As filed with the Securities and Exchange Commission on May 9,
1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
Registration Statement
Under
The Securities Act of 1933
Excel Industries, Inc.
(Exact name of Registrant as specified in its charter)
Indiana 35-1551685
(State of Incorporation) (IRS Employer Identification No.)
1120 N. Main Street
P.O. Box 3118
Elkhart, Indiana 46515-3118
(Address of Principal Executive Offices) (Zip Code)
Excel Industries, Inc.
1994 Stock Compensation Plan
(Full title of the plan)
James J. Lohman
Chairman of the Board and Chief Executive Officer
Excel Industries, Inc.
1120 N. Main Street
P.O. Box 3118
Elkhart, Indiana 46515-3118
(Name and address of agent for service)
(219) 264-2131
(Telephone number, including area code, of agent for service)
Copies to:
Philip L. McCool, Esq.
Sommer & Barnard, PC
4000 Bank One Tower
Indianapolis, Indiana
46204
(317) 630-4000
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Proposed
Maximum maximum
Amount
Title of each class of offering aggregate
of
securities to be Amount to price per offering
regis-
registered be registered share price
tration
<S> <C> <C> <C>
<C>
Common Shares,
No par value ............. 500,000 $17.9375(1)
$8,968,750(1)$3092.68
<F1>
(1) Estimated solely for the purpose of calculating the
registration fee
pursuant to Rule 457(c) under the Securities Act
of 1933 on the basis of the average of the high and low
prices of the
Common Shares reported on the American Stock
Exchange on May 3, 1994.
</TABLE>
Part II Information Required in the Registration
Statement
Item 3. Incorporation of Documents by Reference.
The documents listed below, and all documents filed by
registrant
pursuant to Sections 13(a), 13(c) 14 and 15(d) of the Securities
Exchange Act
of 1934 subsequent to the filing of this Registration Statement and
prior to
the filing of a post-effective amendment which indicates that all
securities
offered have been sold or which deregisters all securities then
remaining
unsold, are deemed to be incorporated by reference in this
registration
statement and to be part hereof from the date of filing of this
Registration
Statement:
(a) The Registrant's Annual Report on Form 10-K for the
year ended
December 31, 1993, filed with the Commission on March
30, 1994.
(b) The Registrant's Current Report on Form 8-K filed with
the
Commission on February 18, 1994; and
(c) The information set forth under the caption
"Description of
Capital Shares" in the Company's prospectus dated
March 17,
1994, which forms part of the Company's Registration
Statement
on Form S-3 (Reg. No. 33-52315) effective March 17,
1994, and
which is incorporated by reference in Amendment No. 1,
filed
May 9, 1994 to the Company's Registration Statement on
Form
8-A, effective April 19, 1984, and any amendment or
report filed
to update such information.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
The validity of the issuance of the Common Shares registered
hereby will
be passed upon for the Registrant by Sommer & Barnard, PC,
Indianapolis,
Indiana, counsel for the Registrant. James K. Sommer, a director
of the
Registrant is a member of Sommer & Barnard. Mr. Sommer owns 3,501
Common
Shares of the Registrant.
Item 6. Indemnification of Directors and Officers.
A. The Company is an Indiana corporation. Indiana Code
Chapter
23-1-37 provides:
Chapter 37. Indemnification of Directors, Officers,
Employees and
Agents.
Sec. 1. As used in this chapter, "corporation" includes any
domestic
or foreign predecessor entity of a corporation in a merger or other
transaction in which the predecessor's existence ceased upon
consummation of
the transaction.
Sec. 2. As used in this chapter, "director" means an
individual who is
or was a director of a corporation or an individual who, while a
director of
a corporation, is or was serving at the corporation's request as a
director,
officer, partner, trustee, employee, or agent of another foreign or
domestic
corporation, partnership, limited liability company, joint venture,
trust,
employee benefit plan, or other enterprise, whether for profit or
not. A
director is considered to be serving an employee benefit plan at
the
corporation's request if the director's duties to the corporation
also impose
duties on, or otherwise involve services by, the director to the
plan or to
participants in or beneficiaries of the plan. "Director" includes,
unless
the context requires otherwise, the estate or personal
representative of a
director.
Sec. 3. As used in this chapter, "expenses" include counsel
fees.
Sec. 4. As used in this chapter, "liability" means the
obligation to
pay a judgment, settlement, penalty, fine (including an excise tax
assessed
with respect to an employee benefit plan), or reasonable expenses
incurred
with respect to a proceeding.
Sec. 5. As used in this chapter, "official capacity" means:
(1) when used with respect to a director, the office of
director
in a corporation; and
(2) when used with respect to an individual other than
a director,
as contemplated in section 13 of this chapter, the office
in a
corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on behalf
of the
corporation.
"Official capacity" does not include service for any other
foreign or
domestic corporation or any partnership, limited liability company,
joint
venture, trust, employee benefit plan, or other enterprise, whether
for
profit or not.
Sec. 6. As used in this chapter, "party" includes an
individual who
was, is or is threatened to be made a named defendant or respondent
in a
proceeding.
Sec. 7. As used in this chapter, "proceeding" means any
threatened,
pending, or completed action, suit, or proceeding, whether civil,
criminal,
administrative, or investigative and whether formal or informal.
