- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM 10-K/A
AMENDMENT NO. 1
[Mark One]
[x] Annual Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1943
For the fiscal year ended December 31, 1998
[ ] Transition Report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
THE TURNER CORPORATION
(Exact name of registrant as specified in its charter)
COMMISSION FILE NO.: 001-008719
DELAWARE 13-3209884
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
375 HUDSON STREET 10014
NEW YORK, NEW YORK (Zip Code)
(Address of principal executive offices)
(212) 229-6000
(Registrant's telephone number, including area code)
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
Name of Exchange
Title of Class on which registered
---------------------- -----------------
Common Stock, $1 par value New York Stock Exchange
(with preferred stock purchase rights)
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT: NONE
--------------------
Indicate by check mark whether the registrant: (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days: Yes X No ___
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form
10-K or any amendment to this Form 10-K [ ].
As of February 26, 1999, the aggregate market value on that date of
the common stock held by non-affiliates (based upon the last sale price for
the common stock on the New York Stock Exchange) was $107,947,744.
As of February 26, 1999, 7,899,448 shares of Turner's common stock
were outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
-----------------------------------
Portions of definitive proxy statement to be filed pursuant to Section
14(a) of the Securities Exchange Act of 1934 - Part III, Items 10-13.
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This amendment to Form 10-K is being filed to amend Part IV in order
to file exhibit 10(c)(xiii).
<PAGE>
Part IV
Item 14 Exhibits , Financial Statement Schedules and Reports on Form 8-K.
a) Documents filed as part of this report (including documents
incorporated herein by reference):
1. Financial Statements:
Page No.
--------
- Report of Independent Public Accountants 14
- Consolidated Balance Sheets - as of December 31, 1998
and 1997 15
- Consolidated Statements of Operations - for the years
ended December 31, 1998, 1997 and 1996 16
- Consolidated Statements of Stockholders' Equity - for
the years ended December 31, 1998, 1997 and 1996 17
- Consolidated Statements of Cash Flows - for the years
ended December 31, 1998, 1997 and 1996 18
- Notes to Consolidated Financial Statements 19-34
- Responsibilities for Financial Reporting 35
2. Consent of Independent Public Accountants
Individual financial statements of Turner and financial statement
schedules not included above are omitted since they are either not required
or not applicable or the information has been presented in the notes to
consolidated financial statements.
3. Exhibits
Exhibit No. Description
- ----------- -----------
3(a)(i) Restated Certificate of Incorporated herein by reference to
Incorporation as of 4/5/84. Exhibit 3 to the Registration
Statement on Form S-14 of The
Turner Corporation, File No.
2-90235.
3(a)(ii) Amendment dated 5/19/86. Incorporated herein by reference to
Exhibit 3(a) to the Company's 1989
Annual Report on Form 10-K.
3(a)(iii) Amendment dated 9/12/88. Incorporated herein by reference to
Exhibit 3(a) to the Company's 1989
Annual Report on Form 10-K.
3(a)(iv) Amendment dated 7/10/89. Incorporated herein by reference to
Exhibit 3(a) to the Company's 1989
Annual Report on Form 10-K.
3(a)(v) Certificate of Designations Incorporated herein by reference to
relating to Series C 8-1/2% Exhibit 2 to the Company's Form 8-K
Convertible Preference Stock. dated July 20, 1992.
3(a)(vi) Certificate of Designation Incorporated herein by reference to
relating to Series D 8-1/2% Exhibit 3 to the Company's Form 8-K
Convertible Preference Stock. dated July 20, 1992.
3(a)(vii) Certificate of Designation Incorporated herein by reference to
relating to Series E 8-1/2% Exhibit 4 to the Company's Form 8-K
Convertible Preference Stock. dated July 20, 1992.
3(a)(viii) Certificate of Designation Incorporated herein by reference to
relating to Series F Exhibit C to Exhibit 1 to the
Participating Preference Stock. Company's Form 8-A dated September
3, 1998.
3(a)(ix) Certificate of Elimination Filed with this Form 10-K as
relating to Series A Junior originally filed on March 4, 1999.
Participating Preference Stock.
3(b) By-Laws, as amended 12/9/98. Filed with this Form 10-K as
originally filed on March 4, 1999.
