<PAGE> 1
AS FILED ON DECEMBER 4, 1997 REGISTRATION NO. ___-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BOWATER INCORPORATED
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 62-0721803
------------------------ ------------------------------------
(State of incorporation) (I.R.S. Employer Identification No.)
55 EAST CAMPERDOWN WAY, P.O. BOX 1028
GREENVILLE, SOUTH CAROLINA 29602
---------------------------------
(Address of principal executive offices)
BOWATER INCORPORATED 1997 STOCK OPTION PLAN
-------------------------------------------
(Full title of the Plan)
WENDY C. SHIBA, ESQUIRE
VICE PRESIDENT, SECRETARY AND ASSISTANT GENERAL COUNSEL
BOWATER INCORPORATED
55 EAST CAMPERDOWN WAY, P.O. BOX 1028
GREENVILLE, SOUTH CAROLINA 29602
(864) 271-7733
---------------------------------------------------------
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
========================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price per Aggregate Offering Registration Fee
to be Registered Registered Share* Price*
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,000,000 shares $43.53 $44,531,250 $13,494.32
$1.00 par value
========================================================================================================
</TABLE>
* The offering price for such shares is estimated pursuant to Rule 457(c)
and (h) solely for the purpose of calculating the registration fee and is based
upon the average of the high and low prices of the Registrant's Common Stock as
reported on the consolidated reporting system for December 2, 1997.
-------------------------------------
This Registration Statement shall become effective automatically upon the
date of filing in accordance with Section 8(a) of the Securities Act of 1933,
as amended, and 17 C.F.R. Section 230.462.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are incorporated in this
Registration Statement by reference:
(1) The Registrant's latest Annual Report on Form 10-K filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") for the fiscal year ended December 31, 1996;
(2) All other reports filed by the Registrant pursuant to Sections 13(a)
and 15(d) of the Securities Exchange Act of 1934 ("Exchange Act") since
December 31, 1996;
(3) The description of the Registrant's Common Stock, $1.00 par value per
share, contained in a registration statement filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents filed by the Registrant and the Plan with the Commission
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act after the
date hereof 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 shall be deemed to be incorporated by
reference in this Registration Statement and to be a part thereof from the date
of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The Registrant's Common Stock, par value $1.00 per share, is registered
pursuant to Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides for
indemnification of directors and officers against any legal liability (other
than liability arising from derivative suits) if the officer or director acted
in good faith and in a manner that he reasonably believed to be in or not
opposed to the best interests of the corporation. In criminal actions, the
officer or director must also have had no reasonable cause to believe that his
conduct was unlawful. A corporation may indemnify an officer or director in a
derivative suit if the officer or director acted in good faith and in a manner
that he reasonably believed to be in or not opposed to the best interest of the
corporation unless the officer or director is found liable to the corporation.
However, if the Court of Chancery or the court in which such action or suit was
brought
<PAGE> 3
determines that the officer or director is fairly and reasonably entitled
to indemnity, then the Court of Chancery or such other court may permit
indemnity for such officer or director to the extent it deems proper.
The Registrant's Bylaws provide generally that the Registrant shall
indemnify its present and past directors and officers to the fullest extent
permitted by the laws of Delaware as they may exist from time to time.
Directors and officers of the Registrant and its subsidiaries are indemnified
generally against expenses actually and reasonably incurred in connection with
proceedings, whether civil or criminal. The Registrant's Bylaws also provide
that indemnification thereunder is not exclusive, and the Registrant may agree
to indemnify any person as provided therein. The Registrant is a party to
indemnification agreements with its directors and officers. The agreements
provide that the Registrant will indemnify such directors and officers to the
fullest extent permitted by applicable law, and require the Registrant to
maintain directors' and officers' liability insurance at the level in effect
when the relevant indemnification agreement was executed and to advance
expenses upon the request of an officer or director.
The Registrant's Certificate of Incorporation provides that directors of
the Registrant shall not be held personally liable to the Registrant or its
stockholders for monetary damages arising from certain breaches of their
fiduciary duties. The provision does not insulate directors from personal
liability for (i) breaches of their duty of loyalty to the Registrant or its
stockholders, (ii) acts or omissions not taken in good faith or that involve
intentional misconduct or knowing violation of law, (iii) transactions in which
the director derives any improper personal benefit or (iv) unlawfully voting to
pay dividends or to repurchase or redeem stock.
The Registrant maintains insurance policies providing for indemnification
of directors and officers and for reimbursement to the Registrant for monies
which it may pay as indemnity to any director or officer, subject to the
conditions and exclusions of the policies and specified deductible provisions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Please refer to the attached Exhibit Index.
(a) Counsel's opinion attached as Exhibit 23.2.
(b) Not Applicable.
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering.
The undersigned Registrant hereby undertakes:
<PAGE> 4
(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 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in the Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents by Reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report under Section 13(a) or 15(d) of the Exchange Act
that is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(h) Filing of Registration Statement on Form S-8.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling
<PAGE> 5
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
5
<PAGE> 6
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 with respect to shares
of Common Stock offered under the Bowater Incorporated 1997 Stock Option Plan,
and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Greenville, State of
South Carolina, this 26th day of November, 1997.
