AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 18, 1998
REGISTRATION NO. ________
============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
THE TURNER CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 13-3209884
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
375 HUDSON STREET
NEW YORK, NEW YORK 10014
(Address of registrant's principal
executive offices)
THE TURNER CORPORATION
1998 STOCK INCENTIVE PLAN
(Full title of the plan)
SARA J. GOZO, ESQ.
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
THE TURNER CORPORATION
375 HUDSON STREET
NEW YORK, NEW YORK 10014
(212) 229-6000
(Name, address, and telephone number of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED
MAXIMUM PROPOSED AMOUNT OF
OFFERING MAXIMUM REGISTRATION FEE
TITLE OF SECURITIES AMOUNT TO BE PRICE PER AGGREGATE
TO BE REGISTERED REGISTERED(1) SHARE (2) OFFERING PRICE
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $1.00(1)(3) 750,000 shares $16.125 $12,093,750 $3,567.66
=================================================================================================================
<FN>
(1) If as a result of stock splits, stock dividends or similar
transactions, the number of shares of Common Stock purported to be
registered on this Registration Statement changes, the provisions of
Rule 416 shall apply to this Registration Statement.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) based upon the average of the high and low
prices of the Common Stock of The Turner Corporation on the American
Stock Exchange, as of August 12, 1998, a date within five business
days of the date on which this registration statement is being filed.
(3) The Registration Statement also pertains to rights to purchase
Preferred Stock (or other securities) ("Rights") of the Registrant.
Upon the occurrence of certain prescribed events, one Right will be
issued for each share of Common Stock. Until the occurrence of such
events, the Rights are not exercisable, will be evidenced by the
certificate for the Common Stock and will be transferred along with
and only with the Common Stock.
</FN>
</TABLE>
PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Pursuant to the requirements of the Note to Part I of Form S-8
and Rule 428(b)(1) of the Rules under the Securities Act of 1933, as
amended (the "Securities Act"), the information required by Part I of Form
S-8 is included in two documents titled "Information About Your Stock
Options" dated July 1998 and "Description of The Turner Corporation 1998
Stock Incentive Plan" dated July 1998, distributed to participants in The
Turner Corporation 1998 Stock Incentive Plan (the "Plan") of The Turner
Corporation (the "Company"). These documents constitute a Section 10(a)
Prospectus.
PROSPECTUS FOR RESALES
The material which follows, up to but not including the page
beginning Part II of this Registration Statement, constitutes a prospectus,
prepared on Form S-3, in accordance with General Instruction C to Form S-8,
to be used in connection with resales of securities acquired under the Plan
by affiliates of the Company, as defined in Rule 405 under the Securities
Act.
<PAGE>
PROSPECTUS
THE TURNER CORPORATION
COMMON STOCK
(PAR VALUE $1.00 PER SHARE)
This Prospectus relates to shares of Common Stock of The Turner
Corporation (the "Company") which may be offered from time to time by the
people named under "Selling Security Holders" on the American Stock
Exchange, where the Company's Common Stock is listed or in other markets
where the Common Stock may be traded, or in negotiated transactions, at
prices and on terms then available. The respective Selling Security Holders
will pay any brokerage fees or commissions related to sales by them. See
"Method of Sale." The Company will receive no part of the proceeds of any
such sales. The principal executive office of the Company is located at 375
Hudson Street, New York, New York 10014 (Telephone No. (212) 229-6000).
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The expenses of preparing and filing the Registration Statement
of which this Prospectus is a part are being borne by the Company.
----------------------------------------
The date of this Prospectus is August 18, 1998
TABLE OF CONTENTS
AVAILABLE INFORMATION......................................................4
INCORPORATION BY REFERENCE.................................................4
SELLING SECURITY HOLDERS...................................................4
METHOD OF SALE.............................................................5
SEC POSITION REGARDING INDEMNIFICATION.....................................5
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and in
accordance with the Exchange Act files reports and other information with
the Securities and Exchange Commission (the "Commission"). All reports,
proxy statements and other information filed with the Commission by the
Company can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, and at the following Regional Offices of the Commission: 7 World
Trade Center, New York, New York 10048 and 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. Copies of that material can also be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission
maintains a web site that contains reports, proxy statements and other
information regarding registrants that file electronically with the
Commission. The address of that web site is http://www.sec.gov. The
Company's common stock is listed on the American Stock Exchange. Reports,
proxy statements and other information filed by the Company can be
inspected at the offices of the American Stock Exchange, 86 Trinity Place,
New York, New York 10006-1881.
INCORPORATION BY REFERENCE
The Company incorporates by reference into this Prospectus (a)
the Company's Annual Report on Form 10-K for the year ended December 31,
1997, (b) the Quarterly Reports of the Company on Form 10-Q for the
quarters ended March 31, 1998 and June 30, 1998, (c) Form 8-K of the
Company dated August 14, 1998 (d) the description of the common stock of
the Company, $1 par value per share (the "Common Stock"), contained in the
Company's Registration Statement on Form S-14 dated April 3, 1984, as
supplemented by the Company's Proxy Statement dated April 3, 1986, relating
to its 1986 Annual Meeting of Stockholders, and (e) the description of the
Shareholders' Rights Agreement contained in the Company's Registration
Statement on Form 8-A dated September 9, 1988. All documents subsequently
filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, 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, will be deemed to be incorporated by
reference in this Registration Statement and to be a part of it from the
date of filing such documents. Copies of all documents which are
incorporated by reference will be provided without charge to anyone to whom
this prospectus is delivered upon a written or oral request to The Turner
Corporation, 375 Hudson Street, New York, New York 10014, Attention: Sara
J. Gozo, Esq., telephone number (212) 229-6000.
SELLING SECURITY HOLDERS
This Prospectus relates to possible sales by officers and
directors of the Company of shares of Common Stock acquired by them
pursuant to The Turner Corporation 1998 Stock Incentive Plan (the "Plan")
of the Company. The names of those Selling Securities Holders are not known
by the Company at this time and will be provided by the Company, along with
the number of shares of Common Stock owned by each of them and the number
of shares to be resold, in a supplement to this Prospectus pursuant to
General Instruction C(3) to Form S-8 and Rule 424(b) under the Securities
Act.
METHOD OF SALE
The Company anticipates that any sales of the shares offered by
this Prospectus by Selling Security Holders will be made to the public on
the American Stock Exchange, where the Company's Common Stock is listed, or
in other markets where the Company's Common Stock may be traded, or in
negotiated transactions. The Company anticipates that sales will be at
prices current when the sales take place. Sales may involve payment of
brokers' commissions by Selling Security Holders. There is no present plan
of distribution.
SEC POSITION REGARDING INDEMNIFICATION
The Company's by-laws require indemnification of officers and
directors to the fullest extent permitted by Delaware law. This includes
instances in which they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the Company and,
with respect to criminal proceedings, without reasonable belief that their
action was unlawful.
Insofar as indemnification for liabilities arising under the
Securities Act might be permitted to directors, officers or persons
controlling the Company under the provisions described above, the Company
has been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, which have been filed by The Turner
Corporation (the "Company") with the Securities and Exchange Commission
(the "Commission"), are incorporated by reference in this Registration
Statement as of their respective dates:
(a) The Annual Report of the Company on Form 10-K for the
fiscal year ended December 31, 1997;
(b) The Quarterly Reports of the Company on Form 10-Q for
the quarters ended March 31, 1998 and June 30, 1998;
(c) Form 8-K of the Company dated August 14, 1998;
(d) The description of the common stock of the Company, $1
par value per share (the "Common Stock"), contained in the
Company's Registration Statement on Form S-14 dated April 3,
1984, as supplemented by the Company's Proxy Statement dated
April 3, 1986, relating to its 1986 Annual Meeting of
Stockholders; and
(e) The description of the Shareholders' Rights Agreement
contained in the Company's Registration Statement on Form 8-A
dated September 9, 1988.
All documents filed subsequent to the date hereof by the Company
with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, and prior to the filing of a post-effective amendment hereto
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and made a part hereof from their
respective dates of filing (such documents, and the documents enumerated
above, being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained
herein or in any other subsequently filed Incorporated Document modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part hereof.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of Delaware gives
Delaware corporations broad powers to indemnify their present and former
directors and officers and those of affiliated corporations. That
indemnification is not exclusive of any other rights to which those
indemnified may be entitled under any by-laws, agreement, vote of
stockholders or otherwise.