4(a) Shareholders' Rights Incorporated herein by reference to
Agreement, dated as of Exhibit 1 to the Company's Form 8-A
September 21, 1998, between dated September 3, 1998.
the Company and The First
Chicago Trust Company of New
York.
4(b) Agreement regarding Security Incorporated herein by reference to
Holder's Rights, Obligations Exhibit 5 to the Company's Form 8-K
and Options, dated July 20, dated July 20, 1992.
1992, between the Company and
Karl Steiner Holding AG.
10(c)(i) The Company's Executive Incorporated herein by reference to
Incentive Compensation Exhibit 10.3 to the Registration
Plan. Statement on Form S-14 of the
Turner Corporation, File No.
2-90235.
10(c)(ii) The Company's 1981 Stock Incorporated herein by reference to
Option Plan, as amended. Exhibit 10(c)(v) to the Company's
1988 Annual Report on Form 10-K.
10(c)(iii) The Company's 1986 Stock Incorporated herein by reference to
Option Plan, as amended. Exhibit 10(c)(vii) to the Company's
1988 Annual Report on Form 10-K.
10(c)(iv) The Company's 1992 Stock Incorporated herein by reference to
Option Plan. the Company's 1992 Annual Proxy
Statement on Form 14A dated April
6, 1992.
10(c)(v) The Company's Incentive Incorporated herein by reference to
Compensation Plan. Exhibit 10(c)(v) to the Company's
1983 Annual Report on Form 10-K.
10(c)(vi) The Company's Retirement Incorporated herein by reference to
Benefit Equalization Plan, Exhibit 10(c)(v) to the Company's
amended and restated as of 1992 Annual Report on Form 10-K.
1/22/92.
10(c)(vii) The Company's Defined Incorporated herein by reference in
Contribution Retirement Exhibit 10(c)(vii) to the Company's
Equalization Plan. 1992 Annual Report on Form 10-K.
10(c)(viii) The Company's Supplemental Incorporated herein by reference to
Executive Defined Benefit Exhibit 10(c)(viii) to the
Retirement Plan. Company's 1992 Annual Report on
Form 10-K.
10(c)(ix) The Company's Supplemental Incorporated herein by reference to
Executive Defined Contribution Exhibit 10(c)(ix) to the Company's
Retirement Plan. 1992 Annual Report on Form 10-K.
10(c)(x) Tax Deferred Saving Income Incorporated herein by reference to
Plan amended and restated as Exhibit 10(c)(ix) to Company's 1991
of 1/1/89. Annual 1991 Annual Report on Form
10-K.
10(c)(xi) Employees' Cash Balance Filed with this Form 10-K as
Retirement Plan - Restated as originally filed on March 4, 1999.
of 1/1/94, together with
amendments, dated 6/1/98, and
7/1/98.
10(c)(xii) Resolution Regarding The Incorporated herein by reference to
Director's Option and Option Exhibit 10(c)(xvi) to the Company's
Agreement, dated 8/7/97. 1997 Annual Report on Form 10-K.
10(c)(xiii) The Company's 1997 Filed with this amendment.
Non-Qualified Stock Option
Plan - Restated as of 10/10/97
together with an amendment
dated 5/8/1998.
10(c)(xiv) The Company's 1998 Stock Incorporated herein by reference to
Incentive Plan. Exhibit 4.3 to the Company's
Registration Statement on Form S-8
file No. 333-61745.
10(d)(i) LLC Agreement, dated as of Filed with this Form 10-K as
December 22, 1997, between the originally filed on March 4, 1999.
Company and Karl Steiner
Holding AG.
10(d)(ii) Admendment No. 1 to LLC Filed with this Form 10-K as
Agreement, dated as of originally filed on March 4, 1999.
January 1, 1998 between
the Company and Karl Steiner
Holding AG.
10(e) Letter Agreement with Karl Filed with this Form 10-K as
Steiner Holding AG, dated originally filed on March 4, 1999.
12/29/98, regarding waiver of
position Maintenance Option.
10(f) Revolving Credit Facility Filed with this Form 10-K as
Agreement dated as of August originally filed on March 4, 1999.
