<PAGE> 1
As filed with the Securities and Exchange Commission on February 20, 1996
Registration No. 33-46182
__________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
Amendment 1 to Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------
MEDUSA CORPORATION
(Exact name of registrant as specified in its charter)
Ohio 34-039-4630
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
3008 Monticello Boulevard
Cleveland Heights, Ohio 44118
(Address of Principal Executive Offices) (Zip Code)
MEDUSA CORPORATION
1991 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
John P. Siegfried, Secretary
Medusa Corporation
3008 Monticello Boulevard
Cleveland Heights, Ohio 44118
(Name and address of agent for service)
(216) 371-4000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum
Title of Additional offering aggregate Amount of
securities Amount to be price per offering registration
to be registered registered share(1) price(1) fee
<S> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------------
Common Shares, without par value 1,000,000 $24.25 $24,250,000 $8,362
shares
</TABLE>
(1)Inserted solely for the purpose of calculating the registration fee
pursuant to Rule 457(h). The fee is calculated, as to the 1,000,000 shares, on
the basis of the average of the high and low prices for the Registrant's Common
Shares reported on the New York Stock Exchange-Composite Tape on May 9, 1994
($24.25 per share) (see attached).
__________________________________________________________________
<PAGE> 2
AMENDED AND RESTATED
PART I
PROSPECTUS
MEDUSA CORPORATION
OFFERED AS SET FORTH HEREIN TO OFFICERS AND CERTAIN KEY EMPLOYEES OF MEDUSA
CORPORATION, ("MEDUSA" OR "THE "COMPANY") AND ITS SUBSIDIARY
COMPANIES PURSUANT TO THE FOLLOWING:
_________________________
1991 LONG-TERM INCENTIVE PLAN
(1,500,000 COMMON SHARES,
WITHOUT PAR VALUE)
_________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
____________________
THE DATE OF THIS AMENDED AND RESTATED PROSPECTUS IS FEBRUARY 20, 1996.
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AMENDED AND RESTATED
THIS MATERIAL CONSTITUTES PART OF THE PROSPECTUS
COVERING THESE SECURITIES,
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
MEDUSA CORPORATION
SUMMARY OF THE PLAN
The Board of Directors of Medusa Corporation ("Medusa" or the
"Company") adopted a new incentive benefit plan on February 25, 1991, believing
that the continuation of a sound long-term incentive benefit program was in the
best interests of Medusa in its continuing efforts to attract and retain highly
competent employees and to act as an incentive in motivating selected officers
and other key employees of Medusa and its subsidiaries to achieve long-term
corporate objectives. The 1991 Long-Term Incentive Plan of Medusa Corporation
("1991 Plan") was approved by the shareholders of Medusa at the Annual Meeting
of Shareholders held on May 6, 1991. The 1991 Plan allows the Organization and
Compensation Committee of the Board of Directors (the "Committee") the
flexibility to award various types of long-term compensation incentives. Such
grants may, but need not, be based upon criteria such as increased shareholder
value, earnings per share, return on investment, return on shareholders' equity
and other company and individual performance goals.
The 1991 Plan may be amended, modified or terminated at any time by
action of the Board of Directors of the Company and, with the consent of the
participant, any outstanding agreement or award may be amended, modified or
terminated by action of the Committee. Shareholder approval is required for
any modification which would (i) increase the total number of Medusa
Corporation Common Shares, without par value (the "Common Shares"), with
respect to which options may be granted, (ii) change the employees or class of
employees to whom options may be granted or (iii) materially increase the
benefits accruing to participants under the 1991 Plan. Notwithstanding the
foregoing, Common Shares that are reserved for issuance pursuant to the 1991
Plan are appropriately and proportionately adjusted to reflect any stock
dividend, stock split or other change in the Company's capitalization. The
1991 Plan has no fixed expiration date. The Committee is authorized to
establish expiration and exercise dates on an award-by-award basis. However,
for the purpose of awarding Incentive Stock Options under Section 422A of the
Code, the 1991 Plan will expire on May 6, 2001, which is ten years from the
date of shareholder approval. The 1991 Plan is not subject to any provisions
of the Employee Retirement Income Security Act of 1974.
PLAN ADMINISTRATION
The 1991 Plan is administered by the Committee. The members of the
Committee are appointed by the full Board of Directors of the Company for
one-year terms. All Committee members are ineligible, and have been ineligible
for a period of at least one year prior to their appointment, to participate in
the 1991 Plan or any other restricted stock, stock option or stock appreciation
right plan of the Company or any of its affiliates. The names of the members
of the Committee who presently administer the 1991 Plan are:
Dorsey R. Gardner
Jean Gaulin
Dwight C. Minton
Boris Yavitz, Chairman
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Each of the members and the Committee maintains an address for
correspondence with respect to Committee business at the offices of the
Company, at 3008 Monticello Boulevard, Cleveland Heights, Ohio 44118.
Subject to the express terms of the 1991 Plan, the Committee has
conclusive authority to construe and interpret the 1991 Plan, any restricted
stock, stock option or stock appreciation right agreement entered into
thereunder, and to establish, amend and rescind rules and regulations for its
administration. The Committee also has such additional authority with respect
to the 1991 Plan as the Board of Directors may from time-to-time determine to
be necessary or desirable.
PRINCIPAL FEATURES OF THE 1991 PLAN
AMOUNT OF STOCK - The 1991 Plan currently provides for awards of up to
1,500,000 shares, subject to anti-dilution adjustments upon the occurrence of
significant corporate events. The shares to be offered under the 1991 Plan
will be either authorized and unissued shares or issued shares which have been
reacquired by Medusa.
ELIGIBILITY AND PARTICIPATION - All officers and Committee-designated
key employees of Medusa or any subsidiary are eligible to participate,
including officers who are also Directors of Medusa or its subsidiaries. The
Committee may also grant awards to non-employees who, in the judgment of the
Committee, render significant service to Medusa or any of its subsidiaries.
With respect to future awards, at the time of the filing of this amendment, the
Committee has made no determination as to the particular officers and key
employees to whom long-term incentive benefits under the 1991 Plan will be
made, the type of incentive compensation under the 1991 Plan which will be
awarded or the number of share benefits which will be awarded to any person.
RESTRICTED SHARE COMPONENT OF THE 1991 PLAN
The Committee may award to a participant Common Shares subject to
specified restrictions ("Restricted Shares"). Restricted Shares are subject to
forfeiture if the participant does not meet certain conditions such as
continued employment over a specified forfeiture period (the "Forfeiture
Period") and/or the attainment of specified performance targets over the
Forfeiture Period. The terms and conditions of Restricted Share awards are
determined by the Committee, provided that, unless otherwise determined by the
Board, the specified Forfeiture Period may not be less than one year.
Participants who have been awarded Restricted Shares will have all of
the rights of a holder of outstanding Common Shares, including the right to
vote such shares and to receive dividends. During the Forfeiture Period,
Restricted Shares are nontransferable and may be held in custody by Medusa or
its designated agent, or if the certificate is properly legended, by the
participant. Upon the lapse or release of all restrictions, an unrestricted
certificate will be provided to the participant.
The Committee, at its sole discretion, may waive all restrictions with
respect to a Restricted Share award under certain circumstances (including the
death, disability, or retirement of a participant, or a material change in
circumstances arising after the date of grant) subject to such terms and
conditions as it deems appropriate. However, only the Board may waive
restrictions within one year of the date of grant.
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STOCK OPTION COMPONENT OF THE 1991 PLAN
The Committee may grant to a participant non-qualified stock options,
Incentive Stock Options or a combination thereof. The terms and conditions of
stock option grants including the quantity, price, waiting periods, and other
conditions on exercise will be determined by the Committee. Incentive Stock
Option grants are made in accordance with Section 422A of the Code.
The exercise price for stock options will be determined by the
Committee at its discretion, provided that the exercise price for each
Incentive Stock Option is at least equal to 100% of the fair market value of a
Common Share on the date when the stock option is granted. Unless otherwise
authorized by the Board, generally no stock option may be exercised prior to
six months from the date of grant.
Upon a participant's termination of employment for any reason, any
stock options which were not exercisable on the participant's termination date
will expire. In the case of a participant who retires from Medusa and
continues to render significant services to Medusa after retirement, the
Committee, at its discretion, may permit the period during which the
participant continues to render such services to Medusa to count toward the
participant's vesting requirement with respect to stock options that were not
exercisable at the time of the participant's termination of employment.
Except with respect to stock option awards made by the Committee after
May 9, 1994 to the Chairman and President ("Senior Executive Officers"; whose
awards continue to survive on a post-employment basis for the balance of the
exercise period), upon a participant's termination of employment for reasons
other than death, disability or normal retirement, stock options which were
exercisable on the participant's termination date will expire three months from
the date of termination, unless the right to exercise the options is extended
by the Committee at its discretion. In general, upon a participant's
termination by reason of death, disability or normal retirement, stock options
which were exercisable on the participant's termination date may continue to be
exercised by the participant (or the participant's beneficiary) for a period of
five years from the date of the participant's termination of employment.
Subject to the Committee's discretion, payment for Common Shares on
the exercise of stock options may be made in cash, Common Shares, a combination
of cash and Common Shares or in any other form of consideration acceptable to
the Committee (including one or more "cashless" exercise forms). The Committee
has the discretion to cause Medusa to assist a participant in exercising stock
options by lending sufficient cash to the participant or by guaranteeing a
participant's bank loan. In such event, Medusa would hold the shares acquired
upon exercise of the option as security for repayment of the loan. On March
27, 1995, the Board of Directors approved a non-substantive amendment to the
1991 Plan, authorizing an annual limitation of 100,000 in the issuance of stock
options to a participant, thereby qualifying such awards as "performance-based
compensation" under Section 162(m) of the Code.
STOCK APPRECIATION RIGHT COMPONENT OF THE 1991 PLAN
Stock Appreciation Rights ("SARs") may be granted by the Committee to
a participant either separate from or in tandem with non-qualified stock
options or Incentive Stock Options. SARs may be granted at the time of the
stock option grant or, with respect to non-qualified stock options, at anytime
prior to the exercise of the stock option. An SAR entitles the participant to
receive, upon its exercise, a payment equal to (i) the difference between the
SAR exercise price and the fair market value of a Common Share on the exercise
date, times (ii) the number of Common Shares with respect to which the SAR is
exercised. Upon exercise of an
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<PAGE> 6
SAR with respect to Common Shares, the number of Common Shares covered by the
SARs related stock option, if any, are correspondingly reduced.
SARs granted in tandem with options are generally governed by the same
terms and conditions as govern the related stock option and may only be
exercised to the extent the related stock option is exercisable. However, SARs
which are granted in tandem with previously granted non-qualified stock options
cannot be exercised prior to six months from the date of the SAR grant.
The exercise price of an SAR is determined by the Committee, but in
the case of SARs granted in tandem with stock options, may not be less than the
exercise price of the related stock option. Upon exercise of an SAR, payment
will be made in cash or Common Shares, or a combination thereof, as determined
at the discretion of the Committee. On March 27, 1995, the Board of Directors
approved a non-substantive amendment to the 1991 Plan, authorizing an annual
limitation of 100,000 in the issuance of SARs to a participant, thereby
qualifying such awards as "performance-based compensation" under Section 162(m)
of the Code. (Note: Through December 31, 1995, the Committee has not awarded
any SARs under the 1991 Plan.)
PERFORMANCE AWARD COMPONENT OF THE 1991 PLAN
The Committee may grant performance awards to participants under such
terms and conditions as the Committee deems appropriate. A performance award
entitles a participant to receive a payment from Medusa, the amount of which is
based upon the attainment of predetermined performance targets over a specified
award period. Performance awards may be made in conjunction with Restricted
Share awards. Performance awards may be paid in cash, Common Shares or a
combination thereof, as determined by the Committee.
Award periods will be established at the discretion of the Committee.
The performance targets will also be determined by the Committee and may, but
need not include specified levels of earnings per share, return on investment,
return on shareholders' equity and/or such other goals related to the Company's
or the individual's performance as are deemed appropriate by the Committee.
When circumstances occur which cause predetermined performance targets to be an
inappropriate measure of achievement, the Committee, at its discretion, may
adjust the performance targets.
If the minimum performance targets established by the Committee are
not met, no payment will be made to the participant. If the performance
targets are fully achieved, 100% of the performance award will be paid to the
participant. The Committee may also provide for payment of up to 150% of a
performance award for achievement which exceeds the performance targets.
If a participant terminates employment prior to the end of an award
period, the participant generally will forfeit all rights to any performance
award, unless otherwise provided by the Committee. The Committee, at its
discretion, may determine to pay all or any portion of a performance award to a
participant who has terminated employment prior to the end of an award period
under certain circumstances (including death, disability, retirement or a
material change in circumstances arising after the date of grant), provided
that the participant completed at least one year of employment following the
grant of the award. The Board may determine to pay all or a portion of a
performance award to a participant who has terminated employment less than one
year following the date of grant.
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OTHER AWARDS
The Committee is authorized to grant any other cash awards, Common
Share awards or other types of awards which are valued in whole or in part by
reference to the value of Common Shares. The terms and conditions of such
awards and the participants eligible for such awards will be determined by the
Committee at its discretion.
SHARES SUBJECT TO THE 1991 PLAN
Effective May 9, 1994, up to 1,500,000 Common Shares in the aggregate
became available for issuance by the Committee under the 1991 Plan, subject to
further adjustment for any change in the Common Shares (including any change
which would result in a substantial dilution or enlargement of the rights or
economic benefit inuring to holders of shares or options issued under the 1991
Plan. Shares or options which, from time-to-time, are awarded by the Committee
under the 1991 Plan will be made available either from authorized and unissued
Common Shares or from reacquired Common Shares, including shares purchased in
the open market. If any Common Shares awarded under the 1991 Plan are
reacquired by the Company pursuant to the forfeiture provisions of the 1991
Plan, such shares shall again become available for use under the 1991 Plan and
shall be regarded as not having been previously awarded.
AWARDS UNDER THE 1991 PLAN
With respect to the fiscal years 1991, 1992, 1993, 1994 and 1995, the
Committee awarded under the 1991 Plan, 82,500, 82,500, 112,500, 79,950 and
112,820 Restricted Shares, respectively, and 130,125, 153,750, 174,750, 246,000
and 247,000 stock options, respectively, all at fair market value on the date
of award, under award terms listed in detail as follows:
A) RESTRICTED STOCK AWARDED FROM 1991 THROUGH 1995
PERFORMANCE RESTRICTED SHARES AWARDED IN 1991 AND 1992 - In
respect to the fiscal 1991 and fiscal 1992 awards, and pursuant to the
Performance Restricted Share Agreements between the Company and the
participants, 50% of each share award is restricted until a test date
2 1/2 years from the date of the award and 50% of the award is
restricted until a test date 5 years from the date of the award. In
order for the shares restriction to lapse, the Growth Rate of the
Common Shares on a test date must meet or exceed, cumulatively, 15%
per annum over the award price. (The term "Growth Rate," includes
market value appreciation, distributions and dividends.) If the
restrictions on the initial 50% of the share award fail to lapse on
the 2 1/2-year test date, then such portion is not forfeit until it is
retested on the 5-year test date. By agreement, upon the lapse of
restrictions, the Company will provide additional compensation ("Gross
up") in an amount sufficient to pay the recipient's tax liability on
the Performance Restricted Shares.
PERFORMANCE RESTRICTED SHARES AWARDED IN 1993 AND 1994 - In
respect to the fiscal 1993 and fiscal 1994 awards, and pursuant to the
Performance Restricted Share Agreements between the Company and the
participants, 50% of each share award is restricted until a test date
2 1/2 years from the date of the award and 50% of the award is
restricted until a test date 5 years from the date of the award. In
order for the share restrictions to lapse, two requirements must be
met: a) the value of a Common Share (adjusted for stock distribution,
but not reflecting dividends) may not decline from the date of the
award to a test date; and b) the Common Share Growth Rate must meet or
exceed 125% of the Growth Rate of the Standard and Poor's 500
Composite, when measured from the date of the award
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<PAGE> 8
to a test date. If the restrictions on the initial 50% of the share
award fail to lapse on the 2 1/2 year test date, then such portion is
not forfeit until it is retested on the 5-year test date. By
agreement, upon the lapse of restrictions, the Company will Gross-up
participants' compensation. On May 9, 1994, the shareholders approved
the material terms of performance goals contained in the fiscal 1993
and 1994 Performance Restricted Share awards, thereby qualifying such
awards as "performance-based compensation" under Section 162(m) of the
Code.
RESTRICTED SHARES AWARDED IN 1995 - In respect to the fiscal
1995 awards, and pursuant to the Restricted Share Agreements between
the Company and the participants, the number of Restricted Shares
awarded (restricted for a period of up to 5 years) is divided into two
portions, as follows: a) a Supplemental Executive Retirement Plan
("SERP")-Equivalent portion, consisting of time-based Restricted
Shares (with the number awarded to be determined by the Company's
actuary, based upon the terms and conditions of the Company's
SERP-Equivalent Plan), and b) a Performance Restricted Share portion,
the balance of the award, which consists of performance-based shares.
A one-fifth portion of the Performance Restricted Share award is
thereafter tested in each year during the restriction period. In
order for the share restrictions to lapse, two requirements must be
met: (i) the value of a Common Share (adjusted for stock
distributions, but not reflecting dividends) may not decline from the
date of the award to a test date; and (ii) the Common Share Growth
Rate must meet or exceed 110% of the Growth Rate of a "Cement Industry
Peer Group," when measured from the date of the award to a test date.
There is also a provision for "Partial Lapses" with respect to
proportionate amounts of the shares in 10% increments if more than
101%, but less than 110% of the performance objective is attained.
(i.e., a 101% Growth Rate causes the restrictions to lapse with
respect to 10% of the shares, etc.). If the restrictions on all or
part of any one-fifth portion of the share award fails to lapse, then
such portion or portions are not forfeit until they are retested, as
applicable, during the 5-year restriction period. By agreement, upon
the lapse of restrictions on Performance Restricted Shares, the
Company will Gross-up participants' compensation.
AIP RESTRICTED SHARES AWARDED IN 1994 AND 1995 - In fiscal
1994 and fiscal 1995, the Committee authorized the executive officers
of the Company to elect to take their 1993 and 1994 Annual Incentive
Plan awards, respectively, in time-based Restricted Shares instead of
cash, with a 2-year share restriction period, an election under
Section 83(b) of the Code and a Gross-up.
GENERAL - The recipient of an award of Restricted Shares will
not, with respect to such award, be deemed to have become a
participant or to have any rights with respect to such award, unless
and until such recipient executes an agreement or other instrument
evidencing the award and delivers a fully executed copy thereof to the
Company and otherwise complies with the then applicable terms and
conditions of such award.
Each participant will be issued a certificate in respect of
Restricted Shares awarded under the 1991 Plan. Such certificate will
be registered in the name of the participant, and will bear an
appropriate legend referring to the terms, conditions and restrictions
applicable to such award substantially in the following form:
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"The transferability of this certificate and the
Common Shares represented hereby are subject to the terms and
conditions (including forfeiture) of the Medusa Corporation
1991 Long-Term Incentive Plan and an Agreement entered into
between the registered owner and Medusa Corporation. Copies
of such Plan and Agreement are on file in the offices of the
Secretary, Medusa Corporation, 3008 Monticello Boulevard,
Cleveland Heights, Ohio 44118."
All certificates for Restricted Shares delivered under the
Plan will be subject to such stop-transfer orders and other
restrictions as the Committee may deem advisable under the rules,
regulations, and other requirements of the Securities and Exchange
Commission (the "Commission"), any stock exchange upon which the
Common Shares are then listed and any applicable federal or state
securities laws, and the Committee may cause a legend or legends to be
placed on any such certificates to make appropriate reference to such
restrictions.
The Committee may adopt rules which provide that the
certificates evidencing such Restricted Shares may be held in custody
by a bank or other institution, or that the Company may itself hold
such Restricted Shares in custody, until the restrictions thereon have
lapsed and may require, as a condition of any award, that the
participant deliver a stock power endorsed in blank relating to the
shares covered by such award.
Recipients of awards under the 1991 Plan are not required to
make any payment or provide consideration other than the rendering of
services to the Company in connection with the award of Restricted
Shares under the 1991 Plan.
RESTRICTIONS - With respect to the up to 5-year restriction
period for the SERP-Equivalent Restricted Shares and the Performance
Restricted Shares and the 2-year restriction period for the AIP Award
Restricted Shares described above commencing with the date of an award
(the "Restriction Period"), a participant will not be permitted to
sell, transfer, pledge or assign Restricted Shares awarded to him or
her. Any attempt to dispose of Restricted Shares in a manner contrary
to such restrictions shall be ineffective. However, no provisions of
the 1991 Plan preclude a participant from exchanging any Restricted
Shares for any other Common Shares that are similarly restricted.
FORFEITURE OF RESTRICTED SHARES - Except with respect to
Restricted Shares awards made by the Committee after May 9, 1994 to
Senior Executive Officers (whose awards continue to survive on a
post-employment basis for the balance of the Restriction Period), upon
termination of employment during the Restriction Period for any reason
or upon the end of the Restriction Period, in either case prior to the
lapse or termination of the relevant restrictions, all shares still
subject to restriction will be forfeited by the participant and will
be reacquired by the Company. In the event of a participant's
retirement, permanent total disability, or death, or in cases of
special circumstances, in its sole discretion, when it finds that a
waiver would be in the best interests of the Company, the Committee
may waive in whole or in part any or all remaining restrictions with
respect to such participant's Restricted Shares.