Sec. 8. (a) A corporation may indemnify an individual made
a party to
a proceeding because the individual is or was a director against
liability
incurred in the proceeding if:
(1) the individual's conduct was in good faith; and
(2) the individual reasonably believed:
(A) in the case of conduct in the individual's
official
capacity with the corporation, that the
individual's
conduct was in its best interests; and
(B) in all other cases, that the individual's
conduct was
at least not opposed to its best interests;
and
(3) in the case of any criminal proceeding, the
individual
either:
(A) had reasonable cause to believe the
individual's
conduct was lawful; or
(B) had no reasonable cause to believe the
individual's
conduct was unlawful.
(b) A director's conduct with respect to an employee
benefit plan for
a purpose the director reasonably believed to be in the interests
of the
participants in and beneficiaries of the plan is conduct that
satisfies the
requirement of subsection (a)(2)(B).
(c) The termination of a proceeding by judgment, order,
settlement,
conviction, or upon a plea of nolo contendere or its equivalent is
not, of
itself, determinative that the director did not meet the standard
of conduct
described in this section.
Sec. 9. Unless limited by its articles of incorporation, a
corporation
shall indemnify a director who was wholly successful, on the merits
or
otherwise, in the defense of any proceeding to which the director
was a party
because the director is or was a director of the corporation
against
reasonable expenses incurred by the director in connection with the
proceeding.
Sec. 10. (a) A corporation may pay for or reimburse the
reasonable
expenses incurred by a director who is a party to a proceeding in
advance of
final disposition of the proceeding if:
(1) the director furnishes the corporation a written
affirmation
of the director's good faith belief that the director has met
the
standard of conduct described in section 8 of this chapter;
(2) the director furnishes the corporation a written
undertaking,
executed personally or on the director's behalf, to repay the
advance if
it is ultimately determined that the director did not meet the
standard
of conduct; and
(3) a determination is made that the facts then known to
those
making the determination would not preclude indemnification
under this
chapter.
(b) The undertaking required by subsection (a)(2) must be an
unlimited
general obligation of the director but need not be secured and may
be
accepted without reference to financial ability to make repayment.
(c) Determinations and authorizations of payments under this
section
shall be made in the manner specified in section 12 of this
chapter.
Sec. 11. Unless a corporation's articles of incorporation
provide
otherwise, a director of the corporation who is a party to a
proceeding may
apply for indemnification to the court conducting the proceeding or
to
another court of competent jurisdiction. On receipt of an
application, the
court after giving any notice the court considers necessary may
order
indemnification if it determines:
(1) the director is entitled to mandatory indemnification
under
section 9 of this chapter, in which case the court shall also
order the
corporation to pay the director's reasonable expenses incurred
to obtain
court-ordered indemnification; or
(2) the director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances,
whether or
not the director met the standard of conduct set forth in
section 8 of
this chapter.
Sec. 12. (a) A corporation may not indemnify a director under
section 8 of this chapter unless authorized in the specific case
after a
determination has been made that indemnification of the director is
permissible in the circumstances because the director has met the
standard of
conduct set forth in section 8 of this chapter.
(b) The determination shall be made by any one (1) of the
following
procedures:
(1) By the board of directors by majority vote of a quorum
consisting of directors not at the time parties to the
proceeding.
(2) If a quorum cannot be obtained under subdivision (1),
by
majority vote of a committee duly designated by the board of
directors
(in which designation directors who are parties may
participate),
consisting solely of two (2) or more directors not at the
time parties
to the proceeding.
(3) by special legal counsel:
(A) Selected by the board of directors or its committee
in
the manner prescribed in subdivision (1) or (2); or
(B) If a quorum of the board of directors cannot be
obtained
under subdivision (1) and a committee cannot be
designated under
subdivision (2), selected by majority vote of the full
board of
directors (in which selection directors who are parties
may
participate).
(4) By the shareholders, but shares owned by or voted under
the
control of directors who are at the time parties to the
proceeding may
not be voted on the determination.
(c) Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible, except that if
the
determination is made by special legal counsel, authorization of
indemnification and evaluation as to reasonableness of expenses
shall be made
by those entitled under subsection (b)(3) to select counsel.
Sec. 13. Unless a corporation's articles of incorporation
provide
otherwise:
(1) An officer of the corporation, whether or not a director,
is
entitled to mandatory indemnification under Section 9 of this
chapter,
and is entitled to apply for court-ordered indemnification
under section
11 of this chapter, in each case to the same extent as a
director;
(2) The corporation may indemnify and advance expenses under
this
chapter to an officer, employee, or agent of the corporation,
whether or
not a director, to the same extent as to a director; and
(3) A corporation may also indemnify and advance expenses to
an
officer, employee, or agent, whether or not a director, to the
extent,
consistent with public policy, that may be provided by its
articles of
incorporation, bylaws, general or specific action of its board
of
directors, or contract.