Article VIII of the by-laws of the Company makes mandatory the
indemnification expressly authorized under the Delaware General Corporation
Law. The applicable standard is that the individual acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The Company has purchased insurance which insures officers and
directors of the Company against loss arising from claims by reason of
their legal liability for acts as officers and directors.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The following documents are filed or incorporated by reference in
this Registration Statement:
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Certificate of Incorporation, as amended, incorporated
herein by reference to Exhibit 3 to the Registration
Statement on Form S-14 of the Company, No. 2-90235.
Amendments dated May 19, 1986, September 12, 1988 and
July 10, 1989 incorporated herein by reference to
Exhibit 3(a) to the Company's 1989 Annual Report on
Form 10-K.
4.2 By-laws, as amended, incorporated herein by reference
to Exhibit 3(b) to the Company's 1997 Annual Report on
Form 10-K.
4.3 The Turner Corporation 1998 Stock Incentive Plan.
4.4 Shareholder's Rights Agreement, between the Company and
Morgan Shareholder Services Trust Company and Rights
Agent, dated as of September 9, 1988, incorporated
herein by reference to the Registration Statement on
Form 8-A dated September 9, 1988.
5 Opinion of Fried, Frank, Harris, Shriver & Jacobson as
to the legality of the securities being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Fried, Frank, Harris, Shriver & Jacobson
(counsel) (included in Exhibit 5).
24 Powers of Attorney (included herein on signature
pages).
Item 9. Undertakings
The undersigned registrant hereby undertakes:
A. to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
1. to include any prospectus required by Section 10(a)(3) of
the Securities Act;
2. to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or
the most recent post-effective amendment hereto) which
individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement; and
3. 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 this
Registration Statement;
provided, however, that paragraphs A.1. and A.2. shall 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.
B. 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.
C. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to
be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and it has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of New York, State of New York, on
July 31, 1998.
THE TURNER CORPORATION
/s/ E.T. Gravette, Jr.
-----------------------------------
By: E.T. Gravette, Jr.
Chairman of the Board, Chief
Executive Officer and Director
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints E.T. Gravette, Jr. and
Sara J. Gozo, and each or either of them, his true and lawful
attorneys-in-fact and agents, each acting alone, with full powers of
substitution and resubstitution, for such person and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and
agents each acting alone, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as might or could be done in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, each acting alone, or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ E.T. Gravette, Jr.
- ----------------------------- Chairman of the Board; Chief July 31, 1998
E.T. Gravette, Jr. Executive Officer; Director
/s/ Donald G. Sleeman Senior Vice President; Chief July 31, 1998
- ----------------------------- Financial Officer; Principal
D.G. Sleeman Accounting Officer
/s/ H. Baumann-Steiner Director July 31, 1998
- -----------------------------
H. Baumann-Steiner
/s/ W.G. Ehlers Director July 31, 1998
- -----------------------------
W.G. Ehlers
/s/ R.E. Fee President and Chief Operating July 31, 1998
- ----------------------------- Officer, Turner Construction
R.E. Fee Company; Director
/s/ A.G. Fieger Director July 31, 1998
- -----------------------------
A.G. Fieger
/s/ T.C. Leppert Director July 31, 1998
- -----------------------------
T.C. Leppert
/s/ Leif Lomo Director July 31, 1998
- -----------------------------
L. Lomo
/s/ C.H. Moore, Jr. Director July 16, 1998
- -----------------------------
C.H. Moore, Jr.
/s/ H.J. Parmelee President; Chief Operating July 31, 1998
- ----------------------------- Officer; Director
H.J. Parmelee
/s/ G.J. Records, Jr. Director July 16, 1998
- -----------------------------
G.J. Records, Jr.
/s/ P.K. Steiner Director July 31, 1998
- -----------------------------
P.K. Steiner
/s/ G.A. Walker Director July 31, 1998
- -----------------------------
G.A. Walker
/s/ J.O. Whitney Director July 31, 1998
- -----------------------------
J.O. Whitney
EXHIBIT INDEX
Exhibit No. Description of Exhibit Page
----------- ---------------------- ----
4.1 Certificate of Incorporation, as amended,
incorporated herein by reference to Exhibit 3 to
the Registration Statement on Form S-14 of the
Company, No. 2-90235. Amendments dated May 19,
1986, September 12, 1988 and July 10, 1989
incorporated herein by reference to Exhibit 3(a)
to the Company's 1989 Annual Report on Form 10-K.
4.2 By-laws, as amended, incorporated herein by
reference to Exhibit 3(b) to the Company's 1997
Annual Report on Form 10-K.
4.3 The Turner Corporation 1998 Stock Incentive Plan.
4.4 Shareholders' Rights Agreement, between the Company and
Morgan Shareholder Services Trust Company and Rights
Agent, dated as of September 9, 1988, incorporated
herein by reference to the Registration Statement on
Form 8-A dated September 9, 1988.
5 Opinion of Fried, Frank, Harris, Shriver &
Jacobson as to the legality of the securities
being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Fried, Frank, Harris, Shriver &
Jacobson (counsel) (included in Exhibit 5).
24 Powers of Attorney (included herein on signature
pages).
EXHIBIT 4.3
THE TURNER CORPORATION
1998 STOCK INCENTIVE PLAN
(AS AMENDED THROUGH MAY 8, 1998)
THE TURNER CORPORATION
1998 STOCK INCENTIVE PLAN
1. Purpose.
-------
The purpose of this Plan is to strengthen The Turner Corporation,
a Delaware corporation (the "Company"), by providing an incentive to its
employees, officers, consultants, advisors and directors and thereby
encouraging them to devote their abilities and industry to the success of
the Company's business enterprise. It is intended that this purpose be
achieved by extending to employees, officers, consultants, advisors and
directors of the Company and its Subsidiaries an added long-term incentive
for high levels of performance and unusual efforts through the grant of
Incentive Stock Options, Nonqualified Stock Options, Stock Appreciation
Rights, Dividend Equivalent Rights, Performance Awards and Restricted Stock
(as each term is herein defined).
2. Definitions.
-----------
For purposes of the Plan:
2.1 "Adjusted Fair Market Value" means, in the event of a Change
in Control, the greater of (a) the highest price per Share paid to holders
of the Shares in any transaction (or series of transactions) constituting
or resulting in a Change in Control or (b) the highest Fair Market Value of
a Share during the ninety (90) day period ending on the date of a Change in
Control.
2.2 "Affiliate" means any entity, directly or indirectly,
controlled by, controlling or under common control with the Company or any
corporation or other entity acquiring, directly or indirectly, all or
substantially all the assets and business of the Company, whether by
operation of law or otherwise.
2.3 "Agreement" means the written agreement between the Company
and an Optionee or Grantee evidencing the grant of an Option or Award and
setting forth the terms and conditions thereof.
2.4 "Award" means a grant of Restricted Stock, a Stock
Appreciation Right, a Performance Award, a Dividend Equivalent Right or any
or all of them.
2.5 "Board" means the Board of Directors of the Company.
2.6 "Cause" means:
(a) for purposes of Section 6.4, the commission of an act of
fraud or intentional misrepresentation or an act of embezzlement,
misappropriation or conversion of assets or opportunities of the Company or
any of its Subsidiaries; and
(b) in all other cases, unless otherwise set forth in an
Agreement, (i) intentional failure to perform reasonably assigned duties,
(ii) dishonesty or willful misconduct in the performance of duties, (iii)
involvement in a transaction in connection with the performance of duties
to the Company or any of its Subsidiaries which transaction is adverse to
the interests of the Company or any of its Subsidiaries and which is
engaged in for personal profit or (iv) willful violation of any law, rule
or regulation in connection with the performance of duties (other than
traffic violations or similar offenses).
2.7 "Change in Capitalization" means any increase or reduction in
the number of Shares, or any change (including, but not limited to, in the
case of a spin-off, dividend or other distribution in respect of Shares, a
change in value) in the Shares or exchange of Shares for a different number
or kind of shares or other securities of the Company or another
corporation, by reason of a reclassification, recapitalization, merger,
consolidation, reorganization, spin-off, split-up, issuance of warrants or
rights or debentures, stock dividend, stock split or reverse stock split,
cash dividend, property dividend, combination or exchange of shares,
repurchase of shares, change in corporate structure or otherwise.
