As filed with the Securities and Exchange Commission on August 6, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
GILBERT ASSOCIATES, INC.
(Exact Name of Registrant as Specified in Charter)
DELAWARE 23-2280922
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Identification
Organization) Number)
P.O. Box 1498
Reading, Pennsylvania 19603
(610) 856-5500
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
LONG TERM INCENTIVE PLAN
(Full title of the plan)
Thomas F. Hafer, Esq., Secretary
P.O. Box 1498
Reading, Pennsylvania 19603
(Name and address of agent for service)
(610) 856-5500
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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| | Proposed | Proposed |
| | maximum | maximum |
| Amount | offering | aggregate | Amount of
Title of shares | to be | price | offering | registration
to be registered | registered | per share(1)| price(1) | fee
- --------------------|---------------|-------------|--------------|-------------
Class A Common Stock| | | |
($1.00 par value) | 500,000 | $12.06 | $6,030,000 | $2,080
| | | |
Class B Common Stock| | | |
($1.00 par value) | 500,000 | $12.06 | $6,030,000 | $2,080
| | | |
| | | |
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(1) Estimated pursuant to Rule 457(c) solely for the purpose of calculating
the registration fee, based upon the average of the high and low prices
for Class A Common Stock of the registrant reported by The Nasdaq Stock
Market for July 31, 1996.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by Gilbert Associates,
Inc. ("registrant" or the "Company") with the Securities and Exchange Commission
(the "Commission") are incorporated by reference into this Registration
Statement:
(a) the Company's Annual Report on Form 10-K for the fiscal
year ended December 29, 1995, as amended by a Form 10-K/A filed with
the Commission on April 29, 1996;
(b) the Company's Quarterly Report on Form 10-Q for the
quarter ended March 29, 1996; and
(c) the Company's Current Reports on Form 8-K filed with the
Commission on March 8, 1996, May 6, 1996, June 7, 1996 and July 8,
1996; and
(d) the description of the Class A Common Stock, par value
$1.00 per share (the "Common Stock"), of the Company contained in the
Company's Registration Statement on Form 8-A relating to the Class A
Common Stock filed with the Commission, including any amendments or
reports filed for the purpose of updating such description.
(e) the description of the Class B Common Stock, par value
$1.00 per share (the "Common Stock"), of the Company contained in the
Company's Registration Statement on Form 8-A relating to the Class B
Common Stock filed with the Commission, including any amendments or
reports filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") after
the date hereof and prior to the filing of a post-effective amendment which
indicates that all securities offered pursuant to this Registration Statement
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of filing of such documents.
Item 4. Description of Securities.
The Class A Common Stock and the Class B Common Stock, which are the
classes of securities offered pursuant to this Registration Statement, are
registered under the Exchange Act.
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Item 5. Interests of Named Experts and Counsel.
The validity of the Class A Common Stock and Class B Common Stock
registered hereunder has been passed upon for the Company by Robert J. Johnson,
Senior Counsel of the Company. Mr. Johnson owns 11,861 shares of Class B Common
Stock and options to purchase 4,000 shares of Class B Common Stock.
Item 6. Indemnification of Directors and Officers.
As permitted by Section 145 of the General Corporation Law of the State
of Delaware, the Company's Bylaws provide that the Company may 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 or
officer of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
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 by judgment, order, settlement, conviction, or upon
plea of nolo contendere or its equivalent, does not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
In the case of an action by or in the right of the Company, the Bylaws
permit the Company 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 in
any of the capacities set forth above against expenses (including attorneys'
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
Company, except that indemnification is not permitted in respect of 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 Company unless and only to
the extent that the Delaware Court of Chancery 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
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person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court deems proper.
The Bylaws further provide: that the Company is required to indemnify a
director, officer, employee or agent against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with any action,
suit or proceeding or in defense of any claim, issue or matter therein as to
which such person has been successful on the merits or otherwise; that
indemnification provided for by the Bylaws shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; that
indemnification provided for by the Bylaws shall, continue as to a person who
has ceased to be a director or officer and shall inure to the benefit of such
person's heirs, executors and administrators; and that expenses incurred by an
officer or director in defending a civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the Company in advance
of final disposition upon receipt of an undertaking by or on behalf of such
person to repay such amount if it ultimately is determined that he is not
entitled to be indemnified by the Company. The Company may provide
indemnification only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct. Such
determination is to be made (i) by the board of directors by a majority vote of
a quorum consisting of directors who were not party to such action, suit or
proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable,
a quorum of disinterested directors so directs, by independent legal counsel in
a written opinion or (iii) by the stockholders.
The directors and officers of the Company and its subsidiaries are
covered by policies of insurance under which they are insured, within limits and
subject to certain limitations, against certain expenses in connection with the
defense of actions, suits or proceedings, and certain liabilities which might be
imposed as a result of such actions, suits or proceedings, in which they are
parties by reason of being or having been directors or officers; the Company is
similarly insured, with respect to certain payments it might be required to make
to its directors or officers under the applicable statutes and its charter
provisions.
