, in installments, with or without interest, upon
terms determined by the Board.
(g) Successive grants may be made to the same Participant whether or
not any Option Rights previously granted to such Participant remain
unexercised.
(h) Each grant shall specify the period or periods of continuous
service by the Optionee with the Company or any Subsidiary that is
necessary before the Option Rights or installments thereof will become
exercisable and may provide for the earlier exercise of such Option Rights
in the event of a Change in Control.
(i) Any grant of Option Rights may specify Management Objectives that
must be achieved as a condition to the exercise of such rights.
<PAGE> 5
(j) Option Rights granted under this Plan may be (i) options,
including, without limitation, Incentive Stock Options, that are intended
to qualify under particular provisions of the Code, (ii) options that are
not intended so to qualify, or (iii) combinations of the foregoing.
(k) The Board may, at or after the Date of Grant of any Option Rights
(other than Incentive Stock Options), provide for the payment of dividend
equivalents to the Optionee on either a current or deferred or contingent
basis or may provide that such equivalents shall be credited against the
Option Price.
(l) The exercise of an Option Right shall result in the cancellation
on a share- for-share basis of any Tandem Appreciation Right authorized
under Section 5 of this Plan.
(m) No Option Right shall be exercisable more than 10 years from the
Date of Grant.
(n) Each grant of Option Rights shall be evidenced by an agreement
executed on behalf of the Company by an officer and delivered to the
Optionee and containing such terms and provisions, consistent with this
Plan, as the Board may approve.
5. APPRECIATION RIGHTS. The Board may authorize the granting (i) to any
Optionee, of Tandem Appreciation Rights in respect of Option Rights granted
hereunder, and (ii) to any Participant, of Free-Standing Appreciation Rights. A
Tandem Appreciation Right shall be a right of the Optionee, exercisable by
surrender of the related Option Right, to receive from the Company an amount
determined by the Board, which shall be expressed as a percentage of the Spread
(not exceeding 100 percent) at the time of exercise. Tandem Appreciation Rights
may be granted at any time prior to the exercise or termination of the related
Option Rights; provided, however, that a Tandem Appreciation Right awarded in
relation to an Incentive Stock Option must be granted concurrently with such
Incentive Stock Option. A Free-Standing Appreciation Right shall be a right of
the Participant to receive from the Company an amount determined by the Board,
which shall be expressed as a percentage of the Spread (not exceeding 100
percent) at the time of exercise.
(b) Each grant of Appreciation Rights may utilize any or all of the
authorizations, and shall be subject to all of the requirements, contained
in the following provisions:
(i) Any grant may specify that the amount payable on exercise of an
Appreciation Right may be paid by the Company in cash, in Common Shares
or in any combination thereof and may either grant to the Participant or
retain in the Board the right to elect among those alternatives.
(ii) Any grant may specify that the amount payable on exercise of
an Appreciation Right may not exceed a maximum specified by the Board at
the Date of Grant.
(iii) Any grant may specify waiting periods before exercise and
permissible exercise dates or periods.
(iv) Any grant may specify that such Appreciation Right may be
exercised only in the event of, or earlier in the event of, a Change in
Control.
(v) Any grant may provide for the payment to the Participant of
dividend equivalents thereon in cash or Common Shares on a current,
deferred or contingent basis.
(vi) Any grant of Appreciation Rights may specify Management
Objectives that must be achieved as a condition of the exercise of such
Rights.
(vii) Each grant of Appreciation Rights shall be evidenced by an
agreement executed on behalf of the Company by an officer and delivered
to and accepted by the Participant, which agreement shall describe such
Appreciation Rights, identify the related Option Rights (if applicable),
state that such Appreciation Rights are subject to all the terms and
conditions of this Plan, and contain such other terms and provisions,
consistent with this Plan, as the Board may approve.
(c) Any grant of Tandem Appreciation Rights shall provide that such
Rights may be exercised only at a time when the related Option Right is
also exercisable and at a time when the Spread is positive, and by
surrender of the related Option Right for cancellation.