14, 1998 among the Company,
Turner Construction Company,
the Banks party thereto, and
Bank One, N.A., as agent.
10(g) Form of Change of Control Filed with this Form 10-K as
Agreement between The Turner originally filed on March 4, 1999.
Corporation and Messrs. Fee,
Parmelee, Sleeman,
respectively, President,
President-Asset Management,
Chief financial Officer, and
Messrs. Breu, Johnson, Lang,
respectively, Senior Vice
Presidents, and between The
Turner Corporation and Messrs.
Robinson and Manteuffel,
Executive Vice Presidents of
Turner Construction Company
and Messrs. Dorais, Maxwell,
Mitnick, Quimby, Smith,
Willie, respectively, Senior
Vice Presidents of Turner
Construction Company dated
11/25/97.
10(h) Form of Change of Control Filed with this Form 10-K as
Agreement with 65 other originally filed on March 4, 1999.
officers of The Turner
Corporation or Subsidiaries
dated 11/25/97.
11 Computation of earnings per Incorporated herein by reference to
share. Note 15 to the Company's
Consolidated Financial Statements.
21 Subsidiaries of the Registrant. Filed with this Form 10-K as
originally filed on March 4, 1999.
27(a) Financial Data Schedule-1998. Filed with this Form 10-K as
originally filed on March 4, 1999.
27(b) Financial Data Schedule - 1997 Filed with this Form 10-K as
Restated originally filed on March 4, 1999.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this amendment to be
signed on its behalf by the undersigned, thereunto duly authorized.
THE TURNER CORPORATION
Registrant
Date: March 12, 1999 By: /s/ E.T. Gravette, Jr.
---------------------------------
Name: E. T. Gravette, Jr.
Title: Chairman of the Board of Directors,
Chief Executive Officer and Director
Pursuant to the requirements of the Securities Exchange Act of 1934,
this amendment has been signed below by the following persons on behalf of
the registrant and in the capacities and on the dates indicated.
Name Capacity Date
---- -------- ----
/s/ E. T. Gravette, Jr.
------------------------ Chairman of the Board of March 12, 1999
E. T. Gravette, Jr. Directors, Chief Executive
Officer and Director
/s/ D. G. Sleeman
------------------------ Senior Vice President, Chief March 12, 1999
D. G. Sleeman Financial Officer and
Chief Accounting Officer
/s/ H. Baumann-Steiner
------------------------ Director March 12, 1999
H. Baumann-Steiner
/s/ W. G. Ehler
------------------------ Director March 12, 1999
W. G. Ehlers
/s/ R. E. Fee
------------------------ President, Chief Operating March 12, 1999
R. E. Fee Officer and Director
/s/ A. G. Fieger
------------------------ Director March 12, 1999
A. G. Fieger
/s/ T. C. Leppert
------------------------ Director March 12, 1999
T. C. Leppert
/s/ L. Lomo
------------------------ Director March 12, 1999
L. Lomo
/s/ C. H. Moore, Jr.
------------------------ Director March 12, 1999
C. H. Moore, Jr.
/s/ H. J. Parmelee
------------------------ President - Asset March 12, 1999
H. J. Parmelee Management and Director
/s/ G. J. Records, Jr.
------------------------ Director March 12, 1999
G. J. Records, Jr.
<PAGE>
/s/ P. K. Steiner
------------------------ Director March 12, 1999
P. K. Steiner
/s/ G. A. Walker
------------------------ Director March 12, 1999
G. A. Walker
/s/ J. O. Whitney
------------------------ Director March 12, 1999
J. O. Whitney
<PAGE>
Exhibit Index
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Exhibit No. Description
- ----------- -----------
3(a)(i) Restated Certificate of Incorporated herein by reference to
Incorporation as of 4/5/84. Exhibit 3 to the Registration
Statement on Form S-14 of The
Turner Corporation, File No.
2-90235.
3(a)(ii) Amendment dated 5/19/86. Incorporated herein by reference to
Exhibit 3(a) to the Company's 1989
Annual Report on Form 10-K.
3(a)(iii) Amendment dated 9/12/88. Incorporated herein by reference to
Exhibit 3(a) to the Company's 1989
Annual Report on Form 10-K.