By: /s/
-------------------------------
Arnold M. Nemirow
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated, in the City of Greenville, State of South Carolina, as of
this 26th day of November, 1997.
Signature Title
--------- -----
/s/ Chairman, President and Chief Executive Officer
- ----------------- (principal executive officer)
Arnold M. Nemirow
/s/ Senior Vice President and Chief Financial Officer
- ----------------- (principal financial officer)
David G. Maffucci
/s/ Vice President and Controller
- ----------------- (principal accounting officer)
Michael F. Nocito
* Director
- -----------------
Francis J. Aguilar
* Director
- -----------------
H. David Aycock
* Director
- -----------------
Richard Barth
<PAGE> 7
* Director
- -----------------
Kenneth M. Curtis
Director
- -----------------
Charles J. Howard
* Director
- -----------------
Donald R. Melville
* Director
- -----------------
John A. Rolls
* Director
- -----------------
James L. Pate
* Wendy C. Shiba, by signing her named hereto, does sign this Registration
Statement on behalf of the persons indicated above pursuant to powers of
attorney duly executed by such persons, in the City of Greenville, State of
South Carolina, as of this 20th day of November, 1997.
By: /s/
------------------------
Wendy C. Shiba
Attorney-in-Fact
<PAGE> 8
EXHIBITS
The following exhibits are filed as part of this Registration Statement.
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EXHIBIT NUMBER DESCRIPTION
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<S> <C>
4.1 Restated Certificate of Incorporation of the Registrant, as
amended (incorporated by reference to Exhibit 4.2 to the
Registrant's Registration Statement No. 33-51569).
4.2 Certificate of Designations of the 8.40% Series C Cumulative
Preferred Stock of the Registrant (incorporated by reference
to Exhibit 4.2 to the Registrant's Current Report on Form
8-K, dated February 1, 1994, File No. 1-8712).
4.3 Bylaws of the Registrant (incorporated by reference to
Exhibit 3.1 to the Registrant's quarterly report filed on
Form 10-Q for the quarterly period ended September 30, 1995,
File No. 1-8712).
4.4 Bowater Incorporated 1997 Stock Option Plan, Amended and
Restated, effective January 1, 1997.
5 Legal opinion of Anthony H. Barash, General Counsel to the
Registrant, dated November 20, 1997.
23.1 Consent of KPMG Peat Marwick LLP, dated December 2, 1997.
23.2 Consent of Anthony H. Barash, General Counsel to the
Registrant (included in the opinion filed as Exhibit 5).
24 Powers of Attorney authorizing the signing of the
Registration Statement and amendments hereto on behalf of the
Registrant's directors.
</TABLE>
<PAGE> 1
Exhibit 4.4
AMENDED AND RESTATED
BOWATER INCORPORATED
1997 STOCK OPTION PLAN
EFFECTIVE AS OF JANUARY 1, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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Page No.
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<S> <C> <C>
1. Definitions..................................................... 1
2. Purpose......................................................... 4
3. Administration.................................................. 5
4. Participation................................................... 5
5. Shares Subject to the Plan...................................... 6
6. Restricted or Nonrestricted Stock Awards........................ 6
7. Stock Options................................................... 7
8. Stock Appreciation Rights....................................... 7
9. Special Provisions Under Code Section 162(m).................... 8
10. Exercise of Options and SARs.................................... 9
11. Death, Retirement, and Termination of Employment................ 9
12. Compliance with Applicable Laws................................. 10
13. Transferability................................................. 10
14. Employment, Stockholder and Board Status........................ 11
15. Adjustments to Number of Shares and Terms....................... 11
16. Change in Control............................................... 11
17. Withholding..................................................... 11
18. Term of Plan.................................................... 12
19. Amendment and Termination of Plan............................... 12
20. Applicable Law.................................................. 12
</TABLE>
<PAGE> 3
AMENDED AND RESTATED
BOWATER INCORPORATED
1997 STOCK OPTION PLAN
Effective January 1, 1997, Bowater Incorporated, a Delaware corporation
(the "Company"), established an equity based incentive compensation plan to be
known as the "Bowater Incorporated 1997 Stock Option Plan" (the "Plan").
Effective January 1, 1997, the Plan is hereby amended and restated, as set
forth in this document. This amended and restated Plan document shall
supersede the Plan document as originally adopted.
1. DEFINITIONS.
For purposes of this Plan, the following terms shall have the meanings
indicated, unless the context clearly indicates otherwise:
(a) "Acceleration Price" means (i) in the case of a Restricted Stock
Award, the highest of (A) through (D); and (ii) in the case of an Option or
SAR, the excess over the exercise or base price thereof of the highest of (A)
through (D), on the date of a Change in Control:
(A) The highest reported sales price of the Common Stock
within the sixty (60) days preceding the date of the
Change in Control, as reported on any securities exchange
upon which the Common Stock is listed,
(B) The highest price of the Common Stock as reported in a
Schedule 13D or an amendment thereto that is paid within
the sixty (60) days preceding the date of the Change in
Control,
(C)
The highest tender offer price paid for the Common
(D) Stock, and
Any cash merger or similar price.