In the event of a change in control of the Company, any and
all remaining restrictions with respect to a participant's Restricted
Shares shall lapse. For purposes of the 1991 Plan, the term "Change
in Control" means any of the following events:
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"(a) The acquisition, other than from the Company,
by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) of
beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of either
(i) the Outstanding Company Common Shares or (ii) the
Company Voting Securities; provided, however, that the
following shall not constitute a Change in Control: any
acquisition by (A) the Company or any of its Subsidiaries, or
any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its Subsidiaries, or (B)
any corporation with respect to which, following such
acquisition, more than 60%, respectively, of the then
outstanding common shares of such corporation and the combined
voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly,
by all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the
Outstanding Company Common Shares and Company Voting
Securities immediately prior to such acquisition in
substantially the same proportion as their ownership,
immediately prior to such acquisition, of the Outstanding
Company Common Shares and Company Voting Securities, as the
case may be; or
(b) Individuals who constitute the Incumbent
Board cease for any reason to constitute in excess of
two-thirds of the Board; provided, however, that any
individual becoming a director subsequent to February 25, 1991
whose election or nomination for election by the Company was
approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose
initial assumption of office is in connection with an actual
or threatened election contest relating to the election of
members of the Board; or
(c) Approval by the shareholders of the Company
of a reorganization, merger or consolidation ("Merger"),
unless, all or substantially all of the individuals and
entities who were the respective beneficial owners of the
Outstanding Company Common Shares and Company Voting
Securities immediately prior to the Merger, following such
Merger do beneficially own, directly or indirectly, more than
60%, respectively, of the then outstanding common shares and
the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of
directors, as the case may be, of the corporation which
results from the Merger, in substantially the same proportion
as their ownership of the Outstanding Company Common Shares
and Company Voting Securities, as the case may be, immediately
prior to the Merger.
(d) Approval by the shareholders of the Company
of (i) a complete liquidation or dissolution of the Company
or (ii) a sale or other disposition of all or substantially
all of the assets of the Company other than to a corporation
with respect to which, following such sale or disposition,
more than 60%, respectively, of the then outstanding common
shares and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election
of directors is then owned beneficially, directly or
indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Company Common Shares and Company Voting
Securities immediately prior to such sale or disposition in
substantially the same proportion as their ownership of the
Outstanding Company Common Shares and Company Voting
Securities, as the case may be, immediately prior to such sale
or disposition."
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In the event of a Change in Control, stock options and SARs
immediately become exercisable, the restrictions on all Restricted
Shares lapse and all performance awards immediately become payable.
The 1991 Plan contains special provisions regarding the exercisability
of stock options and SARs in the event of a Change in Control by
individuals subject to Section 16(b) of the Exchange Act (certain
officers and directors).
DIVIDENDS AND OTHER RIGHTS - With respect to the Restricted
Shares, the participant shall have all of the rights of a shareholder
of the Company, including the right to vote the Restricted Shares and
receive cash dividends and other distributions with respect thereto;
provided nonetheless, that share distributions shall be subject to the
same restrictions as the Restricted Shares.
MISCELLANEOUS - No employee or other person will have any
claim or right to be granted Restricted Shares under the 1991 Plan,
and neither the 1991 Plan nor any action taken thereunder will be
construed as giving any participant, recipient, employee or other
person any right to be retained in the employ of the Company. Income
realized as a result of an award of Restricted Shares will not be
included in the participant's earnings for the purpose of any benefit
plan in which the participant may be enrolled or for which the
participant may become eligible unless otherwise specifically
authorized in such plan.
RESTRICTIONS ON RESALE OF COMMON SHARES - Under the Securities
Act of 1933, as amended (the "Securities Act"), persons participating
in the 1991 Plan who are deemed to be "Affiliates" of the Company are
restricted in the resale of the Common Shares owned by them (whether
such shares are acquired pursuant to the Plan or otherwise and even if
the shares are not, or are no longer, subject to the contractual
transferability restriction discussed above). For this purpose, an
"Affiliate" of the Company is any person who controls the Company, is
controlled by the Company, or is under common control with the
Company, whether directly or indirectly through one or more
intermediaries. A corporation's Affiliates would usually include all
persons whose security holdings are substantial enough to affect its
management. Also, all directors and executive or policy-making
officers are presumed to be Affiliates. Resales by Affiliates may be
made only pursuant to an effective registration statement under, or
pursuant to an exemption from, the registration requirements of the
Securities Act. One such exemption is provided for certain "brokers'
transactions" that comply with all the conditions set forth in Rule
144 of the Commission. No registration statement covering resales by
Affiliates is currently anticipated to be filed.
B) STOCK OPTIONS AWARDED FROM 1991 THROUGH 1995
GENERAL - The terms and conditions of the stock options
awarded under the 1991 Long-Term Incentive Plan are similar to the
terms and conditions of the awards under the Medusa Corporation 1988
Stock Option Plan. The fiscal 1991 through fiscal 1994 awards of
non-qualified stock options were granted for a period of five years
and the fiscal 1995 stock option awards were granted for a period of
ten years and are exercisable starting one year from date of grant at
a cumulative rate of 50% of the total shares available during the
second year, 75% during the third year and 100% thereafter. The
recipient of an award of stock options will not, with respect to such
award, be deemed to have become a participant or to have any rights
with respect to such award, unless and until such recipient executes
an agreement or other instrument evidencing the award and delivers a
fully executed copy thereof to the Company and otherwise complies with
the then applicable terms and conditions.
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ELIGIBILITY AND PARTICIPATION - All key employees of the
Company or any majority-owned subsidiary will be eligible to
participate, including officers or employees who may also be directors
of the Company or of any of its subsidiaries, but not including any
employee who owns more than 10% of the shares of the Company or any
such subsidiary. The Committee, in its discretion upon the
recommendation of management, will determine those employees who, as
key employees, shall be granted stock options in such amounts as may
be determined by the Committee.
PURCHASE PRICE - Incentive Stock Options will be granted at a
price not less than 100% of the average fair market value of the
shares on the date of grant. Shares available for option or so
optioned and the option price thereof will be increased or decreased
proportionately for any share split, share dividends or other similar
share adjustment. The Committee may make appropriate discretionary
adjustments or conversion for any future mergers, exchanges of
securities, reorganizations, liquidations in whole or in part or any
other corporate event which would result in a substantial diminution
of the economic benefit intended for the holders of options granted
under the 1991 Plan. The purchase price shall be paid in full upon
the exercise of an option either in cash or in whole or in part with
Common Shares previously owned by an optionee and valued on the basis
of fair market value on the date the option is exercised. The ability
to pay the purchase price with Common Shares would permit possible
"pyramiding" in successive and substantially simultaneous exercises.
Such pyramiding might permit an option holder to start with a
relatively small number of shares and exercise all of his or her then
exercisable share options with no additional cash (except for
fractional share adjustments) and no more investment than the original
shares. On May 8, 1992, all prior stock option award agreements were
retroactively amended to limit pyramiding activity by requiring a six
month share holding period and all subsequent stock option award
agreements have reflected the six month share holding period
requirement. Although it is not obligated to do so, the Committee may
authorize the acceptance of an optionee's surrender of his or her
right to exercise an option, or portion thereof, and the payment to
the optionee of the difference between the fair market value of the
shares underlying the option or portion thereof and the option price
thereof, in cash, or partly in cash and partly in shares.
CONDITIONS OF EXERCISE OF OPTION - Except with respect to
stock option awards made the Committee after May 9, 1994 to Senior
Executive Officers, each option may be exercised in whole or in part
(in lots of ten shares or a multiple thereof) commencing one year from
the date of grant and ending five or ten years from such date, as
applicable, but no more than five years after termination of
employment by reason of death, disability or retirement, or three
months after termination of employment for any reason other than the
above. In the case of death, the option may be exercised,
respectively, by the employee or his or her heirs only to the extent
that the employee was entitled thereto on the date of termination of
employment or death. No option shall be transferable by the
employee's heirs, except by will or by the laws of descent or
distribution. Beginning one year from the date of grant and subject
to the provisions of Section 422A of the Internal Revenue Code of 1986
with respect to the limitation on the aggregate fair market value of
options exercisable for the first time in any calendar year, an option
may be exercised by an employee at a cumulative rate not in excess of
50% of the total shares optioned during the second year, 75% during
the third year and 100% thereafter.
CHANGE IN CONTROL - (For the definition of Change in Control,
please refer to Page I-8.)
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CURRENT STATUS OF THE 1991 PLAN
As of December 31, 1995, the authorized share issuance authority which
remained in the plan (1,500,000 shares issuance authority, less awards and
cancellations) was 279,257 shares.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
GENERAL - The following is a brief description of the federal income
tax consequences under existing law generally applicable to awards under the
1991 Plan, and is not intended to represent an analysis of the tax rules as
applied to any individual recipient. EACH PARTICIPANT IS URGED TO CONSULT HIS
OR HER PERSONAL TAX ADVISOR WITH RESPECT TO THE APPLICATION OF THE TAX LAWS TO
HIS OR HER PERSONAL CIRCUMSTANCES, CHANGES IN THE LAWS AND THE POSSIBLE EFFECT
OF OTHER TAXES.
RESTRICTED SHARES - A participant will normally not recognize taxable
income upon an award of Restricted Shares, and Medusa will not be entitled to a
deduction until the lapse of the restrictions. Upon lapse of restrictions, the
participant will then recognize ordinary taxable income in an amount equal to
the fair market value of the Common Shares as to which the restrictions have
lapsed, and Medusa will be entitled to a deduction in the same amount.
However, a participant may elect under Section 83(b) to recognize taxable
ordinary income in the year the Restricted Shares are awarded in an amount
equal to the fair market value of the shares at that time, determined without
regard to the restrictions. In such event, Medusa will then be entitled to a
deduction in the same amount. Any gain or loss subsequently recognized by the
participant will be a capital gain or loss. If, after making a Section 83(b)
election, any Restricted Shares are forfeited, or if the fair market value at
vesting is lower than the amount on which the participant was taxed, the
participant cannot then claim a deduction.
STOCK OPTIONS - No tax is incurred by the participant (or expense
deductible by Medusa) upon the grant of a nonqualified stock option. At the
time of exercise of such an option, the difference between the exercise price
and the fair market value of Common Shares will constitute ordinary income.
Medusa will be allowed a deduction equal to the amount of ordinary income
recognized by the participant. In the case of Incentive Stock Options,
although no income is recognized upon exercise and Medusa is not entitled to a
deduction, the excess of the fair market value of Common Shares on the date of
exercise over the exercise price is treated by the participant as an item of
tax preference for alternative minimum tax purposes. If the participant does
not dispose of the shares acquired on the exercise of an Incentive Stock Option
within one year after their receipt (and within two years after the grant of
the stock option), gain or loss recognized on the disposition of the shares
will be treated as long-term capital gain or loss. In the event of an earlier
disposition, the participant may recognize ordinary income and Medusa will be
entitled to a deduction, equal to the amount of such income, when the
participant recognizes income.
STOCK APPRECIATION RIGHTS - The participant will not recognize any
income at the time of grant of an SAR. Upon the exercise of an SAR, the cash
and the value of any Common Shares received will constitute ordinary income to
the participant. Medusa will be entitled to a deduction in the amount of such
income at the time of exercise.
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<PAGE> 14
PERFORMANCE AWARDS - Normally, a participant will not recognize
taxable income upon the award of the above grants. Subsequently, when the
conditions and requirements for the grants have been satisfied and the payment
determined, any cash received and the fair market value of any Common Shares
received will constitute ordinary income to the participant. Medusa will also
then be entitled to a deduction in the same amount.
ALL AWARDS - The Committee has discretion as to any award under the
1991 Plan to award a participant a separate cash amount at exercise, vesting or
lapse of restrictions to meet mandatory tax withholding obligations or
reimburse for any individual taxes paid. Special tax rules may apply to any
awards granted under the 1991 Plan to individuals subject to Section 16 of the
Act.
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<PAGE> 15
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Medusa Corporation (the "Company") are
incorporated by reference into this Registration Statement:
1) The Company's Registration Statement on Form 10 filed
pursuant to Section 12-g of Exchange Act, as amended by the Company's
Forms 8 filed pursuant to Section 12 of the Exchange Act; the
Company's Registration Statement on Forms 8A filed pursuant to Section
12 of the Exchange Act as amended by the Company's Form 8 filed
pursuant to Section 12 of the Exchange Act.
2) The Company's Annual Report on Form 10-K for the year
ended December 31, 1994.
3) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1995, June 30, 1995 and September 30, 1995.
The consolidated financial statements incorporated in this Registration
Statement by reference to the Company's Annual Report on Form 10-K for the year
ended December 31, 1994 have been audited by Deloitte & Touche LLP, independent
accountants, as stated in their report which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm, given upon their authority as experts in auditing and accounting.
All documents subsequently filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement, but prior to the filing of a post-effective amendment
to this Registration Statement which indicates that all securities offered by
this Registration Statement have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement. Each document incorporated by
reference into this Registration Statement shall be deemed to be a part of this
Registration Statement from the date of the filing of such document with the
Commission until the information contained therein is superseded or updated by
any subsequently filed document which is incorporated by reference into this
Registration Statement or by any document which constitutes part of the
prospectus relating to the Medusa Corporation 1991 Long-Term Incentive Plan
(the "Plan") meeting the requirements of Section 10(a) of the Securities Act.
Item 4. Description of Securities
The class of securities to be offered under this Registration Statement is
registered under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
The legality of the Common Shares to which this Registration Statement relates
has been passed upon for the Company by John P. Siegfried, Vice President,
Secretary and General Counsel of the Company. Mr. Siegfried is paid a salary
by the Company,
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participates in benefit plans provided to executive officers of the Company,
from time-to-time, from fiscal 1991 through fiscal 1995, has been granted
Restricted Shares and stock options pursuant to the Plan, and is eligible for
further grants pursuant to the Plan.
Item 6. Indemnification of Directors and Officers
Section 1701.13 of the Ohio General Corporation Law, as amended, provides
in relevant part as follows:
(E)(1) A corporation may indemnify or agree to indemnify any
person who was or is a party or is threatened to be made a party, to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, other than
an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee or agent of another
corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust or other enterprise, against
expenses, including attorney's fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself create a
presumption that the person did not act in good faith, and in a manner
he reasonably believed to be in or not opposed to the best interests
of the corporation and, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was
unlawful.
(2) A corporation may indemnify or agree to indemnify any
person who was or is a party or is threatened to be made a party, to
any threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee or an agent of another
corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust or other enterprise, against
expenses, including attorney's fees, actually and reasonably incurred
by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made in respect of any of the
following:
(a) Any claim, issue or matter as to which such
person is adjudged to be liable for negligence or misconduct
in the performance of his duty to the corporation unless, and
only to the extent that the Court of Common Pleas or the court
in which such action or suit was brought determines upon
application that, despite the adjudication of liability, but
in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
as the Court of Common Pleas or such other court shall deem
proper;
(b) Any action or suit in which the only liability
asserted against a director is pursuant to Section 1701.95 of
the Revised Code.
(3) To the extent that a director, trustee, officer, employee
or agent has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in division (E)(1) and (2)
of this section, or in defense of any claim, issue or matter therein,
he shall be indemnified against expenses, including attorney's fees,
actually and reasonably incurred by him in connection with the action,
suit or proceeding.
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(4) Any indemnification under divisions (E)(1) and (2) of
this section, unless ordered by a court, shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the director, trustee, officer,
employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in divisions (E)(1) and
(2) of this section. Such determination shall be made as follows:
(a) By a majority vote of a quorum consisting of
directors of the indemnifying corporation who were not and are
not parties to or threatened with any such action, suit or
proceeding;
(b) If the quorum described in division (E)(4)(a) of
this section is not obtainable or if a majority vote of a
quorum of disinterested directors so directs, in a written
opinion by independent legal counsel other than an attorney,
or a firm having associated with it an attorney, who has been
retained by or who has performed services for the corporation
or any person to be indemnified within the past five years;
(c) By the shareholders; or
(d) By the Court of Common Pleas or the court in
which such action, suit or proceeding was brought.
Any determination made by the disinterested directors under division
(E)(4)(a) or by independent legal counsel under division (E)(4)(b) of this
section shall be promptly communicated to the person who threatened or brought
the action or suit, by or in the right of the corporation under division (E)(2)
of this section, and within ten days after receipt of such notification, such
person shall have the right to petition the Court of Common Pleas or the court
in which such action or suit was brought to review the reasonableness of such
determination.
(5) (a) Unless at the time of a director's act or omission that
is the subject of an action, suit or proceeding referred to in divisions
(E)(1) and (2) of this section, the articles or the regulations of a
corporation state by specific reference to this division that the
provisions of the division do not apply to the corporation and unless the
only liability asserted against a director in an action, suit or
proceeding referred to in divisions (E)(1) and (2) of this section is
pursuant to Section 1701.95 of the Revised Code, expenses, including
attorney's fees, incurred by a director in defending the action, suit or
proceeding shall be paid by the corporation as they are incurred, in
advance of the final disposition of the action, suit or proceeding upon
receipt of an undertaking by or on behalf of the director in which he
agrees to do both of the following:
(i) Repay such amount if it is proved by clear and
convincing evidence in a court of competent jurisdiction that
his action or failure to act involved an act or omission
undertaken with deliberate intent to cause injury to the
corporation or undertaken with reckless disregard for the best
interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning
the action, suit or proceeding.
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(b) Expenses, including attorney's fees, incurred by
a director, trustee, officer, employee or agent in defending
any action, suit or proceeding referred to in divisions (E)(1)
and (2) of this section, may be paid by the corporation as
they are incurred, in advance of the final disposition of the
action, suit or proceeding as authorized by the directors in
the specific case upon the receipt of an undertaking by or on
behalf of the director, trustee, officer, employee or agent to
repay such amount, if it ultimately is determined that he is
not entitled to be indemnified by the corporation.
(6) The indemnification authorized by this section shall not
be and shall be in addition to, exclusive of, any other rights granted
to those seeking indemnification under the articles or the regulations
or any agreement, vote of shareholders or disinterested directors, or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, and shall continue as
to a person who has ceased to be a director, trustee, officer,
employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(7) A corporation may purchase and maintain insurance or
furnish similar protection, including but not limited to trust funds,
letters of credit or self-insurance, on behalf of or for any person
who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee or agent of another
corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust or other enterprise, against any
liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such
liability under this section. Insurance may be purchased from or
maintained with a person in which the corporation has a financial
interest.
(8) The authority of a corporation to indemnify persons
pursuant to divisions (E)(1) and (2) of this section does not limit
the payment of expenses as they are incurred, indemnification,
insurance or other protection that may be provided pursuant to
divisions (E)(5), (6) and (7) of this section. Divisions (E)(1) and
(2) of this section do not create any obligation to repay or return
payments made by the corporation pursuant to divisions
(E)(5), (6) or (7).
(9) As used in this division, references to "corporation"
includes all constituent corporations in a consolidation or merger and
the new or surviving corporation, so that any person who is or was a
director, officer, employee or agent of such a constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, trustee, officer, employee or agent of
another corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust or other enterprise, shall stand in
the same position under this section with respect to the new or
surviving corporation as he would if he had served the new or
surviving corporation in the same capacity.
Article X of the Company's Articles of Incorporation provides as follows:
ARTICLE X
INDEMNIFICATION
SECTION 1. RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he, or a person of
whom he is the legal
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representative, is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as director, officer, trustee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, trustee or agent or in any other capacity while serving as a
director, officer, trustee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the Ohio General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, trustee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except, as provided in
Section 2 of this Article X, the Corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding as incurred and in advance of its final
disposition; provided, however, that the payment of such expenses as incurred
and in advance of the final disposition of a proceeding shall be made only upon
delivery to the Corporation of any undertaking required by the Ohio General
Corporation Law. The Corporation may, by action of its Board of Directors,
provide indemnification to agents of the Corporation and to employees of the
Corporation who are not directors or officers of the Corporation with the same
scope and effect as the foregoing indemnification of directors and officers.
SECTION 2. RIGHT OF CLAIMANT TO BRING SUIT. If a claim under Section 1 of
this Article X is not paid in full by the Corporation within thirty days after
a written claim has been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding as incurred and in advance of its
final disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Ohio General Corporation Law for
the Corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel, or its shareholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he has met the applicable standard of conduct set
forth in the Ohio General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or
its shareholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
SECTION 3. NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article X shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of the Articles or the Regulations of the Corporation, agreement,
vote of shareholders or disinterested directors or otherwise.
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<PAGE> 20
SECTION 4. INSURANCE. The Corporation may maintain insurance or furnish
similar protection, including but not limited to trust funds, letters of credit
or self-insurance, on behalf of or for itself and any person who is or was a
director, officer, employee or agent of the Corporation or is or was serving at
the request of the Corporation as a director, trustee, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him in
any such capacity or arising out of his status as such, whether or not the
Corporation would have the power to indemnify such person against such
liability under the Ohio General Corporation Law.
Item 7. Exhibits
The following exhibits are filed herewith as part of this Registration
Statement:
Exhibit No.
- -----------
4.1 Amended Articles of Incorporation of Medusa Corporation by
reference to Appendix V to the Company's Information Statement
(which was filed as an exhibit to the Amended Form 10, File
No. 0-17011).
4.2 Code of Regulations of Medusa Corporation incorporated by
reference to Appendix VI to the Company's Information
Statement (which was filed as an exhibit to the Amended Form
10, File No. 0-17011).
4.3 Medusa Corporation 1991 Long-Term Incentive Plan, as amended
through March 27, 1995.
4.4 Form of Medusa Corporation Performance Restricted Share
Agreement under 1991 Long-Term Incentive Plan. (form used for
1995 awards)
4.5 Form of Medusa Corporation Stock Option Agreement under 1991
Long-Term Incentive Plan. (form used for 1995 awards)
5.1 Opinion of John P. Siegfried, Vice President, Secretary and
General Counsel of the Company, as to the legality of the
securities being registered.
23.1 Consent of Independent Accountants.
23.2 The consent of John P. Siegfried to the use of his opinion as
an exhibit to this Registration Statement is included in his
opinion filed as Exhibit 5.1.