2.8 "Change in Control" means any of the following occurrences:
(a) any "person" (as defined in Sections 13(d) and 14(d) of
the Exchange Act) becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of either (a) thirty-five
percent (35%) (or such other percentage as the Board of Directors may from
time to time determine before a Change in Control takes place to be the
appropriate Change in Control threshold for purposes of Options granted
under this Plan) or more of the outstanding common stock of the Company, or
(b) thirty-five percent (35%) (or such other percentage as the Board of
Directors may from time to time determine before a Change in Control takes
place to be the appropriate Change in Control threshold for purposes of
Options granted under this Plan) of the outstanding securities of any other
class or classes which individually or together have the power (other than
upon a failure to pay dividends, unless that failure has occurred) to elect
a majority of the members of the Board of Directors of the Company, except
that an acquisition of securities by an employee benefit plan of the
Company or a subsidiary will never be a Change in Control; or
(b) the Board of Directors of the Company determines that a
tender offer statement filed by any person with the Securities and Exchange
Commission indicates an intention on the part of that person to acquire
control of the Company; or
(c) there is a change in the membership of the Board of
Directors of the Company and immediately following the change a majority of
the members of the Board of Directors of the Company are not persons who
(a) had been directors of the Company for at least the preceding
twenty-four (24) consecutive months or (b) when they initially were elected
to the Board, (x) were nominated (if they were elected by the stockholders)
or elected (if they were elected by the directors) with the affirmative
vote of two-thirds of the directors who were Continuing Directors at the
time of the nomination or election by the Board and (y) were not elected as
a result of an actual or threatened solicitation of proxies or consents by
a person other than the Board of Directors of the Company or an agreement
intended to avoid or settle such a proxy solicitation (the directors
described in clauses (a) and (b) being "Continuing Directors").
2.9 "Code" means the Internal Revenue Code of 1986, as amended.
2.10 "Committee" means a committee, as described in Section 3.1,
appointed by the Board from time to time to administer the Plan and to
perform the functions set forth herein.
2.11 "Company" means The Turner Corporation.
2.12 "Director" means a director of the Company.
2.13 "Director Option" means an Option granted pursuant to
Section 6.
2.14 "Disability" means:
(a) the term "Disability" as used in the Company's long-term
disability plan, if any; and
(b) in all other cases, the term "Disability" as used in
this Plan or any Agreement shall mean a physical or mental infirmity which
impairs the Optionee's or Grantee's ability to perform substantially his or
her duties for a period of one hundred eighty (180) consecutive days.
2.15 "Division" means any of the operating units or divisions of
the Company designated as a Division by the Committee.
2.16 "Dividend Equivalent Right" means a right to receive all or
some portion of the cash dividends that are or would be payable with
respect to Shares.
2.17 "Eligible Director" means a director of the Company who is
not an employee of the Company or any Subsidiary.
2.18 "Eligible Individual" means any director, officer or
employee of the Company or a Subsidiary, or any consultant or advisor of
the Company or a Subsidiary, designated by the Committee as eligible to
receive Options or Awards subject to the conditions set forth herein.
2.19 "Employee Option" means an Option granted pursuant to
Section 5.
2.20 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
2.21 "Fair Market Value" on any date means the closing sales
prices of the Shares on such date on the principal national securities
exchange on which such Shares are listed or admitted to trading, or, if
such Shares are not so listed or admitted to trading, the average of the
per Share closing bid price and per Share closing asked price on such date
as quoted on the National Association of Securities Dealers Automated
Quotation System or such other market in which such prices are regularly
quoted, or, if there have been no published bid or asked quotations with
respect to Shares on such date, the Fair Market Value shall be the value
established by the Board in good faith and, in the case of an Incentive
Stock Option, in accordance with Section 422 of the Code.
2.22 "Grantee" means a person to whom an Award has been granted
under the Plan.
2.23 "Incentive Stock Option" means an Option satisfying the
requirements of Section 422 of the Code and designated by the Committee as
an Incentive Stock Option.
2.24 "Nonemployee Director" means a director of the Company who
is a "nonemployee director" within the meaning of Rule 16b-3 promulgated
under the Exchange Act.
2.25 "Nonqualified Stock Option" means an Option which is not an
Incentive Stock Option.
2.26 "Option" means an Employee Option, a Nonqualified Stock
Option, an Incentive Stock Option, a Director Option, or any or all of
them.
2.27 "Optionee" means a person to whom an Option has been granted
under the Plan.
2.28 "Outside Director" means a director of the Company who is an
"outside director" within the meaning of Section 162(m) of the Code and the
regulations promulgated thereunder.
2.29 "Parent" means any corporation which is a parent corporation
(within the meaning of Section 424(e) of the Code) with respect to the
Company.
2.30 "Performance Awards" means Performance Units, Performance
Shares or either or both of them.
2.31 "Performance-Based Compensation" means any Option or Award
that is intended to constitute "performance based compensation" within the
meaning of Section 162(m)(4)(C) of the Code and the regulations promulgated
thereunder.
2.32 "Performance Cycle" means the time period specified by the
Committee at the time Performance Awards are granted during which the
performance of the Company, a Subsidiary or a Division will be measured.
2.33 "Performance Objectives" has the meaning set forth in
Section 11.
2.34 "Performance Shares" means Shares issued or transferred to
an Eligible Individual under Section 11.
2.35 "Performance Units" means Performance Units granted to an
Eligible Individual under Section 11.
2.36 "Plan" means The Turner Corporation 1998 Stock Incentive
Plan, as amended and restated from time to time.
2.37 "Pooling Transaction" means an acquisition of the Company in
a transaction which is intended to be treated as a "pooling of interests"
under generally accepted accounting principles.
2.38 "Restricted Stock" means Shares issued or transferred to an
Eligible Individual pursuant to Section 10.
2.39 "Shares" means the common stock, par value $1.00 per share,
of the Company.
2.40 "Stock Appreciation Right" means a right to receive all or
some portion of the increase in the value of the Shares as provided in
Section 8 hereof.
2.41 "Subsidiary" means any corporation which is a subsidiary
corporation (within the meaning of Section 424(f) of the Code) with respect
to the Company.
2.42 "Successor Corporation" means a corporation, or a parent or
subsidiary thereof within the meaning of Section 424(a) of the Code, which
issues or assumes a stock option in a transaction to which Section 424(a)
of the Code applies.
2.43 "Ten-Percent Stockholder" means an Eligible Individual, who,
at the time an Incentive Stock Option is to be granted to him or her, owns
(within the meaning of Section 422(b)(6) of the Code) stock possessing more
than ten percent (10%) of the total combined voting power of all classes of
stock of the Company, or of a Parent or a Subsidiary.
2.44 "Trading Day" means a day on which there is trading in
equity securities in the principal market in which the Shares are traded.
3. Administration.
--------------
3.1 The Plan shall be administered by the Committee, which shall
hold meetings at such times as may be necessary for the proper
administration of the Plan. The Committee shall keep minutes of its
meetings. A quorum shall consist of not fewer than two (2) members of the
Committee and a majority of a quorum may authorize any action. Any decision
or determination reduced to writing and signed by a majority of all of the
members of the Committee shall be as fully effective as if made by a
majority vote at a meeting duly called and held. The Committee shall
consist of at least two (2) directors of the Company, each of whom shall be
a Nonemployee Director and, to the extent necessary for any Option or Award
intended to qualify as Performance-Based Compensation to so qualify, an
Outside Director. No member of the Committee shall be liable for any
action, failure to act, determination or interpretation made in good faith
with respect to this Plan or any transaction hereunder, except for
liability arising from his or her own willful misfeasance, gross negligence
or reckless disregard of his or her duties. The Company hereby agrees to
indemnify each member of the Committee for all costs and expenses and, to
the extent permitted by applicable law, any liability incurred in
connection with defending against, responding to, negotiating for the
settlement of or otherwise dealing with any claim, cause of action or
dispute of any kind arising in connection with any actions in administering
this Plan or in authorizing or denying authorization to any transaction
hereunder.