<PAGE> 6
(d) Regarding Free-standing Appreciation Rights only:
(i) Each grant shall specify in respect of each Free-standing
Appreciation Right a Base Price, which shall be equal to or greater or
less than the Market Value per Share on the Date of Grant;
(ii) Successive grants may be made to the same Participant
regardless of whether any Free-standing Appreciation Rights previously
granted to the Participant remain unexercised; and
(iii) No Free-standing Appreciation Right granted under this Plan
may be exercised more than 10 years from the Date of Grant.
6. RESTRICTED SHARES. The Board may also authorize the grant or sale of
Restricted Shares to Participants. Each grant or sale of Restricted Stock may
utilize any or all of the authorizations, and shall be subject to all of the
requirements, contained in the following provisions:
(a) Each such grant or sale shall constitute an immediate transfer of
the ownership of Common Shares to the Participant in consideration of the
performance of services, entitling such Participant to voting, dividend and
other ownership rights, but subject to the substantial risk of forfeiture
and restrictions on transfer hereinafter referred to.
(b) Each such grant or sale may be made without additional
consideration or in consideration of a payment by such Participant that is
less than Market Value per Share at the Date of Grant.
(c) Each such grant or sale shall provide that the Restricted Shares
covered by such grant or sale shall be subject to a "substantial risk of
forfeiture" within the meaning of Section 83 of the Code for a period of
not less than 3 years to be determined by the Board at the Date of Grant
and may provide for the earlier lapse of such substantial risk of
forfeiture in the event of a Change in Control. If the Board conditions the
nonforfeitability of shares of Restricted Stock upon service alone, such
vesting may not occur before three years from the Date of Grant of such
shares of Restricted Stock, and if the Board conditions the
nonforfeitability of shares of Restricted Stock on Management Objectives,
such nonforfeitability may not occur before one year from the Date of Grant
of such shares of Restricted Stock.
(d) Each such grant or sale shall provide that during the period for
which such substantial risk of forfeiture is to continue, the
transferability of the Restricted Shares shall be prohibited or restricted
in the manner and to the extent prescribed by the Board at the Date of
Grant (which restrictions may include, without limitation, rights of
repurchase or first refusal in the Company or provisions subjecting the
Restricted Shares to a continuing substantial risk of forfeiture in the
hands of any transferee).
(e) Any grant of Restricted Shares may specify Management Objectives
that, if achieved, will result in termination or early termination of the
restrictions applicable to such shares. Each grant may specify in respect
of such Management Objectives a minimum acceptable level of achievement and
may set forth a formula for determining the number of Restricted Shares on
which restrictions will terminate if performance is at or above the minimum
level, but falls short of full achievement of the specified Management
Objectives.
(f) Any such grant or sale of Restricted Shares may require that any
or all dividends or other distributions paid thereon during the period of
such restrictions be automatically deferred and reinvested in additional
Restricted Shares, which may be Subject to the same restrictions as the
underlying award.
(g) Each grant or sale of Restricted Shares shall be evidenced by an
agreement executed on behalf of the Company by any officer and delivered to
and accepted by the Participant and shall contain such terms and
provisions, consistent with this Plan, as the Board may approve. Unless
otherwise directed by the Board, all certificates representing Restricted
Shares shall be held in custody by the Company until all restrictions
thereon shall have lapsed, together with a stock power or powers executed
by the Participant in whose name such certificates are registered, endorsed
in blank and covering such Shares.
<PAGE> 7
7. DEFERRED SHARES. The Board may also authorize the granting or sale of
Deferred Shares to Participants. Each grant or sale of Deferred Shares may
utilize any or all of the authorizations, and shall be subject to all of the
requirements contained in the following provisions:
(a) Each such grant or sale shall constitute the agreement by the
Company to deliver Common Shares to the Participant in the future in
consideration of the performance of services, but subject to the
fulfillment of such conditions during the Deferral Period as the Board may
specify.
(b) Each such grant or sale may be made without additional
consideration or in consideration of a payment by such Participant that is
less than the Market Value per Share at the Date of Grant.
(c) Each such grant or sale shall be subject to a Deferral Period of
not less than one year, as determined by the Board at the Date of Grant,
and may provide for the earlier lapse or other modification of such
Deferral Period in the event of a Change in Control. If the Board
conditions the nonforfeitability of shares of Deferred Stock upon service
alone, such vesting may not occur before three years from the Date of Grant
of such shares of Deferred Stock, and if the Board conditions the
nonforfeitability of shares of Deferred Stock on Management Objectives,
such nonforfeitability may not occur before one year from the Date of Grant
of such shares of Deferred Stock.