Sec. 14. A corporation may purchase and maintain insurance on
behalf of
an individual who is or was a director, officer, employee or agent
of the
corporation, or who, while a director, officer, employee, or agent
of the
corporation, is or was serving at the request of the corporation as
a
director, officer, partner, trust, employee, or agent of another
foreign or
domestic corporation, partnership, limited liability company, joint
venture,
trust employee benefit plan, or other enterprise, against liability
asserted
against or incurred by the individual in that capacity or arising
from the
individual's status as a director, officer, employee, or agent,
whether or
not the corporation would have power to indemnify the individual
against the
same liability under section 8 or 9 of this chapter.
The:
(1) Corporation may purchase insurance under this section
from;
and
(2) Insurance purchased under this section may be
reimbursed in
whole or in part by;
an insurer that is owned or otherwise affiliated with the
corporation,
whether the insurer does or does not do business with other
persons.
Sec. 15 (a) The indemnification and advance for expenses
provided for
or authorized by this chapter does not exclude any other rights to
indemnification and advance for expenses that a person may have
under:
(1) A corporation's articles of incorporation or bylaws;
(2) A resolution of the board of directors or of the
Shareholders;
(3) Any other authorization, whenever adopted, after
notice, by a
majority vote of all the voting shares then issued and
outstanding.
(b) If the articles of incorporation, bylaws, resolutions of
the board
of directors or of the Shareholders, or other duly adopted
authorization of
indemnification or advance for expenses limit indemnification or
advance for
expenses, indemnification and advance for expenses are valid only
to the
extent consistent with the articles, bylaws, resolution of the
board of
directors or of the Shareholders, or other duly adopted
authorization of
indemnification or advance for expenses.
(c) This chapter does not limit a corporation's power to pay
or
reimburse expenses incurred by a director, officer, employee, or
agent in
connection with the person's appearance as a witness in a
proceeding at a
time when the person has not been made a named defendant or
respondent to the
proceeding.
B. Article XII, Section 6 of the Company's Articles of
Incorporation
provides:
Section 6. Limitation of Liability and Indemnification of
Officers and
Directors. No officer or
director of the Corporation shall be liable to the Corporation for
any loss
or damage suffered by it on account of any action taken or omitted
to be
taken by him as a director, officer or employee of the Corporation
in good
faith if such person:
(i) exercised or used the same degree of care and skill as a
prudent man would have exercised or used under the
circumstances in the
conduct of his own affairs; or
(ii) took or omitted to take such action in reliance upon the
advice of counsel for the Corporation or upon statements made
or
information furnished by officers or employees of the
Corporation which
he had reasonable grounds to believe, or upon a financial
statement of
the Corporation prepared by an officer or employee of the
Corporation in
charge of its accounts, or a public accountant or firm of
public
accountants; or
(iii) in good faith considered the assets to be of their book
value
or followed what he believed to be sound accounting and
business
practice.
The Corporation shall indemnify any person against whom there
is
instituted or threatened any claim, action, suit or proceeding,
whether civil
or criminal, by reason of the fact that he, his testator or
intestate is or
was a director, member of an executive committee or officer of the
Corporation, or of any corporation which he served as such at the
request of
the Corporation, against any and all liability, reasonable expenses
and costs
of any nature (excluding only accounts paid in settlement and
including
without limitation any and all attorneys' fees, judgments, fines,
penalties
and court costs) actually incurred by him in connection with the
defense of
such claim, action, suit or proceeding, or in connection with any
appeal
therein, except in relation to matters as to which it shall be
finally
adjudged in such action, suit or proceeding that such person, his
testator or
intestate is liable for gross negligence or willful misconduct in
the
performance of his duties. The Corporation may also reimburse to
any such
person any amount paid in settlement of any such claim, action,
suit or
proceeding, if it shall be found by a majority of a committee
composed of the
directors not involved in the matter in controversy (whether or not
a quorum)
that it is in the interests of the Corporation that such settlement
be made
and that such person, his testator or intestate was not guilty of
gross
negligence or willful misconduct.
If several claims, issues or matters of action are involved,
any such
person may be entitled to indemnification as to some matters even
though he
is not so entitled as to others. The Corporation may advance
expenses to, or
where appropriate may at its expense undertake the defense of, any
such
person upon receipt of an undertaking by or on behalf of such
person to repay
such expenses if it should ultimately be determined that he is not
entitled
to indemnification under this Article.
The provisions of this Section shall be in addition to and
not in
limitation of any other right of indemnification and reimbursement
or
limitations of liability to which any director, member of an
executive
committee or officer may be entitled as a matter of law. The
provisions of
this Section shall apply whether or not at the time of
reimbursement the
person reimbursed is then a director, member of an executive
committee or
officer of the Corporation. Notwithstanding any repeal of this
Section or
other amendment thereof, its provisions shall be binding upon the
Corporation
(subject only to the exceptions hereinabove set forth) as to all
actions,
suits or proceedings and expenses connected therewith, judgments
and
settlements thereof, as above provided, arising out of matters
which occur
during or are referable to the period prior to any such repeal or
amendment
of this Section.
By vote of the Board of Directors, the Corporation may assent
to the
adoption of a by-law or charter provision, having substantially the
provisions of this Section, by any subsidiary, whether or not
wholly owned.