Item 8. 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:
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(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of 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;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 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.
c) 1) The undersigned registrant hereby undertakes to
deliver or cause to be delivered with the prospectus to each employee
to whom the prospectus is sent or given, a copy of the registrant's
annual report to shareholders for its last fiscal year, unless such
employee otherwise has received a copy of such report, in which case
the registrant shall state in the prospectus that it will promptly
furnish, without charge, a copy of such report on written request of
the employee. If the last fiscal year of the registrant has ended
within 120 days prior to the use of the prospectus, the annual report
of the registrant for the preceding fiscal year may be so delivered,
but within such 120-day period the annual report for the last fiscal
year will be furnished to each such employee.
(In the event that an appendix is utilized by the registrant
to update information in the prospectus, the registrant hereby
undertakes (i) to provide individuals who have already received
copies of the prospectus with a copy of any such current appendix,
(ii) to furnish an additional prospectus, upon request, to anyone who
misplaces or discards his previous copy, (iii) to supply new
participants in the Plan with both the prospectus and current appendix
and (iv) to file copies of such appendices with the Commission in
accordance with Rules 424(c) under the Securities Act of 1933.)
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2) The undersigned registrant hereby undertakes to transmit
or cause to be transmitted to all employees participating in the Plan,
who do not otherwise receive such material as shareholders of the
registrant, at the time and in the manner such material is sent to its
shareholders, copies of all reports, proxy statements and other
communications distributed to its shareholders generally.
* * * * * * *
h) Insofar as indemnification for liability arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by its is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
* * * * * * * * * *
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing an amended and restated 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 Cleveland, and the State
of Ohio on this 20th day of February, 1996.
MEDUSA CORPORATION
/s/ John P. Siegfried
By:_____________________________________
John P. Siegfried
Vice President, Secretary and General Counsel
(Principal Legal Officer)
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by John P. Siegfried, Esquire, who has been
authorized and appointed as attorney-in-fact to execute in the name of each
person and to file the above amendment to the Registration Statement making
such changes in the Registration Statement as the registrant deems appropriate.
II-8
<PAGE> 23
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Chairman, Chief Executive Officer
/s/ R. S. Evans and a Director
______________________________ (Principal Executive Officer) February 20, 1996
R. S. Evans
/s/ George E. Uding, Jr. President and a Director
______________________________ (Principal Operating Officer) February 20, 1996
George E. Uding, Jr.
/s/ R. Breck Denny Vice President-Finance and Treasurer
______________________________ (Principal Financial Officer) February 20, 1996
R. Breck Denny
/s/ Edward A. Doles Corporate Controller
______________________________ (Principal Accounting Officer) February 20, 1996
Edward A. Doles
______________________________ Director
Mone Anathan, III
/s/ E. Thayer Bigelow, Jr.
______________________________ Director February 20, 1996
E. Thayer Bigelow, Jr.
/s/ Richard S. Forte'
______________________________ Director February 20, 1996
Richard S. Forte'
/s/ Dorsey R. Gardner
______________________________ Director February 20, 1996
Dorsey R. Gardner
______________________________ Director
Jean Gaulin
/s/ Dwight C. Minton
______________________________ Director February 20, 1996
Dwight C. Minton
/s/ Charles J. Queenan, Jr.
______________________________ Director February 20, 1996
Charles J. Queenan, Jr.
/s/ Boris Yavitz
______________________________ Director February 20, 1996
Boris Yavitz
</TABLE>
II-9
<PAGE> 1
Exhibit 4.1
CERTIFICATE
OF
AMENDMENT TO
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
MEDUSA CORPORATION
George E. Uding, Jr., President, and John P. Siegfried,
Secretary, of Medusa Corporation, an Ohio corporation with its principal office
located in Cleveland Heights, Ohio, do hereby certify that a meeting of the
holders of shares of the Company entitling them to vote on the proposal to
adopt an amendment to the Amended and Restated Articles of Incorporation of
Medusa Corporation, as contained in the following resolution, was duly called
and held on the 9th day of May, 1994, at which meeting a quorum of the
shareholders was present in person or by proxy, and that, by affirmative vote
of the holders of shares entitling them to exercise a majority of the voting
power of the Company on the proposal, the following resolution was adopted:
RESOLVED, that the first sentence of Article Four of the 1988 Amended
and Restated Articles of Incorporation of the Company be, and the same
hereby is, amended to read as follows:
The authorized number of shares of the Corporation is
53,000,000, of which 50,000,000 are Common Shares, without par
value (the "Common Shares"), 1,000,000 are Class A Serial
Preferred Shares, without par value (the "Class A Preferred
Shares"), 1,000,000 are Class B Serial Preferred Shares, without
par value (the "Class B Preferred Shares"), and 1,000,000 are
Class C Preferred Shares, without par value (the "Class C
Preferred Shares").
IN WITNESS WHEREOF, George E. Uding, Jr., President, and John
P. Siegfried, Secretary, of Medusa Corporation, acting for and in behalf of the
Company, have hereunto subscribed their names this 15th day of December, 1995.
Attest: Medusa Corporation
/s/ John P. Siegfried By /s/ George E. Uding, Jr.
- --------------------- ------------------------
John P. Siegfried, Secretary George E. Uding, Jr., President
<PAGE> 2
APPENDIX V
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MEDUSA CORPORATION
ARTICLE I
NAME
The name of the Corporation is Medusa Corporation.
ARTICLE II
PRINCIPAL OFFICE
The principal office is located in Cleveland Heights, Cuyahoga County, Ohio.
ARTICLE III
PURPOSES
The purposes of the Corporation are:
(a) To produce, to sell, and to otherwise deal in and with
portland cement, other cements, and other building materials, and to mine,
quarry, purchase, and to otherwise obtain, to sell, and to otherwise deal in
and with limestone, clay, shale, and other products useful in the production of
cement and other materials;
(b) To manufacture, to purchase, mine, lease, or otherwise
acquire, to hold and use, to sell, lease, or otherwise dispose of, and to deal
in or with personal property of any description and any interest therein;
(c) To purchase, lease, or otherwise acquire, to invest in, hold,
use and encumber, to sell, lease, exchange, transfer, or otherwise dispose of,
and to construct, develop, improve, equip, maintain, and operate structures
upon real property of any description and any interest therein;
(d) To borrow money, to issue, sell and pledge its notes, bonds,
and other evidences of indebtedness, to secure any of its obligations by
mortgage, pledge, or deed of trust of all or any of its property, and to
guarantee and secure obligations of any person, all to the extent necessary,
useful, or conducive to carrying out any of the purposes of the Corporation;
(e) To invest its funds in any shares or other securities of
another corporation, business, or undertaking or of a government, governmental
authority, or governmental subdivision; and
(f) To do whatever is deemed necessary, useful, or conducive to
carrying out any of the purposes of the Corporation, to engage in any lawful
act or activity for which corporations may be formed under the Ohio General
Corporation Law, and to exercise all other authority enjoyed by corporations
generally by virtue of the provisions of the Ohio General Corporation Law.
ARTICLE IV
AUTHORIZED SHARES; EXPRESS TERMS
The authorized number of shares of the Corporation is 23,000,000, of which
20,000,000 are Common Shares, without par value (the "Common Shares"),
1,000,000 are Class A Serial Preferred Shares, without par value (the "Class A
Preferred Shares"), 1,000,000 are Class B Serial Preferred Shares, without par
value (the "Class B Preferred Shares"), and 1,000,000 are Class C Preferred
Shares, without par value (the "Class C Preferred Shares").
V-1
<PAGE> 3
A. PROVISIONS APPLICABLE TO CLASS A PREFERRED SHARES.
SECTION 1. SERIES; DESIGNATIONS; AMOUNTS. The Class A Preferred Shares may
be issued, from time to time, in one or more series, with such designations and
other terms permitted by the Ohio General Corporation Law as shall be stated in
the resolution or resolutions providing for the issue of such series adopted by
the Board of Directors. The Board of Directors, in such resolution or
resolutions (a copy of which shall be filed and recorded as required by law),
is also expressly authorized to fix:
(a) The distinctive serial designations and the division of
such shares into series and the number of shares of a particular series,
which may be increased or decreased by a resolution or resolutions adopted
by the Board of Directors (a copy of which shall be filed and recorded as
required by law), provided, that no decrease shall reduce the number of
Class A Preferred Shares to a number less than the number of shares thereof
then outstanding plus the number of shares reserved or required for
issuance upon the exercise of outstanding options, rights or warrants to
acquire Class A Preferred Shares;
(b) The annual dividend rate for the particular series, and the
date or dates from which dividends on all shares of such series shall be
cumulative, if dividends on shares of the particular series shall be
cumulative;
(c) The redemption price or prices, if any, for the particular
series;
(d) The right, if any, of the holders of a particular series to
convert such shares into Common Shares (but not into preferred shares of
any other class or series) and the terms and conditions of such
conversions;
(e) The obligation, if any, of the Corporation to purchase and
retire or redeem shares of a particular series as a sinking fund or
redemption or purchase account, the terms thereof and the redemption price
or prices per share for such series redeemed pursuant to the sinking fund
or redemption or purchase account; and
(f) Any restrictions on the issuance of shares of any class or
series.
SECTION 2. STATUS OF SHARES WITHIN SERIES AND OF VARIOUS SERIES. All Class
A Preferred Shares of any one series shall be alike in every particular and all
series shall rank equally and be identical in all respects except insofar as
they may vary with respect to the matters which the Board of Directors is
hereby expressly authorized to determine in the resolution or resolutions
providing for the issue of any series of the Class A Preferred Shares.
SECTION 3. DIVIDENDS AND DISTRIBUTIONS. The holders of Class A Preferred
Shares, in preference to the holders of Class B Preferred Shares, Class C
Preferred Shares, Common Shares and all shares of the Corporation of any other
class ranking junior to the Class A Preferred Shares, shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds
legally available for the purpose, dividends in the amounts and at the times
stated in the resolution or resolutions adopted by the Board of Directors which
provide for the issue of such series, respectively.
SECTION 4. VOTING RIGHTS. The holders of Class A Preferred Shares shall
have the following voting rights:
(a) Each Class A Preferred Share shall entitle the holder
thereof to one vote on all matters submitted to a vote of the shareholders
of the Corporation. No adjustment of the voting rights of holders of Class
A Preferred Shares shall be made in the event of an increase or decrease in
the number of Class B Preferred Shares, Class C Preferred Shares or Common
Shares authorized or issued or in the event of a share split or combination
of the Class B Preferred Shares, Class C Preferred Shares or Common Shares
or in the event of a share dividend on any class of shares payable solely
in Class B Preferred Shares, Class C Preferred Shares or Common Shares;
(b) Except as otherwise provided in these Articles or as
required by law, the holders of Class A Preferred Shares, the holders of
Class B Preferred Shares, the holders of Class C Preferred Shares and the
holders of Common Shares and any other shares of the Corporation of any
class having general voting
V-2
<PAGE> 4
rights shall vote together as one class on all matters submitted to a vote
of shareholders of the Corporation;
(c) If at any time or times dividends payable on any Class A
Preferred Shares shall be in arrears in an aggregate amount equal to or
exceeding the amounts of dividends payable thereon for six quarterly
dividend periods, then the holders of such Class A Preferred Shares shall
have the exclusive right, voting as a single class, to elect two directors
of the Company, and the remaining directors to be elected shall be elected
by the other class or classes of shares entitled to vote therefor, at each
meeting of the shareholders held for the purpose of electing directors,
until such time as all dividend arrearages on the Class A Preferred Shares
shall have been paid in full and the current dividend thereon for the then
current dividend period shall have been declared and paid or set aside for
payment, at which time the right of the holders of such Class A Preferred
Shares to elect two directors voting as a single class shall terminate,
except as herein or by law expressly provided, subject to revesting in the
event of each and every other subsequent arrearage of the amount indicated
above; and
(d) Except as otherwise provided in these Articles or as
required by law, holders of Class A Preferred Shares shall have no special
voting rights and their approval shall not be required (except to the
extent they are entitled to vote with holders of Class B Preferred Shares,
Class C Preferred Shares, Common Shares and any other shares of the
Corporation of any class having general voting rights as herein provided)
for taking any corporate action.
SECTION 5. CERTAIN RESTRICTIONS.
(a) Whenever (i) quarterly dividends or other dividends or distributions
payable on any series of the Class A Preferred Shares as provided in Section 3
are in arrears or (ii) the full dividends on all series of the Class A
Preferred Shares for the then current respective dividend periods shall not
have been paid, or declared and a sum sufficient for the payment thereof set
apart, then and thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on all Class A Preferred Shares
outstanding shall have been paid in full, and the full dividends thereon for
the then current respective dividend periods shall have been paid, or declared
and a sum sufficient for the payment thereof set apart, the Corporation shall
not:
(i) declare or pay dividends, or make any other distributions,
on any shares ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Class A Preferred Shares, other than a
dividend payable in shares ranking junior (both as to dividends and upon
liquidation, dissolution or winding up) to the Class A Preferred Shares;
(ii) declare or pay dividends, or make any other distributions,
on any shares ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Class A Preferred Shares,
except dividends paid ratably on the Class A Preferred Shares and all such
parity shares on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration
any shares ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Class A Preferred Shares, provided that
the Corporation may at any time redeem, purchase or otherwise acquire any
such junior shares in exchange for shares of the Corporation ranking junior
(both as to dividends and upon dissolution, liquidation or winding up) to
the Class A Preferred Shares; or
(iv) redeem or purchase or otherwise acquire for consideration
any Class A Preferred Shares, or any shares ranking on a parity with the
Class A Preferred Shares, except in accordance with a purchase offer made
in writing or by publication (as determined by the Board of Directors) to
all holders of all series and classes of such shares upon such terms as the
Board of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series and classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
the Corporation unless the Corporation could, under paragraph (a) of this
Section 5, purchase or otherwise acquire such shares at such time and in such
manner.
V-3
<PAGE> 5
SECTION 6. REACQUIRED SHARES. Any Class A Preferred Shares purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired
and cancelled promptly after the acquisition thereof. All such shares shall
upon their cancellation become authorized but unissued Class A Preferred Shares
and may be reissued as part of a new series of Class A Preferred Shares subject
to the conditions and restrictions on issuance set forth in these Articles, or
in any resolution or resolutions adopted by the Board of Directors which
provide for the issue of a series of preferred shares of the Corporation of any
class, or as otherwise required by law.
SECTION 7. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made (i)
to the holders of Class B Preferred Shares, Class C Preferred Shares, Common
Shares and all shares of the Corporation of any other class ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Class A Preferred Shares unless, prior thereto, the holders of Class A
Preferred Shares of each series shall have received the amount stated in the
resolution or resolutions adopted by the Board of Directors which provide for
the issue of such series, respectively, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the
date of such payment, or (ii) to the holders of shares ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with
the Class A Preferred Shares, except distributions made ratably on the Class A
Preferred Shares and all such parity shares in proportion to the total amounts
to which the holders of such shares are entitled upon such liquidation,
dissolution or winding up. The remaining net assets of the Corporation (after
receipt by the holders of Class A Preferred Shares and holders of such parity
shares of the full amounts, respectively, provided for in this Section 7) shall
be distributed solely among the holders of Class B Preferred Shares, Class C
Preferred Shares, the Common Shares, and all shares of the Corporation of any
class ranking junior to the Class A Preferred Shares according to the
provisions hereof and their respective shares.
SECTION 8. AMENDMENT. These Articles shall not be amended in any manner (i)
which would materially alter or change the powers, preferences or special
rights of the Class A Preferred Shares so as to affect them adversely without
the affirmative vote of the holders of at least two-thirds of the outstanding
Class A Preferred Shares, voting together as a single class, and (ii) which
would so adversely affect one or more but less than all series of Class A
Preferred Shares without the affirmative vote of at least two-thirds of the
outstanding shares of such affected series, voting together as a single class.
B. PROVISIONS APPLICABLE TO CLASS B PREFERRED SHARES.
SECTION 1. SERIES; DESIGNATIONS, AMOUNTS. The Class B Preferred Shares may
be issued, from time to time, in one or more series, with such designations and
other terms permitted by the Ohio General Corporation Law as shall be stated in
the resolution or resolutions providing for the issue of such series adopted by
the Board of Directors. The Board of Directors, in such resolution or
resolutions (a copy of which shall be filed and recorded as required by
law), is also expressly authorized to fix:
(a) The distinctive serial designations and the division of
such shares into series and the number of shares of a particular series,
which may be increased or decreased by a resolution or resolutions adopted
by the Board of Directors (a copy of which shall be filed and recorded as
required by law), provided, that no decrease shall reduce the number of
Class B Preferred Shares to a number less than the number of shares thereof
then outstanding plus the number of shares reserved or required for
issuance pursuant to the exercise of outstanding options, rights or
warrants to acquire Class B Preferred Shares;
(b) The annual dividend rate for the particular series, and the
date or dates from which dividends on all shares of such series shall be
cumulative, if dividends on shares of the particular series shall be
cumulative;
(c) The redemption price or prices, if any, for the particular
series;
(d) The rights, if any, of the holders of a particular series to
convert such shares into Common Shares (but not into preferred shares of
any other class or series) and the terms and conditions of such
conversions;
V-4
<PAGE> 6
(e) The obligation, if any, of the Corporation to purchase and retire or
redeem shares of a particular series as a sinking fund or redemption or
purchase account, the terms thereof and the redemption price or prices per
share for such series redeemed pursuant to the sinking fund or redemption or
purchase account; and
(f) Any restrictions on the issuance of shares of any class or series.
SECTION 2. STATUS OF SHARES WITHIN SERIES AND OF VARIOUS SERIES. All Class B
Preferred Shares of any one series shall be alike in every particular and all
series shall rank equally and be identical in all respects except insofar as
they may vary with respect to the matters which the Board of Directors is
hereby expressly authorized to determine in the resolution or resolutions
providing for the issue of any series of Class B Preferred Shares.
SECTION 3. DIVIDENDS AND DISTRIBUTIONS. Subject to the rights of the holders
of any shares of any class or series ranking prior and superior to the Class B
Preferred Shares, the holders of Class B Preferred Shares in preference to the
holders of Class C Preferred Shares, Common Shares, and all shares of the
Corporation of any other class ranking junior to the Class B Preferred Shares,
shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, dividends in the
amounts and at the times stated in the resolution or resolutions adopted by the
Board of Directors which provide for the issue of such series, respectively.
SECTION 4. VOTING RIGHTS. The holders of Class B Preferred Shares shall have
the following voting rights:
(a) Each Class B Preferred Share shall entitle the holder thereof to one
vote on all matters submitted to a vote of the shareholders of the
Corporation. No adjustment of the voting rights of holders of Class B
Preferred Shares shall be made in the event of an increase or decrease in
the number of Class A Preferred Shares, Class C Preferred Shares or Common
Shares authorized or issued or in the event of a share split or combination
of the Class A Preferred Shares, Class C Preferred Shares or Common Shares
or in the event of a share dividend on any class of shares payable solely in
Class A Preferred Shares, Class C Preferred Shares or Common Shares;
(b) Except as otherwise provided in these Articles or as required by law,
the holders of Class A Preferred Shares, the holders of Class B Preferred
Shares, the holders of Class C Preferred Shares and the holders of Common
Shares and any other shares of the Corporation of any class having general
voting rights shall vote together as one class on all matters submitted to a
vote of shareholders of the Corporation;
(c) If at any time or times dividends payable on any Class B Preferred
Shares shall be in arrears in an aggregate amount equal to or exceeding the
amounts of dividends payable thereon for six quarterly dividend periods,
then the holders of such Class B Preferred Shares shall have the exclusive
right, voting as a single class, to elect two directors of the Company, and
the remaining directors to be elected shall be elected by the other class or
classes of shares entitled to vote therefor, at each meeting of the
shareholders held for the purpose of electing directors, until such time as
all dividend arrearages on the Class B Preferred Shares shall have been paid
in full and the current dividend thereon for the then current dividend
period shall have been declared and paid or set aside for payment, at which
time the right of the holders of such Class B Serial Preferred Shares to
elect two directors voting as a single class shall terminate, except as
herein or by law expressly provided, subject to revesting in the event of
each and every other subsequent arrearage of the amount indicated above; and
(d) Except as otherwise provided in these Articles or as required by law,
holders of Class B Preferred Shares shall have no special voting rights and
their approval shall not be required (except to the extent they are entitled
to vote with holders of Class A Preferred Shares, Class C Preferred Shares,
Common Shares and any other shares of the Corporation of any class having
general voting rights as herein provided) for taking any corporate action.
V-5
<PAGE> 7
SECTION 5. CERTAIN RESTRICTIONS.
(a) Whenever (i) quarterly dividends or other dividends or distributions
payable on any series of Class B Preferred Shares as provided in Section 3 are
in arrears of (ii) the full dividends on all series of the Class B Preferred
Shares for the then current respective dividend periods shall not have been
paid, or declared and a sum sufficient for the payment thereof set apart, then
and thereafter and until all accrued and unpaid dividends and distributions,
whether or not declared, on all Class B Preferred Shares outstanding shall have
been paid in full, and the full dividends thereon for the then current
respective dividend periods shall have been paid, or declared and a sum
sufficient for the payment thereof set apart, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any
shares ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Class B Preferred Shares, other than a
dividend payable in shares ranking junior (both as to dividends and upon
liquidation, dissolution or winding up) to the Class B Preferred Shares;
(ii) declare or pay dividends, or make any other distributions, on
any shares ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Class B Preferred Shares, except
dividends paid ratably on the Class B Preferred Shares and all such parity
shares on which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration any
shares ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Class B Preferred Shares, provided that
the Corporation may at any time redeem, purchase or otherwise acquire any
such junior shares in exchange for shares of the Corporation ranking junior
(both as to dividends and upon dissolution, liquidation or winding up) to
the Class B Preferred Shares; or
(iv) redeem or purchase or otherwise acquire for consideration any Class
B Preferred Shares, or any shares ranking on a parity with the Class B
Preferred Shares, except in accordance with a purchase offer made in writing
of by publication (as determined by the Board of Directors) to all holders
of all series and classes of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment
among the respective series and classes.