Additionally, The Company's Restated Certificate of Incorporation (the
"Certificate") limits the liability of the Company's directors under certain
circumstances. The Certificate states that a director of the Company shall have
no personal liability to the Company or its stockholders for monetary damages
for breach of his fiduciary duty as a director, provided, however, that the
liability of a director is not eliminated or limited (i) for any breach of the
director's duty of loyalty to the Company or
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its stockholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of a law; (iii) for the willful or
negligent payment of dividends or purchase or redemption of stock in violation
of the limitation imposed on such action by the General Corporation Law of the
State of Delaware; or (iv) for any transaction from which the director derived
an improper personal benefit.
Item 7. Exemption from Registration Claimed.
No restricted securities are being reoffered or resold pursuant to this
Registration Statement.
Item 8. Exhibits.
Exhibit No. Description
4 Long Term Incentive Plan
5 Opinion of Robert J. Johnson
23.1 Consent of Independent Public Accountants.
23.2 Consent of Robert J. Johnson (included in
Exhibit 5).
25 Power of Attorney (See Signature Pages at
pages 7 - 8).
Item 9. Undertakings
The undersigned registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are being made
pursuant to this Registration Statement, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in aggregate, represent
a fundamental change in the information set forth in this registration statement
(notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate,
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the changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement); and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
provided, however, that paragraphs (i) and (ii) above 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 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
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counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Reading, Pennsylvania, on July 31, 1996.
GILBERT ASSOCIATES, INC.
By: /s/ T. S. Cobb
--------------------------------
T. S. Cobb, Chairman of
the Board, President and Chief
Executive Officer, the principal
executive officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Timothy S. Cobb, Paul H. Snyder and
Thomas F. Hafer and each or any of them, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their, his or her substitutes
or substitute, may lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on July 31, 1996
in the capacities indicated:
Signature Title
--------- -----
/s/ T. S. Cobb Chairman of the Board, President
- ---------------------------------- and Chief Executive Officer, the
T. S. Cobb principal executive officer
/s/ P. H. Snyder Vice President, the principal
- ---------------------------------- financial officer and principal
P. H. Snyder accounting officer
/s/ A. F. Smith Director
- ----------------------------------
A. F. Smith
/s/ J. W. Boyer, Jr. Director
- ----------------------------------
J. W. Boyer, Jr.
/s/ D. E. Lyons Director
- ----------------------------------
D. E. Lyons
/s/ J. A. Sutton Director
- ----------------------------------
J. A. Sutton
/s/ D. K. Wilson, Jr. Director
- ----------------------------------
D. K. Wilson, Jr.
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EXHIBIT INDEX
Exhibit No. Description
----------- -----------
4 Long Term Incentive Plan
5 Opinion of Robert J. Johnson
23.1 Consent of Independent Public Accountants
23.2 Consent of Robert J. Johnson
(included in Exhibit 5)
24 Power of Attorney
(See Signature Pages at page 7 - 8)
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Gilbert Associates, Inc.
LONG-TERM INCENTIVE PLAN
Section 1: Purposes
The purposes of the Plan are to provide incentive compensation to officers,
executives and other key employees who contribute to the growth and success of
the Corporation and its Subsidiaries; to attract and retain individuals of
outstanding ability; and to align the interests of such officers, executives and
other key employees with the interests of the Corporation's stockholders.
Section 2: Definitions
The following terms, as used herein, shall have the meaning specified:
1. "Award" means an award granted pursuant to Section 4.
2. "Award Agreement" means an agreement described in Section 6 entered into
between the Corporation and a Participant, setting forth the terms and
conditions applicable to the Award granted to the Participant.
3. "Board of Directors" means the Board of Directors of the Corporation as it
may be comprised from time to time.
4. "Cause" means (i) felony conviction of a Participant; (ii) the commission by
a Participant of an act of fraud or embezzlement against the Corporation and/or
a Subsidiary; (iii) willful misconduct or gross negligence materially
detrimental to the Corporation and/or a Subsidiary; (iv) the Participant's
continued failure to implement reasonable requests or directions received in the
course of his employment; (v) the Participant's wrongful dissemination or use of
confidential or proprietary information; or (vi) the intentional and habitual
neglect by the Participant of his duties to the Corporation and/or a Subsidiary.
5. "Change in Control" means Change in Control as defined in Section 10.
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6. "Code" means the Internal Revenue Code of 1986, and any successor statute, as
it or they may be amended from time to time.
7. "Committee" means the Committee as defined in Section 8.
8. "Corporation" means Gilbert Associates, Inc., and any successor corporation.
9. "Covered Employee" means a covered employee within the meaning of Code
Section 162(m)(3).
10. "Disability" means permanent and total disability within the meaning of the
Corporation's long-term disability plan or, as determined by the Committee in an
Award Agreement, Code Section 22(e)(3).