(b) "Act" means the Securities Exchange Act of 1934, as amended.
(c) "Acquiring Person" means any Person who is or becomes a "beneficial
owner" (as defined in Rule 13d-3 of the Act) of securities of the Company
representing twenty percent (20%) or more of the combined voting power of the
Company's then outstanding voting securities, unless such Person has filed
Schedule 13G and all required amendments thereto with respect to its
holdings and continues to hold such securities for investment in a manner
qualifying such Person to utilize Schedule 13G for reporting of ownership.
<PAGE> 4
2
(d) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Act, as in effect on the date hereof.
(e) "Award" means a Restricted or Non-Restricted Stock Award, Option or
SAR granted to a Grantee pursuant to the Plan.
(f) "Board" means the Board of Directors of the Company.
(g) "Change in Control" shall be deemed to occur if:
(i) any Person is or becomes an Acquiring Person;
(ii) less than two-thirds (2/3) of the total membership of the
Board shall be Continuing Directors; or
(iii) the stockholders of the Company shall approve a merger or
consolidation of the Company or a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of
the Company's assets.
(h) "Code" means the Internal Revenue Code of 1986, as amended.
Reference to a section of the Code shall also include a reference to any
Temporary or Final Regulation promulgated under such Section, and to any
successor to such Section or Regulation.
(i) "Committee" means a committee consisting of two (2) or more
members of the Board; provided that, (i) with respect to any Grantee of an
Award that constitutes an "equity security" under the Act who is subject to
Section 16 of the Act, (A) the members of the Committee shall all be
"non-employees" as defined in Section 240.16b-3 of the General Rules and
Regulations promulgated under the Act, or (B) the full Board shall act in lieu
of the Committee hereunder; and (ii) with respect to any Grantee of an Award
that is intended by the Committee to constitute "qualified performance-based
compensation," within the contemplation of Treasury Regulation Section
1.162-27(e)(2), who is a "covered employee," within the contemplation of
Treasury Regulation Section 1.162-27(c)(2), the members of the Committee shall
all be "outside directors" as defined in Treasury Regulation Section
1.162-27(e)(3) to the extent required by Section 162 of the Code.
Notwithstanding the foregoing, in the case of an Award granted to a member of
the Board who is not also a key employee or officer of the Company or a
Subsidiary, "Committee" means the Board.
(j) "Common Stock" means the common stock of the Company, par value
$1.00 per share.
<PAGE> 5
3
(k) "Company" means Bowater Incorporated, a Delaware corporation, and
any successor thereto by merger or other acquisition.
(l) "Continuing Directors" means any member of the Board who was a
member of the Board immediately prior to the Effective Date, and any successor
of a Continuing Director while such successor is a member of the Board who is
not an Acquiring Person or an Affiliate or Associate of an Acquiring Person or
of any such Affiliate or Associate and is recommended or elected to succeed the
Continuing Director by a majority of the Continuing Directors.
(m) "Date of Grant" means the date an Award is granted to a Grantee
under the Plan.
(n) "Disability" shall have the meaning contained in the Company's
long-term disability plan, except that, in the case of an ISO, it shall mean
total and permanent disability within the contemplation of Section 22(e)(3) of
the Code.
(o) "Effective Date" means January 1, 1997.
(p) "Fair Market Value" for a particular date means the simple
arithmetic mean between the highest and lowest prices per share at which
the Common Stock is traded as reported for the New York Stock Exchange
Composite Transactions as reported in the Eastern Edition of the Wall Street
Journal for that date, or if not so traded, the simple arithmetic mean between
the closing bid-and-asked prices thereof as reported for such Exchange on that
date.
(q) "Grantee" means a key employee or officer of the Company or a
Subsidiary, or a member of the Board, to whom an Award has been granted;
provided that a member of the Board who is not also such a key employee or
officer may not become a Grantee of an ISO.
(r) "ISO" means an incentive stock option within the contemplation of
Section 422 of the Code.
(s) "Non-Tandem SAR" means an SAR granted to a Grantee that is not a
Tandem SAR.
(t) "Nonrestricted Stock Award" means a Stock Award granted without any
risk of forfeiture.
(u) "NQO" means an Option that is not an ISO.
(v) "Option" means an option to purchase Shares granted to a Grantee
pursuant to Section 7 of the Plan, which may be an ISO or an NQO.
<PAGE> 6
4
(w) "Person" means any individual, company, partnership, group,
association or other "person" as such term is used in Section 13(d) and 14(d)
of the Act.
(x) "Plan" means the Bowater Incorporated 1997 Stock Option Plan as
provided herein and as it may be amended from time to time.
(y) "Restricted Stock Award" means a Stock Award granted subject to a
risk or risks of forfeiture.
(z) "Retirement" means (i) with respect to a key employee or officer of
the Company or a Subsidiary, the status of having terminated employment and
being immediately eligible for the payment of normal or early retirement
benefits under the qualified pension plan of the Company or Subsidiary
applicable to the Grantee or (ii) with respect to a member of the Board not
described in clause (i), the status of having terminated service on the Board
and being immediately eligible for the payment of retirement benefits under the
Company's retirement plan for the Directors.