3.2 Subject to the express terms and conditions set forth herein,
the Committee shall have the power from time to time to:
(a) determine those Eligible Individuals to whom Employee
Options shall be granted under the Plan and the number of such Employee
Options to be granted and to prescribe the terms and conditions (which need
not be identical) of each such Employee Option, including the exercise
price per Share subject to each Employee Option, and make any amendment or
modification to any Option Agreement consistent with the terms of the Plan;
(b) select those Eligible Individuals to whom Awards shall
be granted under the Plan and to determine the number of Stock Appreciation
Rights, Performance Awards, Shares of Restricted Stock and/or Dividend
Equivalent Rights to be granted pursuant to each Award, the terms and
conditions (which need not be identical) of each such Award, and make any
amendment or modification to any Award Agreement consistent with the terms
of the Plan;
(c) to construe and interpret the Plan and the Options and
Awards granted hereunder and to establish, amend and revoke rules and
regulations for the administration of the Plan, including, but not limited
to, correcting any defect or supplying any omission, or reconciling any
inconsistency in the Plan or in any Agreement, in the manner and to the
extent it shall deem necessary or advisable so that the Plan complies with
applicable law including Rule 16b-3 under the Exchange Act and the Code to
the extent applicable, and otherwise to make the Plan fully effective. All
decisions and determinations by the Committee in the exercise of this power
shall be final, binding and conclusive upon the Company, its Subsidiaries,
the Optionees and Grantees, and all other persons having any interest
therein;
(d) to determine the duration and purposes for leaves of
absence which may be granted to an Optionee or Grantee on an individual
basis without constituting a termination of employment or service for
purposes of the Plan;
(e) to exercise its discretion with respect to the powers
and rights granted to it as set forth in the Plan; and
(f) generally, to exercise such powers and to perform such
acts as are deemed necessary or advisable to promote the best interests of
the Company with respect to the Plan.
4. Stock Subject to the Plan; Grant Limitations.
--------------------------------------------
4.1 The maximum number of Shares that may be made the subject of
Options and Awards granted under the Plan is 750,000. The maximum number of
Shares that may be the subject of Options and Awards granted to an Eligible
Individual in any three (3) calendar year period may not exceed 375,000
Shares. The maximum dollar amount of cash or the Fair Market Value of
Shares that any Eligible Individual may receive in any calendar year during
the term of the Plan in respect of Performance Units denominated in dollars
may not exceed $500,000. Upon a Change in Capitalization, the maximum
number of Shares referred to in the first two sentences of this Section 4.1
shall be adjusted in number and kind pursuant to Section 13. The Company
shall reserve for the purposes of the Plan, out of its authorized but
unissued Shares or out of Shares held in the Company's treasury, or partly
out of each, such number of Shares as shall be determined by the Board.
4.2 Upon the granting of an Option or an Award, the number of
Shares available under Section 4.1 for the granting of further Options and
Awards shall be reduced as follows:
(a) In connection with the granting of an Option or an Award
(other than the granting of a Performance Unit denominated in dollars), the
number of Shares shall be reduced by the number of Shares in respect of
which the Option or Award is granted or denominated; provided, however,
that if any Option is exercised by tendering Shares, either actually or by
attestation, to the Company as full or partial payment of the exercise
price, the maximum number of Shares available under Section 4.1 shall be
increased by the number of Shares so tendered.
(b) In connection with the granting of a Performance Unit
denominated in dollars, the number of Shares shall be reduced by an amount
equal to the quotient of (i) the dollar amount in which the Performance
Unit is denominated, divided by (ii) the Fair Market Value of a Share on
the date the Performance Unit is granted.
4.3 Whenever any outstanding Option or Award or portion thereof
expires, is canceled, is settled in cash (including the settlement of tax
withholding obligations using Shares) or is otherwise terminated for any
reason without having been exercised or payment having been made in respect
of the entire Option or Award, the Shares allocable to the expired,
canceled, settled or otherwise terminated portion of the Option or Award
may again be the subject of Options or Awards granted hereunder.
5. Option Grants for Eligible Individuals.
--------------------------------------
5.1 Authority of Committee. Subject to the provisions of the
Plan, the Committee shall have full and final authority to select those
Eligible Individuals who will receive Employee Options, and the terms and
conditions of the grant to such Eligible Individuals shall be set forth in
an Agreement.
5.2 Exercise Price. The exercise price or the manner in which the
exercise price is to be determined for Shares under each Employee Option
shall be determined by the Committee and set forth in the Agreement;
provided, however, that the exercise price per share under each
Nonqualified Stock Option shall not be less than 85% of the average of the
Fair Market Value of Shares on the twenty (20) Trading Days prior to the
date the Employee Option is granted; provided further, however, that the
exercise price per Share under each Incentive Stock Option shall not be
less than 100% of the Fair Market Value of a Share on the date the Employee
Option is granted (110% in the case of an Incentive Stock Option granted to
a Ten-Percent Stockholder).
5.3 Maximum Duration. Employee Options granted hereunder shall be
for such term as the Committee shall determine, provided that an Incentive
Stock Option shall not be exercisable after the expiration of ten (10)
years from the date it is granted (five (5) years in the case of an
Incentive Stock Option granted to a Ten-Percent Stockholder) and a
Nonqualified Stock Option shall not be exercisable after the expiration of
ten (10) years from the date it is granted; provided, however, that the
Committee may provide that an Option (other than an Incentive Stock Option)
may, upon the death of the Optionee, be exercised for up to one (1) year
following the date of the Optionee's death even if such period extends
beyond ten (10) years from the date the Option is granted. The Committee
may, subsequent to the granting of any Employee Option, extend the term
thereof, but in no event shall the term as so extended exceed the maximum
term provided for in the preceding sentence.
5.4 Vesting. Subject to Section 7.4, each Employee Option shall
become fully vested and exercisable with respect to 100% of the Shares
subject thereto on the third anniversary of the date of grant, unless as
otherwise designated by the Committee and set forth in the Agreement.
Employee Options shall be exercisable, in whole or in part, at any time
after becoming exercisable, but not later than the date the Employee Option
expires. The Committee may accelerate the exercisability of any Employee
Option or portion thereof at any time.
6. [Section 6 has been deleted].
----------------------------
7. Terms and Conditions Applicable to All Options.
----------------------------------------------
7.1 Non-Transferability. No Option shall be transferable by the
Optionee otherwise than by will or by the laws of descent and distribution
or, in the case of an Option other than an Incentive Stock Option, pursuant
to a domestic relations order (within the meaning of Rule 16a-12
promulgated under the Exchange Act), and such Option shall be exercisable
during the lifetime of such Optionee only by the Optionee or his or her
guardian or legal representative. Notwithstanding the foregoing, the
Committee may set forth in the Agreement evidencing an Option (other than
an Incentive Stock Option) at the time of grant or thereafter, that an
Option may be transferred to members of the Optionee's immediate family, to
trusts solely for the benefit of such immediate family members and to
partnerships in which such family members and/or trusts are the only
partners. For purposes of this Plan, a transferee of an Option shall be
deemed to be the Optionee. Immediate family means the Optionee's spouse,
parents, children, stepchildren and grandchildren and the spouses of such
parents, children, stepchildren and grandchildren. The terms of such Option
shall be final, binding and conclusive upon the beneficiaries, executors,
administrators, heirs and successors of the Optionee.
7.2 Method of Exercise. The exercise of an Option shall be made
only by a written notice delivered in person or by mail to the Secretary of
the Company at the Company's principal executive office, specifying the
number of Shares in respect of which the Option is being exercised and
accompanied by payment therefor and otherwise in accordance with the
Agreement pursuant to which the Option was granted; provided, however, that
the Option may not be exercised by an Optionee for twelve (12) months
following a hardship distribution to the Optionee, to the extent such
exercise is prohibited under Treasury Regulation ss.
1.401(k)-1(d)(2)(iv)(B)(4). The exercise price for any Shares purchased
pursuant to the exercise of an Option shall be paid, as determined by the
Committee in its discretion, in either of the following forms (or any
combination thereof): (a) cash or (b) the transfer, either actually or by
attestation, to the Company of Shares that have been held by the Optionee
for at least six (6) months (or such shorter period as may be permitted by
the Committee) prior to the exercise of the Option and such transfer to be
upon such terms and conditions as determined by the Committee. In addition,
an Option may be exercised through a registered broker-dealer pursuant to
such cashless exercise procedures which are, from time to time, deemed
acceptable by the Committee. Any Shares transferred to the Company as
payment of the exercise price under an Option shall be valued at their Fair
Market Value on the day preceding the date of exercise of such Option. If
requested by the Committee, the Optionee shall deliver the Agreement
evidencing the Option to the Secretary of the Company who shall endorse
thereon a notation of such exercise and return such Agreement to the
Optionee. No fractional Shares (or cash in lieu thereof) shall be issued
upon exercise of an Option and the number of Shares that may be purchased
upon exercise shall be rounded to the nearest number of whole Shares.
7.3 Rights of Optionees. No Optionee shall be deemed for any
purpose to be the owner of any Shares subject to any Option unless and
until (a) the Option shall have been exercised pursuant to the terms
thereof, (b) the Company shall have issued and delivered Shares to the
Optionee, and (c) the Optionee's name shall have been entered as a
stockholder of record on the books of the Company. Thereupon, the Optionee
shall have full voting, dividend and other ownership rights with respect to
such Shares, subject to such terms and conditions as may be set forth in
the applicable Agreement.
