REGISTRATION NO. 33-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
under
The Securities Act of 1933
GUARDSMAN PRODUCTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 38-0593900
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
3033 Orchard Vista Drive, S.E., Suite 200, P.O. Box 1521, Grand Rapids,
Michigan 49501
(Address of principal executive offices)
GUARDSMAN PRODUCTS, INC.
1995 LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
Henry H. Graham, Jr. WITH Stephen C. Waterbury
Vice President of Finance and Warner Norcross & Judd LLP
Chief Financial Officer COPY 900 Old Kent Building
Guardsman Products, Inc. 111 Lyon Street, N.W.
3033 Orchard Vista Drive, SE, TO: Grand Rapids, Michigan 49503-2489
Suite 200
P.O. Box 1521
Grand Rapids, Michigan 49501
(Name and address of agent for service)
(616) 957-2600
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of
Securities Amount Proposed Maximum Proposed Maximum Amount of
to be to be Offering Price Aggregate Offering Registration
Registered Registered Per Share <FN3> Price <FN3> Fee
<S> <C> <C> <C> <C>
Common 470,000<FN1> $13.75<FN2> $6,462,500<FN2> $2,228.45
Stock, $1
Par Value,
together
with re-
lated Pre-
ferred Stock
Purchase
Rights
<FN>
<FN1> Plus such indeterminate number of additional shares as may be
required to be issued in the event of an adjustment as a result of an
increase in the number of issued shares of Common Stock resulting from a
subdivision of such shares, the payment of a stock dividend or certain
other capital adjustments.
<FN2> Estimated solely for the purpose of calculating the registration
fee.
<FN3> The shares that are to be offered on an incentive stock option
basis will be offered at a price of not less than 100% of the fair market
value of the shares of Common Stock of Guardsman Products, Inc. (the
"Company"), at the date of the grant of the Option. On August 3, 1995,
the average of the high and low prices of the Company's Common Stock on the
New York Stock Exchange was $13.75 per share.
</FN>
</TABLE>
-2-
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission are incorporated by reference in this registration statement.
(a) Guardsman Products, Inc.'s ("Guardsman" or the "Registrant")
latest annual report filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by
the annual reports referred to in (a) above.
(c) The description of the Registrant's common stock, $1 par value,
which is contained in the Registrant's registration statement filed under
the Securities Exchange Act of 1934, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant and Plan pursuant
to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of
1934, prior to the filing of the 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 in this registration statement and to be part thereof from the
date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant has the power to indemnify its directors,
officers, employees and agents against liability for certain acts pursuant
to Section 145 of the Delaware General Corporation Law. Pursuant to its
Certificate of Incorporation and Bylaws, the Registrant may indemnify a
director, officer, employee or agent described in Section 145 of the
Delaware General Corporation Law for liabilities reasonably incurred
resulting from any pending, threatened or completed action or proceeding
arising out of such person's position with the Registrant. The Registrant
-3-
has insured or indemnified its directors and officers against certain
liabilities that may arise under the Securities Act.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, the
Registrant has been informed that in the opinion of the Commission, such
indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
EX-4(a) The Registrant's Restated Certificate of Incorporation,
filed as an exhibit to the Registrant's Form 8-K Current
Report filed on December 20, 1988, is incorporated by
reference in the registration statement
EX-4(b) The Registrant's Bylaws, filed as an exhibit to the
Registrant's Form 10-Q filed on August 10, 1994, are
incorporated by reference in the registration statement
EX-4(c) Guardsman Products, Inc. 1995 Long-Term Incentive Plan
EX-5 Legal Opinion
EX-23(a) Consent of Independent Public Accountants
EX-23(b) Consent of Prior Independent Auditors
EX-23(c) Consent of Counsel (included in Exhibit 5 is incorporated
herein by reference)
EX-24 Powers of Attorney, filed as an exhibit to the Registrant's
Form 10-K filed on March 30, 1995, are incorporated by
reference in the registration statement
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,
-4-
individually or in the aggregate, represent 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 in such information
in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in the 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 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(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 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 shall, 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.
-5-
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Grand Rapids, State of Michigan.
GUARDSMAN PRODUCTS, INC.
(Registrant)
Date: August 9, 1995 By/s/ Henry H. Graham, Jr.
Henry H. Graham, Jr.
Vice President of Finance, Chief
Financial Officer 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 indicated.
Date: August 9, 1995
/s/ Paul K. Gaston /s/ Charles E. Bennett
Paul K. Gaston* Charles E. Bennett
Chairman President, Chief Executive Officer
and Director
/s/ Henry H. Graham, Jr. /s/ J. Russell Fowler
Henry H. Graham, Jr. J. Russell Fowler*
Vice President of Finance, Director
Chief Financial Officer and
Treasurer
/s/ K. Kevin Hepp /s/ George R. Kempton
K. Kevin Hepp* George R. Kempton*
Director Director
/s/ Winthrop C. Neilson /s/ Robert D. Tuttle
Winthrop C. Neilson* Robert D. Tuttle*
Director Director
/s/ James L. Sadler /s/ Robert W. Schult
James L. Sadler* Robert W. Schult*
Director Director
-6-
*By /s/ Henry H. Graham Jr.
Henry H. Graham, Jr.