(aa) "SAR" means a Stock Appreciation Right granted to a Grantee
pursuant to Section 8 of the Plan, which may be a Tandem SAR or a Non-Tandem
SAR.
(bb) "Share" means a share of Common Stock.
(cc) "Stock Award" means a Share awarded to a Grantee pursuant to
Section 6 of the Plan, which may be a Restricted or Nonrestricted Stock Award.
(dd) "Subsidiary" means each entity with respect to which the Company
owns directly or indirectly interests embodying more than 50% of the voting
power, provided that for purposes of an ISO, such term shall have the meaning
given in Section 424 of the Code.
(ee) "Tandem SAR" means an SAR granted in connection with an Option
either at the Date of Grant of the Option or at a later date.
Except where otherwise indicated by the context, any masculine term used
herein also shall include the feminine, the plural shall include the singular,
and the singular shall include the plural.
2. PURPOSE. The Plan has been established by the Company to secure for
the Company and its stockholders the benefits arising from (i) providing
long-term incentive compensation opportunities to those key employees and
officers of the Company and its Subsidiaries who are and will be responsible
for its future growth and continued success and (ii) aligning the interests of
Company stockholders and members of the Board. The Plan provides a means
whereby such individuals: (a) may be awarded Restricted or Nonrestricted
Stock Awards; (b) may acquire Shares pursuant to Options; or (c) may be awarded
SARs;
<PAGE> 7
5
provided that a member of the Board who is not also a key employee or officer
of the Company or a Subsidiary may not be awarded an ISO.
3. ADMINISTRATION. The authority to manage and control the operation
and administration of the Plan shall be vested in the Committee. The Committee
shall have full power and authority to administer and interpret the Plan and to
adopt such rules, regulations, agreements, guidelines and instruments for the
administration of the Plan and for the conduct of its business as the Committee
deems necessary or advisable. The Committee's interpretation of the Plan and
all actions taken and determinations made by the Committee pursuant to the
powers vested in it hereunder shall be conclusive and binding on all parties
concerned, including the Company, its stockholders, any Grantees and any other
employee of the Company or any of its subsidiaries (including their
beneficiaries, transferees and other successors in interest). No member of the
Committee shall be liable for any action or determination made with respect to
the Plan.
4. PARTICIPATION.
(a) Subject to the terms and conditions of the Plan, the Committee
shall determine and designate from time to time the Grantees to whom Awards
are to be granted and the type, size and terms, conditions, restrictions and
limitations applicable to each Award; provided, however that the Committee shall
not have the power to reduce the exercise price of an outstanding Option or the
base price of an outstanding SAR, other than as provided in Section 15. Such
terms, conditions, restrictions and limitations may include, but are not limited
to terms, conditions, restrictions and limitations related to: (i) the
exercisability of an Award (subject to Sections 7(c), 8(b) and 11, and provided
that the Committee shall at all times have the authority to accelerate such
exercisability), (ii) the forfeiture of an Award (and/or the Shares subject
thereto) and the lapse of the forfeiture condition (subject to Sections 6(b) and
11, and provided that the Committee shall at all times have the authority to
declare such forfeiture condition to be lapsed), (iii) the transferability of an
Award and/or such Shares, (iv) the form of payments (if any) in respect of an
Award, (v) the consequences of a Grantee's termination of employment with the
Company and its Subsidiaries or termination of service on the Board (as provided
in Section 11(b)), (vi) restrictions on the sale, resale or other disposition of
the Award and/or such Shares, (vii) restrictions related to the payment of
dividends with respect to such Shares, (viii) restrictions with respect to the
right to vote such Shares, (ix) put or call rights with respect to such Shares,
(x) provisions to comply with federal and/or state securities laws, and (xi)
such other matters not inconsistent with the specific provisions of the Plan as
deemed appropriate by the Committee. Notwithstanding the foregoing, (I) the
maximum number of Shares with respect to which Awards may be granted during any
calendar year to any Grantee is 200,000 Shares; and (II) no Grantee may be
granted an Award if immediately after such grant, were it made, he would be the
owner or would be deemed in accordance with Section 424 of the Code to be the
owner of more than 10% of the total combined voting power of all classes of
stock of the Company or any of its Subsidiaries.
<PAGE> 8
6
(b) The terms, conditions, restrictions and limitations related to
each Award shall be reflected in an Agreement between the Company and the
Grantee. Each Award under the Plan shall be made subject to the condition that
the Grantee execute and return such Agreement within sixty (60) days of the date
he receives the Agreement from the Company. An Agreement may only be modified
by a writing signed by both the Company and the Grantee. Each Agreement shall
be subject to all of the terms of the Plan.