(d) During the Deferral Period, the Participant shall have no right to
transfer any rights under his or her award and shall have no rights of
ownership in the Deferred Shares and shall have no right to vote them, but
the Board may, at or after the Date of Grant, authorize the payment of
dividend equivalents on such Shares on either a current or deferred or
contingent basis, either in cash or in additional Common Shares.
(e) Each grant or sale of Deferred Shares shall be evidenced by an
agreement executed on behalf of the Company by any officer and delivered to
and accepted by the Participant and shall contain such terms and
provisions, consistent with this Plan, as the Board may approve.
8. PERFORMANCE SHARES AND PERFORMANCE UNITS. The Board may also authorize
the granting of Performance Shares and Performance Units that will become
payable to a Participant upon achievement of specified Management Objectives.
Each such grant may utilize any or all of the authorizations, and shall be
subject to all of the requirements, contained in the following provisions:
(a) Each grant shall specify the number of Performance Shares or
Performance Units to which it pertains, which number may be subject to
adjustment to reflect changes in compensation or other factors; provided,
however, that no such adjustment shall be made in the case of a Covered
Employee where such action would result in the loss of the otherwise
available exemption of the award under Section 162(m) of the Code.
(b) The Performance Period with respect to each Performance Share or
Performance Unit shall be such period of time not less than 1 year,
commencing with the Date of Grant as shall be determined by the Board at
the time of grant which may be subject to earlier lapse or other
modification in the event of a Change in Control as set forth in the
agreement specified in Section 8(g).
(c) Any grant of Performance Shares or Performance Units shall specify
Management Objectives which, if achieved, will result in payment or early
payment of the award, and each grant may specify in respect of such
specified Management Objectives a minimum acceptable level of achievement
and shall set forth a formula for determining the number of Performance
Shares or Performance Units that will be earned if performance is at or
above the minimum level, but falls short of full achievement of the
specified Management Objectives. The grant of Performance Shares or
Performance Units shall specify that, before the Performance Shares or
Performance Units shall be earned and paid, the Board must certify that the
Management Objectives have been satisfied.
(d) Each grant shall specify the time and manner of payment of
Performance Shares or Performance Units that have been earned. Any grant
may specify that the amount payable with respect thereto may be paid by the
Company in cash, in Common Shares or in any combination thereof and may
either grant to the Participant or retain in the Board the right to elect
among those alternatives.
<PAGE> 8
(e) Any grant of Performance Shares may specify that the amount
payable with respect thereto may not exceed a maximum specified by the
Board at the Date of Grant. Any grant of Performance Units may specify that
the amount payable or the number of Common Shares issued with respect
thereto may not exceed maximums specified by the Board at the Date of
Grant.
(f) The Board may, at or after the Date of Grant of Performance
Shares, provide for the payment of dividend equivalents to the holder
thereof on either a current or deferred or contingent basis, either in cash
or in additional Common Shares.
(g) Each grant of Performance Shares or Performance Units shall be
evidenced by an agreement executed on behalf of the Company by any officer
and delivered to and accepted by the Participant, which agreement shall
state that such Performance Shares or Performance Units are subject to all
the terms and conditions of this Plan, and contain such other terms and
provisions, consistent with this Plan, as the Board may approve.
9. AWARDS TO NONEMPLOYEE DIRECTORS. The Board may, from time to time and
upon such terms and conditions as it may determine, authorize the granting to
Nonemployee Directors of Option Rights and may also authorize the grant or sale
of Restricted Shares to Nonemployee Directors.
(a) Each grant of Option Rights awarded pursuant to this Section 9
shall be upon terms and conditions consistent with Section 4 of this Plan
and shall be evidenced by an agreement in such form as shall be approved by
the Board. Each grant shall specify an Option Price per share, which shall
not be less than the Market Value per Share on the Date of Grant. Each such
Option Right granted under the Plan shall expire not more than 10 years
from the Date of Grant and shall be subject to earlier termination as
hereinafter provided. Unless otherwise determined by the Board, such Option
Rights shall be subject to the following additional terms and conditions:
(i) Each grant shall specify the number of Common Shares to which
it pertains subject to the limitations set forth in Section 3 of this
Plan.