C. The Company has obtained a directors' and officers'
liability and
corporation reimbursement policy which (subject to certain limits
and
deductibles) (i) insures officers and directors of the Company
against loss
arising from certain claims made against them by reason of their
being such
directors or officers, and (ii) insures the Company against loss
which it may
be required or permitted to pay as indemnification due its
directors or
officers for certain claims.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
4 Excel Industries, Inc. 1994 Stock
Compensation Plan
5 Opinion and Consent of Sommer & Barnard, PC
23.1 Consent of Sommer & Barnard, PC (Included in
Exhibit 5)
23.2 Consent of Independent Accountants
24 Power of Attorney
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section 10(a)(3)
of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising
after the effective date of the registration statement (or
the most
recent post-effective amendment thereof) which,
individually or in
the aggregate, 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
registration statement is on Form S-3 or Form S-8, and 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 Securities Exchange Act of 1934 that are
incorporated
by reference in the 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.
(4) If the registrant is a foreign private issuer, to file a
post-
effective amendment to the registration statement to include
any
financial statements required by Section 210.3-19 of this
chapter at the
start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise
required
by Section 10(a)(3) of the Act need not be furnished,
provided
that the registrant includes in the prospectus, by means of
a
post-effective amendment, financial statements
required pursuant to this paragraph (a)(4) and other
information
necessary to ensure that all other information in the
prospectus is at
least as current as the date of those financial statements.
(5) For the purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's
annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange
Act of 1934 (and, where applicable, each filing of an
employee benefit
plan pursuant to section 15(d) of the Securities Exchange Act
of 1934)
that is incorporated by reference in the registration
statement shall
be deemed to be a new registration statement relating to the
securities
offered therein, and the offering of such securities at that
time shall
be deemed to be the initial bona fide offering thereof.
(6) Insofar as indemnification for liabilities arising under
the
Securities Act of 1933 may be permitted to directors,
officers, and
controlling persons of the Company pursuant to the foregoing
provisions
described in Item 15, or otherwise, the Company 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 Company of expenses incurred or paid by a
director,
officer or controlling person of the Company in the
successful
defense of any action, suit or proceeding) is asserted by
such
director, officer or controlling person in connection with
the securities being registered, the Company will, unless in
the
opinion of its counsel the matter has been settled by
controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as
expressed in the Act and will be governed by the final
adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the
Registrant certifies that it has reasonable grounds to believe that
it meets
all of the requirement 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 Elkhart, State of
Indiana, on the
9th day of May, 1994.
Excel Industries, Inc.
By: /s/ James J. Lohman
James J. Lohman
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears
below constitutes and appoints James J. Lohman and Joseph A.
Robinson, and
each of them, his true and lawful attorney-in-fact and agent with
full power
of substitution for him in his name, place and stead, in any and
all
capacities to sign any and all amendments (including pre-effective
and 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, grants unto said
attorneys-in-fact
and agents 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
as to all intents and purposes as he might or could do in person,
and hereby
ratifies and confirms all that said attorneys-in-fact and agents or
their or
his substitute or substitutes amy lawfully do or cause to be done
by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933,
this
Registration Statement has been signed below by the following
persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ James J. Lohman Chief Executive Office and May 9,
1994
James J. Lohman Chairman
/s/ Joseph A. Robinson Secretary, Treasurer, Chief May 9,
1994
Joseph A. Robinson Financial Officer and Director
Principal Financial Officer and
Principal Accounting Officer
/s/ James O. Futterknecht, Jr. Director May 9,
1994
James O. Futterknecht, Jr.
/s/ John G. Keane Director May 9,
1994
John G. Keane
/s/ James K. Sommer Director May 9,
1994
James K. Sommer
/s/ Ralph R. Whitney, Jr. Director May 9,
1994
Ralph R. Whitney, Jr.
INDEX TO EXHIBITS FILED
TO REGISTRATION STATEMENT ON
FORM S-8 OF EXCEL INDUSTRIES, INC.
Sequentially
Exhibit Numbered
No. Description Page
4 Excel Industries, Inc.
1994 Stock Compensation Plan
5 Opinion and Consent of
Sommer & Barnard, PC
23.1 Consent of Sommer & Barnard, PC
(Included in Exhibit 5)
23.2 Consent of Independent Accountants
24 Power of Attorney
Exhibit 4
EXCEL INDUSTRIES, INC.
1994 STOCK COMPENSATION PLAN
ARTICLE I
GENERAL
Section 1.1. Purpose. The purpose of the 1994 Stock
Compensation Plan (the "Plan") of Excel Industries, Inc. (the
"Company") is to enhance the ability of the Company to attract and
retain qualified personnel who, as a result of the incentive and
equity interest created and encouraged by the Plan, will have an
increased stake in the prosperity of the Company and an increased
identity of interest with the Company's shareholders, and will be
encouraged thereby to exert maximum effort towards the successful
operation of the Company.
Section 1.2. Definitions. Whenever used herein, the
following terms shall have the meanings set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as
amended.
(c) "Committee" means the Compensation Committee of the
Board, which shall consist of not less than three persons
appointed by the Board from among those Board members who
are not employees of the Company or any of its
subsidiaries, and who are "disinterested persons" within
the meaning of Rule 16b-3 under the Securities Exchange
Act of 1934.