(Attorney-in-Fact)
-7-
EXHIBIT INDEX
Page Number
EX-4(a) The Registrant's Restated Certificate of Incorporation,
filed as an exhibit to the Registrant's Form 8-K Current
Report filed on December 20, 1988, is incorporated by
reference in the registration statement *
EX-4(b) The Registrant's Bylaws, filed as an exhibit to the
Registrant's Form 10-Q filed on August 10, 1994, are
incorporated by reference in the registration statement *
EX-4(c) Guardsman Products, Inc. 1995 Long-Term Incentive Plan 9
EX-5 Legal Opinion 25
EX-23(a) Consent of Independent Public Accountants 26
EX-23(b) Consent of Prior Independent Auditors 27
EX-23(c) Consent of Counsel (included in Exhibit 5 is incorporated
herein by reference) *
EX-24 Powers of Attorney, filed as an exhibit to the Registrant's
Form 10-K filed on March 30, 1995, are incorporated by
reference in the registration statement *
____________________________
* Incorporated by Reference
-8-
EXHIBIT 4(c)
GUARDSMAN PRODUCTS, INC.
1995 LONG-TERM INCENTIVE PLAN
SECTION 1
Establishment of Plan; Purpose of Plan
1.1 Establishment of Plan. Guardsman hereby establishes the 1995
LONG-TERM INCENTIVE PLAN (the "Plan") for its corporate, divisional, and
Subsidiary directors, advisory directors, officers, and other key
employees. The Plan permits the grant and award of Stock Options, Stock
Appreciation Rights, Restricted Stock, Stock Awards, and Tax Benefit
Rights.
1.2 Purpose of Plan. The purpose of the Plan is to provide
directors, advisory directors, officers, and key management employees of
Guardsman, its divisions, and its Subsidiaries with an increased incentive
to make significant and extraordinary contributions to the long-term
performance and growth of Guardsman and its Subsidiaries, to join the
interests of directors, officers, and key employees with the interests of
Guardsman's stockholders through the opportunity for increased stock
ownership, and to attract and retain directors and key employees of
exceptional ability. The Plan is further intended to provide flexibility
to Guardsman in structuring long-term incentive compensation to best
promote the foregoing objectives.
SECTION 2
Definitions
The following words have the following meanings unless a
different meaning is plainly required by the context:
2.1 "Act" means the Securities Exchange Act of 1934, as amended.
2.2 "Board" means the Board of Directors of Guardsman.
2.3 "Change in Control" means (i) the failure of the Continuing
Directors at any time to constitute at least a majority of
the members of the Board; (ii) the acquisition by any Person
other than an Excluded Holder of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Act) of twenty
percent (20%) or more of the outstanding Common Stock or the
combined voting power of Guardsman's outstanding securities
entitled to vote generally in the election of directors;
-9-
(iii) the approval by the stockholders of Guardsman of a
reorganization, merger or consolidation, unless with or into
a Permitted Successor; or (iv) the approval by the stockholders
of Guardsman of a complete liquidation or dissolution of
Guardsman or the sale or disposition of all or substantially
all of the assets of Guardsman other than to a Permitted
Successor.
2.4 "Code" means the Internal Revenue Code of 1986, as amended.
2.5 "Committee" means the Compensation Committee of the Board or
such other committee as the Board shall designate to administer
the Plan. The Committee shall consist of at least two members
of the Board, and all of its members shall be "disinterested
persons" as defined in Rule 16b-3 under the Act.
2.6 "Common Stock" means the Common Stock of Guardsman, par value
$1 per share.
2.7 "Continuing Directors" mean the individuals constituting the Board
as of the date this Plan was adopted and any subsequent directors
whose election or nomination for election by Guardsman's
stockholders was approved by a vote of two-thirds (2/3) of the
individuals who are then Continuing Directors, but specifically
excluding any individual whose initial assumption of office occurs
as a result of either an actual or threatened election contest
(as the term is used in Rule 14a-11 of Regulation 14A promulgated
under the Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the
Board.
2.8 "Employee Benefit Plan" means any plan or program established by
Guardsman or a Subsidiary for the compensation or benefit of
employees of Guardsman or any of its Subsidiaries.
2.9 "Excluded Holder" means (A) any Person who at the time this Plan
was adopted was the beneficial owner of twenty percent (20%) or
more of the outstanding Common Stock or (B) Guardsman, a
Subsidiary or any Employee Benefit Plan of Guardsman or a
Subsidiary or any trust holding Common Stock or other securities
pursuant to the terms of an Employee Benefit Plan.
2.10 "Guardsman" means Guardsman Products, Inc., a Delaware corporation,
and any Permitted Successor.
2.11 "Incentive Award" means the award or grant of a Stock Option, Stock
Appreciation Right, Restricted Stock, Stock Award, or Tax Benefit
Right to a Participant pursuant to the Plan.
-10-
2.12 "Market Value" shall equal the mean of the highest and lowest sales
prices of shares of Common Stock on the New York Stock Exchange (or
any successor exchange that is the primary stock exchange for
trading of Common Stock) on the date of grant, or if the New York
Stock Exchange (or any such successor) is closed on that date, the
last preceding date on which the New York Stock Exchange (or any
such successor) was open for trading and on which shares of Common
Stock were traded.
2.13 "Participant" means a corporate director or officer, advisory
director, divisional officer, or other key employee of Guardsman,
its divisions, or its Subsidiaries who the Committee determines is
eligible to participate in the Plan and who is designated to be
granted an Incentive Award under the Plan.