5. SHARES SUBJECT TO THE PLAN. Subject to the provisions of Section 15,
the aggregate number of Shares for which Stock Awards, Options and SARs may be
granted under the Plan shall not exceed 1,000,000 Shares, and no more than 5%
of such Shares may be used for Restricted and Nonrestricted Stock Awards. If
any Option or SAR granted pursuant to the Plan shall expire or terminate for
any reason (including without limitation its settlement in cash in lieu of
exercise of the Option) or any Restricted Stock Award shall be forfeited
pursuant to conditions or restrictions applicable thereto, the number of Shares
then subject to the Option, SAR or Restricted Stock Award shall again be
available for grant under the Plan unless the Plan shall have terminated.
6. RESTRICTED OR NONRESTRICTED STOCK AWARDS.
(a) The Committee may grant Restricted or Nonrestricted Stock Awards
under the Plan. Shares awarded under this Section 6 shall be transferred in
consideration of the services of the Grantee with or without other payment
therefor as determined by the Committee and shall be issued in the Grantee's
name. The Grantee will have all of the rights of ownership of such shares,
subject to the terms, conditions, restrictions and limitations established
pursuant to Section 4(a). Notwithstanding any provision of Section 4(a), if a
Restricted Stock Award is granted subject to a risk of forfeiture that will
lapse solely based on whether the Grantee remains in employment with the
Company or a Subsidiary, or as a member of the Board, for a minimum period, the
period selected by the Committee may not be less than one year.
(b) Any condition providing for the forfeiture of a Restricted
Stock Award upon the occurrence or non-occurrence of a specified event or
events shall immediately lapse in the event of a Change in Control of the
Company.
(c) Certificates for a Nonrestricted Stock Award shall be issued to
the Grantee as soon as practicable after the Grantee satisfies any
applicable tax withholding requirements. Certificates for a Restricted Stock
Award shall be issued in the Grantee's name and shall be held in escrow by the
Company (along with stock powers executed by the Grantee) until all conditions
that may cause a forfeiture of the Shares lapse or such Shares are forfeited as
provided therein. A certificate or certificates representing a Restricted Stock
Award as to which such conditions have lapsed shall be delivered to the Grantee
upon such lapse as soon as practicable after the Grantee has satisfied any
applicable tax withholding requirements.
<PAGE> 9
7
7. STOCK OPTIONS.
(a) The Committee may grant Options under the Plan with an exercise
price at or above the Fair Market Value of the Shares as of the Date of Grant.
Any Option that satisfies all of the requirements of Section 422 of the Code may
be designated by the Committee as an ISO. An Option (or portion thereof) that
is not so designated, or that does not satisfy the requirements of Section 422
of the Code, and any Option that is granted to a member of the Board who is not
also a key employee or officer of the Company or a Subsidiary, shall not
constitute an ISO and shall be an NQO.
(b) An ISO must expire no later than ten years after the Date of
Grant. The aggregate fair market value, determined on the Date of Grant, of the
Shares with respect to which ISOs granted to a Grantee under all plans of the
Company and its Subsidiaries may become exercisable during a calendar year may
not exceed $100,000. To the extent the foregoing limitation is exceeded, the
excess Shares shall be deemed to be subject to NQOs.
(c) An Option shall become immediately exercisable in full in the
event of a Change in Control of the Company.
(d) A Grantee may exercise an Option to the extent it has become
exercisable by complying with the notification procedures provided by the
Company's Human Resources Department at its corporate headquarters.
Contemporaneously with the delivery of notice with respect to exercise of an
Option, the full purchase price of the Shares purchased pursuant to the
exercise of the Option shall be paid in cash, or, if approved by the Committee,
by tender of Share certificates in proper form for transfer to the Company
valued at the Fair Market Value of the Shares on the preceding day, or by any
combination of the foregoing or with any other consideration acceptable to the
Committee. Payment upon the exercise of such Option may also be made by means
of a properly executed exercise notice together with irrevocable instructions
to a broker to deliver promptly to the Company the portion of the sale or loan
proceeds sufficient to pay such purchase price.
8. STOCK APPRECIATION RIGHTS.
(a) The Committee may grant Tandem SARs or Non-Tandem SARs under the
Plan. The base price of a Non-Tandem SAR must be set by the Committee at or
above the Fair Market Value of a Share as of the Date of Grant. The base
price of a Tandem SAR must equal the exercise price of the related Option. A
Grantee who is awarded an SAR shall be entitled to receive from the Company, at
the time the SAR is exercised, that number of Shares having an aggregate Fair
Market Value as of the date of exercise equal to the product of (i) the number
of Shares as to which the Grantee is exercising the SAR, and (ii) the excess of
the Fair Market Value (at the date of exercise) of a Share over the base price
of the SAR. The Committee, in its sole discretion, may elect to settle all or
a portion of the Company's obligation arising out of the exercise of an SAR by
the payment of cash in an amount equal to the Fair Market Value as of the date
of exercise of the Shares it would otherwise be
<PAGE> 10
8
obligated to deliver. Tandem SARs shall be exercisable only to the extent
that the related Option is exercisable. Non-Tandem SARs shall be exercisable as
determined by the Committee at the Date of Grant. A Tandem SAR shall be
canceled to the extent that the related Option is exercised and the Option shall
be canceled to the extent that the related Tandem SAR is exercised.
(b) An SAR shall become immediately exercisable in full in the
event of a Change in Control of the Company.
