As filed with the Securities and Exchange Commission on August 17, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
------------------------
GREAT LAKES CHEMICAL CORPORATION
(Exact name of registrant as specified in its charter)
------------------------
DELAWARE 95-1765035
(State of incorporation) (I.R.S. employer identification number)
ONE GREAT LAKES BOULEVARD
P.O. BOX 2200
WEST LAFAYETTE, INDIANA
47906-0200
(Address of principal executive offices, including zip code)
1998 STOCK COMPENSATION PLAN
AND
STOCK OPTION AGREEMENT BY AND BETWEEN GREAT LAKES CHEMICAL CORPORATION
AND MARK BULRISS
(FULL TITLE OF THE PLANS)
RICHARD R. FERGUSON, ESQ.
VICE PRESIDENT AND TREASURER
ONE GREAT LAKES BOULEVARD
P.O. BOX 2200
WEST LAFAYETTE, INDIANA
47996-2200
(765) 497-6100
(Name, address and telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered(1) per Share (2)(3) Price (3) Fee (4)
<S> <C> <C> <C> <C>
Common Stock, 2,950,000 $39.53 $116,617,187.00 $34,402.07
par value $1.00 per
share
</TABLE>
(1) Amount includes 2,250,000 shares of common stock under the 1998 Stock
Compensation Plan and 700,000 shares of common stock under the Stock
Option Agreement by and between Great Lakes Chemical Corporation and
Mark Bulriss.
(2) In accordance with Rules 457(c) and (h) under the Securities Act of
1933, as amended (the "Securities Act"), solely for the purpose of
calculating the registration fee, the maximum offering price per share
is based on the average of the high and low sales prices of
Registrant's Common Stock on the New York Stock Exchange, Inc. on
August 11, 1998.
(3) Estimated solely for the purpose of calculating the registration fee.
(4) The registration fee has been calculated pursuant to Section 6(b) of
the Securities Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this registration statement in accordance with
Rule 428 under the Securities Act and the Introductory Note to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the registrant, Great Lakes Chemical
Corporation, a Delaware corporation (the "Company"), pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference in this registration statement:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997.
(2) The Company's Quarterly Report on Form 10-Q for the quarters ended
March 31, 1998 and June 30, 1998.
(3) The Company's Current Report on Form 8-K, filed on June 5, 1998.
(4) The Company's description of its common stock contained in Item 4
of its Form S-8 Registration Statement (No. 33-57589).
All reports and other documents subsequently filed by the Company
pursuant to Section 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 by reference herein
and to be a part hereof from the date of filing of such documents. Any
statement contained in a report or document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other subsequently filed document
which also is incorporated or deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL")
authorizes a corporation to indemnify a person against expenses and certain
liabilities incurred by him in connection with any proceeding in which he
is involved by reason of his being or having been a director, officer,
employee or agent of the corporation or its affiliates. Further, Article
Ninth of the Company's Certificate of Incorporation and Article VII of its
By-Laws provide for indemnification, to the full extent permitted by the
DGCL, of the Company's directors and officers. The Company maintains
so-called "D & O" liability insurance coverage, insuring it against loss
resulting from discharge of such liabilities against which they cannot be
indemnified by the Company (subject to certain exclusions). Reference is
made to clause (e) under Item 9 below with respect to indemnification for
liabilities arising under the Securities Act of 1933, as amended, required
or permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
A list of exhibits is set forth on the Exhibit Index which immediately
precedes the exhibits and which is incorporated by reference herein.
ITEM 9. UNDERTAKINGS.
The undersigned Company hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(1) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(2) 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; and
(3) 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) and (a)(2) do not apply if 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 Company pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated by reference in the registration statement.
(b) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) 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.
(d) That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) 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.
(e) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 has been signed on its behalf by the undersigned,
thereunto duly authorized in the City of West Lafayette, State of Indiana,
on this 17th day of August, 1998.