3(a)(iv) Amendment dated 7/10/89. Incorporated herein by reference to
Exhibit 3(a) to the Company's 1989
Annual Report on Form 10-K.
3(a)(v) Certificate of Designations Incorporated herein by reference to
relating to Series C 8-1/2% Exhibit 2 to the Company's Form 8-K
Convertible Preference Stock. dated July 20, 1992.
3(a)(vi) Certificate of Designation Incorporated herein by reference to
relating to Series D 8-1/2% Exhibit 3 to the Company's Form 8-K
Convertible Preference Stock. dated July 20, 1992.
3(a)(vii) Certificate of Designation Incorporated herein by reference to
relating to Series E 8-1/2% Exhibit 4 to the Company's Form 8-K
Convertible Preference Stock. dated July 20, 1992.
3(a)(viii) Certificate of Designation Incorporated herein by reference to
relating to Series F Exhibit C to Exhibit 1 to the
Participating Preference Stock. Company's Form 8-A dated September
3, 1998.
3(a)(ix) Certificate of Elimination Filed with this Form 10-K as
relating to Series A Junior originally filed on March 4, 1999.
Participating Preference Stock.
3(b) By-Laws, as amended 12/9/98. Filed with this Form 10-K as
originally filed on March 4, 1999.
4(a) Shareholders' Rights Incorporated herein by reference to
Agreement, dated as of Exhibit 1 to the Company's Form 8-A
September 21, 1998, between dated September 3, 1998.
the Company and The First
Chicago Trust Company of New
York.
4(b) Agreement regarding Security Incorporated herein by reference to
Holder's Rights, Obligations Exhibit 5 to the Company's Form 8-K
and Options, dated July 20, dated July 20, 1992.
1992, between the Company and
Karl Steiner Holding AG.
10(c)(i) The Company's Executive Incorporated herein by reference to
Incentive Compensation Exhibit 10.3 to the Registration
Plan. Statement on Form S-14 of the
Turner Corporation, File No.
2-90235.
10(c)(ii) The Company's 1981 Stock Incorporated herein by reference to
Option Plan, as amended. Exhibit 10(c)(v) to the Company's
1988 Annual Report on Form 10-K.
10(c)(iii) The Company's 1986 Stock Incorporated herein by reference to
Option Plan, as amended. Exhibit 10(c)(vii) to the Company's
1988 Annual Report on Form 10-K.
10(c)(iv) The Company's 1992 Stock Incorporated herein by reference to
Option Plan. the Company's 1992 Annual Proxy
Statement on Form 14A dated April
6, 1992.
10(c)(v) The Company's Incentive Incorporated herein by reference to
Compensation Plan. Exhibit 10(c)(v) to the Company's
1983 Annual Report on Form 10-K.
10(c)(vi) The Company's Retirement Incorporated herein by reference to
Benefit Equalization Plan, Exhibit 10(c)(v) to the Company's
amended and restated as of 1992 Annual Report on Form 10-K.
1/22/92.
10(c)(vii) The Company's Defined Incorporated herein by reference in
Contribution Retirement Exhibit 10(c)(vii) to the Company's
Equalization Plan. 1992 Annual Report on Form 10-K.
10(c)(viii) The Company's Supplemental Incorporated herein by reference to
Executive Defined Benefit Exhibit 10(c)(viii) to the
Retirement Plan. Company's 1992 Annual Report on
Form 10-K.
10(c)(ix) The Company's Supplemental Incorporated herein by reference to
Executive Defined Contribution Exhibit 10(c)(ix) to the Company's
Retirement Plan. 1992 Annual Report on Form 10-K.
10(c)(x) Tax Deferred Saving Income Incorporated herein by reference to
Plan amended and restated as Exhibit 10(c)(ix) to Company's 1991
of 1/1/89. Annual 1991 Annual Report on Form
10-K.
10(c)(xi) Employees' Cash Balance Filed with this Form 10-K as
Retirement Plan - Restated as originally filed on March 4, 1999.
of 1/1/94, together with
amendments, dated 6/1/98, and
7/1/98.
10(c)(xii) Resolution Regarding The Incorporated herein by reference to
Director's Option and Option Exhibit 10(c)(xvi) to the Company's
Agreement, dated 8/7/97. 1997 Annual Report on Form 10-K.