(d) "Common Shares" means the shares of common stock of the
Company or such other securities into which such shares
of common stock may be changed pursuant to Section 1.5
hereof.
(e) "Director Options" means options granted to non-employee
directors.
(f) "Fair Market Value" means, as to any date, the closing
price per Common Share on the principal exchange on which
the Common Shares are traded at such date(or in the event
there are no sales, then the average of the bid and asked
prices per Common Share).
(g) "Incentive Stock Option" means an incentive stock option
within the meaning of Section 422 of the Code.
(h) "Non-statutory Options" means a stock option which is not
an Incentive Stock Option.
(i) "Participant" means a person selected by the Committee to
participate in the Plan pursuant to Section 1.6 hereof.
Section 1.3. Administration. The Plan shall be administered
by the Committee. Members of the Committee are not eligible to be
granted any options or performance units under the Plan, except
Director Options. Subject to the foregoing and the other terms and
provisions of this Plan, the Committee shall determine the
participants in the Plan and the terms and provisions of each
option or performance unit granted under the Plan, including the
number of shares subject to such options or performance units. The
Committee may from time to time prescribe rules and regulations for
the administration of the Plan, and shall decide any questions
arising with respect to options or performance units granted under
the Plan. All decisions, interpretations, determinations or
actions taken by the Committee with regard to such questions shall
be final and binding upon the employees of the Company. The
Committee from time to time, and whenever requested, shall report
to the Board on the administration of the Plan and any action taken
in connection therewith.
Section 1.4. Aggregate Number of Common Shares Which May be
Issued. The aggregate number of Common Shares which may be issued
as a result of the exercise of options granted under the Plan or as
a result of attainment of performance goals pursuant to performance
units granted under the Plan, is five hundred thousand (500,000).
In the event any option expires, terminates or is canceled for any
reason prior to exercise, the shares subject to such option shall
again become available for issuance under the Plan.
Section 1.5. Adjustments. If any stock dividend is declared
on the Common Shares, or if the Common Shares are subdivided,
consolidated, or changed to other securities of the Company, or in
the event of any like adjustment or change in the Company's
capitalization, then in each such event, Common Shares subject to
options or performance units then in effect under the Plan, Common
Shares reserved for issuance under the Plan with respect to options
or performance units which may thereafter be granted under the Plan
shall, if the occurrence of the event would have resulted in a
change in the number and/or kind of such shares had they been
outstanding, be similarly adjusted in number and/or kind, with the
nature and extent of such adjustments to be determined by treating
such shares as being outstanding at the time of and immediately
prior to the occurrence of the event and the purchase price to be
paid for such shares subject to options then in effect shall be
appropriately changed to give effect to any such adjustment.
Section 1.6. Participants. The participants in the Plan
shall be selected by the Committee from among the officers and
other key employees of the Company who are full-time employees of
the Company or one of its subsidiaries (as defined in
Section 424(f) of the Code). The Committee shall take into account
the duties of the employee, the present and potential contributions
of the employee to the success of the Company, and such other
factors that the Committee, in its discretion, considers to be
reasonable and appropriate in light of the purposes of the Plan.
Section 1.7. Term of Plan. The Plan shall terminate on the
earlier of (a) ten (10) years from the date of adoption of the Plan
by the Board or (b) such earlier date as the Board may determine.
Options or performance units outstanding at the date of termination
of the Plan shall remain in effect until exercised or expired.
Section 1.8. Restrictions on Transferability of Common
Shares. The Committee may impose such restrictions as it may deem
advisable on Common Shares acquired on exercise of an option
granted under the Plan or on attainment of performance goals
pursuant to performance units granted under the Plan. In addition,
unless the Common Shares so acquired are registered under the
Securities Act of 1933, the transfer of the Common Shares shall be
subject to the restrictions on transfer imposed under federal and
applicable state securities laws, and certificates representing
such Common Shares shall bear a legend to that effect
Section 1.9. Restriction on Tandem Options. In no event may
the exercise of an option (whether an Incentive Stock Option or a
Non-statutory Option) granted under the Plan affect the right of a
Participant to exercise any other option granted under the Plan.
Section 1.10. Maximum Number of Common Shares Subject to
Options Granted to an Individual Participant. The maximum number
of Common Shares for which options may be granted to any individual
Participant during the term of the Plan is one hundred thousand
(100,000).
ARTICLE II
INCENTIVE STOCK OPTIONS
Section 2.1. Grant of Options. Subject to the provisions of
this Plan, the Committee may grant Incentive Stock Options to
purchase Common Shares to Participants at any time and from time to
time as shall be determined by the Committee. The Committee shall
have complete discretion to determine the number of shares subject
to Incentive Stock Options granted, and the terms and conditions of
such Incentive Stock Options.
Section 2.2. Option Agreement. Each Incentive Option shall
be evidenced by an option agreement that shall state that the
option is an Incentive Stock Option, and specify the option price,
the terms of the option, the number of Common Shares subject to the
option, and such other provisions as the Committee shall determine.
The provisions of this Plan shall be expressly incorporated in the
terms and provisions of the option agreement. In the event of any
inconsistency between the provisions of this Plan and the other
provisions of the option agreement, the provisions of this Plan
shall govern.