11. "Employee" means officers, executives and other key employees of the
Corporation or a Subsidiary, but excludes directors who are not also officers or
employees of the Corporation.
12. "Exchange Act" means the Securities Exchange Act of 1934, and any successor
statute, as it may be amended from time to time.
13. "Fair Market Value" means the closing price of the Class A Common Stock as
reported in The Wall Street Journal on the relevant date, or if no sale of such
Stock is reported for such date, the next preceding day for which there is a
reported sale.
14. "Incentive Stock Option" means an option to purchase Stock that is granted
pursuant to Section 4(2) or pursuant to any other Plan of the Corporation or its
Subsidiaries that complies with Code Section 422.
15. "Insider" means any person who is subject to Section 16 of the Exchange Act,
and any successor statutory provision, as it may be amended from time to time.
16. "Participant" means any Employee who has been granted an Award pursuant to
this Plan.
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17. "Retirement" means retirement at or after age 65 or, with the advance
consent of the Committee, before age 65.
18. "Stock" means shares of Class A or Class B Common Stock of the Corporation,
or any security of the Corporation issued in substitution, exchange or lieu
thereof.
19. "Subsidiary" means any corporation in which the Corporation, directly or
indirectly, controls fifty percent (50%) or more of the total combined voting
power of all classes of such corporation's stock.
20. "Ten-percent Stockholder" means any person who owns, directly or indirectly,
on the relevant date securities having ten percent (10%) or more of the combined
voting power of all classes of the Corporation's securities or of its parent or
subsidiaries. For purposes of applying the foregoing ten percent (10%)
limitation, the rules of Code Section 425(d) shall apply.
Section 3: Eligibility
Persons eligible for Awards shall consist of Employees who hold positions of
significant responsibility with the Corporation and/or a Subsidiary or whose
performance or potential contribution, in the judgment of the Committee, will
benefit the future success of the Corporation and/or a Subsidiary.
Section 4: Awards
The Committee may grant any of the following types of Awards, either singly, in
tandem or in combination with other types of Awards, as the Committee may in its
sole discretion determine:
1. Non-qualified Stock Options. A Non-qualified Stock Option is an option to
purchase a specific number of shares of Stock exercisable at such time or times,
and during such specified time not to exceed ten (10) years, as the Committee
may determine, at a price not less than 100% of the Fair Market Value of the
Stock on the date the option is granted.
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a. The purchase price of the Stock subject to the option may be paid in
cash. At the discretion of the Committee, the purchase price may also be paid by
the tender of Stock (the value of such Stock shall be its Fair Market Value on
the date of exercise), or through a combination of Stock and cash, or through
such other means as the Committee determines are consistent with the Plan's
purpose and applicable law. No fractional shares of Stock will be issued or
accepted.
b. Without limiting the foregoing, to the extent permitted by law
(including relevant state law), (A) the Committee may agree to accept as full or
partial payment of the purchase price of Stock issued upon exercise of options a
promissory note of the Participant evidencing the Participant's obligation to
make future cash payments to the Corporation, which promissory notes shall be
payable as determined by the Committee, shall be secured by a pledge of the
shares of Stock purchased, and shall bear interest at a rate established by the
Committee and (B) the Committee may also permit Participants, either on a
selective or aggregate basis, to simultaneously exercise options and sell the
shares of Stock thereby acquired, pursuant to a brokerage or similar arrangement
approved in advance by the Committee, and use the proceeds from such sale as
payment of the purchase price of such Stock.
2. Incentive Stock Options. An Incentive Stock Option is an Award in the form of
an option to purchase a specified number of shares of Stock that complies with
the requirements of Code Section 422, which option shall, subject to the
following provisions, be exercisable at such time or times, and during such
specified time, as the Committee may determine.
a. The aggregate Fair Market Value (determined at the time of the grant of
the Award) of the shares of Stock subject to Incentive Stock Options which are
exercisable by one person for the first time during a particular calendar year
shall not exceed $100,000.
b. No Incentive Stock Option may be granted under this Plan on or after the
tenth anniversary of the date this Plan is adopted, or the date this Plan is
approved by stockholders, whichever is earlier.
c. No Incentive Stock Option may be exercisable more than:
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1) in the case of an Employee who is not a Ten Percent Stockholder on
the date that the option is granted, ten (10) years after the date the option is
granted, and
2) in the case of an Employee who is a Ten Percent Stockholder on the
date the option is granted, five (5) years after the date the option is granted.
d. The exercise price of any Incentive Stock Option shall not be less than:
1) in the case of an Employee who is not a Ten Percent Stockholder on
the date that the option is granted, the Fair Market Value of the Stock subject
to the option on such date; and
2) in the case of an Employee who is a Ten Percent Stockholder on the
date that the option is granted, 110% of the Fair Market Value of the Stock
subject to the option on such date.
e. The Committee may provide that the option price under an Incentive Stock
Option may be paid by one or more of the methods available for paying the option
price of a Non-qualified Stock Option.