10(c)(xiii) The Company's 1997 Filed with this amendment.
Non-Qualified Stock Option
Plan - Restated as of 10/10/97
together with an amendment
dated 5/8/1998.
10(c)(xiv) The Company's 1998 Stock Incorporated herein by reference to
Incentive Plan. Exhibit 4.3 to the Company's
Registration Statement on Form S-8
file No. 333-61745.
10(d)(i) LLC Agreement, dated as of Filed with this Form 10-K as
December 22, 1997, between the originally filed on March 4, 1999.
Company and Karl Steiner
Holding AG.
10(d)(ii) Admendment No. 1 to LLC Filed with this Form 10-K as
Agreement, dated as of originally filed on March 4, 1999.
January 1, 1998 between
the Company and Karl Steiner
Holding AG.
10(e) Letter Agreement with Karl Filed with this Form 10-K as
Steiner Holding AG, dated originally filed on March 4, 1999.
12/29/98, regarding waiver of
position Maintenance Option.
10(f) Revolving Credit Facility Filed with this Form 10-K as
Agreement dated as of August originally filed on March 4, 1999.
14, 1998 among the Company,
Turner Construction Company,
the Banks party thereto, and
Bank One, N.A., as agent.
10(g) Form of Change of Control Filed with this Form 10-K as
Agreement between The Turner originally filed on March 4, 1999.
Corporation and Messrs. Fee,
Parmelee, Sleeman,
respectively, President,
President-Asset Management,
Chief financial Officer, and
Messrs. Breu, Johnson, Lang,
respectively, Senior Vice
Presidents, and between The
Turner Corporation and Messrs.
Robinson and Manteuffel,
Executive Vice Presidents of
Turner Construction Company
and Messrs. Dorais, Maxwell,
Mitnick, Quimby, Smith,
Willie, respectively, Senior
Vice Presidents of Turner
Construction Company dated
11/25/97.
10(h) Form of Change of Control Filed with this Form 10-K as
Agreement with 65 other originally filed on March 4, 1999.
officers of The Turner
Corporation or Subsidiaries
dated 11/25/97.
11 Computation of earnings per Incorporated herein by reference to
share. Note 15 to the Company's
Consolidated Financial Statements.
21 Subsidiaries of the Registrant. Filed with this Form 10-K as
originally filed on March 4, 1999.
27(a) Financial Data Schedule-1998. Filed with this Form 10-K as
originally filed on March 4, 1999.
27(b) Financial Data Schedule - 1997 Filed with this Form 10-K as
Restated originally filed on March 4, 1999.
EXHIBIT 10(c)(xiii)
AMENDED AS OF OCTOBER 10, 1997
THE TURNER CORPORATION
1997 NON-QUALIFIED STOCK OPTION PLAN
MAY 9, 1997
1. Purpose of the Plan.
The purpose of this 1997 Non-Qualified Stock Option Plan (the "Plan")
is to further the growth of The Turner Corporation ("Turner") and its
Subsidiaries (together, the "Company") by offering key employees and
directors of the Company upon whom the Company largely depends for the
successful conduct of its business an incentive to continue in the employ,
or to be directors, of the Company, and to increase the interest of those
employees and directors in the Company's success through ownership of its
common stock.
2. Definitions.
Whenever used in this Plan, the following terms will have the meanings
set forth below:
(a) "Cause" for the Termination of Employment of an Employee
means the Employee's (i) repeated failure or refusal to perform the duties
and responsibilities of the Employee's position; (ii) dishonesty affecting
the Company; (iii) drunkenness or use of illegal drugs which interferes
with the Employee's performance and continues after warning, or (iv)
material breach of loyalty to the Company. All determinations of whether or
not a Termination of Employment is for "Cause" will be made by the
Committee on the basis of such evidence as the Committee deems appropriate.
(b) "Change of Control" means any of the following occurrences:
(i) 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) 35% (or such other percentage
as the Board of Directors may from time to time determine
before a Change of Control takes place to be the appropriate
Change of Control threshold for purposes of Options granted
under this Plan) or more of the outstanding common stock of
the Company, or (b) 35% (or such other percentage as the
Board of Directors may from time to time determine before a
Change of Control takes place to be the appropriate Change
of 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 of Control;
or
(ii) 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
(iii) 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 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").