GREAT LAKES CHEMICAL CORPORATION
By: /s/ Richard R. Ferguson
--------------------------------
Richard R. Ferguson
Vice President and Treasurer
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 set out opposite his or her name:
SIGNATURE AND NAME CAPACITY DATE
/s/ Mark P. Bulriss President, Chief Executive 8/14/1998
- ------------------- Officer and Director ---------
Mark P. Bulriss Date
/s/ Mark Tomkins Vice President, and 8/14/1998
- ------------------- Chief Financial Officer ---------
Mark Tomkins Date
/s/ Robert J. Smith Vice President and Controll 8/14/1998
- ------------------- ---------
Robert J. Smith Date
Evan Bayh Director
Thomas M. Fulton Director
Martin N. Hale Director
Louis E. Lataif Director
Richard H. Leet Director
Robert B. McDonald Director
Mack G. Nichols Director
Jay D. Proops Director
The undersigned Richard R. Ferguson hereby executes this
Registration Statement on behalf of each of the directors of Registrant
whose names are listed above, pursuant to a power of attorney executed by
each of said directors and filed with the Securities and Exchange
Commission as a part of the Registration Statement.
By: /s/ Richard R. Ferguson 8/14/1998
------------------------ ---------
Richard R. Ferguson Date
Attorney in Fact
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibits
3.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to the Company's Annual Report
on Form 10-K for the year ended December 31, 1997).
3.2 By-laws of the Company (incorporated by reference to the
Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998).
4.1 Form of certificate representing shares of Common Stock.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom (Illinois).
23.1 Consent of Ernst & Young, LLP, independent auditors.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom (Illinois)
(included in Exhibit 5.1).
24 Powers of Attorney.
99.1 1998 Stock Compensation Plan.
99.2 Stock Option Agreement by and between Great Lakes Chemical
Corporation and Mark Bulriss (incorporated by reference to
the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998).
<PAGE>
Exhibit 4.1
COMMON STOCK COMMON STOCK
NS 52000
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
GREAT LAKES CHEMICAL CORPORATION
THIS CERTIFICATE IS TRANSFERABLE IN THE CITY OF NEW YORK OR IN CHICAGO
This Certifies that See reverse for certain definitions
CUSIP 390568 10 3
is the owner of BY COUNTERSIGNED AND REGISTERED:
HARRIS TRUST COMPANY OF NEW YORK TRANSFER AGENT AND REGISTRAR
AUTHORIZED SIGNATURE
FULLY PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF ONE DOLLAR EACH OF
THE COMMON CAPITAL STOCK OF
GREAT LAKES CHEMICAL CORPORATION
transferrable in the books of the Company by the holder hereof in person or
by duly authorized attorney upon the surrender of this certificate properly
endorsed. This certificate is not valid unless countersigned by the
Transfer Agent and Registrar.
WITNESS the corporate seal of the Company and the signatures of its
duly authorized officers.
Dated [Great Lakes Chemical Corporation Corporate Seal Delaware]
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN
ACT--..............Custodian............
TEN ENT -- as tenants by the (Cust) (Minor)
entireties under Uniform Gifts to
Minors
JT TEN -- as joint tenants
with right of Act.......................
survivorship and not (State)
as tenants in common
Additional abbreviations may also be used though not in the
above list.
For value received __________ hereby sell, assign and transfer unto PLEASE
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_____________________________
- -------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
___________________________________________________________________ Shares
of the Capital Stock represented by the within Certificate
and do hereby irrevocably constitute and appoint
___________________________________________________________________ Attorney
to transfer the said stock on the books of the within
named Company with full power of substitution in the premises.
Dated
_________________________________________________________
NOTE: THE SIGNATURE TO THIS AGREEMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE PAGE OF THE
CERTIFICATE IN EVERY PARTICULAR WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANGE WHATEVER
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in a Rights Agreement between Great Lakes Chemical
Corporation and Harris Trust Company of New York as Rights Agent dated as
of September 7, 1989 (the "Rights Agreement"), the terms of which are
hereby incorporated herein by reference and a copy of which is on file at
the principal executive offices, of Great Lakes Chemical Corporation. Under
certain circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be evidenced
by this certificate. Great Lakes Chemical Corporation will mail to the
holder of this certificate a copy of the Rights Agreement without charge
after receipt of a written request therefor. Under certain circumstances,
Rights beneficially owned by Acquiring Persons or their Associates or
Affiliates (as such terms are defined in the Rights Agreement) may become
null and void and the holder of such Rights (including any subsequent
holder) shall not have any right to exercise such Rights.