3. Reload Options. Without any way limiting the authority of the Committee to
make grants hereunder, the Committee shall have the authority (but not an
obligation) to include within any Award Agreement a provision entitling the
Participant to a further Stock Option (a "Reload Option") in the event the
Participant exercises the Stock Option evidenced by the Award Agreement, in
whole or in part, by surrendering shares of Common Stock previously owned by the
Participant, in accordance with this Plan and the terms and conditions of the
Award Agreement. A Reload Option shall entitle a Participant to purchase a
number of shares of Common Stock equal to the number of such shares so delivered
upon exercise of the original Stock Option and, in the discretion of the
Committee, the number of shares, if any, tendered to the Company to satisfy any
withholding tax liability arising in connection with the exercise of the
original Option. A Reload Option shall: (a) have an exercise price of not less
than one hundred percent (100%) of the per share Fair Market Value of the Common
Stock on the date of grant of such Reload Option; (b) have a
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term not longer than the remaining term of the original Stock Option at the time
of exercise thereof; (c) become exercisable in the event the shares acquired
upon exercise of the original Option are held for a minimum period of time
established by the Committee; and (d) be subject to such other terms and
conditions as the Committee may determine.
4. Stock Appreciation Rights. A Stock Appreciation Right ("SAR") is a right to
receive, upon surrender of the right, an amount payable in cash.
a. The amount payable with respect to each SAR shall be equal in value to
the excess, if any, of the Fair Market Value of a share of Stock on the exercise
date over the Fair Market Value of a share of Stock on the date the Award is
made.
b. In the case of an SAR granted with respect to an Incentive Stock Option
to an Employee who is Ten Percent Shareholder on the date of such Award, the
amount payable with respect to each SAR shall be equal in value to the Fair
Market Value of a share of Stock on the exercise date over 110% of the Fair
Market Value of a share of Stock on the date the Award is made.
5. Restricted Stock. Restricted Stock is Stock that is issued to a Participant
subject to restrictions on transfer and such other restrictions on incidents of
ownership as established by the Committee including, but not limited to,
achievement of specific business objectives, and other measurements
of individual, business unit, Corporate or Subsidiary performance, including,
but not limited to, earnings per share, net profits, total shareholder return,
cash flow, return on shareholders' equity, and cumulative return on net assets
employed. Subject to such restrictions, the Participant as owner of such shares
of Restricted Stock shall have the rights of the holder thereof, except that the
Committee may provide at the time of the Award that any dividends or other
distributions paid on such Stock while subject to such restrictions shall be
accumulated or reinvested in Stock and held subject to the same restrictions as
the Restricted Stock and such other terms and conditions as the Committee shall
determine. A certificate for the shares of Restricted Stock, which certificate
shall be registered in the name of the Participant, shall bear an appropriate
restrictive legend and shall be subject to appropriate stop-transfer orders;
provided, however, that the certificates representing shares of Restricted Stock
shall be held in custody by the Corporation until the restrictions relating
thereto otherwise lapse, and the Participant shall deliver to the Corporation a
stock power endorsed in blank relating to the Restricted Stock. Restricted Stock
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may be issued for no consideration or for such consideration as may be required
by applicable law or by the Committee.
6. Stock Equivalent Units. A Stock Equivalent Unit is an Award based on the Fair
Market Value of one share of Stock. All or part of any Stock Equivalent Units
Award may be subject to conditions and restrictions established by the
Committee, including, but not limited to, achievement of specific business
objectives, and other measurements of individual, business unit, Corporate or
Subsidiary performance, including, but not limited to, earnings per share, net
profits, total shareholder return, cash flow, return on shareholders' equity,
and cumulative return on net assets employed. Without limiting the generality of
the foregoing, it is intended that the Committee shall establish performance
goals applicable to Stock Equivalent Units granted to Participants who, in the
judgment of the Committee, may be Covered Employees in such manner as shall
permit payments with respect thereto to qualify as "performance-based
compensation" as described in Section 162(m)(4)(C) of the Code and that the
maximum number of Stock Equivalent Units that may be granted to any Participant
in any [one year] shall not exceed 25,000. Stock Equivalent Units may be settled
in Stock or cash or both.
7. Dividend Equivalents. A Dividend Equivalent is an Award whose value is equal
to the amount of cash dividends payable with respect to a share of Stock after
the date the Award is granted. In lieu of awarding Dividend Equivalents, the
Committee may provide for automatic awards of additional Stock Equivalent Units
on each date that cash dividends are paid on the Common Stock in an amount equal
to (i) the product of the dividend per share on the Stock times the total number
of Stock Equivalent Units then held by the Participant, divided by (ii) the Fair
Market Value of the Stock on the dividend payment date.