(b) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of the Corporation
unless the Corporation could, under paragraph (a) of this Section 5, purchase
or otherwise acquire such shares at such time and in such manner.
SECTION 6. REACQUIRED SHARES. Any Class B Preferred Shares purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired
and cancelled promptly after the acquisition thereof. All such shares shall
upon their cancellation become authorized but unissued Class B Preferred Shares
and may be reissued as part of a new series of Class B Preferred Shares subject
to the conditions and restrictions on issuance set forth in these Articles, or
in any resolution or resolutions adopted by the Board of Directors which
provide for the issue of a series of preferred shares of the Corporation of any
class, or as otherwise required by law.
SECTION 7. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made (i)
to the holders of Class C Preferred Shares, Common Shares and all shares of the
Corporation of any other class ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Class B Preferred Shares unless,
prior thereto, the holders of Class B Preferred Shares of each series shall
have received the amount stated in the resolution or resolutions adopted by the
Board of Directors which provide for the issue of such series, respectively,
plus an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, or (ii) to the holders of
shares ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Class B Preferred Shares, except
distributions made ratably on the Class B Preferred Shares and all such parity
shares in proportion to the total amounts to which the holders of such shares
are entitled upon such liquidation, dissolution or winding up. The remaining
net assets of the Corporation (after receipt by the holders of Class B
Preferred Shares and holders of such parity shares of the full amounts,
V-6
<PAGE> 8
respectively, provided for in this Section 7) shall be distributed solely among
the holders of Class C Preferred Shares, the Common Shares, and all shares of
the Corporation of any other class ranking junior to the Class B Preferred
Shares according to the provisions hereof and their respective shares.
SECTION 8. AMENDMENT. These Articles shall not be amended in any manner (i)
which would materially alter or change the powers, preferences or special
rights of the Class B Preferred Shares so as to affect them adversely without
the affirmative vote of the holders of at least two-thirds of the outstanding
Class B Preferred Shares, voting together as a single class, and (ii) which
would so adversely affect one or more but less than all series of Class B
Preferred Shares without the affirmative vote of at least two-thirds of the
outstanding shares of such affected series, voting together as a single class.
C. PROVISIONS APPLICABLE TO CLASS C PREFERRED SHARES.
SECTION 1. DIVIDENDS AND DISTRIBUTIONS.
(a) Subject to the rights of the holders of any shares of the Corporation
of any series or class ranking prior and superior to the Class C Preferred
Shares with respect to dividends, the holders of Class C Preferred Shares, in
preference to the holders of Common Shares, shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on such day (to be designated
from time to time by the Board of Directors, or if not so designated, then the
fifteenth day) during the months of March, June, September, and December in
each year (each such date being referred to herein as a "Quarterly Dividend
Payment Date") after the first issuance of a Class C Preferred Share or
fraction thereof, in an amount per share (rounded to the nearest cent) equal to
the greater of (i) $1 or (ii) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in kind) of
all non-cash dividends or other distributions, other than a dividend payable in
Common Shares or a subdivision of the outstanding Common Shares (by
reclassification or otherwise), declared on the Common Shares since the
immediately preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any Class C
Preferred Share or fraction thereof. In the event the Corporation shall at any
time declare or pay any dividend on the Common Shares payable in Common Shares,
or effect a subdivision or combination or consolidation of the outstanding
Common Shares (by reclassification or otherwise than by payment of a dividend
in Common Shares) into a greater or lesser number of Common Shares, then in
each such case the amount to which holders of Class C Preferred Shares were
entitled immediately prior to such event under clause (ii) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of Common Shares outstanding immediately after
such event and the denominator of which is the number of Common Shares that
were outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on the Class C
Preferred Shares as provided in paragraph (a) of this Section 1 immediately
after it declares a dividend or distribution on the Common Shares (other than a
dividend payable in Common Shares); provided that, in the event no dividend or
distribution shall have been declared on the Common Shares during the period
between any Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1 per share on the Class C Preferred
Shares shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding Class C
Preferred Shares from the Quarterly Dividend Payment Date next preceding the
date of issue of such shares, unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment Date or is
a date after the record date for the determination of holders of Class C
Preferred Shares entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on the
Class C Preferred Shares in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro
rata on a share-by-share basis among all such shares at the time outstanding.
The
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Board of Directors may fix a record date for the determination of holders of
Class C Preferred Shares entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than 60 days
prior to the date fixed for the payment thereof.
SECTION 2. VOTING RIGHTS. The holders of Class C Preferred Shares shall
have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each
Class C Preferred Share shall entitle the holder thereof to 100 votes on
all matters submitted to a vote of the shareholders of the Corporation.
In the event the Corporation shall at any time declare or pay any
dividend on the Common Shares payable in Common Shares, or effect a
subdivision or combination or consolidation of the outstanding Common
Shares (by reclassification or otherwise than by payment of a dividend
in Common Shares) into a greater or lesser number of Common Shares, then
in each such case the number of votes per share to which holders of
Class C Preferred Shares were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of Common Shares outstanding
immediately after such event and the denominator of which is the number
of Common Shares that were outstanding immediately prior to such event.
(b) Except as otherwise provided in these Articles or required by law,
the holders of Class A Preferred Shares, the holders of Class B
Preferred Shares, the holders of Class C Preferred Shares and the
holders of Common Shares and any other shares of the Corporation of any
class having general voting rights shall vote together as one class on
all matters submitted to a vote of shareholders of the Corporation.
(c) Except as otherwise provided in these Articles or as required by
law, holders of Class C Preferred Shares shall have no special voting
rights and their approval shall not be required (except to the extent
they are entitled to vote with holders of Class A Preferred Shares,
Class B Preferred Shares, Common Shares and any other shares of the
Corporation of any class having general voting rights as herein
provided) for taking any corporate action.
SECTION 3. CERTAIN RESTRICTIONS.
(a) Whenever (i) quarterly dividends or other dividends or
distributions payable on the Class C Preferred Shares as provided in Section 1
are in arrears, or (ii) the full dividends on the Class C Preferred Shares for
the then current dividend period shall not have been paid, or declared and a
sum sufficient for the payment thereof set apart, then and thereafter and until
all accrued and unpaid dividends and distributions, whether or not declared, on
all Class C Preferred Shares outstanding shall have been paid in full, and the
full dividends thereon for the then current dividend period shall have been
paid, or declared and a sum sufficient for the payment thereof set apart the
Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on
the Common Shares; or
(ii) redeem or purchase or otherwise acquire for consideration
any Common Shares.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
the Corporation unless the Corporation could, under paragraph (a) of this
Section 3, purchase or otherwise acquire such shares at such time and in such
manner.
SECTION 4. REACQUIRED SHARES. Any Class C Preferred Shares purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired
and cancelled promptly after the acquisition thereof. All such shares shall
upon their cancellation become authorized but unissued Class C Preferred Shares
and may be reissued subject to the conditions and restrictions on issuance set
forth in these Articles, or in any resolution or resolutions adopted by the
Board of Directors which provide for the issue of a series of preferred shares
of the Corporation of any class, or as otherwise required by law.
SECTION 5. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution
shall be made to the holders of Common Shares unless, prior thereto, the
holders of Class C Preferred Shares shall have received $100 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment, provided that the holders of
Class C Preferred Shares shall be entitled to receive an aggregate amount per
share, subject
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to the provision for adjustment hereinafter set forth, equal to 100 times the
aggregate amount to be distributed per share to holders of Common Shares. In
the event that the Corporation shall at any time declare or pay any dividend on
Common Shares payable in Common Shares, or effect a subdivision or combination
or consolidation of the outstanding Common Shares (by reclassification or
otherwise than by payment of a dividend in Common Shares) into a greater or
lesser number of Common Shares, then in each such case the aggregate amount to
which holders of Class C Preferred Shares were entitled immediately prior to
such event under the proviso in the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
Common Shares outstanding immediately after such event and the denominator of
which is the number of Common Shares that were outstanding immediately prior to
such event.
SECTION 6. CONSOLIDATION, MERGER; ETC. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
Common Shares are exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case each Class C Preferred Share
shall at the same time be similarly exchanged or changed into an amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each
Common Share is changed or exchanged. In the event the Corporation shall at any
time declare or pay any dividend on the Common Shares payable in Common Shares,
or effect a subdivision or combination or consolidation of the outstanding
Common Shares (by reclassification or otherwise than by payment of a dividend
in Common Shares) into a greater or lesser number of Common Shares, then in
each such case the amount set forth in the preceding sentence with respect to
the exchange or change of Class C Preferred Shares shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
Common Shares outstanding immediately after such event and the denominator of
which is the number of Common Shares that were outstanding immediately prior to
such event.
SECTION 7. NO REDEMPTION. The Class C Preferred Shares shall not be
redeemable.
SECTION 8. RANK. The Class C Preferred Shares shall rank, with respect
to the payment of dividends and the distribution of assets, junior to all
series of any other class of the Corporation's preferred shares.
SECTION 9. AMENDMENT. These Articles shall not be amended in any manner
(i) which would materially alter or change the powers, preferences or special
rights of the Class C Preferred Shares so as to affect them adversely without
the affirmative vote of the holders of at least two-thirds of the outstanding
Class C Preferred Shares, voting together as a single class.
D. PROVISIONS APPLICABLE TO COMMON SHARES.
SECTION 1. DIVIDENDS AND DISTRIBUTIONS. Subject to the rights of the
holders of all classes and series of preferred shares of the Corporation, the
holders of Common Shares shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for the purpose,
dividends payable in cash or otherwise.
SECTION 2. VOTING RIGHTS.
(a) Each Common Share shall entitle the holder thereof to one vote on
each matter on which the holders of Common Shares are entitled to vote.
(b) Except as otherwise provided in these Articles or required by law,
the holders of Class A Preferred Shares, the holders of Class B Preferred
Shares, the holders of Class C Preferred Shares and the holders of Common
Shares and any other shares of the Corporation having general voting rights
shall vote together as one class on all matters submitted to a vote of
shareholders of the Corporation.
E. NO CUMULATIVE VOTING.
Notwithstanding the respective voting rights of the holders of shares
of any class or series of the Corporation, no holder of shares of any class or
series shall have the right to cumulate his voting power in the election of
directors.
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ARTICLE V
SHAREHOLDER ACTION
Subject to the rights of the holders of any series of Class A or Class B
Preferred Shares and except as required by law, (a) any action required or
permitted to be taken by the shareholders of the Corporation may be effected
only at a duly called annual meeting or special meeting of such shareholders
and may not be effected by any consent or approval in writing by such
shareholders, and (b) the right of shareholders to call a meeting of
shareholders shall be restricted to holders of record of shares having in the
aggregate not less than fifty percent (50%) of the total number of votes of all
shares of the Corporation outstanding and entitled to be voted at such meeting.
Advance notice of business to be brought by shareholders before any
shareholders meeting shall be given in the manner provided in the Regulations
of the Corporation. At any annual meeting or special meeting of shareholders of
the Corporation, only such business shall be conducted as shall have been
brought before such meeting in the manner provided by the Regulations of the
Corporation. Notwithstanding anything to the contrary contained in these
Articles, the affirmative vote of the holders of at least 80% of the voting
power of the then outstanding shares of all classes of the Corporation entitled
to vote generally in the election of directors (the "Voting Shares"), voting
together as a single class, shall be required to amend or repeal, or to adopt
any provisions inconsistent with, this Article V.
ARTICLE VI
PURCHASE OF OWN SHARES
Subject to the restrictions set forth in these Articles, the Corporation may
purchase, from time to time, and to the extent permitted by the laws of Ohio,
shares of any class or series issued by it. Such permitted purchases may be
made either in the open market or at private or public sale, in such manner and
amounts, from such holder or holders and at such prices as the Board of
Directors of the Corporation shall from time to time determine, and the Board
of Directors is hereby empowered to authorize such permitted purchases from
time to time without any vote of the holders of any class or series of shares
now or hereafter authorized and outstanding at the time of any such purchase.
ARTICLE VII
REGULATION AMENDMENTS
Notwithstanding anything contained in these Articles or in the Regulations
of the Corporation to the contrary, Sections 1 (excluding the first paragraph
thereof), and 2 and the first sentence of Section 3 of Part I, and Sections 1,
2, 3, 5 and 6 of Part II of the Regulations shall not be amended or repealed,
and no provision inconsistent therewith shall be adopted, without the
affirmative vote or written consent of the holders of at least 80% of the voting
power of the then outstanding Voting Shares, voting together as a single class.
Notwithstanding anything contained in these Articles or the Regulations of the
Corporation to the contrary, the affirmative vote of the holders of at least
80% of the voting power of the then outstanding Voting Shares, voting together
as a single class, shall be required to amend or repeal, or to adopt any
provision inconsistent with, this Article VII.
ARTICLE VIII
CERTAIN BUSINESS COMBINATIONS
SECTION 1. VOTE REQUIRED FOR CERTAIN BUSINESS COMBINATIONS.
A. HIGHER VOTE FOR CERTAIN BUSINESS COMBINATIONS. In addition to any
affirmative vote required by law or these Articles, and except as otherwise
expressly provided in Section 2 of this Article VIII:
(i) Any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with (a) any Interested Shareholder (as hereinafter
defined) or (b) any other corporation (whether or not
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itself an Interested Shareholder) which is, or after such merger or
consolidation would be, an Affiliate or Associate (as hereinafter defined)
of an Interested Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Interested Shareholder or any Affiliate or Associate of any Interested
Shareholder of any assets of the Corporation or any Subsidiary having an
aggregate Fair Market Value of $20,000,000 or more; or
(iii) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of transactions) of any securities of the
Corporation or any Subsidiary to any Interested Shareholder or any Affiliate
or Associate of any Interested Shareholder in exchange for cash, securities
or other property (or a combination thereof) having an aggregate Fair Market
Value of $20,000,000 or more; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Shareholder or any Affiliate or Associate of any Interested Shareholder; or
(v) any reclassification of securities (including any reverse share
split), or recapitalization of the Corporation or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise involving an
Interested Shareholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any Subsidiary which
is directly or indirectly owned by any Interested Shareholder or any
Affiliate or Associate of any Interested Shareholder;
which occurs on or prior to the fifth anniversary of the date on which an
Interested Shareholder shall become such shall require the affirmative vote of
the holders of at least 80% of the voting power of the then outstanding Voting
Shares, voting together as a single class. Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that a
lesser percentage may be specified, by law or in any agreement with any
national securities exchange or otherwise.
B. DEFINITION OF "BUSINESS COMBINATION". The term "Business Combination"
as used in this Article VIII shall mean any transaction which is referred to in
any one or more of clauses (i) through (v) of paragraph A of this Section 1.
SECTION 2. WHEN HIGHER VOTE IS NOT REQUIRED. The provisions of Section 1 of
this Article VIII shall not be applicable to any particular Business
Combination involving an Interested Shareholder, and such Business Combination
shall require only such affirmative vote as is required by law and any other
provision of these Articles, if, prior to the time the Interested Shareholder
shall become such, either (a) the Business Combination shall have been approved
by a majority of the Board of Directors or (b) the Board of Directors of the
Company shall have approved in advance the transaction in which the Interested
Shareholder became such. In the case of the approval referred to in clause (b),
the Board of Directors may condition its approval on such factors as it deems
necessary or appropriate and the failure of any such factor to be satisfied
shall void the approval thereof by the Board of Directors.
SECTION 3. CERTAIN DEFINITIONS. For the purposes of this Article VIII:
A. A "person" shall mean any individual, firm, corporation or other
entity.
B. "Interested Shareholder" shall mean any person (other than the
Corporation, any Subsidiary or any employee benefit plan of the Corporation)
who or which:
(i) is the beneficial owner, directly or indirectly, of more than
20% of the voting power of the outstanding Voting Shares; or
(ii) is an Affiliate or Associate of the Corporation and at any time
within the two-year period immediately prior to the date in question was
the beneficial owner, directly or indirectly, of more than 20% of the
voting power of the then outstanding Voting Shares; or
(iii) is an assignee of or has otherwise succeeded to any Voting Shares
which were at any time within the two-year period immediately prior to
the date in question beneficially owned by any
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Interested Shareholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act of
1933.
C. A person shall be a "beneficial owner" of any Voting Shares:
(i) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates has (a)
the right to acquire (whether such right is exercisable immediately or
only after the passage of time or the occurrence of a condition),
pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise, or (b) the right to vote (whether such right is exercisable
immediately or only after the passage of time or the occurrence of a
condition) pursuant to any agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any Voting Shares.
D. For the purposes of determining whether a person is an Interested
Shareholder pursuant to paragraph B of this Section 3, the number of Voting
Shares deemed to be outstanding shall include shares deemed owned through
application of paragraph C of this Section 3 but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, arrangement
or understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
E. "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934 (the "Exchange Act"), as in effect
on the date these Articles become effective.
F. "Subsidiary" means any corporation of which a majority of any class
of equity security is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Interested
Shareholder set forth in paragraph B of this Section 3, the term
"Subsidiary" shall mean only a corporation of which a majority of each class
of equity security is owned, directly or indirectly, by the Corporation.
G. "Disinterested Director" means any member of the Board of Directors of
the Corporation (the "Board") who is unaffiliated with the Interested
Shareholder and was a member of the Board prior to the time that the
Interested Shareholder became an Interested Shareholder, and any other
Director who is unaffiliated with Interested Shareholder and, prior to such
Director's election or appointment as a director, was recommended or
approved by a majority of Disinterested Directors then on the Board.
H. "Fair Market Value" means:
(i) in the case of stock, the highest closing sale price during the
thirty-day period immediately preceding the date in question of a share of
such stock on the composite tape for New York Stock Exchange-listed
stocks, or, if such stock is not quoted on such composite tape or if such
stock is not listed on such exchange, on the principal United States
securities exchange registered under the Exchange Act on which such stock
is listed, or if such stock is not listed on any such exchange, the
highest closing bid quotation with respect to a share of such stock during
the thirty-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations System or any
system then in use, or if no such quotations are available, the fair
market value on the date in question of a share of such stock as
determined by the Disinterested Directors in good faith; and
(ii) in the case of property other than cash or stock, the fair
market value of such property on the date in question as determined by the
Disinterested Directors in good faith.
SECTION 4. POWERS OF THE BOARD OF DIRECTORS. A majority of the Disinterested
Directors of the Corporation shall have the power and duty to determine for the
purposes of this Article VIII, on the basis of
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information known to them after reasonable inquiry, (a) whether a person is an
Interested Shareholder, (b) the number of Voting Shares beneficially owned by
any person, (c) whether a person is an Affiliate or Associate of another, (d)
whether the assets which are the subject of any Business Combination have, or
the consideration to be received for the issuance or transfer of securities by
the Corporation or any Subsidiary in any Business Combination has, an aggregate
Fair Market Value of $20,000,000 or more, and (e) whether a transaction
constitutes or will constitute a Business Combination. A majority of the
Disinterested Directors of the Corporation shall have the further power to
interpret all of the terms and provisions of this Article VIII.
SECTION 5. NO EFFECT ON FIDUCIARV OBLIGATIONS OF INTERESTED SHAREHOLDERS.
Nothing contained in this Article VIII shall be construed to relieve any
Interested Shareholder from any fiduciary obligation imposed by law.
SECTION 6. AMENDMENT, REPEAL, ETC. Notwithstanding any other provisions of
these Articles or the Regulations of the Corporation (and notwithstanding the
fact that a lesser percentage may be specified by law, these Articles or the
Regulations of the Corporation, any agreement with any national securities
exchange, or otherwise), the affirmative vote of the holders of at least 80% of
the voting power of the then outstanding Voting Shares, voting together as a
single class, shall be required to amend or repeal, or to adopt any provisions
inconsistent with, this Article VIII.
ARTICLE IX
BOARD OF DIRECTORS
SECTION 1. NUMBER. The business and affairs of the Corporation shall be
managed under the direction of the Board of Directors. The number of directors,
subject to the express right of the holders of any series of Class A or Class B
Preferred Shares then outstanding, voting as a class, to elect additional
directors in the event of a dividend arrearage and to the provisions of Section
2 of this Article IX, and subject to the minimum and maximum limitations set
forth in the Regulations of the Corporation, may be fixed or changed from time
to time (i) by the shareholders at a meeting called for the purpose of electing
directors by the affirmative vote of the holders of at least 80% of the voting
power of the then outstanding Voting Shares, voting together as a single class,
and (ii) by the Board of Directors to the extent and in the manner provided in
the Regulations of the Corporation.
SECTION 2. CLASSES. Commencing with the first election of directors
following the date these Articles become effective, the directors, other than
those who may be elected by the holders of Class A and Class B Preferred Shares
in the event of a dividend arrearage shall be divided, with respect to the time
for which they severally hold office, into three classes consisting of not less
than three directors each. Each class shall consist of an equal number of
directors, except that if the total number of directors shall not be evenly
divisible by three, the remaining director (if there shall be just one) shall
be assigned to Class I, or the remaining directors (if there shall be two)
shall be assigned to Classes I and II, respectively. The term of office of the
directors elected to Class I at such first election shall expire at the first
Annual Meeting of Shareholders after their election, the term of office of the
directors elected to Class II at such first election shall expire at the second
succeeding Annual Meeting of Shareholders after their election and the term of
office of the directors elected to Class III at such first election shall
expire at the third succeeding Annual Meeting of Shareholders after their
election. At each Annual Meeting of Shareholders following the first election
of the classified Board of Directors, directors elected to succeed those
directors whose terms then expire shall be elected for a term of office to
expire at the third succeeding Annual Meeting of Shareholders after their
election, with each director to hold office until such director's successor
shall have been duly elected and qualified. No decrease in the authorized
number of directors shall shorten the term of any incumbent director. The
provisions of this Section 2 shall not apply to any directors elected by the
holders of Class A or Class B Preferred Shares, voting as a class in the event
of an arrearage in the payment of dividends. Any such directors shall not be
classified and shall be elected to serve until the next Annual Meeting of
Shareholders and until their successors have been duly elected and qualified,
or until such arrearage is cured, whichever occurs first.