7.4 Effect of Change in Control. In the event of a Change in
Control, all Options outstanding on the date of such Change in Control
shall become immediately and fully exercisable. In addition, to the extent
set forth in an Agreement evidencing the grant of an Employee Option, an
Optionee will be permitted to surrender to the Company for cancellation
within sixty (60) days after such Change in Control any Employee Option or
portion of an Employee Option to the extent not yet exercised and the
Optionee will be entitled to receive a cash payment in an amount equal to
the excess, if any, of (a) (i) in the case of a Nonqualified Stock Option,
the greater of (A) the Fair Market Value, on the date preceding the date of
surrender, of the Shares subject to the Employee Option or portion thereof
surrendered or (B) the Adjusted Fair Market Value of the Shares subject to
the Employee Option or portion thereof surrendered or (ii) in the case of
an Incentive Stock Option, the Fair Market Value, on the date preceding the
date of surrender, of the Shares subject to the Employee Option or portion
thereof surrendered, over (b) the aggregate exercise price for such Shares
under the Employee Option or portion thereof surrendered. In the event an
Optionee's employment with, or service as a Director of, the Company and
its Subsidiaries terminates following a Change in Control, each Option held
by the Optionee that was exercisable as of the date of termination of the
Optionee's employment or service shall, notwithstanding any shorter period
set forth in the Agreement evidencing the Option, remain exercisable for a
period ending not before the earlier of (x) the first anniversary of the
termination of the Optionee's employment or service or (y) the expiration
of the stated term of the Option.
7.5 Deferred Delivery of Option Shares. The Committee may, in its
discretion, permit Optionees to elect to defer the issuance of Shares upon
the exercise of one or more Nonqualified Stock Options granted pursuant to
the Plan. The terms and conditions of such deferral shall be determined at
the time of the grant of the Option or thereafter and shall be set forth in
the Agreement evidencing the grant.
8. Stock Appreciation Rights.
-------------------------
The Committee may in its discretion, either alone or in
connection with the grant of an Employee Option, grant to any Eligible
Individual Stock Appreciation Rights in accordance with the Plan, the terms
and conditions of which shall be set forth in an Agreement. If granted in
connection with an Option, a Stock Appreciation Right shall cover the same
Shares covered by the Option (or such lesser number of Shares as the
Committee may determine) and shall, except as provided in this Section 8,
be subject to the same terms and conditions as the related Option.
8.1 Time of Grant. A Stock Appreciation Right may be granted (a)
at any time if unrelated to an Option, or (b) if related to an Option,
either at the time of grant, or at any time thereafter during the term of
the Option.
8.2 Stock Appreciation Right Related to an Option.
(a) Exercise. A Stock Appreciation Right granted in
connection with an Option shall be exercisable at such time or times and
only to the extent that the related Options are exercisable, and will not
be transferable except to the extent the related Option may be
transferable. A Stock Appreciation Right granted in connection with an
Incentive Stock Option shall be exercisable only if the Fair Market Value
of a Share on the date of exercise exceeds the exercise price specified in
the related Incentive Stock Option Agreement.
(b) Amount Payable. Upon the exercise of a Stock
Appreciation Right related to an Option, the Grantee shall be entitled to
receive an amount determined by multiplying (i) the excess of the Fair
Market Value of a Share on the date preceding the date of exercise of such
Stock Appreciation Right over the per Share exercise price under the
related Option, by (ii) the number of Shares as to which such Stock
Appreciation Right is being exercised. Notwithstanding the foregoing, the
Committee may limit in any manner the amount payable with respect to any
Stock Appreciation Right by including such a limit in the Agreement
evidencing the Stock Appreciation Right at the time it is granted.
(c) Treatment of Related Options and Stock Appreciation
Rights Upon Exercise. Upon the exercise of a Stock Appreciation Right
granted in connection with an Option, the Option shall be canceled to the
extent of the number of Shares as to which the Stock Appreciation Right is
exercised, and upon the exercise of an Option granted in connection with a
Stock Appreciation Right, the Stock Appreciation Right shall be canceled to
the extent of the number of Shares as to which the Option is exercised or
surrendered.
8.3 Stock Appreciation Right Unrelated to an Option. The
Committee may grant to Eligible Individuals Stock Appreciation Rights
unrelated to Options. Stock Appreciation Rights unrelated to Options shall
contain such terms and conditions as to exercisability (subject to Section
8.7), vesting and duration as the Committee shall determine, but in no
event shall they have a term of greater than ten (10) years. Upon exercise
of a Stock Appreciation Right unrelated to an Option, the Grantee shall be
entitled to receive an amount determined by multiplying (a) the excess of
the Fair Market Value of a Share on the date preceding the date of exercise
of such Stock Appreciation Right over the Fair Market Value of a Share on
the date the Stock Appreciation Right was granted, by (b) the number of
Shares as to which the Stock Appreciation Right is being exercised.
Notwithstanding the foregoing, the Committee may limit in any manner the
amount payable with respect to any Stock Appreciation Right by including
such a limit in the Agreement evidencing the Stock Appreciation Right at
the time it is granted.
8.4 Non-Transferability. No Stock Appreciation Right shall be
transferable by the Grantee otherwise than by will or by the laws of
descent and distribution or pursuant to a domestic relations order (within
the meaning of Rule 16a-12 promulgated under the Exchange Act), and such
Stock Appreciation Right shall be exercisable during the lifetime of such
Grantee only by the Grantee or his or her guardian or legal representative.
The terms of such Stock Appreciation Right shall be final, binding and
conclusive upon the beneficiaries, executors, administrators, heirs and
successors of the Grantee.
8.5 Method of Exercise. Stock Appreciation Rights shall be
exercised by a Grantee only by a written notice delivered in person or by
mail to the Secretary of the Company at the Company's principal executive
office, specifying the number of Shares with respect to which the Stock
Appreciation Right is being exercised. If requested by the Committee, the
Grantee shall deliver the Agreement evidencing the Stock Appreciation Right
being exercised and the Agreement evidencing any related Option to the
Secretary of the Company who shall endorse thereon a notation of such
exercise and return such Agreement to the Grantee.
8.6 Form of Payment. Payment of the amount determined under
Sections 8.2(b) or 8.3 may be made in the discretion of the Committee
solely in whole Shares in a number determined at their Fair Market Value on
the date preceding the date of exercise of the Stock Appreciation Right, or
solely in cash, or in a combination of cash and Shares. If the Committee
decides to make full payment in Shares and the amount payable results in a
fractional Share, payment for the fractional Share will be made in cash.
8.7 Effect of Change in Control. In the event of a Change in
Control, all Stock Appreciation Rights shall become immediately and fully
exercisable. In addition, to the extent set forth in an Agreement
evidencing the grant of a Stock Appreciation Right unrelated to an Option,
a Grantee will be entitled to receive a payment from the Company in cash or
stock, in either case, with a value equal to the excess, if any, of (a) the
greater of (i) the Fair Market Value, on the date preceding the date of
exercise, of the underlying Shares subject to the Stock Appreciation Right
or portion thereof exercised and (ii) the Adjusted Fair Market Value, on
the date preceding the date of exercise, of the Shares over (b) the
aggregate Fair Market Value, on the date the Stock Appreciation Right was
granted, of the Shares subject to the Stock Appreciation Right or portion
thereof exercised. In the event a Grantee's employment with the Company
terminates following a Change in Control, each Stock Appreciation Right
held by the Grantee that was exercisable as of the date of termination of
the Grantee's employment shall, notwithstanding any shorter period set
forth in the Agreement evidencing the Stock Appreciation Right, remain
exercisable for a period ending not before the earlier of the first
anniversary of (x) the termination of the Grantee's employment or (y) the
expiration of the stated term of the Stock Appreciation Right.
9. Dividend Equivalent Rights.
--------------------------
Dividend Equivalent Rights may be granted to Eligible Individuals
and Eligible Directors in tandem with an Option or Award or as a separate
Award. The terms and conditions applicable to each Dividend Equivalent
Right shall be specified in the Agreement under which the Dividend
Equivalent Right is granted. Amounts payable in respect of Dividend
Equivalent Rights may be payable currently or deferred until the lapsing of
restrictions on such Dividend Equivalent Rights or until the vesting,
exercise, payment, settlement or other lapse of restrictions on the Option
or Award to which the Dividend Equivalent Rights relate. In the event that
the amount payable in respect of Dividend Equivalent Rights are to be
deferred, the Committee shall determine whether such amounts are to be held
in cash or reinvested in Shares or deemed (notionally) to be reinvested in
Shares. If amounts payable in respect of Dividend Equivalent Rights are to
be held in cash, there may be credited at the end of each year (or portion
thereof) interest on the amount of the account at the beginning of the year
at a rate per annum as the Committee, in its discretion, may determine.