8. Performance Units. A Performance Unit is an Award denominated in cash, the
amount of which may be based on the achievement of specific business objectives,
and other measures of individual, business unit, Corporate or Subsidiary
performance over a specified period of time including, but not limited to,
earnings per share, total shareholder return, cash flow, return on shareholders'
equity, and cumulative return on net assets employed. Without limiting the
generality of the foregoing, it is intended that the Committee shall establish
performance goals applicable to Performance Units granted to Participants who,
in the judgment of the Committee, may be Covered Employees in such a manner as
shall permit payments with respect thereto to qualify as "performance-based
compensation" as described in Section 162(m)(4)(C) of the Code and that the
maximum amount of such compensation that may be paid to any one Participant with
respect to any one year shall be $500,000. Performance Units may be settled in
Stock or cash or both.
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9. Other Awards. The Committee may from time to time grant other Awards under
this Plan that provide the Participants with Stock or the right to purchase
Stock, or provide other incentive Awards that have a value derived from the
value of, or an exercise or conversion privilege at a price related to, or that
are otherwise payable in or convertible into shares of, Stock. The Awards shall
be in a form determined by the Committee, provided that the Awards shall not be
inconsistent with the other express terms of this Plan.
Section 5: Shares of Stock Available Under Plan
1. Subject to the adjustment provisions of Section 9, the number of shares of
Stock with respect to which Awards may be granted under the Plan shall not
exceed 500,000 shares of Stock; provided that no more than 230,000 of the shares
of Stock available for Awards shall be available for Awards in the form of
Restricted Stock. No single Participant shall receive Awards (i) in the form of
options, whether Non-qualified Stock Options or Incentive Stock Options, and/or
SARs with respect to more than twenty percent (20%) of the shares of Stock
available under the Plan and (ii) for more than 40,000 shares of Restricted
Stock in any one year.
2. Shares of Stock with respect to the unexercised or undistributed portion of
any terminated or forfeited Award and shares of Stock tendered in payment of the
purchase price of the Stock subject to option shall be available for further
Awards in addition to those shares of Stock available under Section 5(1).
Additional rules for determining the number of shares of Stock granted under the
Plan may be adopted by the Committee, as it deems necessary and appropriate.
3. The Stock that may be issued pursuant to an Award under the Plan may be
treasury or authorized but unissued Stock, or Stock may be acquired,
subsequently or in anticipation of the transaction, in the open market to
satisfy the requirements of the Plan.
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Section 6: Award Agreements
Each Award under the Plan shall be evidenced by an Award Agreement. Each Award
Agreement shall set forth the number of shares of Stock, SARs, Stock Equivalent
Units, Dividend Equivalents and/or Performance Units subject to the Award and
shall include the terms set forth below and such other terms and conditions
applicable to the Award, as determined by the Committee, not inconsistent with
the terms of the Plan, including, but not limited to, the term of the Award,
vesting provisions, any other restrictions or conditions (including performance
requirements) on the Award and the method by which restrictions or conditions
lapse, provisions permitting the surrender of outstanding Awards or securities
held by the Participant in order to exercise or realize rights under other
Awards, or in exchange for the grant of new Awards under similar or different
terms, the effect on the Award of a Change in Control of the Corporation, the
price, amount or value of Awards, and the terms, if any, pursuant to
which a Participant may elect to defer the receipt of cash or Stock under an
Award. In the event of any conflict between an Award Agreement and this Plan,
the terms of the Plan shall govern.
1. Non-assignability. A provision that no Award shall be assignable or
transferable except by will or by the laws of descent and distribution and that,
during the lifetime of a Participant, the Award shall be exercised only by such
Participant or by his or her guardian or legal representative.
2. Termination of Employment.
a. A provision describing the treatment of an Award in the event of the
retirement, disability, death or other termination of a Participant's employment
with the Corporation or a Subsidiary, including but not limited to terms
relating to the vesting, time for exercise, forfeiture or cancellation of an
Award in such circumstances. Participants who terminate employment due to
retirement, disability, or death prior to the satisfaction of applicable
conditions and restrictions associated with their Award(s) may be entitled to a
prorated Award(s) as and to the extent determined by the Committee.
b. A provision that for purposes of the Plan, (i) a transfer of an Employee
from the Corporation to a Subsidiary or affiliate of the Corporation, whether or
not incorporated, or visa versa, or from one Subsidiary or affiliate of the
Corporation to another, and (ii) a leave of absence, duly authorized in writing
by the Corporation, shall not be deemed a termination of employment.
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c. A provision stating that in the event the Participant's employment is
terminated for Cause, anything else in the Plan or the Award Agreement to the
contrary notwithstanding, all Awards granted to such Participant shall
immediately terminate and be forfeited.
3. Rights as a Stockholder. A provision stating that a Participant shall have no
rights as a stockholder with respect to any Stock covered by an Award until the
date the Participant becomes the holder of record thereof. Except as provided in
Section 9, no adjustment shall be made for dividends or other rights, unless the
Award Agreement specifically requires such adjustment.