2.14 "Permitted Successor" means a corporation which, immediately
following the consummation of a transaction specified in clauses
(iii) and (iv) of the definition of "Change in Control" above,
satisfies each of the following criteria: (A) sixty percent (60%)
or more of the outstanding common stock of the corporation and the
combined voting power of the outstanding securities of the
corporation entitled to vote generally in the election of directors
(in each case determined immediately following the consummation of
the applicable transaction) is beneficially owned, directly or
indirectly, by all or substantially all of the Persons who were the
beneficial owners of Guardsman's outstanding Common Stock and
outstanding securities entitled to vote generally in the election
of directors (respectively) immediately prior to the applicable
transaction, (B) no Person other than an Excluded Holder
beneficially owns, directly or indirectly, twenty percent (20%)
or more of the outstanding common stock of the corporation or the
combined voting power of the outstanding securities of the
corporation entitled to vote generally in the election of directors
(for these purposes the term Excluded Holder shall include the
corporation, any Subsidiary of the corporation and any Employee
Benefit Plan of the corporation or any such Subsidiary or any trust
holding common stock or other securities of the corporation pursuant
to the terms of any such Employee Benefit Plan), and (C) at least a
majority of the board of directors is comprised of Continuing
Directors.
2.15 "Person" has the same meaning as set forth in Section 13(d) and
14(d)(2) of the Act.
2.16 "Restricted Period" means the period of time during which Restricted
Stock awarded under the Plan is subject to restrictions. The
Restricted Period may differ among Participants and may have
different expiration dates with respect to shares of Common Stock
covered by the same Incentive Award.
-11-
2.17 "Restricted Stock" means Common Stock awarded to a Participant
pursuant to Section 6 of the Plan.
2.18 "Retirement" means the voluntary termination of all employment and
service as a director with Guardsman by a Participant after the
Participant has attained 60 years of age, or age 55 with at least
five years of service, or such other age as shall be determined by
the Committee in its sole discretion or as otherwise may be set
forth in the Incentive Award agreement or other grant document with
respect to a Participant and a particular Incentive Award.
2.19 "Stock Appreciation Right" means a right granted in connection with
a Stock Option pursuant to Section 8 of the Plan.
2.20 "Stock Award" means an award of Common Stock awarded to a
Participant pursuant to Section 7 of the Plan.
2.21 "Stock Option" means the right to purchase Common Stock at a stated
price for a specified period of time. For purposes of the Plan, a
Stock Option may be either an incentive stock option within the
meaning of Section 422(b) of the Code or a nonqualified stock
option, and the option shall be interpreted in accordance with such
intention as stated in the applicable Stock Option Agreement.
2.22 "Subsidiary" means any corporation or other entity of which fifty
percent (50%) or more of the outstanding voting stock or voting
ownership interest is directly or indirectly owned or controlled by
Guardsman or by one or more Subsidiaries of Guardsman.
2.23 "Tax Benefit Right" means any right granted to a Participant
pursuant to Section 9 of the Plan.
SECTION 3
Administration
3.1 Power and Authority. The Committee shall have full power and
authority to interpret the provisions of the Plan, and shall have full power
and authority to supervise the administration of the Plan. All
determinations, interpretations, and selections made by the Committee
regarding the Plan shall be final and conclusive. The Committee shall hold
its meetings at such times and places as it deems advisable. Action may be
taken by a written instrument signed by a majority of the members of the
Committee, and any action so taken shall be fully as effective as if it had
been taken at a meeting duly called and held. The Committee shall make such
rules and regulations for the conduct of its business as it deems advisable.
The members of the Committee shall not be paid any additional fees for their
services.
-12-
3.2 Grants or Awards to Participants. In accordance with and subject to
the provisions of the Plan, the Committee shall have the authority to determine
all provisions of Incentive Awards as the Committee may deem necessary or
desirable and as are consistent with the terms of the Plan, including, without
limitation, the following: (a) the employees and advisory directors who shall
be selected as Participants; (b) the nature and extent of the Incentive Awards
to be made to each employee and advisory director (including the number of
shares of Common Stock to be subject to each Incentive Award, any exercise
price, the manner in which an Incentive Award will vest or become exercisable,
and the form of payment for the Incentive Award); (c) the time or times when
Incentive Awards will be granted to employees and advisory directors; (d) the
duration of each Incentive Award; and (e) the restrictions and other
conditions to which payment or vesting of Incentive Awards may be subject.
3.3 Amendments or Modifications of Awards. The Committee shall have the
authority to amend or modify the terms of any outstanding Incentive Award
granted to a Participant in any manner, provided that the amended or modified
terms are not prohibited by the Plan as then in effect, including, without
limitation, the authority to: (a) modify the number of shares or other terms and
conditions of an Incentive Award; (b) extend the term of an Incentive Award;
(c) accelerate the exercisability or vesting or otherwise terminate any
restrictions relating to an Incentive Award; (d) accept the surrender of any
outstanding Incentive Award; or (e) to the extent not previously exercised or
vested, authorize the grant of new Incentive Awards in substitution for
surrendered Incentive Awards. Modification of options granted to nonemployee
directors, other than advisory directors, may be made only as necessary or
desirable to comply with securities or income tax law. No such amendment or
modification shall become effective without consent of the Participant except
to the extent that such amendment operates solely to the benefit of the
Participant. In addition, the Committee shall have no authority to cancel and
replace any previously granted Incentive Award with a repriced Incentive Award
without first obtaining stockholder approval.