Dividend Equivalent Rights may be settled in cash or Shares or a
combination thereof, in a single installment or multiple installments.
10. Restricted Stock.
----------------
10.1 Grant. The Committee may grant Awards to Eligible
Individuals of Restricted Stock, which shall be evidenced by an Agreement
between the Company and the Grantee. Each Agreement shall contain such
restrictions, terms and conditions as the Committee may, in its discretion,
determine and (without limiting the generality of the foregoing) such
Agreements may require that an appropriate legend be placed on Share
certificates. Awards of Restricted Stock shall be subject to the terms and
provisions set forth below in this Section 10.
10.2 Rights of Grantee. Shares of Restricted Stock granted
pursuant to an Award hereunder shall be issued in the name of the Grantee
as soon as reasonably practicable after the Award is granted provided that
the Grantee has executed such documents as the Committee may require as a
condition to the issuance of such Shares. At the discretion of the
Committee, Shares issued in connection with a Restricted Stock Award shall
be deposited together with the stock powers with an escrow agent (which may
be the Company) designated by the Committee. Unless the Committee
determines otherwise and as set forth in the Agreement, upon delivery of
the Shares to the escrow agent, the Grantee shall have all of the rights of
a stockholder with respect to such Shares, including the right to vote the
Shares and to receive all dividends or other distributions paid or made
with respect to the Shares.
10.3 Non-transferability. Until all restrictions upon the Shares
of Restricted Stock awarded to a Grantee shall have lapsed in the manner
set forth in Section 10.4, such Shares shall not be sold, transferred or
otherwise disposed of and shall not be pledged or otherwise hypothecated.
10.4 Lapse of Restrictions.
(a) Generally. Restrictions upon Shares of Restricted Stock
awarded hereunder shall lapse at such time or times and on such terms and
conditions as the Committee may determine. The Agreement evidencing the
Award shall set forth any such restrictions.
(b) Effect of Change in Control. Unless the Committee shall
determine otherwise at the time of the grant of an Award of Restricted
Stock, the restrictions upon Shares of Restricted Stock shall lapse upon a
Change in Control. The Agreement evidencing the Award shall set forth any
such provisions.
10.5 Modification or Substitution. Subject to the terms of the
Plan, the Committee may modify outstanding Awards of Restricted Stock or
accept the surrender of outstanding Shares of Restricted Stock (to the
extent the restrictions on such Shares have not yet lapsed) and grant new
Awards in substitution for them. Notwithstanding the foregoing, no
modification of an Award shall adversely alter or impair any rights or
obligations under the Agreement without the Grantee's consent.
10.6 Treatment of Dividends. At the time an Award of Shares of
Restricted Stock is granted, the Committee may, in its discretion,
determine that the payment to the Grantee of dividends, or a specified
portion thereof, declared or paid on such Shares by the Company shall be
(a) deferred until the lapsing of the restrictions imposed upon such Shares
and (b) held by the Company for the account of the Grantee until such time.
In the event that dividends are to be deferred, the Committee shall
determine whether such dividends are to be reinvested in Shares (which
shall be held as additional Shares of Restricted Stock) or held in cash. If
deferred dividends are to be held in cash, there may be credited at the end
of each year (or portion thereof) interest on the amount of the account at
the beginning of the year at a rate per annum as the Committee, in its
discretion, may determine. Payment of deferred dividends in respect of
Shares of Restricted Stock (whether held in cash or as additional Shares of
Restricted Stock), together with interest accrued thereon, if any, shall be
made upon the lapsing of restrictions imposed on the Shares in respect of
which the deferred dividends were paid, and any dividends deferred
(together with any interest accrued thereon) in respect of any Shares of
Restricted Stock shall be forfeited upon the forfeiture of such Shares.
10.7 Delivery of Shares. Upon the lapse of the restrictions on
Shares of Restricted Stock, the Committee shall cause a stock certificate
to be delivered to the Grantee with respect to such Shares, free of all
restrictions hereunder.
11. Performance Awards.
------------------
11.1 Performance Units. The Committee, in its discretion, may
grant Awards of Performance Units to Eligible Individuals, the terms and
conditions of which shall be set forth in an Agreement between the Company
and the Grantee. Performance Units may be denominated in Shares or a
specified dollar amount and, contingent upon the attainment of specified
Performance Objectives within the Performance Cycle, represent the right to
receive payment as provided in Section 11.3(c) of (i) in the case of
Share-denominated Performance Units, the Fair Market Value of a Share on
the date the Performance Unit was granted, the date the Performance Unit
became vested or any other date specified by the Committee, (ii) in the
case of dollar-denominated Performance Units, the specified dollar amount
or (iii) a percentage (which may be more than 100%) of the amount described
in clause (i) or (ii) depending on the level of Performance Objective
attainment; provided, however, that, the Committee may at the time a
Performance Unit is granted specify a maximum amount payable in respect of
a vested Performance Unit. Each Agreement shall specify the number of
Performance Units to which it relates, the Performance Objectives which
must be satisfied in order for the Performance Units to vest and the
Performance Cycle within which such Performance Objectives must be
satisfied.
(a) Vesting and Forfeiture. Subject to Sections 11.3(c) and
11.4, a Grantee shall become vested with respect to the Performance Units
to the extent that the Performance Objectives set forth in the Agreement
are satisfied for the Performance Cycle.
(b) Payment of Awards. Subject to Section 11.3(c), payment
to Grantees in respect of vested Performance Units shall be made as soon as
practicable after the last day of the Performance Cycle to which such Award
relates unless the Agreement evidencing the Award provides for the deferral
of payment, in which event the terms and conditions of the deferral shall
be set forth in the Agreement. Subject to Section 11.4, such payments may
be made entirely in Shares valued at their Fair Market Value as of the day
preceding the date of payment or such other date specified by the
Committee, entirely in cash, or in such combination of Shares and cash as
the Committee in its discretion shall determine at any time prior to such
payment; provided, however, that if the Committee in its discretion
determines to make such payment entirely or partially in Shares of
Restricted Stock, the Committee must determine the extent to which such
payment will be in Shares of Restricted Stock and the terms of such
Restricted Stock at the time the Award is granted.
11.2 Performance Shares. The Committee, in its discretion, may
grant Performance Shares to Eligible Individuals, which shall represent the
right, contingent upon the attainment of specified Performance Objectives
within the Performance Cycle and subject to Section 11.3(c), to receive, as
provided in the Agreement, Shares free of all restrictions under the Plan
or the Agreement. Awards of Performance Shares shall be subject to the
following terms and provisions:
(a) Issuance of Shares. Performance Shares granted pursuant
to an Award shall be issued in the name of the Grantee as soon as
reasonably practicable after the Award is granted provided that the Grantee
has executed such documents as the Committee may require as a condition to
the issuance of such Performance Shares. At the discretion of the
Committee, Shares issued in connection with an Award of Performance Shares
shall be deposited together with the stock powers with an escrow agent
(which may be the Company) designated by the Committee. Unless the
Committee determines otherwise, and as set forth in the Agreement, upon
delivery of the Shares to the escrow agent, the Grantee shall have all of
the rights of a stockholder with respect to such Shares, including the
right to vote the Shares and to receive all dividends or other
distributions paid or made with respect to the Shares.
(b) Treatment of Dividends. At the time the Award of
Performance Shares is granted, the Committee may, in its discretion,
determine that the payment to the Grantee of dividends, or a specified
portion thereof, declared or paid on Shares represented by such Award which
have been issued by the Company to the Grantee shall be (i) deferred until
the lapsing of the restrictions imposed upon such Performance Shares and
(ii) held by the Company for the account of the Grantee until such time. In
the event that dividends are to be deferred, the Committee shall determine
whether such dividends are to be reinvested in Shares (which shall be held
as additional Performance Shares) or held in cash. If deferred dividends
are to be held in cash, there may be credited at the end of each year (or
portion thereof) interest on the amount of the account at the beginning of
the year at a rate per annum as the Committee, in its discretion, may
determine. Payment of deferred dividends in respect of Performance Shares
(whether held in cash or in additional Performance Shares), together with
interest accrued thereon, if any, shall be made upon the lapsing of
restrictions imposed on the Performance Shares in respect of which the
deferred dividends were paid, and any dividends deferred (together with any
interest accrued thereon) in respect of any Performance Shares shall be
forfeited upon the forfeiture of such Performance Shares.