Exhibit 5.1
SKADDEN, ARPS, SLATE, MEAGHER & FLOM (ILLINOIS)
333 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60606
August 17, 1998
Great Lakes Chemical Corporation
One Great Lakes Boulevard
P.O. Box 2200
West Lafayette, Indiana 47906-0200
Re: Registration Statement on Form S-8
of Great Lakes Chemical Corporation
Ladies and Gentlemen:
We have acted as special counsel to Great Lakes Chemical
Corporation, a Delaware corporation (the "Company"), in connection with the
preparation of a Registration Statement on Form S-8, which is being filed
by the Company with the Securities and Exchange Commission (the
"Commission") on the date hereof (the "Registration Statement"). The
Registration Statement relates to the registration and issuance by the
Company under the Securities Act of 1933, as amended (the "Act"), of up to
an aggregate of 2,950,000 shares of the Company's Common Stock, par value
$1.00 per share (the "Common Stock"), under the Company's 1998 Stock
Compensation Plan and Stock Option Agreement by and between Great Lakes
Chemical Corporation and Mark Bulriss (collectively, the "Plans"). The
shares of Common Stock that may be issued under the Plans are collectively
referred to herein as the "Shares".
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement; (ii) each of the Plans; (iii) the Certificate of
Incorporation and the Bylaws of the Company, as presently in effect; and
(iv) a specimen certificate representing the Common Stock;. We have also
examined originals or copies, certified or otherwise identified to our
satisfaction, of such records of the Company and such agreements,
certificates of public officials, certificates of officers or other
representatives of the Company and others, and such other documents,
certificates and records as we have deemed necessary or appropriate as a
basis for the opinions set forth herein.
In our examination, we have assumed, and have not independently
established or verified, the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. As to any facts
material to the opinions expressed herein which we have not independently
established or verified, we have relied upon statements and representations
of officers and other representatives of the Company and others. We assume
that the Company will have at the time of the issuance of any Shares under
the Plans at least that number of authorized but unissued shares of Common
Stock equal to the number of Shares to be issued pursuant to the Plans.
Members of our firm are admitted to the practice of law in the
State of Illinois, and we do not express any opinion as to the laws of any
other jurisdiction other than the Delaware General Corporation Law.
Based upon and subject to the foregoing, and assuming the
conformity of the certificates representing the Shares to the form of the
specimen thereof examined by us and the due execution of such certificates,
we are of the opinion that the Shares have been duly authorized by
requisite corporate action by the Company, and, when issued, delivered and
paid for in accordance with the terms and conditions of the Plans, as
applicable, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. In giving this
consent, we do not thereby admit that we are included in the category of
persons whose consent is required under Section 7 of the Act or the rules
and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher
& Flom (Illinois)
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP,
INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of Great Lakes Chemical Corporation pertaining to the 1998
Stock Compensation Plan and the Stock Option Agreement by and between Great
Lakes Chemical Corporation and Mark Bulriss, of our reports dated February
3, 1998 and March 25, 1998, with respect to the consolidated financial
statements of Great Lakes Chemical Corporation incorporated by reference in
its Annual Report (Form 10-K) for the year ended December 31, 1997 and the
related financial statement schedule included therein, respectively, filed
with the Securities and Exchange Commission.
Indianapolis, Indiana ERNST & YOUNG LLP
August 12, 1998
Exhibit 24
POWER OF ATTORNEY
The undersigned DIRECTORS and OFFICERS of GREAT LAKES CHEMICAL
CORPORATION (the "Corporation") hereby designate and appoint
RICHARD R. FERGUSON and JOHN V. LACCI
and each of them, as attorney for the undersigned with full power of
substitution and resubstitution, for and in the name, place and stead of
the undersigned, to prepare or cause to be prepared to execute and file
from time to time with the Securities and Exchange Commission, Washington,
D.C. (the "Commission")
a) a registration statement or statements on Form S-8 or any other
appropriate form or forms pursuant to the Securities Act of
1933, as amended (the "Act"), for the purpose of registering
shares of Common Stock of the Company to be issued pursuant to
the Company's 1998 Stock Compensation Plan, and a Stock Option
Agreement by and between Great Lakes Chemical Corporation and
Mark Bulriss, and
b) any and all amendments, including post-effective amendments,
and exhibits to such annual report and registration
statement(s), and any and all applications or other documents
to be filed with the Commission or elsewhere pertaining to the
securities to which such registration statement(s) relate(s),
with full power and authority to take or cause to be taken all other
actions which in the judgment of such attorney may be necessary or
appropriate to effect the registration under the Act of the shares of
Common Stock of the Company issued or to be issued under the Plan.