3.4 Indemnification of Committee Members. Each person who is or shall
have been a member of the Committee shall be indemnified and held harmless by
Guardsman from and against any cost, liability, or expense imposed or incurred
in connection with such person's or the Committee's taking or failing to take
any action under the Plan. Each such person shall be justified in relying on
information furnished in connection with the Plan's administration by any
appropriate person or persons.
3.5 Incentive Awards for Nonemployee Directors. Directors, other than
advisory directors, who are not also employees shall receive nondiscretionary
Stock Options awarded automatically under the terms of subsection 5.5, and
shall not receive other Incentive Awards.
-13-
SECTION 4
Shares Subject to the Plan
4.1 Number of Shares. Subject to adjustment as provided in subsection
4.2 of the Plan, a maximum of 470,000 shares of Common Stock shall be
available for Incentive Awards under the Plan. Such shares shall be
authorized and may be either unissued or treasury shares.
4.2 Adjustments. If the number of shares of Common Stock outstanding
changes by reason of a stock dividend, stock split, recapitalization, merger,
consolidation, combination, exchange of shares, or any other change in the
corporate structure or shares of Guardsman, the number and kind of securities
subject to and reserved under the Plan, together with applicable exercise
prices, shall be appropriately adjusted. No fractional shares shall be issued
pursuant to the Plan, and any fractional shares resulting from adjustments
shall be eliminated from the respective Incentive Awards, with an appropriate
cash adjustment for the value of any Incentive Awards eliminated. If an
Incentive Award is cancelled, surrendered, modified, exchanged for a
substitute Incentive Award, or expires or terminates during the term of the
Plan but prior to the exercise or vesting of the Incentive Award in full, the
shares subject to but not delivered under such Incentive Award shall be
available for other Incentive Awards.
SECTION 5
Stock Options
5.1 Grant. A Participant may be granted one or more Stock Options
under the Plan. Stock Options shall be subject to such terms and conditions,
consistent with the other provisions of the Plan, as may be determined by the
Committee in its sole discretion. In addition, the Committee may vary, among
Participants and among Stock Options granted to the same Participant, any and
all of the terms and conditions of the Stock Options granted under the Plan.
The Committee shall have complete discretion in determining the number of
Stock Options granted to each Participant. The Committee may designate
whether or not a Stock Option is to be considered an incentive stock option
as defined in Section 422(b) of the Code.
5.2 Stock Option Agreements. Stock Options shall be evidenced by Stock
Option agreements containing such terms and conditions, consistent with the
provisions of the Plan, as the Committee shall from time to time determine.
Stock Options shall be subject to the terms and conditions set forth in this
Section 5.
5.3 Stock Option Price. The per share Stock Option price shall be
determined by the Committee, but shall be a price that is equal to or higher
than the par value of Guardsman's Common Stock; provided, however, that the
per share Stock Option price for any shares designated as incentive stock
-14-
options shall be equal to or greater than one hundred percent (100%) of the
Market Value on the date of grant.
5.4 Medium and Time of Payment. The exercise price for each share
purchased pursuant to a Stock Option granted under the Plan shall be payable
in cash or, if the Committee consents, in shares of Common Stock (including
Common Stock to be received upon a simultaneous exercise) or other
consideration substantially equivalent to cash. The time and terms of payment
may be amended with the consent of a Participant before or after exercise of a
Stock Option, but such amendment shall not reduce the Stock Option price. The
Committee may from time to time authorize payment of all or a portion of the
Stock Option price in the form of a promissory note or installments according
to such terms as the Committee may approve. The Board may restrict or suspend
the power of the Committee to permit such loans and may require that adequate
security be provided.
5.5 Stock Options Granted to Nonemployee Directors.
(a) Automatic Grants. Options shall be granted to
nonemployee directors on March 1 and September 1 of each year, and no
discretionary options shall be granted to such directors under the
Plan. The number of shares subject to options granted on September 1,
1995, shall be 2,755 shares. The number of shares to be subject to
options granted on each succeeding option date during the term of the
Plan thereafter shall be 105% of the previous period's grant, with the
result rounded up or down to the nearest 5 share increment. This
provision for automatic grants shall be effective when there are
insufficient shares available for such automatic grants under prior
Guardsman stock option plans. The provisions of this subsection 5.5
shall not apply to advisory directors who are eligible to receive
discretionary Incentive Awards under the Plan.
(b) Price and Terms. The price shall be 100% of the Market
Value as of the date of the grant and may be paid in cash or shares of
Common Stock. The term shall be ten years, except that the option
shall cease and be of no effect if the director is terminated for
cause.
(c) New Directors. Any new nonemployee director elected or
appointed other than on a grant date shall receive, as of the date of
his or her election or appointment, an option for the number of shares
granted to a nonemployee director as of the previous grant date. The
option price for such new Director shall be the higher of the market
value as of the date of grant or the market value as of the prior grant
date.
5.6 Limits on Exercisability. Stock Options shall be exercisable for
such periods as may be fixed by the Committee, not to exceed 10 years from
the date of grant. At the time of the exercise of a Stock Option, the holder
-15-
of the Stock Option, if requested by the Committee, must represent to
Guardsman that the shares are being acquired for investment and not with a
view to the distribution thereof. The Committee may in its discretion
require a Participant to continue the Participant's service with Guardsman
and its Subsidiaries for a certain length of time prior to a Stock Option
becoming exercisable and may eliminate such delayed vesting provisions. No
Stock Option issued to directors and employees subject to Section 16 of the
Act shall be exercisable during the first six months of its term.