4. Withholding. A provision requiring the withholding of applicable taxes
required by law from all amounts paid in satisfaction of an Award. A Participant
may satisfy the withholding obligation by paying the amount of any taxes in cash
or, with the approval of the Committee, shares of Stock may be deducted from the
payment to satisfy the obligation in full or in part. The amount of the
withholding and the number of shares of Stock to be deducted shall be determined
by the Committee with reference to the Fair Market Value of the Stock when the
withholding is required to be made.
5. Execution. A provision stating that no Award is enforceable until the Award
Agreement has been signed by the Participant and the Corporation. By executing
the Award Agreement, a Participant shall be deemed to have accepted and
consented to any action taken under the Plan by the Committee, the Board of
Directors or their delegates.
6. Holding Period. To the extent necessary to satisfy the applicable
requirements of Rule 16b-3 under the Exchange Act, in the case of an Award to an
Insider of: (1) an equity security, a provision stating (or the effect of which
is to require) that such security must be held for at least six (6) months (or
such longer period as the Committee in its discretion specifies) from the date
of acquisition; or (2) a derivative security with a fixed exercise price within
the meaning of Section 16 of the Exchange Act, a provision stating (or the
effect of which is to require) that at least six (6) months (or such longer
period as the Committee in its discretion specifies) must elapse from the date
of acquisition of such derivative security to the date of disposition of the
derivative security (other than upon exercise or conversion) or its underlying
equity security.
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7. Treatment of Options. Each Award of an option shall state whether it will or
will not be treated as an Incentive Stock Option.
Section 7: Amendment and Termination
The Board of Directors may at any time amend, suspend or discontinue the Plan,
in whole or in part. The Committee may at any time alter or amend any or all
Award Agreements under the Plan to the extent permitted by law, but no such
alteration or amendment shall impair the rights of any holder of an Award
without the holder's consent, except to preserve the Plan's qualification as a
safe harbor plan under Section 16 of the Exchange Act.
Section 8: Administration
1. The Plan and all Awards shall be administered by a Committee of the Board of
Directors, which Committee shall consist of not less than three (3) members of
such Board of Directors and shall be constituted so as to permit the Plan to
comply with the administration requirement of Rule 16b-3(c)(2)(i) of the
Exchange Act and Code Section 162(m)(4)(C). The members of the Committee shall
be designated by the Board of Directors. A majority of the members of the
Committee shall constitute a quorum. The vote of a majority of a quorum shall
constitute action by the Committee.
2. The Committee shall have full and complete authority, in its sole and
absolute discretion, (i) to exercise all of the powers granted to it under the
Plan, (ii) to construe, interpret and implement the Plan and any related
document, (iii) to prescribe, amend and rescind rules relating to the Plan, (iv)
to make all determinations necessary or advisable in administering the Plan, and
(v) to correct any defect, supply any omission and reconcile any inconsistency
in the Plan. The actions and determinations of the Committee on all matters
relating to the Plan and any Awards will be final and conclusive. The
Committee's determinations under the Plan need not be uniform and may be made by
it selectively among Employees who receive, or who are eligible to receive,
Awards under the Plan, whether or not such persons are similarly situated.
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3. The Committee may appoint such accountants, counsel, and other experts as it
deems necessary or desirable in connection with the administration of the Plan.
The Committee may delegate to the officers or employees of the Corporation and
its Subsidiaries the authority to execute and deliver such instruments and
documents, to do all such acts and things, and to take all such other steps
deemed necessary, advisable or convenient for the effective administration of
the Plan in accordance with its terms and purpose, except that the Committee may
not delegate any discretionary authority with respect to substantive decisions
or functions regarding the Plan or Awards thereunder as these relate to Insiders
or Covered Employees including, but not limited to, decisions regarding the
timing, eligibility, pricing, amount or other material terms of such Awards.
4. The Committee and others to whom the Committee has delegated such duties
shall keep a record of all their proceedings and actions and shall maintain all
such books of account, records and other data as shall be necessary for the
proper administration of the Plan.
5. The Corporation shall pay all reasonable expenses of administering the Plan,
including, but not limited to, the payment of professional fees.
6. It is the intent of the Corporation that this Plan and Awards hereunder
satisfy, and be interpreted in a manner that satisfy, in the case of
Participants who are or may be Insiders, the applicable requirements of Rule
16b-3 of the Exchange Act, so that such persons will be entitled to the benefits
of Rule 16b-3, or other exemptive rules under Section 16, and will not be
subjected to avoidable liability thereunder. If any provision of this Plan or of
any Award would otherwise frustrate or conflict with the intent expressed in
this Section, that provision to the extent possible shall be interpreted and
deemed amended so as to avoid such conflict. To the extent of any remaining
irreconcilable conflict with such intent, such provision shall be deemed void as
applicable to Insiders.