EXECUTED on the dates set forth below.
/s/ Evan Bayh /s/ Richard H. Leet
- -------------------------- ---------------------------
Evan Bayh Richard H. Leet
Date: 7/31/1998 Date: 8/3/1998
/s/ Thomas M. Fulton /s/ Robert B. McDonald
- -------------------------- ---------------------------
Thomas M. Fulton Robert B. McDonald
Date: 8/3/1998 Date: 8/1/1998
/s/ Martin M. Hale /s/ Mack G. Nichols
- -------------------------- ---------------------------
Martin M. Hale Mack G. Nichols
Date: 8/3/1998 Date: 8/9/1998
/s/ Louis E. Lataif /s/ Jay D. Proops
- -------------------------- ---------------------------
Louis E. Lataif Jay D. Proops
Date: 8/3/1998 Date: 8/10/1998
Exhibit 99.1
GREAT LAKES CHEMICAL CORPORATION
1998 STOCK COMPENSATION PLAN
APPROVED BY THE SHAREHOLDERS
ON
MAY 7, 1998
1. SHARES SUBJECT TO PLAN. 2,250,000 shares of common stock, par
value $1.00 per share ("Common Stock") of Great Lakes Chemical Corporation
(the "Corporation") shall be reserved for Awards granted under this Plan
(the "1998 Plan"). If any Award granted under this 1998 Plan shall
terminate or expire without being fully exercised for any reason prior to
the end of the period under which Awards may be granted, the shares of
Common Stock to which such termination or expiration relates shall again
become available for Awards thereafter granted.
2. EFFECTIVE DATE AND DURATION. This 1998 Plan shall become effective
on May 7, 1998, upon its approval by the holders of a majority of the
Common Stock of the Corporation present and voting (in person or by proxy)
at the 1998 Annual Meeting of Stockholders, and shall continue in effect
for a period of ten (10) years from the date of such stockholder approval.
Upon expiration of such ten-year period, no further Awards shall be granted
(although unexercised Awards theretofore granted shall continue in effect).
3. AWARDS. The Board may grant Options, including Incentive Stock
Options meeting the requirements of Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code") and Non-Qualified Options, and other
stock-based awards, collectively referred to as "Awards."
4. ADMINISTRATION OF THE 1998 PLAN. The Board of Directors of the
Corporation (the "Board"), which may act through its Compensation and
Incentive Committee (the "Committee"), shall administer this 1998 Plan. It
may in its sole discretion determine the person or persons to whom Awards
are to be granted and the number of shares to be covered by each such
Award, all within the limitations set forth in this 1998 Plan. It may
interpret the provisions of this 1998 Plan and decide all questions of fact
arising out of its application, and all such interpretations and
determinations shall be conclusive and binding upon the individual
employees and directors involved and all persons claiming under them.
5. PERSONS ELIGIBLE FOR AWARDS. Individuals who are (a) executive
officers, (b) other key employees (including those who are also directors)
or (c) non-employee directors, in each case of the Corporation or any of
its subsidiaries, may be granted Awards. For this purpose, the term
"subsidiary" shall mean any corporation in which the Corporation owns a
stock having 50 percent or more of the total combined voting power of all
classes of such corporation's stock. A person is a key employee by virtue
of meeting all of the following standards: (i) such person is employed by
the Corporation or its subsidiaries, (ii) such person has managerial,
supervisory, professional, scientific, engineering or similar
responsibilities and (iii) such person is not covered by any collective
bargaining agreement binding on the Corporation or its subsidiaries.