5.7 Restrictions on Transferability.
(a) General. Unless the Committee otherwise consents or
unless the Stock Option agreement or grant provide otherwise: (i) no
Stock Options granted under the Plan may be sold, exchanged,
transferred, pledged, assigned, or otherwise alienated or hypothecated
except by will or the laws of descent and distribution; and (ii) all
Stock Options granted to a Participant shall be exercisable during the
Participant's lifetime only by such Participant, his guardian, or legal
representative.
(b) Other Restrictions. The Committee may impose other
restrictions on any shares of Common Stock acquired pursuant to the
exercise of a Stock Option under the Plan as the Committee deems
advisable, including, without limitation, restrictions under applicable
federal or state securities laws.
5.8 Termination of Employment or Directorship.
(a) General. If an employee Participant ceases to be
employed by or a director of Guardsman or one of its Subsidiaries for
any reason other than the Participant's death, disability, Retirement,
or termination for cause, the Participant may exercise his Stock
Options only for a period of three months after such termination of
employment status, but only to the extent the Participant was entitled
to exercise the Stock Options on the date of termination, unless the
Committee otherwise consents or the terms of the Stock Option agreement
or grant provide otherwise. For purposes of the Plan, the following
shall not be deemed a termination of employment status: (i) a transfer
of an employee from Guardsman to any Subsidiary; (ii) a leave of
absence, duly authorized in writing by Guardsman, for military service
or for any other purpose approved by Guardsman if the period of such
leave does not exceed 90 days; (iii) a leave of absence in excess of 90
days, duly authorized in writing by Guardsman, provided that the
employee's right to reemployment is guaranteed either by statute or
contract; or (iv) a termination of employment with continued service as
a director or officer.
(b) Death. If a Participant dies either while an employee
of Guardsman or one of its Subsidiaries or after the termination of
employment other than for cause but during the time when the
-16-
Participant could have exercised a Stock Option under the Plan, the
Stock Option issued to such Participant shall be exercisable by the
personal representative of such Participant or other successor to the
interest of the Participant for one year after the Participant's death,
but only to the extent that the Participant was entitled to exercise
the Stock Option on the date of death or termination of employment,
whichever first occurred, unless the Committee otherwise consents or
the terms of the Stock Option agreement or grant provide otherwise.
(c) Disability. If a Participant ceases to be an employee
of Guardsman or one of its Subsidiaries due to the Participant's
disability, the Participant may exercise a Stock Option for a period of
one year following such termination of employment, but only to the
extent that the Participant was entitled to exercise the Stock Option
on the date of such event, unless the Committee otherwise consents or
the terms of the Stock Option agreement or grant provide otherwise.
(d) Participant Retirement. If a Participant Retires as an
employee of Guardsman or one of its Subsidiaries, any Stock Option
granted under the Plan may be exercised during the remaining term of
the Stock Option, unless the terms of the Stock Option agreement or
grant provide otherwise.
(e) Termination for Cause. If a Participant is terminated
for cause, the Participant shall have no further right to exercise any
Stock Option previously granted.
(f) Directors. A Participant who is or becomes a
nonemployee director shall continue to be able to exercise his or her
options throughout their term unless the Participant's directorship is
terminated for cause, or the option agreement provides otherwise. In
the event of the Director's death or disability, his or her options
shall be exercisable throughout their term by the legal representative
or successor in interest to the options held by the Director.
SECTION 6
Restricted Stock
6.1 Grant. A Participant may be granted Restricted Stock under the
Plan. Restricted Stock shall be subject to such terms and conditions,
consistent with the other provisions of the Plan, as shall be determined
by the Committee in its sole discretion. The Committee may impose such
restrictions or conditions, consistent with the provisions of the Plan, to
the vesting of Restricted Stock as it deems appropriate. No more than
one-half of the total shares available for Incentive Awards under the Plan
shall be awarded in the form of Restricted Stock. Forfeited Restricted
Stock shall again become available for awards of Restricted Stock.
-17-
6.2 Restricted Stock Agreements. Awards of Restricted Stock shall be
evidenced by Restricted Stock agreements containing such terms and
conditions, consistent with the provisions of the Plan, as the Committee
shall from time to time determine. Unless a Restricted Stock agreement
provides otherwise, Restricted Stock Awards shall be subject to the terms
and conditions set forth in this Section 6.
6.3 Termination of Employment or Officer Status.
(a) General. In the event of termination of employment
during the Restricted Period for any reason other than death,
disability, Retirement, or termination for cause, then any shares of
Restricted Stock still subject to restrictions at the date of such
termination shall automatically be forfeited and returned to Guardsman;
provided, however, that in the event of a voluntary or involuntary
termination of the employment of a Participant by Guardsman, the
Committee may, in its sole discretion, waive the automatic forfeiture
of any or all such shares of Restricted Stock and/or may add such new
restrictions to such shares of Restricted Stock as it deems
appropriate. For purposes of the Plan, the following shall not be
deemed a termination of employment: (i) a transfer of an employee from
Guardsman to any Subsidiary; (ii) a leave of absence, duly authorized
in writing by Guardsman, for military service or for any other purpose
approved by Guardsman if the period of such leave does not exceed 90
days; (iii) a leave of absence in excess of 90 days, duly authorized in
writing by Guardsman, provided that the employee's right to
reemployment is guaranteed either by statute or contract; and (iv) a
termination of employment with continued service as a director or
officer.