(ii) Each such Option Right shall become exercisable six (6) months
after the Date of Grant. Such Option Rights shall become exercisable in
full immediately in the event of a Change in Control or other similar
transaction or event.
(iii) In the event of the termination of service on the Board by
the holder of any such Option Rights, other than by reason of
disability, death or retirement, the then outstanding Option Rights of
such holder may be exercised to the extent that they would be
exercisable on the date of such termination until the date that is one
year after the date of such termination, but in no event after the
expiration date of the term of such Option Rights.
(iv) In the event of the death, disability or retirement of the
holder of any such Option Rights, each of the then outstanding Option
Rights of such holder may be exercised at any time within one (1) year
after such death, disability or retirement, but in no event after the
expiration date of the term of such Option Rights.
(v) If a Nonemployee Director subsequently becomes an employee of
the Company or a Subsidiary while remaining a member of the Board, any
Option Rights held under the Plan by such individual at the time of such
commencement of employment shall not be affected thereby.
(vi) Option Rights may be exercised by a Nonemployee Director only
upon payment to the Company in full of the Option Price of the Common
Shares to be delivered. Such payment shall be made in cash or in Common
Shares then owned by the optionee for at least six months, or in a
combination of cash and such Common Shares.
(b) Each grant or sale of Restricted Shares pursuant to this Section 9
shall be upon terms and conditions consistent with Section 6 of this Plan.
10. TRANSFERABILITY. Except as otherwise determined by the Board, no Option
Right, Appreciation Right or other derivative security granted under the Plan
shall be transferable by a Participant other than by will or the
<PAGE> 9
laws of descent and distribution. Except as otherwise determined by the Board,
Option Rights and Appreciation Rights shall be exercisable during the Optionee's
lifetime only by him or her or by his or her guardian or legal representative.
(b) The Board may specify at the Date of Grant that part or all of the
Common Shares that are (i) to be issued or transferred by the Company upon
the exercise of Option Rights or Appreciation Rights, upon the termination
of the Deferral Period applicable to Deferred Shares or upon payment under
any grant of Performance Shares or Performance Units or (ii) no longer
subject to the substantial risk of forfeiture and restrictions on transfer
referred to in Section 6 of this Plan, shall be subject to further
restrictions on transfer.
(c) Notwithstanding the provisions of Section 10(a), Option Rights
(other than Incentive Stock Options) shall be transferable by a
Participant, without payment of consideration therefor by the transferee,
to any one or more members of the Participant's Immediate Family (or to one
or more trusts established solely for the benefit of one or more members of
the Participant's Immediate Family or to one or more partnerships in which
the only partners are members of the Participant's Immediate Family);
provided, however, that (i) no such transfer shall be effective unless
reasonable prior notice thereof is delivered to the Company and such
transfer is thereafter effected in accordance with any terms and conditions
that shall have been made applicable thereto by the Company or the Board
and (ii) any such transferee shall be subject to the same terms and
conditions hereunder as the Participant.
11. ADJUSTMENTS. The Board may make or provide for such adjustments in the
numbers of Common Shares covered by outstanding Option Rights, Appreciation
Rights, Deferred Shares, and Performance Shares granted hereunder, in the Option
Price and Base Price provided in outstanding Appreciation Rights, and in the
kind of shares covered thereby, as the Board, in its sole discretion, exercised
in good faith, may determine is equitably required to prevent dilution or
enlargement of the rights of Participants or Optionees that otherwise would
result from (a) any stock dividend, stock split, combination of shares,
recapitalization or other change in the capital structure of the Company, or (b)
any merger, consolidation, spin-off, split-off, spin-out, split-up,
reorganization, partial or complete liquidation or other distribution of assets,
issuance of rights or warrants to purchase securities, or (c) any other
corporate transaction or event having an effect similar to any of the foregoing.