6. TERMS AND CONDITIONS OF OPTIONS. Options granted may be either
Incentive Stock Options as defined in Section 422 of the Code, (hereinafter
referred to as "ISOs") or options which are not within the 422 definition
(hereinafter referred to as "Non-Qualified Options") (ISOs and
Non-Qualified Options are referred to collectively as "Options").
(a) INCENTIVE STOCK OPTIONS. The terms of each ISO
granted shall include those terms which are required by Section 422
of the Code, and other such terms, not inconsistent therewith as the
Board may determine.
(b) NON-QUALIFIED OPTIONS. Subject to the minimum
option price specified in paragraph (c), the terms of each
Non-Qualified Option granted, which may be different in each case,
shall be determined by the Board.
(c) MINIMUM OPTION PRICE. The option price payable
for the shares of Common Stock subject to each Option granted shall
not be less than the fair market value of the Corporation's Common
Stock at the time of the grant of that Option. The fair market value
of the Corporation's Common Stock at the time of the grant of an
Option shall be deemed to be equal to the closing price on the
preceding trading day on the New York Stock Exchange; provided,
however, that during the 60- day period from and after a change in
control of the Corporation, "fair market value" shall mean, other
than in the case of shares of Common Stock subject to ISOs, the
higher of (X) the highest closing price of the Common Stock on the
New York Stock Exchange during the 60-day period prior to the change
in control of the Corporation and (Y) if the change in control of the
Corporation is the result of a transaction or series of transactions
described in paragraphs (a), (b) or (c) of Section 13(A)(v) hereof,
the highest price for shares of Common Stock paid in such transaction
or series of transactions, which in the case of such paragraph (a)
shall be the highest price for shares of Common Stock as reflected in
a Schedule 13D filed under the Exchange Act (as defined in Section
13(A)(v)(a) hereof) by the person having made the acquisition.
(d) MAXIMUM NUMBER OF SHARES. Subject to the
provisions of Paragraph 11 hereof, the maximum number of shares that
may be awarded to any participant in any year hereunder shall not
exceed 150,000.
7. TERMS AND CONDITIONS OF OTHER STOCK-BASED AWARDS. The Committee
may grant other stock-based Awards either alone or in addition to other
Awards under the 1998 Plan. The Committee will place such restrictions on
such awards as the Committee determines to be necessary; provided however,
that restricted stock awarded to any participant who is also a participant
in the Corporation's Management Incentive Compensation Plan may not vest
solely based upon the continued employment of the participant for a
specified period of time. Subject to the provisions of Paragraphs 1 and 11
hereof, the maximum number of shares with respect to which awards may be
granted under this Paragraph 7 shall not exceed 450,000.
8. TRANSFER LIMITATIONS. Except as may be determined by the Board or
the Committee, no Award granted shall be transferable otherwise than by
will or the laws of descent and distribution, and no Award granted may be
exercised by any person other than the person to whom the Award shall
initially have been granted during the life time of such initial Awardee.
9. EXERCISE OF AWARDS. Awards shall be exercised by written notice to
the Corporation, which written notice must be accompanied by payment in
full of the option price. Options may be exercised in one or more
installments. Payment of the option price may be made as specified in each
Award Agreement (as discussed below), (a) in cash, (b) by exchanging Common
Stock of the Corporation already owned by the optionee for at least six
months prior to the date of exercise, (c) by delivery of a combination of
cash and Common Stock, (d) through the delivery of a notice that the
optionee has placed a market sell order with a broker with respect to
shares of Common Stock then issuable to the optionee upon exercise of the
Option, and that the broker has been directed to pay a sufficient portion
of the net proceeds of the sale to the Corporation in satisfaction of the
aggregate exercise price of the Option or the exercised portion thereof or
(e) by such other method as the Committee may determine. The exchanged
shares, plus cash, if any, must be equal to the aggregate option price of
the shares acquired upon exercise of the Option. The value to be used for
any exchanged shares shall be the closing market price of the Corporation's
Common Stock on the preceding trading day on the New York Stock Exchange.