(b) Death, Retirement, or Disability. Unless the Committee
otherwise consents or unless the terms of the Restricted Stock
agreement or grant provide otherwise, in the event a Participant
terminates his or her employment with Guardsman because of death,
disability, or Retirement during the Restricted Period, the
restrictions applicable to the shares of Restricted Stock shall
terminate automatically with respect to that number of shares (rounded
to the nearest whole number) equal to the total number of shares of
Restricted Stock granted to such Participant multiplied by the number
of full months that have elapsed since the date of grant divided by the
maximum number of full months of the Restricted Period. All remaining
shares shall be forfeited and returned to Guardsman; provided, however,
that the Committee may, in its sole discretion, waive the restrictions
remaining on any or all such remaining shares of Restricted Stock
either before or after the death, disability, or Retirement of the
Participant.
(c) Termination for Cause. If a Participant's employment
is terminated for cause, the Participant shall have no further right to
exercise or receive any Restricted Stock, and all Restricted Stock
-18-
still subject to restrictions at the date of such termination shall
automatically be forfeited and returned to Guardsman.
6.4 Restrictions on Transferability.
(a) General. Unless the Committee otherwise consents or
unless the terms of the Restricted Stock agreement or grant provide
otherwise: (i) shares of Restricted Stock shall not be sold,
exchanged, transferred, pledged, assigned, or otherwise alienated or
hypothecated during the Restricted Period except by will or the laws of
descent and distribution; and (ii) all rights with respect to
Restricted Stock granted to a Participant under the Plan shall be
exercisable during the Participant's lifetime only by such Participant,
his or her guardian, or legal representative.
(b) Other Restrictions. The Committee may impose other
restrictions on any shares of Common Stock acquired pursuant to an
award of Restricted Stock under the Plan as the Committee deems
advisable, including, without limitation, restrictions under applicable
federal or state securities laws.
6.5 Legending of Restricted Stock. Any certificates evidencing shares
of Restricted Stock awarded pursuant to the Plan shall bear the following
legend:
The shares represented by this certificate were issued subject
to certain restrictions under the Guardsman Products, Inc. 1995 LONG-
TERM INCENTIVE PLAN (the "Plan"). A copy of the Plan is on file in the
office of the Secretary of Guardsman. This certificate is held subject
to the terms and conditions contained in a restricted stock agreement
that includes a prohibition against the sale or transfer of the stock
represented by this certificate except in compliance with that
agreement, and that provides for forfeiture upon certain events.
6.6 Representations and Warranties. A Participant who is awarded
Restricted Stock shall represent and warrant that the Participant is
acquiring the Restricted Stock for the Participant's own account and
investment and without any intention to resell or redistribute the
Restricted Stock. The Participant shall agree not to resell or distribute
such Restricted Stock after the Restricted Period except upon such
conditions as Guardsman may reasonably specify to ensure compliance with
federal and state securities laws.
6.7 Rights as a Stockholder. A Participant shall have all voting,
dividend, liquidation, and other rights with respect to Restricted Stock
held of record by such Participant as if the Participant held unrestricted
Common Stock; provided, however, that the unvested portion of any award of
Restricted Stock shall be subject to any restrictions on transferability or
risks of forfeiture imposed pursuant to subsections 6.1 and 6.4 of the Plan.
Unless the Committee otherwise determines or unless the terms of the
-19-
Restricted Stock agreement or grant provide otherwise, any noncash dividends
or distributions paid with respect to shares of unvested Restricted Stock
shall be subject to the same restrictions as the shares to which such
dividends or distributions relate.
SECTION 7
Stock Awards
7.1 Grant. A Participant may be granted one or more Stock Awards
under the Plan in lieu of, or as payment for, the rights of a Participant
under any other compensation plan, policy, or program of Guardsman or its
Subsidiaries. Stock Awards shall be subject to such terms and conditions,
consistent with the other provisions of the Plan, as may be determined by
the Committee in its sole discretion.
7.2 Rights as a Stockholder. A Participant shall have all voting,
dividend, liquidation, and other rights with respect to shares of Common
Stock issued to the Participant as a Stock Award under this Section 7 upon
the Participant becoming the holder of record of the Common Stock granted
pursuant to such Stock Awards; provided, however, that the Committee may
impose such restrictions on the assignment or transfer of Common Stock
awarded pursuant to a Stock Award as it deems appropriate.
SECTION 8
Stock Appreciation Rights
8.1 Grant. The Committee may grant Stock Appreciation Rights to
individuals granted related options under the Plan.
8.2 Restrictions. A Stock Appreciation Right may be granted
simultaneously with or subsequent to the option to which the right is
related, but each Stock Appreciation Right must relate to a particular
option. In exchange for the surrender in whole or in part of the right to
exercise the related option to purchase shares of Common Stock, the exercise
of a Stock Appreciation Right shall entitle a Plan participant to an amount
equal to the appreciation in value of the shares covered by the related
option surrendered. Such appreciation in value shall be equal to the excess
of the market value of such shares at the time of the exercise of the Stock
Appreciation Right over the option price of such shares. Stock Appreciation
Rights may be exercised only when the related option could be exercised and
only when the market price of the stock subject to the option exceeds the
exercise price of the option. Neither a Stock Appreciation Right nor any
related stock option issued to officers and directors subject to Section 16 of
the Securities and Exchange Act of 1934 shall be exercisable during the first
six months of the terms of the respective right or option.