(c) Delivery of Shares. Upon the lapse of the restrictions
on Performance Shares awarded hereunder, the Committee shall cause a stock
certificate to be delivered to the Grantee with respect to such Shares,
free of all restrictions hereunder
11.3 Performance Objectives.
(a) Establishment. Performance Objectives for Performance
Awards may be expressed in terms of (i) earnings per Share, (ii) Share
price, (iii) pre-tax profits, (iv) net earnings, (v) return on equity or
assets or (vi) any combination of the foregoing. Performance Objectives may
be in respect of the performance of the Company, any of its Subsidiaries,
any of its Divisions or any combination thereof. Performance Objectives may
be absolute or relative (to prior performance of the Company or to the
performance of one or more other entities or external indices) and may be
expressed in terms of a progression within a specified range. The
Performance Objectives with respect to a Performance Cycle shall be
established in writing by the Committee by the earlier of (x) the date on
which a quarter of the Performance Cycle has elapsed or (y) the date which
is ninety (90) days after the commencement of the Performance Cycle, and in
any event while the performance relating to the Performance Objectives
remain substantially uncertain.
(b) Effect of Certain Events. At the time of the granting of
a Performance Award, or at any time thereafter, in either case to the
extent permitted under Section 162(m) of the Code and the regulations
thereunder without adversely affecting the treatment of the Performance
Award as Performance-Based Compensation, the Committee may provide for the
manner in which performance will be measured against the Performance
Objectives (or may adjust the Performance Objectives) to reflect the impact
of specified corporate transactions, special charges, foreign currency
effects, accounting or tax law changes and other extraordinary or
nonrecurring events.
(c) Determination of Performance. Prior to the vesting,
payment, settlement or lapsing of any restrictions with respect to any
Performance Award that is intended to constitute Performance-Based
Compensation made to a Grantee who is subject to Section 162(m) of the
Code, the Committee shall certify in writing that the applicable
Performance Objectives have been satisfied.
11.4 Effect of Change in Control. In the event of a Change
in Control:
(a) With respect to Performance Units, the Grantee shall (i)
become vested in all or a portion of the Performance Units as determined by
the Committee at the time of the Award of such Performance Units and as set
forth in the Agreement and (ii) be entitled to receive in respect of all
Performance Units which become vested as a result of a Change in Control a
cash payment within ten (10) days after such Change in Control in an amount
as determined by the Committee at the time of the Award of such Performance
Unit and as set forth in the Agreement.
(b) With respect to Performance Shares, all or a portion of
any unissued Performance Shares shall be issued and restrictions shall
lapse immediately on all or a portion of the Performance Shares in each
case as determined by the Committee at the time of the Award of such
Performance Shares and as set forth in the Agreement.
(c) The Agreements evidencing Performance Shares and
Performance Units shall provide for the treatment of such Awards (or
portions thereof) which do not become vested as the result of a Change in
Control, including, but not limited to, provisions for the adjustment of
applicable Performance Objectives.
11.5 Non-Transferability. Until the vesting of Performance Units
or the lapsing of any restrictions on Performance Shares, as the case may
be, such Performance Units or Performance Shares shall not be sold,
transferred or otherwise disposed of and shall not be pledged or otherwise
hypothecated.
12. Effect of a Termination of Employment.
-------------------------------------
The Agreement evidencing the grant of each Option and each Award
shall set forth the terms and conditions applicable to such Option or Award
upon a termination or change in the status of the employment of the
Optionee or Grantee by the Company, a Subsidiary or a Division (including a
termination or change by reason of the sale of a Subsidiary or a Division),
which, except for Director Options, shall be as the Committee may, in its
discretion, determine at the time the Option or Award is granted or
thereafter.
13. Adjustment Upon Changes in Capitalization.
-----------------------------------------
(a) In the event of a Change in Capitalization, the
Committee shall conclusively determine the appropriate adjustments, if any,
to (i) the maximum number and class of Shares or other stock or securities
with respect to which Options or Awards may be granted under the Plan, (ii)
the maximum number and class of Shares or other stock or securities with
respect to which Options or Awards may be granted to any Eligible
Individual in any three (3) calendar year period, (iii) the number and
class of Shares or other stock or securities which are subject to
outstanding Options or Awards granted under the Plan and the exercise price
therefor, if applicable, (iv) the number and class of Shares or other
securities in respect of which Director Options are to be granted under
Section 6 and (v) the Performance Objectives.
(b) Any such adjustment in the Shares or other stock or
securities subject to outstanding Incentive Stock Options (including any
adjustments in the exercise price) shall be made in such manner as not to
constitute a modification as defined by Section 424(h)(3) of the Code and
only to the extent otherwise permitted by Sections 422 and 424 of the Code.
(c) If, by reason of a Change in Capitalization, a Grantee
of an Award shall be entitled to, or an Optionee shall be entitled to
exercise an Option with respect to, new, additional or different shares of
stock or securities, such new, additional or different shares shall
thereupon be subject to all of the conditions, restrictions and performance
criteria which were applicable to the Shares subject to the Award or
Option, as the case may be, prior to such Change in Capitalization.
14. Effect of Certain Transactions.
------------------------------
Subject to Sections 7.4, 8.7, 10.4(b) and 11.4 or as otherwise
provided in an Agreement, in the event of (a) the liquidation or
dissolution of the Company or (b) a merger or consolidation of the Company
(a "Transaction"), the Plan and the Options and Awards issued hereunder
shall continue in effect in accordance with their respective terms, except
that following a Transaction each Optionee and Grantee shall be entitled to
receive in respect of each Share subject to any outstanding Options or
Awards, as the case may be, upon exercise of any Option or payment or
transfer in respect of any Award, the same number and kind of stock,
securities, cash, property or other consideration that each holder of a
Share was entitled to receive in the Transaction in respect of a Share;
provided, however, that such stock, securities, cash, property, or other
consideration shall remain subject to all of the conditions, restrictions
and performance criteria which were applicable to the Options and Awards
prior to such Transaction.
15. Interpretation.
--------------
The Plan is intended to comply with Rule 16b-3 promulgated under
the Exchange Act and the Committee shall interpret and administer the
provisions of the Plan or any Agreement in a manner consistent therewith.
Any provisions inconsistent with such Rule shall be inoperative and shall
not affect the validity of the Plan. Unless otherwise expressly stated in
the relevant Agreement, each Option (other than those granted with an
exercise price less than 100% of the Fair Market Value on the date of the
grant), Stock Appreciation Right and Performance Award granted under the
Plan is intended to be Performance-Based Compensation. The Committee shall
not be entitled to exercise any discretion otherwise authorized hereunder
with respect to such Options or Awards if the ability to exercise such
discretion or the exercise of such discretion itself would cause the
compensation attributable to such Options or Awards to fail to qualify as
Performance-Based Compensation.
16. Pooling Transactions.
--------------------
Notwithstanding anything contained in the Plan or any Agreement
to the contrary, in the event of a Change in Control which is also intended
to constitute a Pooling Transaction, the Committee shall make such
equitable adjustments to outstanding Options and Awards, if any, as are
specifically recommended by an independent accounting firm retained by the
Company to the extent reasonably necessary in order to assure that the
Pooling Transaction will qualify as such, including but not limited to (a)
deferring the vesting, exercise, payment, settlement or lapsing of
restrictions with respect to any Option or Award, (b) providing that the
payment or settlement in respect of any Option or Award be made in the form
of cash, Shares or securities of a successor or acquirer of the Company, or
a combination of the foregoing, and (c) providing for the extension of the
term of any Option or Award to the extent necessary to accommodate the
foregoing, but not beyond the maximum term permitted for any Option or
Award.
17. Termination and Amendment of the Plan; Modification of
Options and Awards.
------------------------------------------------------
17.1 Plan Amendment or Termination. The Plan shall terminate on
the day preceding the tenth anniversary of the date of its adoption by the
Board and no Option or Award may be granted thereafter. The Board may
sooner terminate the Plan and the Board may at any time and from time to
time amend, modify or suspend the Plan; provided, however, that:
(a) no such amendment, modification, suspension or
termination shall impair or adversely alter any Options or Awards
theretofore granted under the Plan, except with the consent of the Optionee
or Grantee, nor shall any amendment, modification, suspension or
termination deprive any Optionee or Grantee of any Shares which he or she
may have acquired through or as a result of the Plan; and
(b) to the extent necessary under any applicable law,
regulation or exchange requirement no amendment shall be effective unless
approved by the stockholders of the Company in accordance with applicable
law, regulation or exchange requirement.