Notwithstanding the foregoing, during the 60-day period from and after a
change in control of the Corporation, all optionees, with respect to any or
all of their respective Options, shall, unless the Committee shall
determine otherwise at the time of grant, have the right, in lieu of the
payment of the full Option price of the shares of Common Stock being
purchased under the Options and by giving written notice to the Corporation
in from satisfactory to the Committee, to elect (within such 60-day period)
to surrender all or part of the Options to the Corporation and to receive
in cash an amount equal to the amount by which the fair market value of
shares of Common Stock on the date of exercise exceeds the option price per
share of Common Stock under the Options multiplied by the number of shares
of Common Stock granted under the Options as to which the right granted by
this sentence shall have been exercised.
(a) MANDATORY WITHHOLDING TAXES. Whenever a
NonQualified Option is exercised, the Corporation may require as a
condition of delivery that the optionee remit an amount sufficient to
satisfy al federal, state and local withholding tax requirements
related thereto. The optionee may elect to pay the tax by remitting
(1) cash, (2) shares of Common Stock already owned by the optionee
for at least six months, (3) withholding a portion of the shares
otherwise deliverable to the optionee upon the exercise, or (4) by
any combination of the above. The value to be used for any shares
delivered or withheld shall be the closing market price on the
preceding trading day on the New York Stock Exchange.
(b) DISQUALIFYING DISPOSITIONS OF ISO SHARES. An
optionee shall be required to notify the Corporation of any
disposition of shares issued pursuant to the exercise of an ISO under
the circumstances described in Section 421(b) of the Code (relating
to certain disqualifying dispositions), within ten days of such
disposition.
10. AWARD AGREEMENT. No person shall have any rights with respect to
an Award unless and until the Corporation and the person to whom such Award
shall have been granted shall have executed and delivered an Award
Agreement containing provisions setting forth terms of the Awards.
11. ANTI-DILUTION PROVISION. If, prior to the complete exercise of
any Award, there shall be declared and paid a stock dividend upon the
shares of Common Stock of the Corporation or if the shares shall be split
up, converted, reclassified, changed into, or exchanged for, a different
number of kind of securities of the Corporation, the Award, to the extent
that it has not been exercised, shall entitle the holder upon the future
exercise of such Award to such number and kind of securities or other
property subject to the terms of the Award to which the holder would be
entitled had such holder actually owned the shares subject to the
unexercised portion of the Award at the time of the occurrence of such
stock dividend, split-up, conversion, exchange, reclassification or
exchange; and the aggregate purchase price upon the future exercise of the
Award shall be the same as if originally optioned or awarded shares were
being purchased thereunder; or the Committee shall make such other
adjustment to such Award as it deems appropriate. If any such event should
occur, the number of shares with respect to which Awards remain to be
issued, or with respect to which Awards may be reissued, shall be similarly
adjusted.
In the event the outstanding shares of Common Stock shall be
changed into or exchanged for any other class or series of capital stock or
cash, securities or other property pursuant to a recapitalization,
reclassification, merger, consolidation, combination or similar transaction
(other than a transaction described in the previous paragraph), then each
Award shall thereafter become exercisable for the number and/or kind of
capital stock, and/or the amount of cash, securities or other property so
distributed, into which the shares subject to the Award would have been
changed or exchanged had the Award been exercised in full prior to such
transaction, provided that, if the kind or amount of capital stock or cash,
securities or other property received in such transaction is not the same
for each outstanding share, then the kind or amount of capital stock or
cash, securities or other property for which the Award shall thereafter
become exercisable shall be the kind and amount so receivable per share by
a plurality of the shares; or the Committee shall make such other
adjustment to such Award as it deems appropriate. If any such event should
occur, the number of shares with respect to which Awards remain to be
issued or with respect to which Awards may be reissued, shall be similarly
adjusted.
12. AWARDS GRANTED UNDER OPTION PLANS. Options granted under the 1984
and 1993 Plans shall be governed by the provisions of the respective Plan
as amended. Awards granted under this 1998 Plan shall be governed by the
provisions of this 1998 Plan.
13. ADDITIONAL PROVISIONS.
F. VESTING, TERMINATION OF EMPLOYMENT OR SERVICE.
(i) Upon a change in control of the Corporation (as
defined below), all Options shall immediately vest and become
exercisable and all restrictions on other Awards shall immediately
lapse.
(ii) The following provisions shall be applicable in
the event of an Awardee's termination of employment or service,
except as may be otherwise determined by the Board or the Committee.