(c) A Grantee may exercise an SAR to the extent it has become
exercisable by complying with the notification procedures provided by the
Company's Human Resources Department at its corporate headquarters.
9. SPECIAL PROVISIONS UNDER CODE SECTION 162(M).
(a) The provisions of this Section 9 shall apply only to persons
designated by the Committee as individuals who are or who are likely to become
"covered employees," within the contemplation of Section 162(m) of the Code;
provided that, if an individual is so designated and the Committee determines
that such individual is not a covered employee for the year in which the
Company is entitled to a deduction with respect to income he recognizes for
Federal income tax purposes in connection with an Award, the provisions of this
Section 9 shall not apply to such Award. The provisions of this Section 9
shall only apply to conditions, restrictions and limitations applicable to
Awards that are related to the performance of the Company and if the provisions
of this Section 9 are necessary so that the Award qualifies as "qualified
performance-based compensation" as defined in Treasury Regulation Section
1.162-27(e)(2). In the event of any inconsistencies between this Section 9 and
the other Plan provisions within the scope of the foregoing, the provisions of
this Section 9 shall control with respect to covered employees.
(b) With respect to each Award described in paragraph (a), as soon as
practicable following the grant of an Award subject to this Section 9 (but in
no event more than ninety (90) days after the Date of Grant), the Committee
shall establish the performance-related goals to be used in connection with
conditions, restrictions and limitations applicable to such Award. The
performance-related goals shall be chosen from among the following factors, or
any combination of the following, as the Committee deems appropriate: total
stockholder return; growth in revenues, sales, net income, stock price, and/or
earnings per share; return on assets, net assets, and/or capital; return on
stockholders' equity; debt/equity ratio; working capital; safety; quality; the
Company's financial performance versus peers; cost reduction; productivity;
market mix; or economic value added. The Committee may select among the goals
specified from Award to Award which need not be the same for each Grantee.
(c) With respect to each Award described in paragraph (a), the
Committee shall (at the same time it is making the determinations under
paragraph (b)) determine the relationship between the performance-related goals
and the conditions, restrictions and limitations applicable to the Award.
<PAGE> 11
9
(d) In connection with the Awards described in paragraph (a), no
performance-related goal will be considered to be satisfied until the Committee
has certified the extent to which the performance-related goals and any other
material terms were satisfied.
(e) Once established, performance-related goals shall not be
changed, except to the extent that the Committee has specified
adjustments as part of the determinations made under paragraphs (b) and (c).
Except as provided in the preceding sentence, no performance-related goal
applicable to a condition, restriction or limitation shall be considered to be
satisfied if the minimum performance-related goals applicable thereto are not
achieved.
(f) Individual performance shall not be reflected in a
performance-related goal under this Section 9. However, the Committee may
retain the discretion to treat a performance-related goal as not having been
satisfied due to the failure of a Participant to meet individual performance
goals.
(g) If, on advice of the Company's tax counsel, the Committee
determines that Code Section 162(m) and the regulations thereunder will not
adversely affect the deductibility for federal income tax purposes of any amount
paid under the Plan by applying provisions of this Plan (including this Section
9(g)) that conflict with this Section 9 to a covered employee, then the
Committee may, in its sole discretion, apply such Section or Sections to the
covered employee without regard to the exceptions to such Section or Sections
that are contained in this Section 9.
10. EXERCISE OF OPTIONS AND SARS. No Option or SAR may at any time be
exercised with respect to a fractional share or exercised in part with respect
to fewer than 100 shares (unless it is being exercised in full). In the event
that Shares are issued pursuant to the exercise of an SAR, no fractional shares
shall be issued; payment shall be made in cash for any such fractional shares.
Certificates for whole shares shall be delivered as soon as practicable after
the Grantee satisfies any applicable tax withholding requirements.
11. DEATH, RETIREMENT, AND TERMINATION OF EMPLOYMENT. (a) If a
Grantee's employment with the Company and all of its Subsidiaries terminates:
(i) If such employment terminates involuntarily and for good cause
(as determined by the Company), all Options and SARs held by the Grantee will
expire and the Grantee's Restricted Stock Awards as to which any condition
providing for the forfeiture thereof exists ("Unvested Restricted Stock
Awards") will be forfeited immediately.
(ii) If such employment terminates involuntarily without cause or
voluntarily for any reason, except in the case of the Grantee's Disability,
Retirement or death, (A) all unexercisable Options and SARs held by the Grantee
will expire immediately; (B) all exercisable options and SARs held by the
Grantee will expire three months after
<PAGE> 12
10
termination (unless their expiration date is earlier); and (C) Unvested
Restricted Stock Awards held by the Grantee will be forfeited.
(iii) If such employment terminates because of Disability or
Retirement, the Grantee will be treated under all Awards as if employment
with the Company or Subsidiary continued for five years.
(iv) If a Grantee dies while employed or during the five-year period
described in paragraph (iii), all Options and SARs held by the Grantee will
become exercisable (and remain exercisable for two years unless their
expiration date is earlier) and all conditions providing for forfeiture of the
Grantee's Unvested Restricted Stock Awards will lapse.