Moreover, in the event of any such transaction or event, the Board, in its
discretion, may provide in substitution for any or all outstanding awards under
this Plan such alternative consideration as it, in good faith, may determine to
be equitable in the circumstances and may require in connection therewith the
surrender of all awards so replaced. The Board may also make or provide for such
adjustments in the numbers of shares specified in Section 3 of this Plan as the
Board in its sole discretion, exercised in good faith, may determine is
appropriate to reflect any transaction or event described in this Section 11;
provided, however, that any such adjustment to the number specified in Section
3(c)(i) shall be made only if and to the extent that such adjustment would not
cause any Option intended to qualify as an Incentive Stock Option to fail so to
qualify.
12. CHANGE IN CONTROL. For purposes of this Plan, except as may be
otherwise prescribed by the Board in an agreement evidencing a grant or award
made under the Plan, a "Change in Control" shall mean the occurrence during the
term of any of the following events, subject to the provisions of Section 12(f)
hereof:
(a) All or substantially all of the assets of the Company are sold or
transferred to another corporation or entity, or the Company is merged,
consolidated or reorganized into or with another corporation or entity,
with the result that upon conclusion of the transaction less than 51% of
the outstanding securities entitled to vote generally in the election of
directors or other capital interests of the acquiring corporation or entity
are owned directly or indirectly, by the shareholders of the Company
generally prior to the transaction; or
(b) There is a report filed on Schedule 13D or Schedule 14D-1 (or any
successor schedule, form or report), each as promulgated pursuant to the
Exchange Act, disclosing that any person (as the term "person" is used in
Section 13(d)(3) or Section 14(d)(2) of the Exchange Act (a "Person")) has
become the beneficial owner (as the term "beneficial owner" is defined
under Rule 13d-3 or any successor rule or regulation promulgated under the
Exchange Act (a "Beneficial Owner")) of securities representing 20% or more
of the combined voting power of the then-outstanding voting securities of
the Company; or
<PAGE> 10
(c) The individuals who, at the beginning of any period of two
consecutive calendar years, constituted the Directors of the Company cease
for any reason to constitute at least a majority thereof unless the
nomination for election by the Company's stockholders of each new Director
of the Company was approved by a vote of at least two-thirds of the
Directors of the Company still in office who were Directors of the Company
at the beginning of any such period; or
(d) There shall be an announcement of the intent of any Person (other
than the Company, any wholly-owned Subsidiary of the Company, or any
employee stock ownership or other employee benefit plan of the Company or
any wholly-owned Subsidiary of the Company) to commence a tender offer or
exchange offer to acquire (when added to any shares as to which such Person
is the Beneficial Owner immediately prior to such tender or exchange offer)
beneficial ownership of 30% or more of the combined voting power of the
then-outstanding voting securities of the Company; or
(e) The Board determines that (a) any particular actual or proposed
merger, consolidation, reorganization, sale or transfer of assets,
accumulation of shares or tender offer for shares of the Company or other
transaction or event or series of transactions or events will, or is likely
to, if carried out, result in a Change in Control falling within
Subsections (a) , (b) , (c) or (d) and (b) it is in the best interests of
the Company and its shareholders, and will serve the intended purposes of
this Section 12, if the provisions of awards which provide for earlier
exercise or earlier lapse of restrictions or conditions upon a Change in
Control shall thereupon become immediately operative.
(f) Notwithstanding the foregoing provisions of this Section (12):
(i) If any such merger, consolidation, reorganization, sale or
transfer of assets, or tender offer or other transaction or event or
series of transactions or events mentioned in Section (12)(e) shall be
abandoned, or any such accumulations of shares shall be dispersed or
otherwise resolved, the Board may, by notice to the Employee, nullify
the effect thereof and reinstate the award as previously in effect, but
without prejudice to any action that may have been taken prior to such
nullification.
(ii) Unless otherwise determined in a specific case by the Board, a
"Change in Control" shall not be deemed to have occurred for purposes of
Section (12)(b) or 12(d) solely because (X) the Company, (Y) a
Subsidiary, or (Z) any Company-sponsored employee stock ownership plan
or any other employee benefit plan of the Company or any Subsidiary
either files or becomes obligated to file a report or a proxy statement
under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or
Schedule 14A (or any successor schedule, form or report or item therein)
under the Exchange Act disclosing beneficial ownership by it of shares
of the then-outstanding voting securities of the Company, whether in
excess of 20% or otherwise, or because the Company reports that a change
in control of the Company has occurred or will occur in the future by
reason of such beneficial ownership.