-20-
8.3 Payment. Upon the exercise of a Stock Appreciation Right, payment
by Guardsman may be made in cash, in shares of Common Stock, or partly in cash
and partly in shares of Common Stock. The Committee shall have sole
discretion to determine the form of payment made upon the exercise of a Stock
Appreciation Right. If payment is made in shares of Common Stock, such shares
shall be valued at their market value as of the date of surrender of the right
to exercise the option. When an appreciation right is exercised pursuant to
an option, the shares subject to the underlying option shall no longer be
available for grant of Incentive Awards under the Plan.
SECTION 9
Tax Benefit Rights
9.1 Grant. A Participant may be granted Tax Benefit Rights under the
Plan to encourage a Participant to exercise Stock Options and provide certain
tax benefits to Guardsman. A Tax Benefit Right entitles a Participant to
receive from Guardsman or a Subsidiary a cash payment not to exceed the amount
calculated by multiplying the ordinary income, if any, realized by the
Participant for federal tax purposes as a result of the exercise of a
nonqualified stock option, or the disqualifying disposition of shares acquired
under an incentive stock option, by the maximum federal income tax rate
(including any surtax or similar charge or assessment) for corporations, plus
the applicable state and local tax imposed on the exercise of the Stock Option
or the disqualifying disposition.
9.2 Restrictions. A Tax Benefit Right may be granted under the Plan
only with respect to a stock option issued and outstanding or to be issued
under the Plan or any other plan of Guardsman or its Subsidiaries that has
been approved by the stockholders as of the date of the Plan and may be
granted concurrently with or after the grant of the stock option. Such rights
with respect to outstanding stock options shall be issued only with the
consent of the Participant if the effect would be to disqualify an incentive
stock option, change the date of grant or the exercise price, or otherwise
impair the Participant's existing stock options. A stock option to which a
Tax Benefit Right has been attached shall not be exercisable by a director or
officer subject to Section 16 of the Act for a period of six months from the
date of the grant of the Tax Benefit Right.
9.3 Terms and Conditions. The Committee shall determine the terms and
conditions of any Tax Benefit Rights granted and the Participants to whom such
rights will be granted with respect to stock options under the Plan or any
other plan of Guardsman. The Committee may amend, cancel, limit the term of,
or limit the amount payable under a Tax Benefit Right at any time prior to the
exercise of the related stock option, unless otherwise provided under the
terms of the Tax Benefit Right. The net amount of a Tax Benefit Right, subject
to withholding, may be used to pay a portion of the stock option price, unless
otherwise provided by the Committee.
-21-
SECTION 10
Change in Control
10.1 Acceleration of Vesting. If a Change in Control of Guardsman shall
occur, then, unless the Committee or the Board otherwise determines with
respect to one or more Incentive Awards, without action by the Committee or
the Board (a) all outstanding Stock Options shall become immediately
exercisable in full and shall remain exercisable during the remaining term
thereof, regardless of whether the Participants to whom such Stock Options
have been granted remain in the employ or service of Guardsman or any
Subsidiary; and (b) all other outstanding Incentive Awards shall become
immediately fully vested and nonforfeitable.
10.2 Cash Payment for Stock Options. If a Change in Control of
Guardsman shall occur, then the Committee, in its sole discretion, and
without the consent of any Participant affected thereby, may determine that
some or all Participants holding outstanding Stock Options shall receive,
with respect to some or all of the shares of Common Stock subject to such
Stock Options, as of the effective date of any such Change in Control of
Guardsman, cash in an amount equal to the greater of the excess of (a) the
highest sales price of the shares on the New York Stock Exchange on the date
immediately prior to the effective date of such Change in Control of
Guardsman or (b) the highest price per share actually paid in connection
with any Change in Control of Guardsman over the exercise price per share of
such Stock Options.
SECTION 11
General Provisions
11.1 No Rights to Awards. No Participant or other person shall have
any claim to be granted any Incentive Award under the Plan, and there is no
obligation of uniformity of treatment of Participants or holders or
beneficiaries of Incentive Awards under the Plan. The terms and conditions
of Incentive Awards of the same type and the determination of the Committee
to grant a waiver or modification of any Incentive Award and the terms and
conditions thereof need not be the same with respect to each Participant.
11.2 Withholding. Guardsman or a Subsidiary shall be entitled to (a)
withhold and deduct from future wages of a Participant (or from other
amounts that may be due and owing to a Participant from Guardsman or a
Subsidiary), or make other arrangements for the collection of, all legally
required amounts necessary to satisfy any and all federal, state, and local
withholding and employment-related tax requirements attributable to an
Incentive Award, including, without limitation, the grant, exercise, or
vesting of, or payment of dividends with respect to, an Incentive Award or a
disqualifying disposition of Common Stock received upon exercise of an
incentive stock option; or (b) require a Participant promptly to remit the
-22-
amount of such withholding to Guardsman before taking any action with respect
to an Incentive Award. Unless the Committee determines otherwise,
withholding may be satisfied by withholding Common Stock to be received upon
exercise or by delivery to Guardsman of previously owned Common Stock.
Guardsman may establish such rules and procedures concerning timing of any
withholding election as it deems appropriate to comply with Rule 16b-3 under
the Act.