(b) The Committee may provide (i) that an Award will not terminate
or be forfeited as a result of the termination of the Grantee's employment;
and (ii) for additional opportunities for the exercise of an Option or SAR after
a Grantee's termination of employment, in addition to (a), above.
(c) For all purposes of the Plan, the employment of a Grantee will
not be considered to be terminated if the Grantee is receiving periodic
severance payments from the Company or a Subsidiary. Leaves of absence
for periods and purposes conforming to the policy of the Company shall not be
deemed terminations or interruptions of employment.
(d) In the case of a Grantee who is a member of the Board and not an
employee of the Company or a Subsidiary, the provisions of this Section 11
shall be applied by treating the Grantee's service on the Board as if it were
employment with the Company.
12. COMPLIANCE WITH APPLICABLE LAWS. Notwithstanding any other
provision in the Plan, the Company shall have no liability to issue any
Shares under the Plan unless such issuance would comply with all applicable laws
and applicable requirements of any securities exchange or similar entity. Prior
to the issuance of any Shares under the Plan, the Company may require a written
statement that the recipient is acquiring the Shares for investment and not for
the purpose or with the intention of distributing the Shares.
13. TRANSFERABILITY.
(a) Except to the extent specifically provided by the Committee,
an Award (including the Shares subject to a Restricted Stock Award until
all conditions providing for forfeiture have lapsed) shall not be sold,
assigned, pledged or otherwise transferred, voluntarily or involuntarily, by the
Grantee.
(b) Incentive Stock Options granted under the Plan are not
transferable except by will or by the laws of descent and distribution or, to
the extent not inconsistent with the applicable provisions of the Code, pursuant
to a qualified domestic relations order
<PAGE> 13
11
(as that term is defined in the Code). Incentive Stock Options may be exercised
during the lifetime of the Grantee only by the Grantee, and after the death of
the Grantee, only as provided in Section 11.
14. EMPLOYMENT, STOCKHOLDER AND BOARD STATUS. The Plan does not
constitute a contract of employment or continued service, and selection as a
Grantee will not give any employee or Grantee the right to be retained in the
employ of the Company or any Subsidiary or as a member of the Board. No person
entitled to exercise any Option or SAR granted under the Plan shall have any of
the rights or privileges of a stockholder of record with respect to any Shares
issuable upon exercise of such Option or SAR until certificates representing
such Shares have been issued and delivered. Certificates representing Shares
issued under the Plan may bear a legend referring to any conditions,
restrictions and limitations deemed appropriate by the Committee.
15. ADJUSTMENTS TO NUMBER OF SHARES AND TERMS. Subject to the following
provisions of this Section 15, in the event of any change in the outstanding
Shares by reason of any share dividend, split, recapitalization, merger,
consolidation, combination, exchange of shares or other similar corporate
change, the aggregate number and kind of Shares reserved for issuance under the
Plan or subject to Awards outstanding or to be granted under the Plan shall be
proportionately adjusted so that the value of each Award shall not be changed,
and the terms of any outstanding Award may be adjusted by the Committee in such
manner as it deems equitable, provided that, in no event shall the Option price
for a Share be adjusted below the par value of such Share, nor shall any
fraction of a Share be issued upon the exercise of an Option or SAR. Shares
subject to a Restricted Stock Award shall be treated in the same manner as
other outstanding Shares; provided that any conditions and restrictions
applicable to a Restricted Stock Award shall continue to apply to any Shares,
other security or other consideration received in connection with the
foregoing.
16. CHANGE IN CONTROL. Upon the occurrence of a Change in Control, all
outstanding Options and SARs, and all outstanding Restricted Stock Awards as to
which any conditions providing for forfeiture have not lapsed, shall be
automatically purchased by the Company at the Acceleration Price with payment
to be made within thirty days of such Change in Control, irrespective of
whether the stockholders of the Company have approved the Plan as contemplated
by Section 18.
17. WITHHOLDING. Whenever a Grantee recognizes income with respect to
an Award (and as a condition to the exercise of any Option or SAR or the receipt
of a Stock Award), the Grantee will have the obligation to pay all federal,
state, and local income or other taxes due and the Company shall have the right
to withhold from amounts payable to the Grantee in any manner, as necessary to
satisfy all federal, state and local payroll tax withholding requirements.
Alternatively, the Committee may approve the Grantee's election to have Shares
withheld by the Company from the Shares otherwise to be delivered to the
Grantee or the Grantee's election to tender to the Company Shares previously
acquired by the Grantee. The number of Shares so withheld or tendered for
payment of tax withholding shall
<PAGE> 14
12
have an aggregate Fair Market Value as of the later of the date the Committee
approves the foregoing election or the date as of which income is recognized by
the Grantee with respect to such Shares sufficient to satisfy the applicable
withholding taxes.
18. TERM OF PLAN. The Plan is effective January 1, 1997, and will be
submitted to the stockholders of the Company for approval on or before the
first anniversary of its adoption by the Committee. Awards may be granted
prior to stockholder approval, with all rights thereunder (other than the right
to receive payment of the Acceleration Price under Section 16) conditioned upon
such approval; provided that, if stockholder approval is not secured by such
anniversary, all such Awards shall expire and the Plan shall terminate. No ISO
may be granted under the Plan after December 31, 2006. No Award may be granted
under the Plan after the date on which the Plan is terminated pursuant to
Section 19.