13. FRACTIONAL SHARES. The Company shall not be required to issue any
fractional Common Shares pursuant to this Plan. The Board may provide for the
elimination of fractions or for the settlement of fractions in cash.
14. WITHHOLDING TAXES. To the extent that the Company is required to
withhold federal, state, local or foreign taxes in connection with any payment
made or benefit realized by a Participant or other person under this Plan, and
the amounts available to the Company for such withholding are insufficient, it
shall be a condition to the receipt of such payment or the realization of such
benefit that the Participant or such other person make arrangements satisfactory
to the Company for payment of the balance of such taxes required to be withheld,
which arrangements (in the discretion of the Board) may include relinquishment
of a portion of such benefit. Common Shares or benefits shall not be withheld in
excess of the minimum number required for such tax withholding. The Company and
a Participant or such other person may also make arrangements with respect to
the payment in cash of any taxes with respect to which withholding is not
required.
15. FOREIGN EMPLOYEES. In order to facilitate the making of any grant or
combination of grants under this Plan, the Board may provide for such special
terms for awards to Participants who are foreign nationals or who are employed
by the Company or any Subsidiary outside of the United States of America as the
Board may consider necessary or appropriate to accommodate differences in local
law, tax policy or custom. Moreover, the
<PAGE> 11
Board may approve such supplements to or amendments, restatements or alternative
versions of this Plan as it may consider necessary or appropriate for such
purposes, without thereby affecting the terms of this Plan as in effect for any
other purpose, and the Secretary or other appropriate officer of the Company may
certify any such document as having been approved and adopted in the same manner
as this Plan. No such special terms, supplements, amendments or restatements,
however, shall include any provisions that are inconsistent with the terms of
this Plan as then in effect unless this Plan could have been amended to
eliminate such inconsistency without further approval by the shareholders of the
Company.
16. ADMINISTRATION OF THE PLAN. This Plan shall be administered by the
Board, which may from time to time delegate all or any part of its authority
under this Plan to a committee of the Board (or subcommittee thereof) consisting
entirely of three Nonemployee Directors appointed by the Board. A majority of
the committee (or subcommittee) shall constitute a quorum, and the action of the
members of the committee (or subcommittee) present at any meeting at which a
quorum is present, or acts unanimously approved in writing, shall be the acts of
the committee (or subcommittee). To the extent of any such delegation,
references in this Plan to the Board shall be deemed to be references to any
such committee or subcommittee.
(b) The interpretation and construction by the Board of any provision
of this Plan or of any agreement, notification or document evidencing the
grant of Option Rights, Appreciation Rights, Restricted Shares, Deferred
Shares, Performance Shares or Performance Units and any determination by
the Board pursuant to any provision of this Plan or of any such agreement,
notification or document shall be final and conclusive. No member of the
Board shall be liable for any such action or determination made in good
faith.
17. AMENDMENTS, ETC. The Board may at any time and from time to time amend
the Plan in whole or in part; provided, however, that any amendment which must
be approved by the shareholders of the Company in order to comply with
applicable law or the rules of the New York Stock Exchange] or, if the Common
Shares are not traded on the New York Stock Exchange, the principal national
securities exchange upon which the Common Shares are traded or quoted, shall not
be effective unless and until such approval has been obtained. Presentation of
this Plan or any amendment hereof for shareholder approval shall not be
construed to limit the Company's authority to offer similar or dissimilar
benefits under other plans without shareholder approval.
(b) The Board shall not, without the further approval of the
shareholders of the Company, authorize the amendment of any outstanding
Option Right to reduce the Option Price. Furthermore, no Option Right shall
be cancelled and replaced with awards having a lower Option Price without
further approval of the shareholders of the Company. This Section 17(b) is
intended to prohibit the repricing of "underwater" Option Rights and shall
not be construed to prohibit the adjustments provided for in Section 11 of
this Plan.