11.3 Compliance With Laws; Listing and Registration of Shares. All
Incentive Awards granted under the Plan (and all issuances of Common Stock or
other securities under the Plan) shall be subject to all applicable laws,
rules, and regulations, and to the requirement that if at any time the
Committee shall determine, in its discretion, that the listing, registration,
or qualification of the shares covered thereby upon any securities exchange
or under any state or federal law, or the consent or approval of any
governmental regulatory body, is necessary or desirable as a condition of, or
in connection with, the grant of such Incentive Award or the issue or purchase
of shares thereunder, such Incentive Award may not be exercised in whole or in
part, or the restrictions on such Incentive Award shall not lapse, unless and
until such listing, registration, qualification, consent, or approval shall
have been effected or obtained free of any conditions not acceptable to the
Committee.
11.4 Limit on Plan Awards. No Participant shall be eligible to receive
Incentive Awards under the Plan which in the aggregate constitute more than 25%
of the total Incentive Awards granted under the Plan.
11.5 No Limit on Other Compensation Arrangements. Nothing contained in
the Plan shall prevent Guardsman or any Subsidiary from adopting or continuing
in effect other or additional compensation arrangements, including the grant
of stock options and other stock-based awards, and such arrangements may be
either generally applicable or applicable only in specific cases.
11.6 No Right to Employment. The grant of an Incentive Award shall not
be construed as giving a Participant the right to be retained in the employ
of Guardsman or any Subsidiary. Guardsman or any Subsidiary may at any time
dismiss a Participant from employment, free from any liability or any claim
under the Plan, unless otherwise expressly provided in the Plan or in any
written agreement with a Participant.
11.7 Governing Law. The validity, construction, and effect of the
Plan and any rules and regulations relating to the Plan shall be determined
in accordance with the laws of the State of Delaware and applicable federal
law.
11.8 Severability. In the event any provision of the Plan shall be held
illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining provisions of the Plan, and the Plan shall be construed
and enforced as if the illegal or invalid provision had not been included.
-23-
11.9 Advisory Director. References to employment, as the context
requires, shall be deemed to include service to Guardsman as an advisory
director.
SECTION 12
Termination and Amendment
The Board may terminate the Plan at any time, or may from time to
time amend the Plan as it deems proper and in the best interests of
Guardsman, provided that without stockholder approval no such amendment may:
(a) materially increase either the benefits to Participants under the Plan
or the number of shares that may be issued under the Plan; (b) materially
modify the eligibility requirements; (c) modify the formula grant provisions
of subsection 5.5 with respect to nonemployee directors more than once in
any six month period, or (d) impair any outstanding Incentive Award without
the consent of the Participant, except according to the terms of the Plan or
the Incentive Award. No termination, amendment, or modification of the Plan
shall become effective with respect to any Incentive Award previously granted
under the Plan without the prior written consent of the Participant holding
such Incentive Award unless such amendment or modification operates solely
to the benefit of the Participant.
SECTION 13
Effective Date and Duration of the Plan
This Plan shall take effect upon approval by the stockholders at
the 1995 Annual Meeting of Stockholders or any adjournment thereof or at a
Special Meeting of Stockholders. Unless earlier terminated by the Board of
Directors, the Plan shall terminate on May 10, 2005. No Incentive Award
shall be granted under the Plan after such date.
-24-
EXHIBIT 5 AND EXHIBIT 23(c)
August 9, 1995
Guardsman Products, Inc.
3033 Orchard Vista Drive, S.E.
Suite 200
P.O. Box 1521
Grand Rapids, Michigan 49501-1521
Ladies and Gentlemen:
As general counsel for Guardsman Products, Inc., a Delaware
corporation (hereinafter called the "Company"), we have examined and
are familiar with the Company's Certificate of Incorporation, Bylaws,
and other corporate records and documents and have made such further
examination as we have deemed necessary or advisable in order to enable
us to render this opinion. Based upon the foregoing, we are of the
opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Delaware.
2. The Company has an authorized capitalization of
30,000,000 shares of Common Stock, par value $1 per share, and
1,000,000 shares of Preferred Stock, par value $1 per share.
3. The 470,000 shares being registered on Form S-8 under
the Securities Act of 1933 are authorized shares of Common Stock
and such shares, when issued pursuant to the Guardsman Products,
Inc. 1995 Long-Term Incentive Plan will be legally issued and
outstanding, fully paid and nonassessable.
We hereby consent to the reference to us under the caption
"Legal Opinion" contained in the Registration Statement and to the
filing of this opinion and consent as an exhibit to the Registration
Statement on Form S-8 covering the Common Stock to be issued pursuant
to this Registration Statement.
Very truly yours,
WARNER NORCROSS & JUDD LLP
By /s/ Stephen C. Waterbury
Stephen C. Waterbury
A Partner
-25-
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated January
26, 1995, included in Guardsman Products, Inc.'s Form 10-K for the year
ended December 31, 1994 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Grand Rapids, Michigan,
August 8, 1995
-26-
EXHIBIT 23-B--CONSENT OF PRIOR INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Form S-8 Registration
Statement pertaining to the 1995 Long-Term Incentive Plan of Guardsman
Products, Inc. of our report dated January 27, 1993, with respect to the
consolidated financial statements of Guardsman Products, Inc. incorporated
by reference in its Annual Report (Form 10-K) for the year ended December
31, 1994 and the related financial statement schedule included therein,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Grand Rapids, Michigan
August 8, 1995
-27-