Section 2.3. Option Price. The option price per Common
Share to be paid upon the exercise of any Incentive Stock Option,
as determined by the Committee, shall be not less than Fair Market
Value at the time the option is granted provided, however, that
with respect to Incentive Stock Options granted to any Participant,
who at the time of grant owns shares possessing more than ten
percent (10%) of the total combined voting power of all classes of
stock of the Participant's employer corporation or its parent or
subsidiaries under the attribution rules set forth in Section
424(d) of the Code (a "10% Owner Participant") the option price per
Common Share shall be at least one hundred ten percent (110%) of
Fair Market Value at the time of grant.
Section 2.4. Term of Option. Unless the terms of an
Incentive Stock Option provide a shorter term, or as hereinafter
provided, each Incentive Stock Option shall be exercisable no later
than ten (10) years from the date it is granted. Any Incentive
Stock Option granted to a 10% Owner Participant shall be
exercisable no later than five (5) years from the date it is
granted. The Committee, in its sole discretion, will determine the
vesting schedule of each Incentive Stock Option granted under this
Plan; provided, however, that no Incentive Stock Option may be
exercised prior to one year from the date it is granted. Except as
otherwise provided herein, no Incentive Stock Option may be
exercised unless the Participant is at the time of such exercise in
the employ of the Company or of a subsidiary thereof and shall have
been continuously so employed since the granting of the
Participant's option. Military, sick leave or other bona fide
leave of absence not exceeding ninety (90) days (or longer if the
Participant's right to re-employment is guaranteed by statute or by
contract) shall not be considered an interruption of employment for
purposes of the Plan.
Section 2.5. Limitation on Granting of Options. The
Committee shall not grant Incentive Stock Options to a Participant
if the aggregate Fair Market Value (determined at the time the
option is granted) with respect to which Incentive Stock Options
are exercisable for the first time by the Participant during any
calendar year (under all option plans of the Participant's employer
corporation and its parent and subsidiary corporations) shall
exceed One Hundred Thousand Dollars ($100,000).
Section 2.6. Termination of Employment. An Incentive Stock
Option granted under the Plan may not be exercised after the
Participant ceases to be employed by the Company or a subsidiary
thereof except as hereinafter provided if such cessation of
employment is on account of death, normal retirement, early
retirement, or disability. An uninterrupted transfer of employment
to or between the Company and/or any parent or subsidiary thereof
shall not be considered to be a cessation of employment.
Section 2.7. Retirement and Partial Disability of
Participant. In the event of the normal retirement, early
retirement or disability (other than permanent and total disability
within the meaning of Section 22(e)(3) of the Code) of a
Participant, an Incentive Stock Option may be exercised for a
period of three months after cessation of the employment of the
Participant, or the balance of the term of the Incentive Stock
Option, whichever is shorter. The Participant may exercise the
Incentive Stock Option for the number of Common Shares with respect
to which the Incentive Stock Option has become exercisable by its
terms and any such additional number of Common Shares subject to
the Incentive Stock Option as the Committee may authorize.
Section 2.8. Death of Participant. In the event of the
death of a Participant while in the employ of the Company or a
subsidiary thereof, the Incentive Stock Options theretofore granted
to the Participant shall become immediately exercisable, whether or
not theretofore exercisable, and shall be exercisable for a period
of three months after the date of death or for the balance of the
term of the Incentive Stock Option, whichever is shorter, by the
executor or administrator of the Participant's estate or by such
person or persons as shall have acquired the Participant's rights
under the Incentive Stock Option by will or by the laws of descent
and distribution.
Section 2.9. Permanent and Total Disability of Participant.
In the event the Participant becomes permanently and totally
disabled (within the meaning of Section 22(e)(3) of the Code) while
in the employ of the Company or a subsidiary thereof, the Incentive
Stock Options theretofore granted to the Participant shall become
immediately exercisable, whether or not theretofore exercisable,
and shall be exercisable for a period of one year after the
Participant's cessation of employment or for the balance of the
term of the Incentive Stock Option, whichever is shorter.
Section 2.10. Nonassignability. Each Incentive Stock Option
shall by its terms provide that it is not transferable by the
Participant other than by will or the laws of descent and
distribution and that it is exercisable during the Participant's
lifetime, only by the Participant or by the Participant's duly
authorized legal representative if the Participant is unable to
exercise the Incentive Stock Option as a result of the
Participant's disability, but only if, and to the extent, permitted
by Section 422 of the Code.
ARTICLE III
NON-STATUTORY OPTIONS
Section 3.1. Grant of Options. Subject to the provisions of
this Plan, the Committee may grant Non-statutory Options to
purchase Common Shares to Participants at any time and from time to
time as shall be determined by the Committee. The Committee shall
have complete discretion to determine the number of shares subject
to Non-statutory Options granted and the terms and conditions of
such Non-statutory Options.