(c) The Board also may permit Participants to elect to defer the
issuance of Common Shares or the settlement of awards in cash under the
Plan pursuant to such rules, procedures or programs as it may establish for
purposes of this Plan. The Board also may provide that deferred issuances
and settlements include the payment or crediting of dividend equivalents or
interest on the deferral amounts.
(d) The Board may condition the grant of any award or combination of
awards authorized under this Plan on the surrender or deferral by the
Participant of his or her right to receive a cash bonus or other
compensation otherwise payable by the Company or a Subsidiary to the
Participant.
(e) In case of termination of employment by reason of death,
disability or normal or early retirement, or in the case of hardship or
other special circumstances, of a Participant who holds an Option Right or
Appreciation Right not immediately exercisable in full, or any Restricted
Shares as to which the substantial risk of forfeiture or the prohibition or
restriction on transfer has not lapsed, or any Deferred Shares as to which
the Deferral Period has not been completed, or any Performance Shares or
Performance Units which have not been fully earned, or who holds Common
Shares subject to any transfer restriction imposed pursuant to Section
10(b) of this Plan, the Board may, in its sole discretion, accelerate the
time at which such Option Right or Appreciation Right may be exercised or
the time at which such substantial risk of forfeiture or prohibition or
restriction on transfer will lapse or the time when such Deferral Period
will end or the time at which such Performance Shares or Performance Units
will be deemed to have been fully
<PAGE> 12
earned or the time when such transfer restriction will terminate or may
waive any other limitation or requirement under any such award.
(f) This Plan shall not confer upon any Participant any right with
respect to continuance of employment or other service with the Company or
any Subsidiary, nor shall it interfere in any way with any right the
Company or any Subsidiary would otherwise have to terminate such
Participant's employment or other service at any time.
(g) To the extent that any provision of this Plan would prevent any
Option Right that was intended to qualify as an Incentive Stock Option from
qualifying as such, that provision shall be null and void with respect to
such Option Right. Such provision, however, shall remain in effect for
other Option Rights and there shall be no further effect on any provision
of this Plan.
18. TERMINATION. No grant shall be made under this Plan more than 10 years
after the date on which this Plan is first approved by the shareholders of the
Company, but all grants made on or prior to such date shall continue in effect
thereafter subject to the terms thereof and of this Plan.
19. EXCLUSION FROM CERTAIN RESTRICTIONS. Notwithstanding anything in this
Plan to the contrary, not more than eighty-one thousand (81,000) Common Shares
in the aggregate available under this Plan may be subject to awards as follows:
(a) in the case of grants of Restricted Stock, which do not meet the
requirements of the last sentence of Section 6(c) ;
(b) in the case of grants of Restricted Stock as to which the Board
may accelerate or waive any restrictions imposed under Section 6(d)
(c) in the case of grants of Deferred Stock, which do not meet the
requirements of the last sentence of Section 7(c) ; or
(d) in the case of Performance Shares and Performance Units, which do
not meet the requirements of Section 8(b).
<PAGE> 1
Exhibit 5.1
-----------
November 30, 1999
GenCorp Inc.
Highway 50 and Aerojet Road
Rancho Cordova, California 95670
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-8
which GenCorp Inc. ("GenCorp") is filing with the Securities and Exchange
Commission, pursuant to the Securities Act of 1933, to register 2,700,000 shares
of GenCorp Common Stock issuable under the GenCorp Inc. 1999 Equity and
Performance Incentive Plan (the "Plan").
I have examined such records, documents and matters of law and
have satisfied myself as to such matters of fact as I have considered relevant
for the purposes of this opinion. Based upon the foregoing, I am of the opinion
that:
1) The Plan has been duly authorized and adopted by
appropriate corporate action, including approval of
the Plan by the shareholders of GenCorp at its
Special Meeting of Shareholders held September 8,
1999.
2) The GenCorp Common Stock to be issued upon the
exercise of options granted pursuant to the Plan
will, upon issuance pursuant to the terms of the
Plan, be validly issued, fully paid and
non-assessable.
I hereby consent to the use of this opinion as an exhibit to
said Registration Statement.