19. AMENDMENT AND TERMINATION OF PLAN. Subject to any approval of the
stockholders of the Company that may be required (or, in the opinion of the
Committee, appropriate) under law or the rules of any securities exchange on
which the Shares are listed or similar entity, the Committee may at any time
amend, suspend or terminate the Plan. No amendment, suspension or termination
of the Plan shall materially and adversely alter or impair any Award previously
granted under the Plan without the consent of the holder thereof. No amendment
requiring stockholder approval under Treasury Regulation Section 1.162-27 or
Section 422 of the Code shall be valid unless such stockholder approval is
secured as provided therein.
20. APPLICABLE LAW. All questions under the Plan shall be governed by
the internal laws of the State of Delaware, without giving effect to the choice
of law provisions thereof.
Executed on behalf of the Company as of January 1, 1997, on this 17th day
of March, 1997.
BOWATER INCORPORATED
By: /s/
------------------------------------
Richard F. Frisch
Vice President -- Human Resources
As adopted by the Board of Directors at its January 22, 1997, meeting and
as amended and restated by the Board of Directors at its February 28, 1997,
meeting.
<PAGE> 1
Exhibit 5
[ON BOWATER INCORPORATED LETTERHEAD]
November 20, 1997
Bowater Incorporated
55 East Camperdown Way
P.O. Box 1028
Greenville, South Carolina 29602
RE: SECURITIES ACT OF 1933 FORM S-8 REGISTRATION STATEMENTS
BOWATER INCORPORATED 1997 STOCK OPTION PLAN
Ladies and Gentlemen:
I have acted as counsel for Bowater Incorporated, a Delaware corporation
(the "Company"), in connection with the proposed issuance by the Company of up
to and including 1,000,000 shares of the Company's Common Stock under the
Bowater Incorporated 1997 Stock Option Plan (the "Option Plan"), which Common
Stock is being registered pursuant to the filing of a Registration Statement on
Form S-8 under the Securities Act of 1933 (the "Act").
I have examined the Certificate of Incorporation of the Company, its
Bylaws, the Option Plan and such other corporate records, certificates,
documents and matters of law as I have deemed necessary to render this opinion.
Based on the foregoing, I am of the opinion that the shares of Common
Stock to be issued under the terms of the Option Plan will be duly authorized,
validly issued, fully paid and nonassessable shares.
I hereby consent to the filing of this opinion as Exhibits 5 and 23.2 to
the Registration Statement for the Option Plan. By giving such consent, I do
not hereby admit that I am an expert with respect to any part of the
Registration Statements, including this exhibit, within the meaning of the term
"expert" as used in the Act or the rules and regulations of the Securities and
Exchange Commission issued thereunder.
Very truly yours,
/s/
----------------------------------------
Anthony H. Barash
Senior Vice President, Corporate Affairs
and General Counsel
<PAGE> 1
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
-----------------------------
The Board of Directors
Bowater Incorporated
We consent to the use of our report dated February 7, 1997, on the financial
statements of Bowater Incorporated (the "Company") for the three-year period
ended December 31, 1996, incorporated herein by reference, which report appears
in the December 31, 1996, annual report on Form 10-K of Bowater Incorporated.
/s/
-------------------------
KPMG Peat Marwick LLP
Greenville, South Carolina
December 2, 1997
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
We, the undersigned directors of Bowater Incorporated, hereby severally
appoint Wendy C. Shiba, Anthony H. Barash and David G. Maffucci, each of them
singly, our true and lawful attorneys, with the full power of substitution, to
sign for us and in our names with respect to the Registration Statements on
Form S-8 pertaining to (i) the Bowater Incorporated Salaried Employees' Savings
Plan, (ii) the Bowater Incorporated/Coated Paper and Pulp Division Hourly
Employees' Savings Plan and (iii) the Bowater Incorporated 1997 Stock Option
Plan, and any and all amendments to the Registration Statements, and generally
to do all such things in our names and on our behalf in our capacities as
directors to enable Bowater Incorporated to comply with the provisions of the
Securities Act of 1993, as amended, and all requirements of the Securities and
Exchange Commission, and all requirements of any other applicable law or
regulation, hereby ratifying and confirming our signatures as they may be
signed by our attorney to the Registration Statements and any and all
amendments thereto, including post-effective amendments.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Director November 19, 1997
- ------------------
Francis J. Aguilar
/s/ Director November 19 , 1997
- ------------------
H. David Aycock
/s/ Director November 19 , 1997
- ------------------
Richard Barth
/s/ Director November 19 , 1997
- ------------------
Kenneth M. Curtis
Director , 1997
- ------------------ ------------
Charles J. Howard
/s/ Director November 19 , 1997
- ------------------
Donald R. Melville
/s/ Director November 19 , 1997
- ------------------
John A. Rolls
/s/ Director November 19 , 1997
- ------------------
James L. Pate