Section 3.2. Option Agreement. Each Non-statutory Option
shall be evidenced by an option agreement that shall state that the
Non-statutory Option is not an Incentive Stock Option and shall
specify the option price of the Non-statutory Option, the number of
Common Shares subject to the Non-statutory Option, and such other
provisions as the Committee shall determine. The provisions of
this Plan shall be expressly incorporated in the terms and
provisions of the option agreement. In the event of any
inconsistency between the provisions of this Plan and the other
provisions of the option agreement, the provisions of this Plan
shall govern.
Section 3.3. Term of Option. No Non-statutory Option may be
exercised prior to one year from the date it is granted. Unless
the terms of a Non-statutory Option provide a shorter term, each
Non-statutory Option shall be exercisable no later than ten (10)
years from the date it is granted.
ARTICLE IV
DIRECTOR OPTIONS
Section 4.1. Grant and Eligibility.
(a) Initial Grant. Director Options for the purchase of
one thousand (1,000) Common Shares will be granted to each
non-employee director upon first being elected to the Board.
This grant may be awarded to a non-employee director only
once.
(b) Subsequent Grants. On the date of the Company's
annual meeting in each year, commencing with the 1994 annual
meeting, Director Options for the purchase of one thousand
(1,000) Common Shares shall be granted to each non-employee
director re-elected at such meeting.
Section 4.2. Director Option Agreement. Each Director
Option shall be evidenced by a Director Option Agreement that shall
specify the option price of the Director Option, the term of the
Director Option, the number of Common Shares subject to the
Director Option, and such other provisions as the Committee shall
determine. The provisions of this Plan shall be expressly
incorporated in the terms and provisions of the Director Option
Agreement. In the event of any inconsistency between the
provisions of this Plan and the other provisions of the Director
Option Agreement, the provisions of this Plan shall govern.
Section 4.3. Tax Status. The Director Options shall not be
Incentive Stock Options and the Director Option Agreement shall so
state.
Section 4.4. Option Price. The option price per Common Share
to be paid upon exercise of a Director Option shall be Fair Market
Value on the date of grant of the Director Option.
Section 4.5. Term of Option. Each Director Option shall
expire one year following the termination of the director's Board
membership for any reason, but in no event may any Director Option
be exercised after the tenth anniversary of the date of grant.
Section 4.6. Miscellaneous Provisions. Except as otherwise
provided in this Article IV, Director Options shall be governed by
the remaining provisions of this Plan applicable to Non-statutory
Options.
Section 4.7. Amendment of Article IV. The provisions of
this Article IV may not be amended more than once every six months,
other than to comport with changes in the Code, the Employee
Retirement Income Security Act of 1974, or the rules thereunder.
ARTICLE V
PERFORMANCE UNITS
Section 5.1. Performance Units. Performance units may be
granted subject to such terms and conditions as the Committee in
its discretion shall determine. Performance units may be granted
either in the form of cash units, in share units which are equal in
value to one Common Share or a combination thereof. The Committee
shall establish the performance goals to be attained in respect of
the performance units, the various percentages of performance unit
value to be distributed upon attainment, in whole or in part, of
the performance goals and such other performance unit terms,
conditions and restrictions as the Committee shall deem
appropriate. As soon as practicable after the termination of the
performance period, the Committee shall determine the payment, if
any, which is due on the performance unit in accordance with the
terms thereof. The Committee shall determine, among other things,
whether the payment shall be made in the form of cash or Common
Shares, or a combination thereof.
ARTICLE VI
AMENDMENT AND OTHER PROVISIONS
Section 6.1. Method of Exercise. Exercise of an option
granted under the Plan shall be by the execution by the person
entitled at the time to exercise the option of a written notice of
such exercise and delivery thereof to the Company, which notice
shall specify the number of shares being purchased. In the case of
the exercise of an option, such notice shall be accompanied by
payment in full of the option price of the Common Shares. Payment
of the option price with respect to any stock option may be made in
cash, in Common Shares valued at the Fair Market Value on the last
trading day preceding the date on which the option is exercised or
in a combination of cash and Common Shares. Upon receipt of such
notice and payment, the Company will promptly issue and deliver its
certificate for the number of Common Shares being purchased
pursuant to exercise of the option. No person, estate or other
entity shall have any of the rights of a shareholder with reference
to Common Shares subject to an option until a certificate or
certificates for the shares have been delivered.
Section 6.2. Amendment, Modification and Termination of the
Plan. Subject to Section 4.7 hereof and the last sentence of this
Section 6.2, the Board may at any time terminate, and from time to
time may amend or modify the Plan; provided, however that the
approval of the shareholders of the Company shall be required to
amend or modify the Plan to:
(a) materially increase the benefits accruing to
Participants;
(b) materially increase the number of Common Shares which may
be issued under the Plan; or
(c) materially modify the requirements as to eligibility for
participation in the Plan.
No amendment, modification or termination of the Plan shall in any
manner adversely affect the rights of a Participant under any
option previously granted under the Plan, without the consent of
the Participant.
Section 6.3. Rights of Employees. Nothing in this Plan
limits in any way the right of the Company or its subsidiaries to
terminate any Participant's employment at any time, nor confers
upon any Participant any right to continue in the employ of the
Company or its subsidiaries. No employee shall have a right to be
selected as a Participant.