Very truly yours,
/s/ William R. Phillips
-----------------------------------
William R. Phillips
Senior Vice President, Law;
General Counsel and Secretary
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the GenCorp Inc. 1999 Equity and Performance Incentive
Plan of our reports (a) dated January 12, 1999, with respect to the
consolidated financial statements of GenCorp Inc. included in its Annual Report
(Form 10-K) for the year ended November 30, 1998, and (b) dated April 16, 1999,
with respect to the financial statements of GenCorp Inc.'s Retirement Savings
Plan and Profit Sharing Retirement and Savings Plan for Salaried Employees of
GenCorp Inc. and Certain Subsidiary Companies included in the Plans' Annual
Reports (Form 11-K) for the year ended October 31, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Akron, Ohio
November 30, 1999
<PAGE> 1
Exhibit 24.1
------------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints William R. Phillips and Robert C. Anderson, and each of
them severally (each with full power to act alone), his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to prepare and sign, with the advice of counsel, a
Registration Statement on Form S-8, and all amendments thereto, in connection
with the GenCorp Inc. 1999 Equity and Performance Incentive Plan 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, as
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact or agents or any
of them, or their or his or her substitute or substitutes, may lawfully do or
cause to be done by virtue hereof. This Power of Attorney expires November 30,
1999.
Dated: October 18, 1999 /s/ Robert A. Wolfe
-----------------------------------
Robert A. Wolfe
Chief Executive Officer and Director
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints William R. Phillips and Robert C. Anderson, and each of
them severally (each with full power to act alone), his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to prepare and sign, with the advice of counsel, a
Registration Statement on Form S-8, and all amendments thereto, in connection
with the GenCorp Inc. 1999 Equity and Performance Incentive Plan 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, as
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact or agents or any
of them, or their or his or her substitute or substitutes, may lawfully do or
cause to be done by virtue hereof. This Power of Attorney expires November 30,
1999.
Dated: October 18, 1999 /s/ Terry L. Hall
-----------------------------------
Terry L. Hall
Senior Vice President and Chief
Financial Officer
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints William R. Phillips and Robert C. Anderson, and each of
them severally (each with full power to act alone), his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to prepare and sign, with the advice of counsel, a
Registration Statement on Form S-8, and all amendments thereto, in connection
with the GenCorp Inc. 1999 Equity and Performance Incentive Plan 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, as
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact or agents or any
of them, or their or his or her substitute or substitutes, may lawfully do or
cause to be done by virtue hereof. This Power of Attorney expires November 30,
1999.
Dated: October 18, 1999 /s/ J. Gary Cooper
------------------------------------
J. Gary Cooper
Director
<PAGE> 2
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints William R. Phillips and Robert C. Anderson, and each of
them severally (each with full power to act alone), his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to prepare and sign, with the advice of counsel, a
Registration Statement on Form S-8, and all amendments thereto, in connection
with the GenCorp Inc. 1999 Equity and Performance Incentive Plan 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, as
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact or agents or any
of them, or their or his or her substitute or substitutes, may lawfully do or
cause to be done by virtue hereof. This Power of Attorney expires November 30,
1999.
Dated: October 26, 1999 /s/ William K. Hall
------------------------------------
William K. Hall
Director
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints William R. Phillips and Robert C. Anderson, and each of
them severally (each with full power to act alone), his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to prepare and sign, with the advice of counsel, a
Registration Statement on Form S-8, and all amendments thereto, in connection
with the GenCorp Inc. 1999 Equity and Performance Incentive Plan 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, as
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact or agents or any
of them, or their or his or her substitute or substitutes, may lawfully do or
cause to be done by virtue hereof. This Power of Attorney expires November 30,
1999.
Dated: October 18, 1999 /s/ Dr. Robert K. Jaedicke
------------------------------------
Dr. Robert K. Jaedicke
Director
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints William R. Phillips and Robert C. Anderson, and each of
them severally (each with full power to act alone), his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to prepare and sign, with the advice of counsel, a
Registration Statement on Form S-8, and all amendments thereto, in connection
with the GenCorp Inc. 1999 Equity and Performance Incentive Plan 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, as
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact or agents or any
of them, or their or his or her substitute or substitutes, may lawfully do or
cause to be done by virtue hereof. This Power of Attorney expires November 30,
1999.
Dated: October 18, 1999 /s/ James M. Osterhoff
------------------------------------
James M. Osterhoff
Director