An Award shall be exercisable only during the Awardee's employment by
or service with the Corporation and for up to three months after the
termination of such employment or service for any reason (including
but not limited to any such termination of employment or service
which occurs following a change in control of the Corporation),
except that in the Board's (or, if such authority is delegated by the
Board, the Committee's or the Chief Executive Officer's) discretion,
an Award may be exercisable for a period of up to three years after
retirement or death, or for up to ten years after mandatory
retirement under the Executive Mandatory Retirement Policy.
(iii) Except as otherwise determined by the Board or
the Committee, an Award may be exercised after the termination of an
Awardee's employment or service with the Corporation only to the
extent that (a) the Awardee was entitled to do so on the date of
termination (after giving effect to Section 13(A)(i) above), and (b)
the Award would not have expired prior to the date of such exercise
had the Awardee continued to be employed by (or to be in the service
of) the Corporation.
(iv) The Board (or if such authority is delegated by
the Board, the Committee or the Chief Executive Officer) may in its
discretion determine that an authorized leave of absence or
disability shall be deemed to satisfy this 1998 Plan's employment or
service requirements.
(v) For purposes of the 1998 Plan, a "change in
control of the Corporation" shall be deemed to have occurred if the
conditions set forth in any one of the following paragraphs shall
have been satisfied:
(a) any "person" (as such term is used in Section
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), other than (i) the Corporation, (ii) a trustee
or other fiduciary holding securities under an employee benefit plan
of the Corporation, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities, or (iv) a
corporation owned, directly or indirectly, by the stockholders of the
Corporation in substantially the same proportions as their ownership
of shares of the Corporation (any such person is hereinafter referred
to as a "Person"), is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act) directly or indirectly, of
securities of the Corporation representing more than 20% of the
combined voting power of the Corporation's then outstanding
securities (not including in the securities beneficially owned by
such Person any securities acquired directly from the Corporation);
(b) there is consummated a merger or consolidation
of the Corporation with or into any other corporation, other than a
merger or consolidation which would result in the holders of the
voting securities of the Corporation outstanding immediately prior
thereto holding securities which represent, in combination with the
ownership of any trustee or other fiduciary holding securities under
an employee benefit plan of the Corporation, immediately after such
merger or consolidation, more than 70% of the combined voting power
of the voting securities of either the Corporation or the other
entity which survives such merger or consolidation or the parent of
the entity which survives such merger or consolidation;
(c) the stockholders of the Corporation approve
any plan or proposal for the liquidation or dissolution of the
Corporation or an agreement for the sale or disposition by the
Corporation of all or substantially all the Corporation's assets; or
(d) during any period of two consecutive years
(not including any period prior to the date of this 1998 Plan),
individuals who at the beginning of such period constitute the Board
and any new director (other than a director designated by a Person
who has entered into an agreement with the Corporation to effect a
transaction described in clause (1), (2) or (3) of this paragraph)
whose election by the Board or nomination for election by the
Corporation's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority thereof.
For purposes of this 1998 Plan, where a change in control of
the Corporation results from a series of related transactions, the change
in control of the Corporation shall be deemed to have occurred on the date
of the consummation of the first such transaction. For purposes of clause
(a) of this subsection, the stockholders of another corporation (other than
the Corporation or a corporation described in subclause (iv) of clause (a)
of this subsection) shall be deemed to constitute a Person. Further, the
sale, transfer, or other disposition of a subsidiary of the Corporation
shall not constitute a change in control of the Corporation giving rise to
payments or benefits under this 1998 Plan.
Notwithstanding any other provision hereof, a "change in
control of the Corporation" shall not be deemed to have occurred by virtue
of the Corporation entering into any agreement with respect to, the public
announcement of, the approval by the Corporation's stockholders or
directors of, or the consummation of, any transaction or series of
integrated transactions (including any merger or other business combination
transaction) entered into in connection with, or expressly conditioned upon
the occurrence of, a spin-off (such transaction or series of integrated
transactions, the "Spin-Off Transactions") immediately following which the
recordholders of the Common Stock of the Corporation immediately prior to
the Spin-Off Transaction continue to have substantially the same
proportionate ownership in the spun-off entity as they had in the
Corporation immediately prior to the Spin-Off Transaction; provided that
such Spin-Off Transaction (including any related merger of other business
combination transaction) has been approved by a vote of a majority of the
Corporation's Continuing Directors (as defined below) then in office. For
purposes of this 1998 Plan, a "Continuing Director" shall mean any member
of the Board of the Corporation who is a member of the Board as of the date
of this 1998 Plan and any person who subsequently becomes a member of the
Board, if such person's nomination for election or election to the Board is
recommended or approved by a majority of the Continuing Directors.