Section 9: Adjustment Provisions
1. In the event of any change in the outstanding shares of Stock by reason of a
stock dividend or split, recapitalization, merger or consolidation (whether or
not the Corporation is a surviving corporation), reorganization, combination or
exchange of shares or other similar corporate changes or an extraordinary
dividend payback in cash or property, the number of shares of Stock (or other
securities) then remaining subject to this Plan, and the maximum number of
shares that may be
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issued to any single Participant pursuant to this Plan, including those that are
then covered by outstanding Awards, shall (i) in the event of an increase in the
number of outstanding shares, be proportionately increased and the price for
each share then covered by an outstanding Award shall be proportionately
reduced, and (ii) in the event of a reduction in the number of outstanding
shares, be proportionately reduced and the price for each share then covered by
an outstanding Award shall be proportionately increased.
2. The Committee shall make any further adjustments as it deems necessary to
ensure equitable treatment of any holder of an Award as the result of any
transaction affecting the securities subject to the Plan not described in (1),
or as is required or authorized under the terms of any applicable Award
Agreement.
3. The existence of the Plan and the Awards granted hereunder shall not affect
or restrict in any way the right or power of the Board of Directors or the
shareholders of the Corporation to make or authorize any adjustment,
recapitalization, reorganization or other capital structure of its business, any
merger or consolidation of the Corporation, any issue of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Stock or the
rights thereof, the dissolution or liquidation of the Corporation or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding.
Section 10: Change in Control
1. In the event of a Change in Control, in addition to any action required or
authorized by the terms of an Award Agreement, the Committee may, in its sole
discretion take any of the following actions as a result, or in anticipation, of
any such event to assure fair and equitable treatment of Participants:
a. Accelerate time periods for purposes of vesting in, or realizing gain
from, any outstanding Award made pursuant to this Plan;
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b. Offer to purchase any outstanding Award made pursuant to this Plan from
the holder for its equivalent cash value, as determined by the Committee, as of
the date of the Change in Control; or
c. Make adjustments or modifications to outstanding Awards as the Committee
deems appropriate to maintain and protect the rights and interests of
Participants following such Change in Control.
Any such action approved by the Committee shall be conclusive and binding
on the Corporation and all Participants.
2. Change in Control shall occur in the event of any of the following:
a. A tender offer or exchange offer is made whereby the effect of such
offer is to take over and control the affairs of the Corporation and such offer
is consummated for the ownership of securities of the Corporation representing
twenty percent (20%) or more of the combined voting power of the Corporation's
then outstanding voting securities.
b. The Corporation is merged or consolidated with another corporation and,
as a result of such merger or consolidation, less than fifty percent (50%) of
the outstanding voting securities of the surviving or resulting corporation
shall then be owned in the aggregate by the former stockholders of the
Corporation other than affiliates within the meaning of the Exchange Act or any
party to such merger or consolidation.
c. The Corporation transfers substantially all of its assets to another
corporation or entity that is not a wholly-owned subsidiary of the Corporation.
d. Any person or group (as such terms are used in Sections 13(d)(3) and
14(d)(3) of the Exchange Act) is or becomes the beneficial owner, directly or
indirectly, of securities of the Corporation representing twenty percent (20%)
or more of the combined voting power of
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the Corporation's then outstanding securities, and the effect of such ownership
is to take over and control the affairs of the Corporation.
e. The first day after the date this Plan is effective when directors are
elected such that either a majority of the Board of Directors shall have been
members thereof, respectively, for less than one (1) year, unless the nomination
for election of each new director who was not a director of the Corporation at
the beginning of such one (1) year period was approved by a vote of at least
fifty percent (50%) of the directors of the Corporation then still in office who
were directors at the beginning of such period.
Section 11: Miscellaneous
1. Nonassignability. No Award or shall be assignable or transferable except by
will or by the laws of descent and distribution and except as otherwise
determined by the Committee.
2. Withholding Taxes. Whenever payments under the Plan are to be made, the
Corporation or a Subsidiary shall withhold therefrom an amount sufficient to
satisfy any applicable governmental withholding tax requirements related
thereto.
3. Other Payments or Awards. Nothing contained in the Plan shall be deemed in
any way to limit or restrict the Corporation or a Subsidiary from making any
award or payment to any person under any other plan, arrangement or
understanding, whether now existing or hereafter in effect.
4. Payments to Other Persons. If payments are legally required to be made to any
person other than the person to whom any amount is made available under the
Plan, payments shall be made accordingly. Any such payment shall be a complete
discharge of the liability hereunder.
5. Unfunded Plan. The Plan shall be unfunded. No provision of the Plan or any
Award Agreement shall require the Corporation or a Subsidiary, for the purpose
of satisfying any obligations under the Plan, to purchase assets or place any
assets in a trust or other entity to which contributions are
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made or otherwise to segregate any assets, nor shall the Corporation or a
Subsidiary maintain separate bank accounts, books, records or other evidence of
the existence of a segregated or separately maintained or administered fund for
such purposes. Participants shall have no rights under the Plan other than as
unsecured general creditors of the Corporation or a Subsidiary.