SECTION 3. NOMINATION; ELECTION. Advance notice of shareholder nominations
for the election of directors of the Corporation shall be given in the manner
provided in the Regulations of the Corporation.
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SECTION 4. VACANCIES. Subject to the rights of the holders of any series of
Class A or Class B Preferred Shares then outstanding and subject to the right
of shareholders to fill vacancies as provided in the Ohio General Corporation
Law, newly created directorships resulting from any increase in the authorized
number of directors or any vacancies in the Board of Directors resulting from
death, resignation, retirement, disqualification, removal from office or
otherwise may be filled only by a majority vote of the directors then in
office, though less than a majority of the whole authorized number of
directors, and directors so chosen shall hold office for a term expiring at the
Annual Meeting of Shareholders at which the term of the class to which they
have been elected expires and until such director's successor shall have been
duly elected and qualified.
SECTION 5. REMOVAL. Subject to the rights of the holders of any series of
Class A or Class B Preferred Shares then outstanding, any director, any class
of directors or the entire Board of Directors, may be removed from office at
any time, but only by the affirmative vote of the holders of at least 80% of
the voting power of the then outstanding Voting Shares, voting together as a
single class, or by the directors under the circumstances provided in the Ohio
General Corporation Law.
SECTION 6. AMENDMENT, REPEAL OR MODIFICATION. Notwithstanding any other
provisions of these Articles or the Regulations of the Corporation (and
notwithstanding that a lesser percentage may be specified by law, these
Articles, the Regulations of the Corporation, any agreement with any national
securities exchange, or otherwise), the affirmative vote of the holders of at
least 80% of the voting power of the then outstanding Voting Shares, voting
together as a single class, shall be required to amend or repeal, or to adopt
any provisions inconsistent with, this Article IX.
ARTICLE X
INDEMNIFICATION
SECTION 1. RIGHT TO INDEMNIFICATION. Each person who was or is made a party
or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he, or a person of
whom he is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as director,
officer, trustee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, trustee or agent or in any other
capacity while serving as a director, officer, trustee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Ohio General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such
person in connection therewith and such indemnification shall continue as to a
person who has ceased to be a director, officer, trustee or agent and shall
inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, except as provided in Section 2 of this Article X, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this Section shall
be a contract right and shall include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding as incurred and in
advance of its final disposition; provided, however, that the payment of such
expenses as incurred and in advance of the final disposition of a proceeding
shall be made only upon delivery to the Corporation of any undertaking required
by the Ohio General Corporation Law. The Corporation may, by action of its
Board of Directors, provide indemnification to agents of the Corporation and to
employees of the Corporation who are not directors or officers of the
Corporation with the same scope and effect as the foregoing indemnification of
directors and officers.
SECTION 2. RIGHT OF CLAIMANT TO BRING SUIT. If a claim under Section 1 of
this Article X is not paid in full by the Corporation within thirty days after
a written claim has been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the
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claim and, if successful in whole or in part, the claimant shall be entitled to
be paid also the expense of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding as incurred and in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Ohio General Corporation Law for
the Corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation. Neither the failure
of the Corporation (including its Board of Directors, independent legal
counsel, or its shareholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he has met the applicable standard of conduct set
forth in the Ohio General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or
its shareholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
SECTION 3. NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article X shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Articles or the Regulations of the Corporation, agreement,
vote of shareholders or disinterested directors or otherwise.
SECTION 4. INSURANCE. The Corporation may maintain insurance or furnish
similar protection, including but not limited to trust funds, letters of credit
or self-insurance, on behalf of or for itself and any person who is or was a
director, officer, employee or agent of the Corporation or is or was serving at
the request of the Corporation as a director, trustee, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him in
any such capacity or arising out of his status as such, whether or not the
Corporation would have the power to indemnify such person against such
liability under the Ohio General Corporation Law.
ARTICLE XI
PREEMPTIVE RIGHTS DENIED
The preemptive right to purchase additional shares or any other securities
of the Corporation is hereby expressly denied to holders of shares of the
Corporation of all classes and series.
ARTICLE XII
Notwithstanding the provisions of Sections 1701.76, 1701.78,
1701.79, 1701.801 and 1701.83 (or any successor statutory sections) which
require the vote of the holders of shares entitling them to exercise two-
thirds of the voting power of the corporation or of any class or classes of
shares thereof for approval of the transactions therein specified, such
approval, unless otherwise expressly prohibited by statute and except as
otherwise expressly required by these Articles, may be obtained bv the vote of
the holders of shares entitling them to exercise a majority of the voting power
of the then outstanding Voting Shares, voting together as a single class, or of
such class or classes.
ARTICLE XIII
PRIOR ARTICLES SUPERSEDED
These Amended and Restated Articles of Incorporation shall supersede the
existing 1973 Amended Articles of Incorporation of the Corporation and all
amendments thereto.
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Exhibit 4.2
This Exhibit 4.2, for the Code of Regulations of Medusa Corporation,
is incorporated by reference to Appendix VI to the Company's Information
Statement (which was filed in 1988 as an exhibit to the Amended Form 10, File
No. 0-17011).
<PAGE> 1
EXHIBIT 4.3 (AS AMENDED THROUGH MARCH 27, 1995)
MEDUSA CORPORATION
1991 LONG-TERM INCENTIVE PLAN
ARTICLE I
PURPOSE AND ADOPTION OF THE PLAN
1.01 PURPOSE. The purpose of the Medusa Corporation 1991 Long-Term
Incentive Plan (hereinafter referred to as the "Plan") is to assist in
attracting and retaining highly competent employees and to act as an incentive
in motivating selected officers and other key employees of the Company and its
Subsidiaries to achieve long-term corporate objectives.
1.02 ADOPTION AND TERM. The Plan has been approved by the Board of
Directors (the "Board") effective as of February 25, 1991, but is subject to
the approval of the Company's shareholders. The Plan shall remain in effect
until terminated by action of the Board; provided, however, that no Incentive
Stock Option may be granted hereunder after February 24, 2001.
ARTICLE II
DEFINITIONS
For the purpose of this Plan, capitalized terms shall have the following
meanings:
2.01 ADJUSTED FAIR MARKET VALUE means, in the event of a Change in
Control (i) the highest Fair Market Value of a Company Common Share during the
sixty day period ending on the date of such Change in Control or (ii) in the
case of a Change in Control described in Section 2.07(a) or 2.07(c), if greater
than the amount described in clause (i), the highest price per Company Common
Share paid to holders of Company Common Shares in any transaction (or series of
transactions) constituting or resulting from such Change in Control.
2.02 AWARD means any one or a combination of Non-Qualified Stock
Options or Incentive Stock Options described in Article VI, Stock Appreciation
Rights described in Article VI, Restricted Shares described in Article VII,
Performance Awards described in Article VIII, Awards of cash or any other Award
made under the terms of the Plan.
2.03 AWARD AGREEMENT means a written agreement between the Company and
a Participant or a written acknowledgment from the Company to a Participant
specifically setting forth the terms and conditions of an Award granted under
the Plan.
2.04 AWARD PERIOD means, with respect to an Award, the period of time
set forth in the Award Agreement during which specified target performance
goals must be achieved or other conditions set forth in the Award Agreement
must be satisfied.
2.05 BENEFICIARY means an individual, trust or estate who or which, by
a written designation of the Participant filed with the Company or by operation
of law, succeeds to the rights and obligations of the Participant under the
Plan and the Award Agreement upon the Participant's death.
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2.06 BOARD means the Board of Directors of the Company.
2.07 CHANGE IN CONTROL means any of the following events:
(a) The acquisition, other than from the Company, by any
individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either
(i) the Outstanding Company Common Shares or (ii) the Company Voting
Securities; provided, however, that the following shall not constitute a
Change in Control: any acquisition by (A) the Company or any of its
Subsidiaries, or any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its Subsidiaries, or (B) any
corporation with respect to which, following such acquisition, more than
60%, respectively, of the then outstanding common shares of such
corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election
of directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Shares and Company
Voting Securities immediately prior to such acquisition in substantially
the same proportion as their ownership, immediately prior to such
acquisition, of the Outstanding Company Common Shares and Company Voting
Securities, as the case may be; or
(b) Individuals who constitute the Incumbent Board cease for
any reason to constitute in excess of two-thirds of the Board; provided,
however, that any individual becoming a director subsequent to February 25,
1991 whose election or nomination for election by the Company was approved
by a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a member
of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office is in connection with an
actual or threatened election contest relating to the election of members
of the Board; or
(c) Approval by the shareholders of the Company of a
reorganization, merger or consolidation ("Merger"), unless, all or
substantially all of the individuals and entities who were the respective
beneficial owners of the Outstanding Company Common Shares and Company
Voting Securities immediately prior to the Merger, following such Merger do
beneficially own, directly or indirectly, more than 60%, respectively, of
the then outstanding common shares and the combined voting power of the
then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation which results
from the Merger, in substantially the same proportion as their ownership of
the Outstanding Company Common Shares and Company Voting Securities, as the
case may be, immediately prior to the Merger.
(d) Approval by the shareholders of the Company of (i) a
complete liquidation or dissolution of the Company or (ii) a sale or other
disposition of all or substantially all of the assets of the Company other
than to a corporation with respect to which, following such sale or
disposition, more than 60%, respectively, of the then outstanding common
shares and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors is then
owned beneficially, directly or indirectly, by all or substantially all of
the individuals and entities who were the beneficial owners, respectively,
of the Outstanding Company Common Shares and Company Voting Securities
immediately prior to such sale or disposition in substantially the same
proportion as their ownership of the Outstanding Company Common Shares and
Company Voting Securities, as the case may be, immediately prior to such
sale or disposition.
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2.08 CODE means the Internal Revenue Code of 1986, as amended.
References to a section of the Code shall include that section and any
comparable section or sections of any future legislation that amends,
supplements or supersedes said section.
2.09 COMMITTEE means the Committee defined in Section 3.01.
2.10 COMPANY means Medusa Corporation, an Ohio corporation, and its
successors.
2.11 COMPANY COMMON SHARE OR COMPANY COMMON SHARES means a Common
Share of the Company, without par value, or the Common Shares of the Company,
without par value.
2.12 COMPANY VOTING SECURITIES means the combined voting power of all
outstanding voting securities of the Company entitled to vote generally in the
election of directors to the Board.
2.13 DATE OF GRANT means the date designated by the Committee as the
date as of which it grants an Award, which shall not be earlier than the date
on which the Committee approves the granting of such Award.
2.14 EXCHANGE ACT means the Securities Exchange Act of 1934, as
amended.
2.15 EXERCISE PRICE means, with respect to a Stock Appreciation Right,
the amount established by the Committee in the Award Agreement which is to be
subtracted from the Fair Market Value on the date of exercise in order to
determine the amount of the payment to be made to the Participant, as further
described in Section 6.02(b).
2.16 FAIR MARKET VALUE means, on any date, the average of the high and
low quoted sales prices of a Company Common Share, as reported on the Composite
Tape for New York Stock Exchange Listed Companies, on such date or, if there
were no sales on such date, on the last date preceding such date on which a
sale was reported.
2.17 INCENTIVE STOCK OPTION means a stock option within the meaning of
Section 422A of the Code.
2.18 INCUMBENT BOARD means the Board as constituted on February 25,
1991.
2.19 MERGER means the Merger defined in Section 2.07(c).
2.20 NON-QUALIFIED STOCK OPTION means a stock option which is not an
Incentive Stock Option.
2.21 NORMAL RETIREMENT DATE, except for Senior Executives, means the
date designated as the normal retirement date under a pension plan or
arrangement of the Company or one of its Subsidiaries in which the Participant
participates or, in the event that the Participant is not a member of such a
pension plan or arrangement, the normal retirement date under the Medusa
Corporation Savings and Investment Plan, or any successor to such Plan. In the
case of a Senior Executive, Normal Retirement Date means retirement at any date
(it is not limited to retirement at age 65 or thereafter; amended by Board of
Directors action on May 9, 1994).
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2.22 OPTIONS means all Non-Qualified Stock Options and Incentive Stock
Options granted at any time under the Plan.
2.23 OTHER RETIREMENT DATE means a date earlier than a Participant's
Normal Retirement Date which is specifically designated by the Committee to be
the date upon which a Participant retires for purposes of this Plan.
2.24 OUTSTANDING COMPANY COMMON SHARES means, at any time, the issued
and outstanding Company Common Shares.
2.25 PARTICIPANT means a person designated to receive an Award under
the Plan in accordance with Section 5.01.
2.26 PERFORMANCE AWARDS means Awards granted in accordance with
Article VIII.
2.27 PLAN means the Medusa Corporation 1991 Long-Term Incentive Plan
as described herein, as the same may be amended from time to time.
2.28 PURCHASE PRICE, with respect to Options, shall have the meaning
set forth in Section 6.01(b).
2.29 RESTRICTED SHARES means Company Common Shares subject to
restrictions imposed in connection with Awards granted under Article VII.
2.30 RULE 16B-3 means Rule 16b-3 promulgated by the Securities and
Exchange Commission under Section 16 of the Exchange Act, as the same may be
amended from time to time, and any successor rule.
2.30(A) SENIOR EXECUTIVE means the Chairman or the President of the
Company.
2.31 STOCK APPRECIATION RIGHTS means Awards granted in accordance with
Article VI.
2.32 SUBSIDIARY means a subsidiary of the Company within the meaning
of Section 425(f) of the Code.
2.33 TERMINATION OF EMPLOYMENT means the voluntary or involuntary
termination of a Participant's employment with the Company or a Subsidiary for
any reason, including death, disability, retirement or as the result of the
divestiture of the Participant's employer or any similar transaction in which
the Participant's employer ceases to be the Company or one of its Subsidiaries.
Whether entering military or other government service shall constitute
Termination of Employment, or whether a Termination of Employment shall occur
as a result of disability, shall be determined in each case by the Committee in
its sole discretion.
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ARTICLE III
ADMINISTRATION
3.01 COMMITTEE. The Plan shall be administered by the Organization
and Compensation Committee of the Board ("Committee"). (If at any time the
Committee ceases to exist, or if at any time the Committee shall not comply
with the disinterested administration requirements of Rule 16b-3, the Board
shall select a committee to administer the Plan comprised of not less than two
members of the Board who are disinterested under the requirements of Rule
16b-3.) The Committee shall have exclusive and final authority in each
determination, interpretation or other action affecting the Plan and its
Participants. The Committee shall have the sole discretionary authority to
interpret the Plan, to establish and modify administrative rules for the Plan,
to impose such conditions and restrictions on Awards as it determines
appropriate, to cancel Awards (including those made pursuant to other plans of
the Company) and to substitute new Options for previously awarded Options
which, at the time of such substitution, have an exercise price in excess of
the Fair Market Value of the underlying Company Common Shares (including
options granted under other incentive compensation programs of the Company)
with the consent of the recipient, and to take such steps in connection with
the Plan and Awards granted hereunder as it may deem necessary or advisable.
The Committee may, with respect to Participants who are not subject to Section
16(b) of the Exchange Act, delegate such of its powers and authority under the
Plan as it deems appropriate to designated officers or employees of the
Company.
ARTICLE IV
SHARES
4.01 NUMBER OF SHARES ISSUABLE. Subject to adjustments as provided in
Section 10.07, the shares to be offered under the Plan shall be authorized and
unissued Company Common Shares, or issued Company Common Shares which shall
have been reacquired by the Company. The total number of shares initially
authorized to be issued under the Plan shall be 500,000 Common Shares, which
limit may be increased from time to time in the future by action of the Board
subject to Section 10.15(a).
4.02 SHARES SUBJECT TO TERMINATED AWARDS. Company Common Shares
covered by any unexercised portions of terminated Options (including canceled
Options) granted under Article VI, Company Common Shares forfeited as provided
in Section 7.02(a) and Company Common Shares subject to any Awards which are
otherwise surrendered by the Participant may again be subject to new Awards
under the Plan. Company Common Shares subject to Options, or portions thereof,
which have been surrendered in connection with the exercise of Stock
Appreciation Rights shall not be available for subsequent Awards under the
Plan, but Company Common Shares issued in payment of such Stock Appreciation
Rights shall not be charged against the number of Company Common Shares
available for the grant of Awards hereunder.
ARTICLE V
PARTICIPATION
5.01 ELIGIBLE PARTICIPANTS. Participants in the Plan shall be such
officers and other key employees of the Company and its Subsidiaries, whether
or not members of the Board, as the Committee, in its sole discretion, may
designate from time to time. The Committee's designation of a Participant in
any year shall not require the Committee to designate such person to receive
Awards or grants in any other year. The designation of a Participant to
receive awards or grants under one
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portion of the Plan does not require the Committee to include such Participant
under other portions of the Plan. The Committee shall consider such factors as
it deems pertinent in selecting Participants and in determining the type and
amount of their respective Awards. Notwithstanding any provision herein to the
contrary, the Committee may grant Awards under the Plan to non-employees who,
in the judgment of the Committee, render significant services to the Company or
any of its Subsidiaries, on such terms and conditions as the Committee deems
appropriate and consistent with the intent of the Plan.
ARTICLE VI
STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
6.01 OPTION AWARDS.
(a) The Committee may grant, to such Participants as the
Committee may select, Options entitling the Participant to purchase Company
Common Shares from the Company in such number, provided that such number
granted shall not exceed 100,000 annually for a Participant (amended March
27, 1995), at such price, and on such terms and subject to such conditions,
not inconsistent with the terms of this Plan, as may be established by the
Committee. The terms of any Option granted under this Plan shall be set
forth in an Award Agreement.
(b) PURCHASE PRICE OF OPTIONS. The Purchase Price of each
Company Common Share which may be purchased upon exercise of any Option
granted under the Plan, shall be determined by the Committee; provided,
however, that the Purchase Price of the Company Common Shares purchased
pursuant to Options designated by the Committee as Incentive Stock Options
shall be equal to or greater than the Fair Market Value on the Date of
Grant as required under Section 422A of the Code. The Committee shall have
the discretion to provide, in any Award Agreement related to an Option
granted under the Plan, for a loan from the Company to a Participant of a
cash amount, or a guaranty by the Company of payment by such Participant to
a third party of a cash amount loaned by such party to such Participant
sufficient to allow such Participant to purchase the Company Common Shares
under such Option, with the Company retaining such Company Common Shares,
or a portion thereof, as security until such loan is repaid or such
guaranty expires.
(c) DESIGNATION OF INCENTIVE STOCK OPTIONS. Except as
otherwise expressly provided in the Plan, the Committee may designate, at
the time of the grant of each Option, the Option as an Incentive Stock
Option under Section 422A of the Code.
(i) INCENTIVE STOCK OPTION SHARE LIMITATION. No
Participant may be granted Incentive Stock Options under the Plan
(or any other plans of the Company and its Subsidiaries) which
would result in shares with an aggregate Fair Market Value
(measured on the Date of Grant) of more than $100,000 first
becoming exercisable in any one calendar year.
(ii) OTHER INCENTIVE STOCK OPTION TERMS. Whenever
possible, each provision in the Plan and in every Option granted
under this Plan which is designated by the Committee as an
Incentive Stock Option shall be interpreted in such a manner as
to entitle the Option to the tax treatment afforded by Section
422A of the Code. If any provision of this Plan or any Option
designated by the Committee as an Incentive Stock Option shall be
held not to comply with requirements necessary to entitle such
Option to such tax treatment, then
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(A) such provision shall be deemed to have contained from the
outset such language as shall be necessary to entitle the Option
to the tax treatment afforded under Section 422A of the Code, and
(B) all other provisions of this Plan and the Award Agreement
relating to such Option shall remain in full force and effect.
If any Award Agreement covering an Option designated by the
Committee to be an Incentive Stock Option under this Plan shall
not explicitly include any terms required to entitle such
Incentive Stock Option to the tax treatment afforded by Section
422A of the Code, all such terms shall be deemed implicit in the
designation of such Option and the Option shall be deemed to have
been granted subject to all such terms.
(d) RIGHTS AS A SHAREHOLDER. A Participant or a transferee of
an Option pursuant to Section 10.04 shall have no rights as a shareholder
with respect to Company Common Shares covered by an Option until the
Participant or transferee shall have become the holder of record of any
such shares, and no adjustment shall be made for dividends in cash or other
property or distributions or other rights with respect to any such Company
Common Shares for which the record date is prior to the date on which the
Participant or a transferee of the Option shall have become the holder of
record of any such shares covered by the Option; provided, however, that
Participants are entitled to share adjustments to reflect capital changes
under Section 10.07.
6.02 STOCK APPRECIATION RIGHTS.
(a) STOCK APPRECIATION RIGHT AWARDS. The Committee is
authorized to grant to any Participant one or more Stock Appreciation
Rights, provided that the number of Stock Appreciation Rights granted shall
not exceed 100,000 annually for a Participant (amended March 27, 1995).
Such Stock Appreciation Rights may be granted either independent of or in
tandem with Options granted to the same Participant. Stock Appreciation
Rights granted in tandem with Options may be granted simultaneously with,
or, in the case of Non-Qualified Stock Options, subsequent to, the grant to
such Participant of the related Option; provided, however, that: (i) any
Option covering any Company Common Share shall expire and not be
exercisable upon the exercise of any Stock Appreciation Right with respect
to the same share, (ii) any Stock Appreciation Right covering any Company
Common Share shall expire and not be exercisable upon the exercise of any
related Option with respect to the same share, and (iii) an Option and
Stock Appreciation Right covering the same Company Common Share may not be
exercised simultaneously. Upon exercise of a Stock Appreciation Right with
respect to a Company Common Share, the Participant shall be entitled to
receive an amount equal to the excess, if any, of (A) the Fair Market Value
of a Company Common Share on the date of exercise over (B) the Exercise
Price of such Stock Appreciation Right established in the Award Agreement,
which amount shall be payable as provided in Section 6.02(c).