Section 6.4. Dissolution, Merger and Consolidation. Upon a
dissolution or a liquidation of the Company, each Participant shall
have the right to exercise any unexercised options, whether or not
theretofore exercisable, during a period of thirty (30) days next
preceding the date of such dissolution or liquidation. In the
event of a merger or consolidation in which Common Shares may be
exchanged for securities of another publicly held entity, each
participant shall be offered a firm commitment whereby such entity
will tender to the Participant new options in such entity, with
terms and conditions, both as to number of shares and otherwise,
which, to the extent permitted by applicable law, will
substantially preserve to the Participant the rights and benefits
of the options outstanding hereunder. With respect to any merger
or consolidation in which the Common Shares are exchanged for (a)
cash, (b) securities of an entity that is not publicly held, or (c)
a combination of (a) and (b), options then in effect shall become
immediately exercisable, whether or not theretofore exercisable,
during a period of thirty (30) days next preceding the date of
consummation of the merger or consolidation.
Section 6.5. Tax Withholding. The Company, as appropriate,
shall have the right to deduct from all payments any Federal, state
or local taxes required by law to be withheld with respect to such
payments. With respect to withholding required upon the exercise
of Non-statutory Options, or upon payment in Common Shares with
respect to performance units, Participants may elect, subject to
the approval of the Committee, to satisfy the withholding required,
in whole or in part, by having the Company withhold Common Shares
having a value equal to the amount required to be withheld. The
value of the shares to be withheld is to be based on the Fair
Market Value on the date that the amount of tax to be withheld is
to be determined. All elections shall be irrevocable and shall be
made in writing, signed by the Participant, and shall satisfy such
other requirements as the Committee shall deem appropriate.
Section 6.6. Requirements of Law. The granting of options
or performance units, and the issuance of Common Shares with
respect to an exercise of an option or with respect to a
performance unit award, shall be subject to all applicable laws,
rules and regulations, including federal and applicable state
securities laws, and to such approvals by any governmental agencies
or national securities exchanges as may be required.
Section 6.7. Governing Law. The Plan, and all agreements
hereunder, shall be construed in accordance with and governed by
the laws of the State of Indiana.
Exhibit 5
[SOMMER & BARNARD LETTERHEAD]
May 6, 1994
Board of Directors
Excel Industries, Inc.
1120 North Main Street
P.O. Box 3118
Elkhart, Indiana 46515-3118
RE: Registration Statement on Form S-8 of
Excel Industries, Inc.
Gentlemen:
We have acted as counsel to Excel Industries, Inc. ("Excel")
in connection with the preparation and filing with the Securities
and Exchange Commission of the Registration Statement on Form S-8
(the "Registration Statement") which covers the registration under
the Securities Act of 1933, as amended, of 500,000 shares of
Excel's
common shares, no par value (the "Registered Shares").
In that capacity, and for purposes of giving the opinion set
forth in this letter, we have examined and reviewed the following
documents and materials:
1. A copy of Excel's Articles of Incorporation, and all
amendments thereto;
2. A copy of the Code of By-Laws of Excel;
3. The Registration Statement together with all exhibits;
4. The Excel Industries, Inc. 1994 Stock Compensation Plan
(the "Plan");
5. Minutes of the meetings and written consent resolutions
of Excel's Board of Directors; and
6. Such other instruments, documents, statements and records
of Excel as we deemed relevant and necessary to examine and rely
upon for the purpose of this opinion.
Further, we have made and relied upon the following
assumptions:
1. That the originals of all documents and instruments
submitted to us, including those described above, are authentic;
2. That all copies of documents and instruments submitted to
us, including those described above, conform in all material
respects to the originals of such documents;
3. That all signatures on documents and instruments the
originals or copies of which were submitted to us, including those
described above, are genuine.
4. That all natural persons signing documents, the originals
or copies of which were submitted to us, including those described
above, had the legal capacity to so sign;
5. That all documents and instruments, the originals or
copies of which were submitted to us, including those described
above, will have been duly and properly authorized, executed and
delivered and be valid, binding and enforceable, at the time any
Registered Shares are sold; and
6. That all statements, representations, understandings and
warranties in the documents and instruments, the originals or
copies of which were submitted to us, including those described
above, are now (and will be at the time any Registered Shares are
sold) true, accurate and complete in all respects.
In rendering the opinion set forth below, we have not passed
upon and do not purport to pass upon any "doing business", "blue
sky" or securities laws of any jurisdiction. Nor do we express any
opinion regarding law other than the corporate law of the State of
Indiana and the federal law of the United States.
Based on the documents, matters and assumptions described
above, and such other matters as we deem appropriate, we hereby
advise you that we are of the opinion that, when issued and
delivered by Excel in accordance with the Plan, the Registered
Shares will be duly authorized, validly issued, fully paid and non-
assessable.
We hereby consent to the reference to our name in the
Registration Statement under the caption "Legal Matters" and
further consent to the inclusion of this opinion as Exhibit 5 to
the Registration Statement.
SOMMER & BARNARD, PC
By /s/ Julianne S. Lis-Milam
Julianne S. Lis-Milam
JSL/sam
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated February 17,
1994 appearing on page 16 of Excel Industries, Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1993.
/s/ Price Waterhouse
Price Waterhouse
South Bend, Indiana
May 5, 1994