6. Limits of Liability. Any liability of the Corporation or a Subsidiary to any
Participant with respect to an Award shall be based solely upon contractual
obligations created by the Plan and the Award Agreement. Neither the Corporation
or its Subsidiaries, nor any member of the Board of Directors or of the
Committee, nor any other person participating in any determination of any
question under the Plan, or in the interpretation, administration or application
of the Plan, shall have any liability to any party for any action taken, or not
taken, in good faith under the Plan.
7. Rights of Employees. Status as an eligible Employee shall not be construed as
a commitment that any Award shall be made under this Plan to such eligible
Employee or to eligible Employees generally. Nothing contained in this Plan or
in any Award Agreement shall confer upon any Employee or Participant any right
to continue in the employ or other service of the Corporation or a Subsidiary or
constitute any contract or limit in any way the right of the Corporation or a
Subsidiary to change such person's compensation or other benefits or to
terminate the employment or other service of such person with or without Cause.
8. Section Headings. The section headings contained herein are for the purpose
of convenience only, and in the event of any conflict, the text of the Plan,
rather than the section headings, shall control.
9. Gender, Etc. In interpreting the Plan, the masculine gender shall include the
feminine, the neuter gender shall include the masculine or feminine, and the
singular shall include the plural unless the context clearly indicates
otherwise.
10. Invalidity. If any term or provision contained herein or in any Award
Agreement shall to any extent be invalid or unenforceable, such term or
provision will be reformed so that it is valid, and such invalidity or
unenforceability shall not affect any other provision or part thereof.
11. Applicable Law. The Plan, the Award Agreements and all actions taken
hereunder or thereunder shall be governed by, and construed in accordance with,
the laws of the State of Delaware without regard to the conflict of law
principles thereof.
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12. Compliance with Laws. Notwithstanding anything contained herein or in any
Award Agreement to the contrary, the Corporation shall not be required to sell
or issue shares of Stock hereunder or thereunder if the issuance thereof would
constitute a violation by the Participant or the Corporation of any provisions
of any law or regulation of any governmental authority or any national
securities exchange; and as a condition of any sale or issuance the Corporation
may require such agreements or undertakings, if any, as the Corporation may deem
necessary or advisable to assure compliance with any such law or regulation.
13. Effective Date and Term. The Plan was adopted by the Board of Directors
effective as of March 15, 1996, subject to approval by the Corporation's
stockholders. The Committee may grant Awards prior to stockholder approval,
provided, however, that Awards granted prior to such stockholder approval are
automatically cancelled if stockholder approval is not obtained at or prior to
the period ending twelve months after the date the Plan is effective and
provided further that no Award may be exercisable prior to the date stockholder
approval is obtained. The Plan shall remain in effect until all Awards under the
Plan have been exercised or terminated under the terms of the Plan and
applicable Award Agreements, provided that Awards under the Plan may only be
granted within ten (10) years from the effective date of the Plan.
17
Gilbert Associates, Inc.
ROBERT J. JOHNSON August 2, 1996
Senior Counsel
Gilbert Associates, Inc.
P.O. Box 1498
Reading, Pennsylvania 19603
Re: Registration Statement on Form S-8
Long Term Incentive Plan
Gentlemen:
Reference is made to a Registration Statement on Form S-8 of Gilbert Associates,
Inc. (the "Company") which is being filed with the Securities and Exchange
Commission on or about the date hereof (the "Registration Statement").
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Registration Statement.
The Registration Statement covers 500,000 shares of the Company's Class A Common
Stock, $1.00 par value per share, and 500,000 shares of the Company's Class B
Common Stock, $1.00 par value per share (collectively, the "Shares"), which may
be issued by the Company pursuant to the Company's Long Term Incentive Plan (the
"Plan").
I have examined the Registration Statement, including the exhibits thereto, the
Company's Articles of Incorporation, as amended, the Company's By-laws, the Plan
and such other documents as I have deemed appropriate. In the foregoing
examination, I have assumed the genuineness of all signatures, the authenticity
of all documents submitted to me as originals and the authenticity of all
documents submitted to me as copies of originals.
Based upon the foregoing, I am of the opinion that the Shares, when issued and
paid for in accordance with the terms of, and in accordance with awards granted
under, the Plan, will be validly issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Sincerely,
/s/ Robert J. Johnson
-----------------------------
Robert J. Johnson, Esq.
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
Gilbert Associates, Inc. on this Form S-8 of our report dated February 3, 1995,
(which includes an explanatory paragraph regarding the Company's change in
method of accounting for income taxes and post retirement benefits other than
pensions in 1993), on our audits of the consolidated financial statements and
financial statement schedules of Gilbert Associates, Inc. as of December 29,
1995 and December 30, 1994 and for the three years in the period ended December
29, 1995, which report is included in the 1995 Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
- -----------------------------
COOPERS & LYBRAND L.L.P.
2400 Eleven Penn Center
Philadelphia, PA
August 2, 1996