(b) EXERCISE PRICE. The Exercise Price established under any
Stock Appreciation Right granted under this Plan shall be determined by the
Committee, but in the case of Stock Appreciation Rights granted in tandem
with Options shall not be less than the Purchase Price of the related
Option. Upon exercise of Stock Appreciation Rights, the number of shares
subject to exercise under any related Option shall automatically be reduced
by the number of Company Common Shares represented by the Option or portion
thereof which are surrendered as a result of the exercise of such Stock
Appreciation Rights.
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(c) PAYMENT OF INCREMENTAL VALUE. Any payment which may
become due from the Company by reason of a Participant's exercise of a
Stock Appreciation Right may be paid to the Participant as determined by
the Committee (i) all in cash, (ii) all in Company Common Shares, or (iii)
in any combination of cash and Company Common Shares. In the event that
all or a portion of the payment is made in Company Common Shares, the
number of Company Common Shares delivered in satisfaction of such payment
shall be determined by dividing the amount of such payment or portion
thereof by the Fair Market Value on the Exercise Date. No fractional
Company Common Shares shall be issued to make any payment in respect of
Stock Appreciation Rights; if any fractional share would be issuable, the
combination of cash and Company Common Shares payable to the Participant
shall be adjusted as directed by the Committee to avoid the issuance of any
fractional share.
6.03 TERMS OF STOCK OPTIONS AND STOCK APPRECIATION RIGHTS.
(a) CONDITIONS ON EXERCISE. An Award Agreement with respect
to Options or Stock Appreciation Rights may contain such waiting periods,
exercise dates and restrictions on exercise (including, but not limited to,
periodic installments) as may be determined by the Committee at the time of
grant. No Option or Stock Appreciation Right may be exercised in whole or
in part prior to six months from the Date of Grant thereof, except as set
forth in Section 6.05.
(b) DURATION OF OPTIONS AND STOCK APPRECIATION RIGHTS.
Options and Stock Appreciation Rights shall terminate after the first to
occur of the following events:
(i) Expiration of the Option or Stock Appreciation
Right as provided in the Award Agreement; or
(ii) Termination of the Award as provided in Section
6.03(e), following the Participant's Termination of Employment; or
(iii) In the case of an Incentive Stock Option, ten
years from the Date of Grant; or
(iv) Solely in the case of a Stock Appreciation Right
granted in tandem with an Option, upon the expiration of the
related Option.
(c) ACCELERATION OF EXERCISE TIME. The Committee, in its sole
discretion, shall have the right (but shall not in any case be obligated)
to permit purchase of Company Common Shares subject to any Option or Stock
Appreciation Right prior to the time such Option or Stock Appreciation
Right would otherwise become exercisable under the terms of the Award
Agreement; provided, however, that, in the case of Participants subject to
Section 16(b) of the Exchange Act, in no event may there be an acceleration
of exercise to a date prior to six months from the Date of Grant.
(d) EXTENSION OF EXERCISE TIME. In addition to the extensions
permitted under Section 6.03(e) in the event of Termination of Employment,
the Committee, in its sole discretion, shall have the right (but shall not
in any case be obligated) to permit any Option or Stock Appreciation Right
granted under this Plan to be exercised after its expiration date described
in Section 6.03(e), subject, however, to the limitations described in
Section 6.03(b)(i), (iii), and (iv).
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(e) EXERCISE OF OPTIONS OR STOCK APPRECIATION RIGHTS UPON
TERMINATION OF EMPLOYMENT.
(i) TERMINATION OF VESTED OPTIONS AND STOCK
APPRECIATION RIGHTS UPON TERMINATION OF EMPLOYMENT.
(A) TERMINATION. In the event of Termination
of Employment of a Participant other than by reason of
death, disability or retirement on the Participant's
Normal Retirement Date, to the extent the right to
exercise the Option or Stock Appreciation Right has
accrued at the date of Termination of Employment, the
right of the Participant to exercise the Option or Stock
Appreciation Right under the Plan shall terminate three
months after the date of such Termination of Employment,
unless otherwise provided by the Committee in accordance
with Section 6.03(d).
(B) DISABILITY OR RETIREMENT. Upon a
Participant's Termination of Employment by reason of
disability or retirement on or after the Participant's
Normal Retirement Date, a Participant may, within five
years after the Termination of Employment, exercise all or
a part of his or her Options which were exercisable upon
such Termination of Employment (or which became
exercisable at a later date pursuant to Section
6.03(e)(ii)), and may, within six months after Termination
of Employment, exercise all or a part of his or her Stock
Appreciation Rights which he or she was entitled to
exercise upon Termination of Employment (or which became
exercisable at a later date pursuant to section
6.03(e)(ii)). In no event, however, may any Option or
Stock Appreciation Right be exercised later than the date
described in Section 6.03(b)(i), (iii) or (iv).
(C) DEATH. In the event of the death of a
Participant while employed by the Company or a Subsidiary
or within the additional period of time from the date of
the Participant's Termination of Employment and prior to
the expiration of the Option or Stock Appreciation Right
as permitted in Section 6.03(e)(i)(B) above, to the extent
the right to exercise the Option or Stock Appreciation
Right accrued as of the date of such Termination of
Employment and did not expire during such additional
period and prior to the Participant's death, the right of
the Participant's Beneficiary to exercise the Option under
the Plan shall expire upon the expiration of five years
from the date of the Participant's death (but in no event
more than five years from the date of the Participant's
Termination of Employment by reason of disability or
retirement) or on the date of expiration of the Option
determined pursuant to Section 6.03(b)(i), (iii) or (iv),
whichever is earlier. Unless otherwise provided by the
Committee in accordance with Section 6.03(d), Stock
Appreciation Rights shall expire three months after the
Participant's death.
(ii) TERMINATION OF UNVESTED OPTIONS OR STOCK
APPRECIATION RIGHTS UPON TERMINATION OF EMPLOYMENT. To the
extent the right to exercise an Option or a Stock Appreciation
Right, or any portion thereof, has not accrued as of the date of
Termination of Employment, such right shall expire at the date of
such Termination of Employment. Notwithstanding the foregoing,
the Committee, within its discretion and under such terms as it
deems appropriate, may permit a Participant who terminates
employment on the Participant's Normal Retirement Date or Other
Retirement Date and who will continue to
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render significant services to the Company or one of its
Subsidiaries after his or her Termination of Employment, to
continue vesting in his or her Options and Stock Appreciation
Rights during the period in which the individual continues to
render such services.
6.04 EXERCISE PROCEDURES. Each Option and Stock Appreciation Right
granted under the Plan shall be exercised by written notice to the Company
which must be received by the officer or employee of the Company designated in
the Award Agreement on or before the expiration date of the Award. The
Purchase Price of shares purchased upon exercise of an Option granted under the
Plan shall be paid in full in cash by the Participant pursuant to the Award
Agreement; provided, however, that the Committee may (but shall not be required
to) permit payment to be made by delivery to the Company of either (a) Company
Common Shares (which may include Restricted Shares or shares issued in
connection with the exercise of the Option, subject to such rules as the
Committee deems appropriate) or (b) any combination of cash and Company Common
Shares, or (c) such other consideration as the Committee deems appropriate and
in compliance with applicable law (including payment in accordance with a
cashless exercise program under which, if so instructed by the Participant,
Company Common Shares may be issued directly to the Participant's broker or
dealer upon receipt of the Purchase Price in cash from the broker or dealer).
In the event that any Company Common Shares shall be transferred to the Company
to satisfy all or any part of the Purchase Price, the part of the Purchase
Price deemed to have been satisfied by such transfer of Company Common Shares
shall be equal to the product derived by multiplying the Fair Market Value as
of the date of exercise times the number of Company Common Shares transferred
to the Company. The Participant may not transfer to the Company in
satisfaction of the Purchase Price any fractional share of Company Common
Shares. Any part of the Purchase Price paid in cash upon the exercise of any
Option shall be added to the general funds of the Company and may be used for
any proper corporate purpose. Unless the Committee shall otherwise determine,
any Company Common Shares transferred to the Company as payment of all or part
of the Purchase Price upon the exercise of any Option shall be held as treasury
shares.
6.05 CHANGE IN CONTROL.
(a) OPTIONS. In the event of a Change in Control, (i) all
Options outstanding on the date of such Change in Control shall become
immediately and fully exercisable, and (ii) each Participant who is then
subject to the provisions of Section 16(b) of the Exchange Act shall be
permitted to surrender for cancellation within sixty days after such Change
in Control any Option or portion of an Option to the extent not yet
exercised (or with respect to an Option or portion of an Option granted to
such a Participant less than six months prior to the date of the Change in
Control, within sixty days after the expiration of the six month period
following the Date of Grant) and to receive a cash payment in an amount
equal to the excess, if any, of (A) the Adjusted Fair Market Value of the
Company Common Shares subject to the Option or a portion thereof
surrendered, over (B) the Purchase Price of such Option. The provisions of
this Section 6.05(a) shall not be applicable to any Options granted to a
Participant if any Change in Control results from such Participant's
beneficial ownership (within the meaning of Rule 13d-3 under the Exchange
Act) of Company Common Shares or Company Voting Securities.
(b) STOCK APPRECIATION RIGHTS. In the event of a Change in
Control, all Stock Appreciation Rights shall become immediately and fully
exercisable. Upon any exercise of a Stock Appreciation Right or any
portion thereof during the 60-day period following the Change in Control,
(or with respect to a Stock Appreciation Right held by a Participant who is
then subject to the
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provisions of Section 16(b) of the Exchange Act which was granted less than
six months prior to the date of the Change in Control, within sixty days
after the expiration of the six month period following the Date of Grant)
the amount payable shall be determined by reference to the Adjusted Fair
Market Value of the Company Common Shares and shall be paid in cash. The
provisions of this Section 6.05(b) shall not be applicable to any Stock
Appreciation Rights granted to a Participant, if any Change in Control
results from such Participant's beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act) of Company Common Shares or Company
Voting Securities.
ARTICLE VII
RESTRICTED SHARES
7.01 RESTRICTED SHARE AWARDS. The Committee may grant to any
Participant an Award of Company Common Shares in such number, and on such
terms, conditions and restrictions (whether based on performance standards,
periods of service or otherwise) as the Committee shall establish. The terms
of any Restricted Share Award granted under this Plan shall be set forth in an
Award Agreement which shall contain provisions determined by the Committee and
not inconsistent with this Plan.
(a) ISSUANCE OF RESTRICTED SHARES. As soon as practicable
after the Date of Grant of a Restricted Share Award by the Committee, the
Company shall cause to be transferred on the books of the Company, or its
agent, Company Common Shares, registered on behalf of the Participant,
evidencing the Restricted shares covered by the Award, but subject to
forfeiture to the Company as of the Date of Grant if an Award Agreement
with respect to the Restricted Shares covered by the Award is not duly
executed by the Participant and timely returned to the Company. All
Company Common Shares covered by Awards under this Article VII shall be
subject to the restrictions, terms and conditions contained in the Plan and
the Award Agreement entered into by the Participant. Until the lapse or
release of all restrictions applicable to an Award of Restricted Shares,
the share certificates representing such Restricted Shares may be held in
custody by the Company, its designee, or, if the certificates bear a
restrictive legend, by the Participant. Upon the lapse or release of all
restrictions with respect to an Award as described in Section 7.01(d), one
or more share certificates, registered in the name of the Participant, for
an appropriate number of shares as provided in Section 7.01(d), free of any
restrictions set forth in the Plan and the Award Agreement, shall be
delivered to the Participant.
(b) SHAREHOLDER RIGHTS. Beginning on the Date of Grant of the
Restricted Share Award and subject to execution of the Award Agreement as
provided in Section 7.01(a), the Participant shall become a shareholder of
the Company with respect to all shares subject to the Award Agreement and
shall have all of the rights of a shareholder, including, but not limited
to, the right to vote such shares and the right to receive dividends;
provided, however, that any Company Common Shares distributed as a dividend
or otherwise with respect to any Restricted Shares as to which the
restrictions have not yet lapsed, shall be subject to the same restrictions
as such Restricted Shares and held or restricted as provided in Section
7.01(a).
(c) RESTRICTION ON TRANSFERABILITY. None of the Restricted
Shares may be assigned or transferred (other than by will or the laws of
descent and distribution, or to an inter vivos trust with respect to which
the Participant is treated as the owner under Sections 671 through 677 of
the Code), pledged or sold prior to lapse of the restrictions applicable
thereto.
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(d) DELIVERY OF SHARES UPON VESTING. Upon expiration or
earlier termination of the forfeiture period without a forfeiture and the
satisfaction of or release from any other conditions prescribed by the
Committee, or at such earlier time as provided under the provisions of
Section 7.03, the restrictions applicable to the Restricted Shares shall
lapse. As promptly as administratively feasible thereafter, subject to the
requirements of Section 10.05, the Company shall deliver to the Participant
or, in case of the Participant's death, to the Participant's Beneficiary,
one or more share certificates for the appropriate number of Company Common
Shares, free of all such restrictions, except for any restrictions that may
be imposed by law.
7.02 TERMS OF RESTRICTED SHARES.
(a) FORFEITURE OF RESTRICTED SHARES. Subject to Sections
7.02(b) and 7.03, all Restricted Shares shall be forfeited and returned to
the Company and all rights of the Participant with respect to such
Restricted Shares shall terminate unless the Participant continues in the
service of the Company or a Subsidiary as an employee until the expiration
of the forfeiture period for such Restricted Shares and satisfies any and
all other conditions set forth in the Award Agreement. The Committee shall
determine the forfeiture period (which may, but need not, lapse in
installments) and any other terms and conditions applicable with respect to
any Restricted Share Award provided that, unless otherwise authorized by
the Board, such forfeiture period shall not be less than one year from the
Date of Grant.
(b) WAIVER OF FORFEITURE PERIOD. Notwithstanding anything
contained in this Article VII to the contrary, the Committee may, in its
sole discretion, waive the forfeiture period and any other conditions set
forth in any Award Agreement under appropriate circumstances (including the
death, disability or retirement of the Participant or a material change in
circumstances arising after the date of an Award) and subject to such terms
and conditions (including forfeiture of a proportionate number of the
Restricted Shares) as the Committee shall deem appropriate, provided that
the Participant shall at that time have completed at least one year of
employment after the Date of Grant. Waiver of the forfeiture period and
any other conditions set forth in an Award Agreement prior to the
Participant's completion of one year of employment after the Date of Grant
may only be accomplished through action of the Board.
7.03 CHANGE IN CONTROL. In the event of a Change in Control, and
irrespective of whether or not the one year period following the date of the
Restricted Share Award required under the provisions of Section 7.02(a) has
been met, all restrictions applicable to the Restricted Shares Award shall
terminate fully and the Participant shall immediately have the right to the
delivery of share certificate or certificates for such shares in accordance
with Section 7.01(d).
ARTICLE VIII
PERFORMANCE AWARDS
8.01 PERFORMANCE AWARDS.
(a) AWARD PERIODS AND CALCULATIONS OF POTENTIAL INCENTIVE
AMOUNTS. The Committee may grant Performance Awards to Participants. A
Performance Award shall consist of the right to receive a payment (measured
by the Fair Market Value of a specified number of Company Common Shares,
increases in such Fair Market Value during the Award Period or a fixed cash
amount) contingent upon the extent to which certain predetermined
performance targets have been met during
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an Award Period. Performance Awards may be made in conjunction with, or in
addition to, Restricted Share Awards made under Article VII. The Award
Period shall be one or more calendar years as determined by the Committee.
The Committee, in its discretion and under such terms as it deems
appropriate, may permit newly eligible employees, such as those who are
promoted or newly hired, to receive Performance Awards after an Award
Period has commenced.
(b) PERFORMANCE TARGETS. The performance targets may include
specified levels of earnings per share, return on investment, return on
shareholder equity and/or such other goals related to the performance of
the Company or the performance of a Participant as may be established by
the Committee in its discretion. The performance targets established by
the Committee may vary for different Award Periods and need not be the same
for each Participant receiving a Performance Award in an Award Period. The
Committee, in its discretion, but only under extraordinary circumstances as
determined by the Committee, may change any prior determination of
performance targets for any Award Period at any time prior to the final
determination of the Award when events or transactions occur to cause the
performance targets to be an inappropriate measure of achievement.
(c) EARNING PERFORMANCE AWARDS. The Committee at the Date of
Grant shall prescribe a formula to determine the percentage of the
Performance Award to be earned based upon the degree of attainment of
performance targets. In the event the minimum performance targets
established by the Committee are not achieved, no payment shall be made to
the Participant. In the event the performance targets are fully achieved,
100% of the Performance Award shall be paid to the Participant. The
Committee may provide for grants up to a maximum of 150% of Performance
Awards for achievement exceeding performance targets.
(d) PAYMENT OF EARNED PERFORMANCE AWARDS. Payments of earned
Performance Awards shall be made in cash or Company Common Shares, or a
combination of cash and Company Common Shares, in the discretion of the
Committee. Payment normally will be made as soon as is practicable
following the end of an Award Period; provided, however, that the Committee
may permit deferral of the payment of all or a portion of a Performance
Award payable in cash upon the request of the Participant timely made in
accordance with rules prescribed by the Committee. Deferred amounts may
generate earnings for the Participant under the conditions of a separate
agreement providing for such as approved by the Committee and executed by
the Participant. The Committee, in its sole discretion, may also define
such other conditions of payment of earned Performance Awards as it may
deem desirable in carrying out the purposes of the Plan.
8.02 TERMS OF PERFORMANCE AWARDS.
(a) TERMINATION OF EMPLOYMENT. Unless otherwise provided
below or in Section 8.03, in the case of a Participant's Termination of
Employment prior to the end of an Award Period, the Participant will not
have earned any Performance Awards.
(b) RETIREMENT. If a Participant's Termination of Employment
is because of retirement on a Normal Retirement Date or Other Retirement
Date prior to the end of an Award Period, the Participant will not be paid
any Performance Awards, unless the Committee, in its sole and exclusive
discretion, determines that an Award should be paid. In such a case, the
Participant shall be entitled to receive a pro-rata portion of his or her
Award as determined under Subsection (d).
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(c) DEATH OR DISABILITY. If a Participant's Termination of
Employment is due to death or disability (as determined in the sole and
exclusive discretion of the Committee) following at least one year of
participation in any Award Period, but prior to the end of an Award Period,
the Participant or the Participant's personal representative shall be
entitled to receive a pro-rata share of his or her Award as determined
under Subsection (d).
(d) PRO-RATA PAYMENT. The amount of any payment made to a
Participant whose employment is terminated by retirement, death or
disability (under circumstances described in Subsections (b) and (c)) will
be the amount determined by multiplying the amount of the Performance Award
which would have been earned, determined at the end of the Award Period,
had such employment not been terminated, by a fraction, the numerator of
which is the number of whole months such Participant was employed during
the Award Period, and the denominator of which is the total number of
months of the Award Period. Any such payment made to a Participant whose
employment is terminated prior to the end of an Award Period under this
Section 8.02 shall be made at the end of the respective Award Period,
unless otherwise determined by the Committee in its sole discretion. Any
partial payment previously made or credited to a deferred account for the
benefit of a Participant as provided under Section 8.01(d) of the Plan
shall be subtracted from the amount otherwise determined as payable as
provided in this Section.
(e) OTHER EVENTS. Notwithstanding anything to the contrary in
this Article VIII, the Committee may, in its sole and exclusive discretion,
determine to pay all or any portion of a Performance Award to a Participant
who has terminated employment prior to the end of an Award Period under
certain circumstances (including the death, disability or retirement of the
Participant or a material change in circumstances arising after the Date of
Grant) and subject to such terms and conditions as the Committee shall deem
appropriate, provided that the Participant shall have completed at his or
her Termination of Employment at least one year of employment after the
Date of Grant. The Board may determine to pay all or a part of a
Performance Award to a Participant who has completed less than one year of
employment after the Date of Grant.
8.03 CHANGE IN CONTROL. In the event of a Change in Control, and
irrespective of whether or not the one year period following the date of the
Performance Award required under the provisions of Section 8.01 has been met,
all Performance Awards for all Award Periods shall immediately become fully
payable to all Participants and shall be paid to Participants within 30 days
after such Change in Control.
ARTICLE IX
OTHER AWARDS
9.01 GRANT OF OTHER AWARDS. Other Awards of cash, Awards of Company
Common Shares, or Awards valued in whole or in part by reference to, or
otherwise based on Company Common Shares, may be granted either alone or in
addition to or in conjunction with other Awards under the Plan. Subject to the
provisions of the Plan, the Committee shall have sole and complete authority to
determine the persons to whom and the time or times at which such Awards shall
be made, the number of Company Common Shares to be granted pursuant to such
Awards, and all other conditions of the Awards. Any such Award shall be
confirmed by an Award Agreement executed by the Committee and the Participant,
which Award Agreement shall contain such provisions as the Committee determines
to be necessary or appropriate to carry out the intent of this Plan with
respect to such Award.
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9.02 TERMS OF OTHER AWARDS. In addition to the terms and conditions
specified in the Award Agreement, Awards made pursuant to this Article IX shall
be subject to the following:
(a) Any Company Common Shares subject to Awards made under
this Article IX may not be sold, assigned, transferred, pledged or
otherwise encumbered prior to the date on which the shares are issued, or,
if later, the date on which any applicable restriction, performance or
deferral period lapses; and
(b) If specified by the Committee in the Award Agreement, the
recipient of an Award under this Article IX shall be entitled to receive,
currently or on a deferred basis, interest or dividends or dividend
equivalents with respect to the Company Common Shares or other securities
covered by the Award; and
(c) The Award Agreement with respect to any Award shall
contain provisions dealing with the disposition of such Award in the event
of a Termination of Employment prior to the exercise, realization or
payment of such Award, whether such termination occurs because of
retirement, disability, death or other reason, with such provisions to take
account of the specific nature and purpose of the Award.