17.2 Modification of Options and Awards. No modification of an
Option or Award shall adversely alter or impair any rights or obligations
under the Option or Award without the consent of the Optionee or Grantee,
as the case may be.
18. Non-Exclusivity of the Plan.
---------------------------
The adoption of the Plan by the Board shall not be construed as
amending, modifying or rescinding any previously approved incentive
arrangement or as creating any limitations on the power of the Board to
adopt such other incentive arrangements as it may deem desirable,
including, without limitation, the granting of stock options otherwise than
under the Plan, and such arrangements may be either applicable generally or
only in specific cases.
19. Limitation of Liability.
-----------------------
As illustrative of the limitations of liability of the Company,
but not intended to be exhaustive thereof, nothing in the Plan shall be
construed to:
(a) give any person any right to be granted an Option or
Award other than at the sole discretion of the Committee;
(b) give any person any rights whatsoever with respect to
Shares except as specifically provided in the Plan;
(c) limit in any way the right of the Company or any
Subsidiary to terminate the employment of any person at any time; or
(d) be evidence of any agreement or understanding, expressed
or implied, that the Company will employ any person at any particular rate
of compensation or for any particular period of time.
20. Regulations and Other Approvals; Governing Law.
----------------------------------------------
20.1 Except as to matters of federal law, the Plan and the rights
of all persons claiming hereunder shall be construed and determined in
accordance with the laws of the State of Delaware without giving effect to
conflicts of laws principles thereof.
20.2 The obligation of the Company to sell or deliver Shares with
respect to Options and Awards granted under the Plan shall be subject to
all applicable laws, rules and regulations, including all applicable
federal and state securities laws, and the obtaining of all such approvals
by governmental agencies as may be deemed necessary or appropriate by the
Committee.
20.3 The Board may make such changes as may be necessary or
appropriate to comply with the rules and regulations of any government
authority, or to obtain for Eligible Individuals granted Incentive Stock
Options the tax benefits under the applicable provisions of the Code and
regulations promulgated thereunder.
20.4 Each Option and Award is subject to the requirement that, if
at any time the Committee determines, in its discretion, that the listing,
registration or qualification of Shares issuable pursuant to the Plan is
required by any securities exchange or under any state or federal law, or
the consent or approval of any governmental regulatory body is necessary or
desirable as a condition of, or in connection with, the grant of an Option
or Award or the issuance of Shares, no Options or Awards shall be granted
or payment made or Shares issued, in whole or in part, unless listing,
registration, qualification, consent or approval has been effected or
obtained free of any conditions as acceptable to the Committee.
20.5 Notwithstanding anything contained in the Plan or any
Agreement to the contrary, in the event that the disposition of Shares
acquired pursuant to the Plan is not covered by a then current registration
statement under the Securities Act of 1933, as amended (the "Securities
Act"), and is not otherwise exempt from such registration, such Shares
shall be restricted against transfer to the extent required by the
Securities Act and Rule 144 or other regulations thereunder. The Committee
may require any individual receiving Shares pursuant to an Option or Award
granted under the Plan, as a condition precedent to receipt of such Shares,
to represent and warrant to the Company in writing that the Shares acquired
by such individual are acquired without a view to any distribution thereof
and will not be sold or transferred other than pursuant to an effective
registration thereof under said Act or pursuant to an exemption applicable
under the Securities Act or the rules and regulations promulgated
thereunder. The certificates evidencing any of such Shares shall be
appropriately amended to reflect their status as restricted securities as
aforesaid.
21. Miscellaneous.
-------------
21.1 Multiple Agreements. The terms of each Option or Award may
differ from other Options or Awards granted under the Plan at the same
time, or at some other time. The Committee may also grant more than one
Option or Award to a given Eligible Individual during the term of the Plan,
either in addition to, or in substitution for, one or more Options or
Awards previously granted to that Eligible Individual.
21.2 Withholding of Taxes.
(a) At such times as an Optionee or Grantee recognizes
taxable income in connection with the receipt of Shares or cash hereunder
(a "Taxable Event"), the Optionee or Grantee shall pay to the Company an
amount equal to the federal, state and local income taxes and other amounts
as may be required by law to be withheld by the Company in connection with
the Taxable Event (the "Withholding Taxes") prior to the issuance, or
release from escrow, of such Shares or the payment of such cash. The
Company shall have the right to deduct from any payment of cash to an
Optionee or Grantee an amount equal to the Withholding Taxes in
satisfaction of the obligation to pay Withholding Taxes. The Committee may
provide in the Agreement at the time of grant, or at any time thereafter,
that the Optionee or Grantee, in satisfaction of the obligation to pay
Withholding Taxes to the Company, may elect to have withheld a portion of
the Shares then issuable to him or her having an aggregate Fair Market
Value equal to the Withholding Taxes.
(b) If an Optionee makes a disposition, within the meaning
of Section 424(c) of the Code and regulations promulgated thereunder, of
any Share or Shares issued to such Optionee pursuant to the exercise of an
Incentive Stock Option within the two-year period commencing on the day
after the date of the grant or within the one-year period commencing on the
day after the date of transfer of such Share or Shares to the Optionee
pursuant to such exercise, the Optionee shall, within ten (10) days of such
disposition, notify the Company thereof, by delivery of written notice to
the Company at its principal executive office.
21.3. Effective Date. The effective date of this Plan shall be as
determined by the Board, subject only to the approval by the affirmative
vote of the holders of a majority of the voting power of the shares of
Common Stock, Series B ESOP Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock of the Company present, or represented, and
entitled to vote at a meeting of stockholders duly held in accordance with
the applicable laws of the State of Delaware within twelve (12) months of
the adoption of the Plan by the Board.
EXHIBIT 5
[LETTERHEAD OF FRIED, FRANK, HARRIS, SHRIVER & JACOBSON]
212-859-8136
August 13, 1998 (FAX: 212-859-858)
The Turner Corporation
375 Hudson Street
New York, NY 10014
Ladies and Gentlemen:
We have acted as special counsel for The Turner Corporation, a
Delaware corporation ("Turner"), in connection with the registration,
pursuant to a Registration Statement on Form S-8 (the "Form S-8"), of
750,000 shares of Common Stock, par value $1.00 per share (the "Shares"),
of Turner. The Shares may be issued by Turner under The Turner Corporation
1998 Stock Incentive Plan (the "Plan") upon the exercise of options issued
under the Plan to employees, officers, consultants, advisors and directors
of Turner. With your permission, all assumptions and statements of reliance
herein have been made without any independent investigation or verification
on our part except to the extent otherwise expressly stated, and we express
no opinion with respect to the subject matter or accuracy of such
assumptions or items relied upon.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records
of Turner, and such certificates of public officials and such other
documents, and (iii) received such information from officers and
representatives of Turner as we have deemed necessary or appropriate for
the purposes of this opinion.
In all such examinations, we have assumed the legal capacity of
all natural persons, the genuineness of all signatures, the authenticity of
original and certified documents and the conformity to original or
certified documents of all copies submitted to us as conformed or
reproduction copies. As to various questions of fact relevant to the
opinions expressed herein, we have relied upon, and assume the accuracy of,
representations and warranties contained in the documents and certificates
and oral or written statements and other information of or from
representatives of Turner and others and assume compliance on the part of
all parties to the documents with their covenants and agreements contained
therein. Finally, we assume that the consideration for any such Shares
issued under the Plan will be at least equal to par value of the Shares.
Based upon the foregoing and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion that
the issuance of the Shares pursuant to the Plan has been duly authorized
and that such Shares, when issued, paid for and delivered as authorized in
accordance with the Plan, will be validly issued, fully paid and
non-assessable.
The opinions expressed herein are limited to the General
Corporation Law of the State of Delaware, as currently in effect. The
opinions expressed herein are given as of the date hereof, and we undertake
no obligation to supplement this letter if any applicable laws change after
the date hereof or if we become aware of any facts that might change the
opinions expressed herein after the date hereof or for any other reason.
We hereby consent to the filing of this opinion as an exhibit to
the Form S-8 relating to the registration of the Shares. In giving such
consent, we do not hereby admit that we are in the category of such persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By /s/ Jeffrey Bagner
-------------------------------------
Jeffrey Bagner
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in the Registration Statement on Form S-8 of our
report dated February 20, 1998 included in The Turner Corporation's Form
10-K for the year ended December 31, 1997 and to all references to our Firm
included in this Registration Statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
New York, New York
August 17, 1998