B. LISTINGS, REGISTRATION AND COMPLIANCE WITH LAWS AND REGULATIONS
(i) Each Award shall be subject to the requirement that if
at any time the Board shall determine, in its discretion, that the listing,
registration, or qualification of the shares subject to the Award upon any
securities exchange or under any state or federal securities or other law
or regulation, or the consent or approval of any governmental regulatory
body, is necessary or desirable as a condition to or in connection with the
granting of such Award or the issue or purchase of shares thereunder, no
such Award may be exercised or paid in Common Stock in whole or in part
unless such listing, registration, qualification, consent or approval shall
have been effected or obtained free of any conditions not acceptable to the
Board and the Awardee will supply the Corporation with such certificates,
representations and information as the Corporation shall request and shall
otherwise cooperate with the Corporation in obtaining such listing,
registration, qualification, consent or approval. In the case of executive
officers and other persons subject to Section 16(b) of the Securities
Exchange Act of 1934, the Board may at any time impose any limitations upon
the exercise of an Award which, in the Board's discretion, are necessary or
desirable in order to comply with Section 16(b) and the rules and
regulations thereunder. Prior to the occurrence of a change in control of
the Corporation, if the Corporation, as part of an offering of securities
or otherwise, finds it desirable because of federal or state regulatory
requirements to reduce the period during which any Award may be exercised,
the Board may, in its discretion and without the Awardee's consent, so
reduce such period on not less than 15 days written notice to the Awardee.
(ii) Notwithstanding the terms of this paragraph, no
Awardee shall have the right to require the Corporation to register, list
or qualify said Award or any of the stock
underlying such Option.
C. AMENDMENT OF THE 1998 PLAN. Except as provided in the following sentence
and as required by law, the Corporation's Board shall have complete power
and authority to amend this 1998 Plan at any time and no approval by the
Corporation's stockholders or by any other person, committee or other
entity of any kind shall be required to make any such amendment effective.
The Board shall not, however, increase the maximum number of shares
available for Awards granted unless such increase shall either be approved
by the Corporation's stockholders or shall be permitted by Paragraph 11. No
termination or amendment may, without consent of the individual to whom any
Award shall have been granted under the 1998 Plan, adversely affect the
rights of such individual under such Award.
D. CAPTIONS. The captions (i.e., all boldface words) are for convenience
only, do not constitute a part of this 1998 Plan, and shall not be deemed
to limit, characterize or affect in any way any provisions of this 1998
Plan, an all provisions shall be construed as if no captions had been used.
E. SEVERABILITY. Whenever possible, each provision in this 1998 Plan and in
every Award at any time granted under this 1998 Plan shall be interpreted
in such manner as to be effective and valid under applicable law, but if
any provision of this 1998 Plan or any Award at any given time granted
under this 1998 Plan, shall be held to be prohibited by or invalid under
applicable law, then (i) such provision shall be deemed amended to
accomplish the objectives of the provision as originally written to the
fullest extent permitted by law, and (ii) all other provisions and every
Award at any time granted under this 1998 Plan shall remain in full force
and effect.
F. NO STRICT CONSTRUCTION. No rule of strict construction shall be applied
against the Corporation, the Board, or any other person in the
interpretation of any of the terms of this 1998 Plan, any Award granted
under this 1998 Plan or any rule or procedure established by the Board or
the Committee.
G. APPLICABLE LAW. Every Award at any time granted under this 1998 Plan
shall be deemed to be a contract made under the laws of the State of
Indiana. For all purposes, both this 1998 Plan and every Award granted
under this 1998 Plan shall be construed in accordance with and governed by
the laws of the State of Indiana.