ARTICLE X
TERMS APPLICABLE TO ALL AWARDS GRANTED UNDER THE PLAN
10.01 PLAN PROVISIONS CONTROL AWARD TERMS. The terms of the Plan shall
govern all Awards granted under the Plan, and in no event shall the Committee
have the power to grant any Award under the Plan which is contrary to any of
the provisions of the Plan. In the event any provision of any Award granted
under the Plan shall conflict with any term in the Plan as constituted on the
Date of Grant of such Award, the term in the Plan as constituted on the Date of
Grant of such Award shall control. Except as provided in Section 10.03, the
terms of any Award granted under the Plan may not be changed after the Date of
Grant of such Award so as to materially decrease the value of the Award without
the express written approval of the holder.
10.02 AWARD AGREEMENT. No person shall have any rights under any Award
granted under the Plan unless and until the Company and the Participant to whom
such Award shall have been granted shall have executed and delivered an Award
Agreement or received any other Award acknowledgment authorized by the
Committee expressly granting the Award to such person and containing provisions
setting forth the terms of the Award.
10.03 MODIFICATION OF AWARD AFTER GRANT. No Award granted under the
Plan to a Participant may be modified (unless such modification does not
materially decrease the value of the Award) after the Date of Grant except by
express written agreement between the Company and the Participant, provided
that any such change (a) shall not be inconsistent with the terms of the Plan,
and (b) shall be approved by the Committee. No modifications may be made to
any Awards granted to a Participant while the Participant is subject to Section
16(b) of the Exchange Act except in compliance with Rule 16b-3.
10.04 LIMITATION ON TRANSFER. Except as provided in Section 7.01(c) in
the case of Restricted Shares, a Participant's rights and interest under the
Plan may not be assigned or transferred other than by will or the laws of
descent and distribution, and during the lifetime of a Participant, only the
Participant personally (or the Participant's personal representative) may
exercise rights under the Plan.
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The Participant's Beneficiary may exercise the Participant's rights to the
extent they are exercisable under the Plan following the death of the
Participant.
10.05 TAXES. The Company shall be entitled, if the Committee deems it
necessary or desirable, to withhold (or secure payment from the Participant in
lieu of withholding) the amount of any withholding or other tax required by law
to be withheld or paid by the Company with respect to any amount payable and/or
shares issuable under such Participant's Award, or with respect to any income
recognized upon a disqualifying disposition of shares received pursuant to the
exercise of an Incentive Stock Option, and the Company may defer payment or
issuance of the cash or shares upon exercise or vesting of an Award unless
indemnified to its satisfaction against any liability for any such tax. The
amount of such withholding or tax payment shall be determined by the Committee
and shall be payable by the Participant at the time of issuance or payment
(except as otherwise payable under Section 10.05(c)) in accordance with the
following rules:
(a) Unless otherwise provided by the Committee, with respect
to Participants who are subject to the provisions of Section 16(b) of the
Exchange Act on the date on which the withholding requirements apply, the
Company shall withhold from such Award the appropriate number of Company
Common Shares, rounded up to the next whole share, whose Fair Market Value
is equal to such amount, or, in the case of a cash payment, the amount of
cash, as is determined by the Company to be sufficient to satisfy
applicable tax withholding requirements.
(b) With respect to Participants who are not subject to the
provisions of Section 16(b) of the Exchange Act on the date on which the
withholding requirements apply, the Participants shall have the right to
elect to meet his or her withholding requirement through the method
described in Subsection (a) above or by direct payment to the Company of
the amount of any taxes required to be withheld with respect to such Award;
provided, however, that the payment of withholding requirements with
respect to Restricted Share Awards shall be governed solely by the
provisions of Section 7.01(d).
(c) If permitted under applicable Federal income tax laws, a
Participant may elect to be taxed in the year in which an Award is made.
If the Participant makes such an election, the Participant shall promptly
notify the Company in writing and shall provide the Company with a copy of
the executed election form as filed with the Internal Revenue Service by no
later than thirty days from the Date of the Grant. Promptly following such
notification, the Participant shall pay directly to the Company the cash
amount determined by the Company to be sufficient to satisfy applicable
federal, state or local withholding tax requirements.
(d) The Committee shall have the discretion as to any Award,
to cause the Company to pay to tax authorities for the benefit of any
Participant, or to reimburse such Participant for the individual taxes
which are due on the grant, exercise or vesting of any share Award, or the
lapse of any restriction on any share Award (whether by reason of a
Participant's filing of an election under Section 83(b) of the Code or
otherwise), including, but not limited to, federal income tax, state income
tax, local income tax and excise tax under Section 4999 of the Code, as
well as for any such taxes as may be imposed upon such tax payment or
reimbursement.
10.06 SURRENDER OF AWARDS. Any Award granted under the Plan may be
surrendered to the Company for cancellation on such terms as the Committee and
the holder approve.
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10.07 ADJUSTMENTS TO REFLECT CAPITAL CHANGES.
(a) RECAPITALIZATION. The number and kind of shares subject
to outstanding Awards, the Purchase Price or Exercise Price for such
shares, and the number and kind of shares available for Awards subsequently
granted under the Plan shall be appropriately adjusted to reflect any stock
dividend, stock split, combination or exchange of shares, merger,
consolidation or other change in capitalization with a similar substantive
effect upon the Plan or the Awards granted under the Plan. The Committee
shall have the power and sole discretion to determine the amount of the
adjustment to be made in each case.
(b) MERGER. After any Merger in which the Company is the
surviving corporation, each Participant shall, at no additional cost, be
entitled upon any exercise of an Option or receipt of other Award to
receive (subject to any required action by shareholders), in lieu of the
number of Company Common Shares receivable or exercisable pursuant to such
Award, the number and class of shares or other securities to which such
Participant would have been entitled pursuant to the terms of the Merger
if, at the time of the Merger, such Participant had been the holder of
record of a number of shares equal to the number of shares receivable or
exercisable pursuant to such Award. Comparable rights shall accrue to each
Participant in the event of successive Mergers of the character described
above.
(c) OPTIONS TO PURCHASE SHARES OR STOCK OF ACQUIRED COMPANIES.
After any Merger in which the Company or a Subsidiary shall be a surviving
corporation, the Committee may grant substituted options under the
provisions of the Plan, pursuant to Section 425 of the Code, replacing old
options granted under a plan of another party to the Merger whose shares or
stock subject to the old options may no longer be issued following the
Merger. The foregoing adjustments and manner of application of the
foregoing provisions shall be determined by the Committee in its sole
discretion. Any such adjustments may provide for the elimination of any
fractional shares which might otherwise become subject to any Options.
10.08 NO RIGHT TO EMPLOYMENT. No employee or other person shall have
any claim of right to be granted an Award under this Plan. Neither the Plan
nor any action taken hereunder shall be construed as giving any employee any
right to be retained in the employ of the Company or any of its Subsidiaries.
10.09 AWARDS NOT INCLUDABLE FOR BENEFIT PURPOSES. Payments received by
a Participant pursuant to the provisions of the Plan shall not be included in
the determination of benefits under any pension, group insurance or other
benefit plan applicable to the Participant which are maintained by the Company
or any of its Subsidiaries, except as may be provided under the terms of such
plans or determined by the Board.
10.10 GOVERNING LAW. All determinations made and actions taken
pursuant to the Plan shall be governed by the laws of the State of Ohio and
construed in accordance therewith.
10.11 NO STRICT CONSTRUCTION. No rule of strict construction shall be
implied against the Company, the Committee, or any other person in the
interpretation of any of the terms of the Plan, any Award granted under the
Plan or any rule or procedure established by the Committee.
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10.12 COMPLIANCE WITH RULE 16B-3. It is intended that the Plan be
applied and administered in compliance with Rule 16b-3. If any provision of
the Plan would be in violation of Rule 16b-3 if applied as written, such
provision shall not have effect as written and shall be given effect so as to
comply with Rule 16b-3, as determined by the Committee. The Board is
authorized to amend the Plan and to make any such modifications to Award
Agreements to comply with Rule 16b-3, as it may be amended from time to time,
and to make any other such amendments or modifications as it deems necessary or
appropriate to better accomplish the purposes of the Plan in light of any
amendments made to Rule 16b-3.
10.13 CAPTIONS. The captions (i.e., all Section headings) used in the
Plan are for convenience only, do not constitute a part of the Plan, and shall
not be deemed to limit, characterize or affect in any way any provisions of the
Plan, and all provisions of the Plan shall be construed as if no captions have
been used in the Plan.
10.14 SEVERABILITY. Whenever possible, each provision in the Plan and
every Award at any time granted under the Plan shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of the Plan or any Award at any time granted under the Plan shall be held to be
prohibited by or invalid under applicable law, then (a) such provision shall be
deemed amended to accomplish the objectives of the provision as originally
written to the fullest extent permitted by law and (b) all other provisions of
the Plan and every other Award at any time granted under the Plan shall remain
in full force and effect.
10.15 AMENDMENT AND TERMINATION.
(a) AMENDMENT. The Board shall have complete power and
authority to amend the Plan at any time and to add any other share award or
other incentive compensation programs to the Plan as it deems necessary or
appropriate and no approval by the shareholders of the Company or by any
other person, committee or entity of any kind shall be required to make any
amendment; provided, however, that the Board shall not, without the
requisite affirmative approval of shareholders of the Company, make any
amendment which requires shareholder approval under Rule 16b-3 or the Code,
unless such compliance is no longer mandatory under Rule 16b-3, the Code or
under any other applicable law or rule of any stock exchange which lists
Company Common Shares or Company Voting Securities. No termination or
amendment of the Plan may, without the consent of the Participant to whom
any Award shall theretofore have been granted under the Plan, adversely
affect the right of such individual under such Award. For the purposes of
this section, an amendment to the Plan shall be deemed to have the
affirmative approval of the shareholders of the Company if such amendment
shall have been submitted for a vote by the shareholders at a duly called
and constituted meeting of such shareholders at which a quorum is present
and a majority of the votes cast with respect to such amendment at such
meeting shall have been cast in favor of such amendment.
(b) TERMINATION. The Board shall have the right and the power
to terminate the Plan at any time. No Award shall be granted under the
Plan after the termination of the Plan, but the termination of the Plan
shall not have any other effect and any Award outstanding at the time of
the termination of the Plan may be exercised after termination of the Plan
at any time prior to the expiration date of such Award to the same extent
such Award would have been exercisable had the Plan not terminated.
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10.16 STATUS OF PRIOR PLANS. On February 25, 1991, the date when the
Board approved this Plan, the Company also had in effect other valid long-term
incentive plans for the benefit of officers and key employees, including the
Medusa Corporation 1988 Restricted Stock Award Plan, the Medusa Corporation
1988 Stock Option Plan and the Medusa Corporation 1988 Stock Appreciation
Rights Plan (the "Existing Plans"). At the time of its approval of this Plan
the Board also indicated its intent that the Existing Plans should survive the
approval of this Plan.
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<PAGE> 1
Exhibit 4.4
Form "A"
SENIOR EXECUTIVE OFFICER RESTRICTED SHARE AGREEMENT
UNDER THE MEDUSA CORPORATION 1991 LONG-TERM INCENTIVE PLAN
BETWEEN MEDUSA CORPORATION AND
[Fill-in: Participant]
DATED AS OF MAY 8, 1995
In recognition of the valued services performed by [Fill-in: Participant] (the
"Participant") for Medusa Corporation and its subsidiaries and as an incentive
for continued employment, Medusa Corporation, (the "Corporation"), through the
Organization and Compensation Committee of its Board of Directors (the
"Committee"), has determined to award to the Participant [Fill-in: Total
Shares] restricted shares (the "Restricted Shares") under the terms of the 1991
Long-Term Incentive Plan of Medusa Corporation (the "Plan") (a copy of which is
attached hereto and made a part hereof).
As a condition to such award and pursuant to Section 7.01(a) of the Plan, the
Corporation and the Participant hereby enter into this Restricted Share
Agreement with respect to the award of Performance Restricted Shares (as
defined below), and the award of SERP-Equivalent Restricted Shares (as defined
below), and agree to the terms and conditions set forth hereafter.
1. DEFINITIONS.
For purposes of this Agreement, and for purposes of interpreting the
terms of the Plan, the following terms shall have the following
meanings:
a. "CEMENT INDUSTRY PEER GROUP INDEX" shall mean the index which
reflects the cumulative total return (the fair market value plus
the dividends and distributions) for the Restriction Period of
the following cement companies, Giant Cement Holding, Inc.,
Lafarge Corporation, Lone Star Industries, Puerto Rican Cement
Co., Inc., Southdown Inc. and Texas Industries, weighted on the
basis of the market capitalization of such cement companies.
b. "CHANGE IN CONTROL" shall have the meaning set forth in Section
2.07 of the Plan.
c. "FAIR MARKET VALUE" shall mean "Fair Market Value" as defined in
Section 2.16 of the Plan.
d. "GRANT PRICE" shall mean $24.375 per share which is the average
of the high and low quoted sales prices of the Common Shares of
Medusa Corporation ("Medusa Shares"), as reported in the New York
Stock Exchange Composite Transactions ("Average Price") on May 8,
1995 (the "Start Date"). In the event that there is an increase
in the number of issued Medusa Shares by reason of stock
dividends distributions, recapitalizations, or split-ups, the
Grant Price shall promptly after such
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<PAGE> 2
event be decreased in proportion to such increase in issued
Medusa Shares that occurred as a result of such event.
Conversely, in case the issued Medusa Shares shall be combined
into a smaller number of Medusa Shares, the Grant Price shall be
promptly after such event increased in proportion to such
decrease in issued Medusa Shares that has occurred as a result of
such event. In the event of any merger, consolidation,
reorganization, liquidation in part or in whole, spinoff,
spinout, or extraordinary distribution or dividend on Medusa
Shares whether in cash, debt obligations of the Corporation or
other personal property of any kind, the Committee may make such
adjustment in the Grant Price as the Committee in its reasonable
discretion deems appropriate.
e. "MEDUSA TOTAL RETURN" shall mean, with respect to Performance
Restricted Shares, the total return on the Medusa Shares at any
time during the five year period commencing on the Start Date and
ending on the final Test Date and shall be calculated as follows:
Medusa Total Return = B/A-1
A = the Grant Price
B = C x D
C = the Average Price on the Test Date
D = The number of Medusa Shares that
would have been owned on the Test
Date assuming one such Medusa Share
had been owned on the Start Date and
all dividends and distributions,
whether in cash, in kind, or in debt
or equity securities of the
Corporation, subsequent to the Start
Date had been reinvested in Medusa
Shares.
For the purpose of calculating "D":
(a) the amount of each dividend shall be assumed
to have been reinvested by acquiring Medusa
Shares at their average price on the relevant
ex-dividend date;
(b) the amount of a dividend paid in marketable
securities (such as spin-offs of subsidiary
stock) shall be deemed to be the average
price of such securities in the relevant
market therefor on the relevant ex-dividend
date;
(c) the amount of a dividend paid other than in
cash or marketable securities, shall be
deemed to be the fair market value of the
asset transferred as of the relevant
ex-dividend date;
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(d) no allowance shall be made for tax or
transaction costs.
f. "PERFORMANCE LAPSE PERCENTAGE" (as used in Section 3 below) is
the percentage of the Performance Restricted Shares for which the
Performance Restrictions lapse, which percentage is in proportion
to the percentage (in 1% increments) occurring within a range
from 101% to 110% by which the Medusa Total Return exceeds the
cumulative total return of the Cement Industry Peer Group. In
other words, if the Medusa Total Return exceeds the peer group by
only 101%, then the Performance Restrictions shall lapse on only
10% of Performance Restricted Shares tested on that Test Date (a
"Partial Lapse"), and, if the exceedance is 110% or higher, the
Performance Restrictions shall lapse on all of the Performance
Restricted Shares tested on that Test Date. In the event of a
Partial Lapse, the Performance Restricted Shares which were
tested and for which the Performance Restrictions did not lapse,
shall be retested on subsequent Test Dates (as applicable) during
the Restriction Period.
g. "PERFORMANCE RESTRICTED SHARES" shall mean that portion of the
Restricted Shares awarded by the Committee to the Participant
which are performance-restricted.
h. "PERMANENT TOTAL DISABILITY", as provided in Section 2.33 of the
Plan, shall be determined in each case, by the Committee in its
sole discretion.
i. "RESTRICTION PERIOD" shall mean a period commencing on the date
of the award on May 8, 1995, the Start Date, and ending five
years later on May 8, 2000. (Except in the case of
SERP-Equivalent Restricted Shares which shall vest on May 8, 2000
and shall remain Restricted so long thereafter, as the
Participant is an employee of the Corporation.)
j. "RETIREMENT" shall have the following meaning:
(i) for the purpose of the Performance Restricted Shares,
"Retirement", for Senior Executive Officers, shall mean "Normal
Retirement Date" as defined in Section 2.21 of the Plan, which is
retirement at any date; (it is not limited to retirement at age
65; by action of the Board on May 9, 1994);
(ii) for the purpose of the SERP-Equivalent Restricted
Shares, "Retirement" shall mean age 62; in such cases "Normal
Retirement Date" shall be the first day of the month following a
Participant attaining age 62.
k. "SENIOR EXECUTIVE" shall mean the Chairman or the President of
the Company.
l. "SERP-EQUIVALENT RESTRICTED SHARES" shall mean that portion of
the Restricted Shares awarded by the Committee to the Participant
which are time-restricted.
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<PAGE> 4
m. "TEST DATE" shall mean, with respect to one-fifth of the
Performance Restricted Shares, the following five dates, May 9,
1996, May 8, 1997, May 8, 1998, May 8, 1999 and May 8, 2000 or
the next business day thereafter if the New York Stock Exchange
is not open on such date, or the day on which a Change in Control
occurs.
2. AWARD OF PERFORMANCE RESTRICTED SHARES.
Pursuant to the provisions of the Plan and this Agreement and by the
authority of the Committee:
a. The Corporation hereby awards [Fill-in: PRS Shares] Performance
Restricted Shares to the Participant.
b. When the Restrictions on the Performance Restricted Shares lapse
for any reason, the Corporation shall also pay to the Participant
at the time when the Restrictions on the Performance Restricted
Shares lapse, a separate cash amount equal to:
(1) the federal, state and local income tax and golden
parachute excise tax (if any) payable with respect to the
lapse of the Performance Restrictions (as defined below),
divided by
(2) one (1) minus the total effective federal, state and local
income and excise tax rate applicable as a result of the
lapse of the Performance Restrictions.
3. PERFORMANCE RESTRICTED SHARE; RESTRICTIONS AND RIGHTS.
a. During the Restriction Period, the Performance Restricted Shares
are subject to forfeiture and may not be sold, transferred,
assigned or pledged (the "Performance Restrictions"). The
Performance Restrictions shall automatically lapse, based upon
the actual Performance Lapse Percentage calculated as of the
following Test Dates:
(1) With respect to up to one-fifth of the Performance
Restricted Shares hereunder, if on the Test Date for the
period from May 8, 1995 to May 9, 1996, both of the
following tests shall be met: (a) the Fair Market Value
shall exceed the Grant Price, and (b) the Medusa Total
Return shall exceed the cumulative total return of the
Cement Industry Peer Group Index for the period from May
8, 1995 to May 9, 1996.
(2) With respect to up to two-fifths of the Performance
Restricted Shares hereunder, if on the Test Date for the
period from May 8, 1995 to May 8, 1997, both of the
following tests shall be met: (a) the Fair Market Value
shall exceed the Grant Price, and (b) the Medusa Total
Return shall exceed the cumulative total return of the
Cement Industry Peer Group Index for the period from May
8, 1995 to May 8, 1997.
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<PAGE> 5
(3) With respect to up to three-fifths of the Performance
Restricted Shares hereunder, if on the Test Date for the
period from May 8, 1995 to May 8, 1998, both of the
following tests shall be met: (a) the Fair Market Value
shall exceed the Grant Price, and (b) the Medusa Total
Return shall exceed the cumulative total return of the
Cement Industry Peer Group Index for the period from May
8, 1995 to May 8, 1998.
(4) With respect to up to four-fifths of the Performance
Restricted Shares hereunder, if on the Test Date for the
period from May 8, 1995 to May 8, 1999, both of the
following tests shall be met: (a) the Fair Market Value
shall exceed the Grant Price, and (b) the Medusa Total
Return shall exceed the cumulative total return of the
Cement Industry Peer Group Index for the period from May
8, 1995 to May 8, 1999.
(5) With respect to up to all of the Performance Restricted
Shares hereunder, if on the Test Date for the period from
May 8, 1995 to May 8, 2000, both of the following tests
shall be met: (a) the Fair Market Value shall exceed the
Grant Price, and (b) the Medusa Total Return shall exceed
the cumulative total return of the Cement Industry Peer
Group Index for the period from May 8, 1995 to May 8,
2000.
(6) In the event of the Participant's Retirement, death, a
Change in Control, or in the event that the Committee
determines that the Participant has experienced a
Permanent Total Disability: or
(7) As may be otherwise provided under the terms of the Plan.
At the end of the Restriction Period, all Performance Restricted
Shares as to which the Performance Restrictions shall not have
lapsed by reason of the operation of clauses (1) through (7) of
the foregoing subsection shall be forfeited and the Participant
shall be required to return all applicable Performance Restricted
Share certificates to the Corporation.
b. During the Restriction Period, the Participant shall be entitled
to all other rights as a shareholder of the Corporation,
including the right to vote the Performance Restricted Shares and
receive dividends and other distributions thereon, with share
dividends subject however to the same restrictions as the
Performance Restricted Shares.
4. AWARD OF SERP-EQUIVALENT SHARES.
Pursuant to the provisions of the Plan, as authorized by the Board on
March 27, 1995, this Agreement and by the authority delegated by the
Board to the Committee, the Corporation hereby awards [Fill-in: SERP
Shares] SERP-Equivalent Restricted Shares to the Participant, which is
the number of Restricted Shares actuarially determined to provide a
benefit to the Participant which is supplemental to the benefit
provided under the Medusa Corporation Pension Plan for Certain Covered
Employees, assuming fifteen
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<PAGE> 6
(15) years service, with Retirement (at age 62), and reflecting the
Participant's base compensation and compensation under the Corporation
Annual Incentive Plan from date of hire to the Participant's Normal
Retirement Date, averaged over the highest five consecutive calendar
years during the last ten years prior to Retirement.
5. SERP-EQUIVALENT RESTRICTED SHARES; RESTRICTIONS AND RIGHTS.
a. VESTING.
(1) Unless the Committee waives the vesting requirements, the
SERP-Equivalent Restricted Shares are forfeitable if the
Participant ceases to remain an employee of the
Corporation for five years, namely until May 8, 2000.
(2) Provided, nonetheless, that the SERP-Equivalent Restricted
Shares shall vest upon the Participant attaining age 62.
(4) The SERP-Equivalent Shares shall also vest in the event of
the Participant's death, a Change of Control or in the
event that the Committee determines that the Participant
has experienced a Permanent Total Disability.
(5) The SERP-Equivalent Shares may also vest as may otherwise
be provided under the terms of the Plan.
If the Participant leaves the employ of the Corporation prior to
the vesting of the SERP-Equivalent Shares by reason of the
operation of clauses (1) through (5) of the foregoing subsection,
the SERP-Equivalent Shares shall be forfeited and the Participant
shall be required to return all applicable SERP-Equivalent
Restricted Share certificates to the Corporation.
b. POST-VESTING RESTRICTIONS.
(1) During the post-vesting Restriction Period, the
SERP-Equivalent Restricted Shares may not be sold,
transferred, assigned or pledged. Such restrictions shall
lapse when the Participant is no longer an employee of the
Corporation (the "SERP- Equivalent Restrictions").
(2) The presence of post-vesting restrictions shall not
prevent the Participant from transferring a sufficient
number of SERP- Equivalent Restricted Shares for the
purpose of generating the cash required to pay the taxes
due upon vesting, at which time the Corporation may, but
is not required to, assume the Participant's tax
obligation in return for the surrender of the number of
SERP-Equivalent Restricted Shares which is equivalent to
the Fair Market Value of such tax obligation.
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<PAGE> 7
(3) Upon the request of a Participant who is employed by the
Corporation, the Committee may at any time exercise its
authority to allow the transfer of any or all
SERP-Equivalent Restricted Shares in order for the
Participant to diversify his or her retirement asset
portfolio.
(4) The SERP-Equivalent Restrictions also lapse in the event
of the Participant's death, a Change of Control or in the
event that the Committee determines that the Participant
has experienced a Permanent Total Disability.
(5) The SERP-Equivalent Restrictions may also lapse as may
otherwise be provided under the terms of the Plan.
If the Participant leaves the employ of the Corporation prior to
the Participant's Normal Retirement Date, and prior to the
occurrence of any of the events described above in clause 4 of
the foregoing subsection, then the restrictions on the SERP-
Equivalent Shares shall, nonetheless, not lapse until the
Participant's Normal Retirement Date.
c. During the Restriction Period, the Participant shall be entitled
to all other rights as a shareholder of the Corporation,
including the right to vote the SERP-Equivalent Restricted Shares
and receive dividends and other distributions thereon, with share
dividends subject however to the same restrictions as the
SERP-Equivalent Restricted Shares.
6. SHARE CERTIFICATES.
Each share certificate evidencing an award of Restricted Shares shall
be registered in the name of the Participant, and shall bear an
appropriate legend referring to the terms, conditions and restrictions
applicable to such award substantially in the following form (the
"Legend"):
"The transferability of this certificate and the shares
represented hereby are subject to the terms and conditions
(including forfeiture) of the 1991 Long-Term Incentive Plan of
Medusa Corporation and an Agreement entered into between the
registered owner and Medusa Corporation. Copies of such Plan and
Agreement are on file and may be obtained upon request without
charge from the offices of the Secretary of Medusa Corporation,
P.O. Box 5668, Cleveland, Ohio 44101."
7. TERMINATION OF EMPLOYMENT.
Except as provided in Sections 3 and 5 of this Restricted Share
Agreement and Section 7.02(a) of the Plan, the termination of
Participant's employment during the Restriction Period (or prior to
vesting, in the case of the SERP-Equivalent Restricted Shares) shall
result in the forfeiture of all Restricted Shares as to which the
Performance Restrictions have not lapsed or the SERP- Equivalent
Shares which have not vested, and the Participant shall be required to
return all applicable share certificates to the Corporation.
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<PAGE> 8
8. COVENANTS.
a. The Participant agrees to be bound by all terms and provisions of
the Plan as contained in Exhibit A, which is attached hereto,
receipt of a copy of which is acknowledged by the Participant's
signature below, and all such provisions shall be deemed a part
of this Agreement for all purposes.
b. The Participant agrees to provide the Corporation, when and if
requested, with any information or documentation which the
Corporation believes necessary or advisable in connection with
the administration of the Plan, including data required to assure
compliance with the requirements of the Securities and Exchange
Commission, of any stock exchange upon which the Restricted
Shares are then listed, or of any applicable federal, state or
other law.
9. NO COVENANT OF EMPLOYMENT.
Neither the execution and delivery hereof nor the granting of any
award evidenced hereby shall constitute, or be evidence of, any
agreement or understanding, express or implied, on the part of the
Corporation or its subsidiaries to employ the Participant for any
specific period.
10. INTERPRETATION AND ADMINISTRATION OF PLAN AND AGREEMENT.
a. In the event of any conflict between the terms herein and those
of the Plan, the provisions of the Plan shall prevail.
b. The Committee shall have full authority and discretion, subject
only to the terms of the Plan, to decide all matters relating to
the interpretation or administration of the Plan and this
Agreement thereunder, and all such action by the Committee shall
be final, conclusive, and binding upon the Corporation and the
Participant. The Committee shall have full authority and
discretion to modify at any time the vesting and/or the
Restriction Period (as well as any schedule of installments for
the lapse thereof), the Performance Restrictions or the
SERP-Equivalent Restrictions, the other terms and conditions of
this Agreement, the Legend and any other instrument evidencing
this award, provided that no such modification shall increase the
benefit under such award beyond that which the Committee could
have originally granted at the time of the award, or shall impair
the rights of the Participant under such award except in
accordance with the Plan, or any applicable agreement or
applicable law, or with the consent of the Participant.
This Restricted Share Agreement is deemed to be issued in, the award
evidenced hereby is deemed to be granted in, and both shall be
governed by the laws of the State of Ohio.
11. ENTIRE AGREEMENT.
There have been no representations made to the Participant other than
those contained herein.
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<PAGE> 9
12. DELIVERY.
All certificates for Restricted Shares delivered under the Plan shall
be subject to such stock transfer orders and other restrictions as the
Committee may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission, any stock
exchange upon which the Restricted Shares are then listed and any
applicable federal or state securities law, and the Committee may
cause a legend or legends to be put on any such certificates to make
appropriate reference to such restrictions.
The Committee may adopt rules which provide that the certificates
evidencing the Restricted Shares may be held in custody by a bank or
other institution, or that the Corporation may itself hold the
Restricted Shares in custody until the restrictions thereon shall have
lapsed and may require, as a condition of any award, that the
Participant shall have delivered a stock power endorsed in blank
relating to the Restricted Shares covered by such award.
13. AMENDMENT.
The terms of this Agreement shall be subject to the terms of the Plan
as the Plan may be amended from time-to-time by the Board of Directors
of the Corporation unless any Plan amendment by its terms or by its
clear intent is inapplicable to this Agreement.
14. NOTICE.
Any notice to the Corporation provided for in this Agreement shall be
in writing and addressed to the Secretary of the Corporation, and any
notice to the Participant shall be in writing and addressed to the
Participant at the address contained in payroll records at the time or
to such other address designated in writing by the Participant.
Medusa Corporation
By:____________________________________
George E. Uding, Jr., President
Participant
By:____________________________________
[Fill-in: Participant]
Signed this ____ day of May, 1995
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<PAGE> 1
Exhibit 4.5 Form "A"
SENIOR EXECUTIVE OFFICER NON-QUALIFIED STOCK OPTION AGREEMENT
PURSUANT TO THE MEDUSA CORPORATION 1991
LONG-TERM INCENTIVE PLAN
THIS AGREEMENT, made and entered into as of this 8th day of May, 1995,
by and between Medusa Corporation, an Ohio corporation having its principal
executive offices at Monticello & Lee Boulevards, Cleveland Heights, Ohio 44118
(the "Company"), and [Fill-in: Participant] (the "Participant"),
W I T N E S S E T H :
WHEREAS, the Participant is employed by the Company or by a Subsidiary
thereof, and pursuant to Article VI of the Medusa Corporation 1991 Long-Term
Incentive Plan (the "Plan"), the Company desires to award the Participant
certain Non-Qualified Stock Options pursuant to the Plan (the "Award").
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration each to the other in hand paid, the receipt and adequacy
whereof is hereby mutually acknowledged, the Company and the Participant hereby
mutually covenant and agree as follows:
1. GRANT OF NON-QUALIFIED STOCK OPTIONS
The Company hereby grants to the Participant, and the
Participant hereby accepts, [ Fill-in: Stock Options] Options to
purchase Common Shares of Medusa Corporation (the "Company Common
Shares") under the Plan. The purchase price for each Company Common
Share shall be $24.375, which is the Fair Market Value of a Company
Common Share on May 8, 1995, the Date of Grant. (The "Fair Market
Value", as defined in the Plan, is the average of the high and low
quoted sales prices of a Company Common Share, as reported on the
composite tape for the New York Stock Exchange.)
2. TIMING OF EXERCISE
Each Option granted hereunder shall be exercised in whole or
in part (in lots of ten shares or any multiple thereof) from
time-to-time beginning from the Date of Grant, subject to the
following time limitations:
a.) VESTING
Except in the event of a Change in Control, Options
may not be exercised in excess of (i) 50% of the total number
of Company Common Shares awarded to the Participant during the
second year after the Date of Grant; (ii) 75% during the third
year; and (iii) 100% thereafter. In the event of a "Change of
Control", (as defined in the Plan) all Options shall become
immediately and fully exercisable.
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<PAGE> 2
b.) RIGHTS UPON TERMINATION, PRIOR TO VESTING
Options shall immediately expire if unvested as of
the date of Termination of Employment, except where the
Participant is a Senior Executive.
c.) RIGHTS UPON TERMINATION, AFTER VESTING
(i) DEATH, DISABILITY, OR RETIREMENT
In the event that the Participant terminates
his or her employment with the Company by reasons of
death, disability, or retirement, then the
Participant (or the Participant's Beneficiary, in
the case of death) shall have five (5) years from
the date of such event to exercise Options, or until
the expiration of the Options, whichever occurs
earlier. (Reference should be made to the Plan
document for the additional information with respect
to the meaning of the terms "Termination of
Employment", disability, "Normal Retirement Date"
and "Other Retirement Date".)
(ii) SENIOR EXECUTIVES
For purpose of this Agreement, the term
"Senior Executive" shall mean the Chairman or the
President of the Company. By Board action on May 8,
1995, Normal Retirement Date for a Senior Executive
may be any age (it is not limited to retirement at
age at 65 or thereafter).
(iii) TERMINATION FOR REASONS OTHER THAN THE ABOVE
Options shall expire if unexercised three
months after the date of Termination of Employment
for reasons other than those described in Subsection
(i), above.
d.) EXPIRATION
Options shall expire if not exercised within ten years
from the Date of Grant.
3. EXERCISE PROCEDURE
Each option shall be exercised by giving written notice to the
Secretary of the Company on the Date of Exercise. The Purchase Price
of shares purchased upon exercise of an Option granted hereunder shall
be paid by the Participant in full in cash, Company Common Shares, any
combination of cash and Company Common Shares, or in accordance with a
cash-less exercise program, under which, if so instructed by the
Participant, Company Common Shares may be issued directly to the
Participant's broker or dealer upon receipt of the Purchase Price in
cash from the broker or dealer ("Cash-Less Exercise"). In the event
that any Company Common Shares shall be transferred to the Company to
satisfy all or any part of the Purchase Price, the part of the
Purchase Price deemed to have been satisfied by such transfer of
Company Common Shares shall be equal to the product derived by
multiplying the fair market value (as defined in the Plan) as of the
date of exercise times the number of Company Common Shares transferred
to the Company. The Participant may not transfer to the Company in
satisfaction of the Purchase Price any fraction of a Company Common
Share. As used
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<PAGE> 3
above in this paragraph, the term "Company Common Shares" is defined
as those shares which have been held by the Participant for six months
or longer.
4. ASSIGNABILITY
Other than for the purpose of a Cash-Less Exercise, as
provided above, the Participant's rights and interest under this
Agreement may not be assigned or transferred other than by will or the
laws of descent and distribution, and during the lifetime of a
Participant, only the Participant personally (or the Participant's
Beneficiary) may exercise rights under this Agreement. The
Participant's Beneficiary may exercise the Participant's rights to the
extent they are exercisable under the Plan following the death of the
Participant.
5. DILUTION AND OTHER ADJUSTMENTS
a.) RECAPITALIZATION
The number of shares awarded hereunder, the Purchase
Price or the Exercise Price for such shares, shall be
appropriately adjusted to reflect any stock dividend, stock
split, combination or exchange of shares, merger,
consolidation or other change in capitalization with a similar
substantive effect upon this Award. The Organization and
Compensation Committee of the Board of Directors (hereinafter
called the "Committee") shall have the power and sole
discretion to determine the amount of the adjustment to be
made in each case.
b.) MERGER
After any Merger in which the Company is the
surviving corporation, the Participant shall, at no additional
cost, be entitled upon any exercise of an Option to receive
(subject to any required action by shareholders), in lieu of
the number of Company Common Shares receivable or exercisable
pursuant to this Award, the number of shares or other
securities to which the Participant would have been entitled
pursuant to the terms of the Merger if, at the time of the
Merger, the Participant had been the holder of record of a
number of shares equal to the number of shares receivable or
exercisable pursuant to this Award. Comparable rights shall
accrue to the Participant in the event of successive Mergers
of the character described above.
6. TAXES
a.) With respect to a Participant who is subject to the
provisions of Section 16(b) of the Exchange Act on the date on
which the withholding requirements apply, the Company shall
withhold from the Award the appropriate number of Company
Common Shares, rounded up to the next whole share, whose Fair
Market Value is equal to such amount, or, in the case of a
cash payment, the amount of cash, as is determined by the
Company to be sufficient to satisfy applicable tax withholding
requirements.
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<PAGE> 4
b.) With respect to a Participant who is not subject to
the provisions of Section 16(b) of the Exchange Act on the
date on which the withholding requirements apply, the
Participant shall have the right to elect to meet his or her
withholding requirement through the method described in
Subsection (a) above or by direct payment to the Company of
the amount of any taxes required to be withheld with respect
to the Award.
7. MISCELLANEOUS PROVISIONS
a.) RIGHTS AS A SHAREHOLDER
The Participant or a transferee of any Options under
this Agreement shall have no rights as a shareholder with
respect to Company Common Shares covered by an Option until
the Participant or transferee shall have become the holder of
record of any such shares, and no adjustment shall be made for
dividends in cash or other property or distributions or other
rights with respect to any such Company Common Shares for
which the record date is prior to the date on which the
Participant or a transferee of the Option shall have become
the holder of record of any such shares covered by the Option;
provided, however, that Participants are entitled to share
adjustments to reflect capital changes under Section 5.
b.) PLAN PROVISIONS CONTROL AWARD TERMS
The terms of the Plan shall govern this Award. In
the event any provision of this Award conflicts with any term
in the Plan as constituted on the Date of Grant of this Award,
the term in the Plan as constituted on the Date of Grant of
this Award shall control. Except as provided in Subsection
(c) below, the terms of this Award may not be changed after
the Date of Grant of this Award so as to materially decrease
the value of this Award without the express written approval
of the Participant or transferee.
c.) MODIFICATION OF AWARD AFTER GRANT
This Award may not be modified (unless such
modification does not materially decrease the value of this
Award) after the Date of Grant except by express written
agreement between the Company and the Participant, provided
that any such modification (a) shall not be inconsistent with
the terms of the Plan, and (b) shall be approved by the
Committee. No modification may be made to this Award while
the Participant is subject to Section 16(b) of the Exchange
Act except in compliance with Rule 16b-3.
d.) SURRENDER OF AWARDS
This Award may be surrendered to the Company for
cancellation on such terms as the Committee and the
Participant approve.
e.) NO RIGHT TO EMPLOYMENT
By this Award, neither the Participant or any other
person shall have any claim of right to be granted any
additional Awards under the Plan. Neither the
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<PAGE> 5
Plan, this Award, nor any other action taken under the Plan
shall be construed as giving the Participant any right to be
retained in the employ of the Company or any of its
Subsidiaries.
f.) AWARDS NOT INCLUDABLE FOR BENEFIT PURPOSES
Any payments received by the Participant pursuant to
the provisions of this Award shall not be included in the
determination of benefits under any pension, group insurance
or other benefit plan applicable to the Participant which are
maintained by the Company or any of its Subsidiaries, except
as may be provided under the terms of such plans.
g.) NO STRICT CONSTRUCTION
No rule of strict construction shall be implied
against the Company, the Committee, or any other person in the
interpretation of this Award.
h.) COMPLIANCE WITH RULE 16B-3
It is intended that this Award shall be administered
in compliance with Rule 16b-3. If any provision of this Award
would be in violation of Rule 16b-3 if applied as written,
such provision shall not have effect as written and shall be
given effect so as to comply with rule 16b3. The Board of
Directors of the Company is authorized to make any such
modifications to this Agreement as are required to comply with
Rule 16b-3, as such rule may be amended from time to time.
i.) CAPTIONS
The captions (i.e., all Section headings) used in
this Agreement are for convenience only, do not constitute a
part of the Agreement, and shall not be deemed to limit,
characterize or affect in any way any provisions of the
Agreement, and all provisions of this Agreement shall be
construed as if no captions have been used in the Agreement.
j.) SEVERABILITY
Whenever possible, this Award shall be interpreted
in such manner as to be effective and valid under applicable
law, but if any provision of this Award 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 of this Award
shall remain in full force and effect.
k.) AMENDMENT
No amendment of the Plan may, without the consent of
the Participant, adversely affect the right of the Participant
under this Award.
l.) PLAN TERMINATION
In the event that the Participant is vested in this
Award at the time of the termination of the Plan, then the
Participant may exercise his or her rights under
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<PAGE> 6
this Award at any time prior to the expiration date of this
Award to the same extent this Award would have been
exercisable had the Plan not terminated.
m.) NOTICES
Except as otherwise expressly set forth in this
Agreement, any notice required to be given to the Participant
shall be sent to the address of the Participant as the same
appears on the records of the Company, or at such other
address as the Participant may hereafter designate in writing
and all notices required to be given to the Company shall be
addressed to the Secretary of the Company at the address set
forth above. Any such notice shall be deemed to be duly given
if and when enclosed in a properly sealed envelope or wrapper
addressed as aforesaid, registered and deposited, postage and
registry fee prepaid, in a post office or branch post office
regularly maintained by the United States, via messenger or
facsimile transmissions.
MEDUSA CORPORATION
By:____________________________
George E. Uding, Jr., President
PARTICIPANT
By:____________________________
[Fill-in: Participant]
Signed this ____ day of May, 1995
-6-
<PAGE> 1
Exhibit 5.1
[ Medusa Corporation Letterhead ]
February 15, 1996
Medusa Corporation
Lee and Monticello Boulevards
Cleveland Heights, Ohio 44118
Gentlemen,
I am Vice President, Secretary and General Counsel of Medusa Corporation (the
"Company"). This opinion is furnished as an Exhibit to Registration Statement
Amendment on Form S-8 (the "Amended Registration Statement"), under the
Company's 1991 Long-Term Incentive Plan (the "Plan"), filed by the Company with
the Securities and Exchange Commission, for the purpose of registering the
Company's Common Shares, without par value (the "Common Shares"), under the
Securities and Exchange Act of 1934, as amended.
On May 6, 1991, the shareholders of the Company authorized the issuance of up
to 500,000 Common Shares to officers and key employees of the Company under the
Plan, as contained in (the original) Registration Statement on Form S-8 dated
March 4, 1992. This Amended Registration Statement, for the increase in
issuance authority of up to an additional 1,000,000 Common Shares, is required
as a result of the October 7, 1993 stock distribution at the rate of one
additional Common Share for each two Common Shares held (which added 250,000
Common Shares to the above 500,000 Common Share authority); and the
shareholders' approval on May 9, 1994 of an amendment to the Plan approving an
additional 750,000 Common Share issuance authority;
In connection with rendering this opinion, I have examined the Articles of
Incorporation of the Company, corporate proceedings of the Company, and such
other documents and such questions of law as I deemed necessary or appropriate.
Based on the foregoing, I am pleased to advise you that in my opinion:
(i) the Company has been duly incorporated and is a lawfully and
validly existing corporation under the laws of the State of Ohio; and
(ii) the Articles of Incorporation of the Company, amended as of May
9, 1994, authorizes the issuance of up to 50,000,000 Common Shares, of which
16,362,557 Common Shares are issued and outstanding on the date of this
opinion, and the issued and outstanding Common Shares were validly issued and
are fully paid and nonassessable.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Sincerely,
/s/ John P. Siegfried
John P. Siegfried
JPS:gsd
<PAGE> 1
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment to Registration
Statement No. 33-46182 of Medusa Corporation on Form S-8 of our report dated
January 23, 1995, appearing in the Annual Report on Form 10-K of Medusa
Corporation for the year ended December 31, 1994, and to the reference to us as
"Experts" in the Prospectus, which is part of such Registration Statement.
/s/ Deloitte & Touche LLP
Cleveland, Ohio
February 15, 1996
<PAGE> 1
Exhibit 23.2
CONSENT OF COUNSEL
The Consent of John P. Siegfried, Esq. is included in his opinion to be filed
as Exhibit 5.1 of the Amended Registration Statement.