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means the committee referred to in Section 4.
(e) "Director" means a director of Turner.
(f) "Employee" means any person employed by the Company
(including, without limitation, employees who are directors).
(g) "Fair Market Value" means the mean of the high and low prices
at which the Stock is reported to have traded in the principal market
(whether consolidated trading on a stock exchange, an interdealer quotation
system or another market) in which the Stock is traded, or if there is no
trade on a particular date, the Fair Market Value will mean the mean of the
low asked and high bid prices in that market on that date.
(h) "Granting Date" means the date on which an Option is granted
by the Committee (even if the option does not become effective until a
later date).
(i) "Involuntary Termination of Employment" means a Termination
of Employment for a reason other than death, Retirement, Total Disability,
voluntary resignation (unless the Committee agrees at the time of the
resignation to treat it as an Involuntary Termination of Employment) or for
Cause.
(j) "Non-Employee Director" means a Director who is a
Non-Employee Director as that term is defined in the rules under Section
16(b) of the Securities Exchange Act of 1934, as amended.
(k) "Option" means an option granted by the Committee under the
Plan.
(l) "Retirement" means a Termination of Employment by reason of
an Employee's retirement, other than by reason of Total Disability, at a
time when the Employee is more than 65 years old, or is between 55 and 65
years old and has more than 15 years of service with the Company.
(m) "Stock" means common stock, par value $1.00 per share, of
Turner.
(n) "Subsidiary" means a corporation or other entity of which
Turner directly or indirectly owns more than 50% of the stock or other
equity interests.
(o) "Total Disability" means inability of an Employee, by reason
of physical condition or mental illness or accident, to perform
substantially all the duties of the position in which the Employee was
employed by the Company when the disability commenced. All determinations
as to the date and extent of disability of any Employee will be made by the
Committee.
(p) "Trading Day" means a day on which there is trading in equity
securities in the principal market in which the Stock is traded.
3. Effective Date of the Plan.
The effective date of the Plan will be May 9, 1997.
4. Administration of the Plan.
The Compensation and Stock Option Committee of Turner, or another
committee appointed by Turner's Board of Directors consisting solely of two
or more Non-Employee Directors, will implement the provisions of the Plan,
be responsible for the administration of the Plan and grant Options under
the Plan. The committee which performs the functions described in the first
sentence of this Paragraph is referred to in this Plan as the "Committee."
Subject to the express provisions of the Plan, the Committee will have full
authority to interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to it and to make all other determinations it deems
necessary or advisable in administering the Plan. All actions taken and
decisions made by the Committee under the Plan will be binding and
conclusive on all Directors and Employees eligible to participate in the
Plan and on their legal representatives and beneficiaries. Unless the Board
of Directors is the Committee, the Committee may not amend the Plan. No
member of the Committee will be liable for any act or omission in
connection with the administration of the Plan unless it is attributable to
that member's willful misconduct.
5. Committee Procedures.
If the Committee is not the Board of Directors, (i) the Committee will
hold its meetings at such times and places as it determines and will
maintain written minutes of its meetings, (ii) a majority of the
Committee's members present in person will constitute a quorum of the
Committee, (iii) all determinations of the Committee will be made by the
majority vote of its members, (iv) the members of the Committee may
participate in a meeting of the Committee by conference telephone or
similar communications equipment by means of which all members
participating in the meeting can hear each other, and participation in a
meeting in that manner will constitute presence in person at the meeting,
and (v) any decision or determination reduced to writing and signed by all
the members of the Committee will be as effective as if it had been made by
a majority vote of its members at a meeting which is duly called and held.
6. Stock Subject to the Plan.
The maximum number of shares of Stock which may be issued upon
exercise of Options granted under the Plan is 500,000 shares, subject to
adjustment as provided in Section 8 of this Plan. The maximum number of
shares of Stock which may be issued to Directors (whether or not Employees)
upon exercise of Options granted under the Plan is 200,000 shares, subject
to adjustment as provided in Section 8. If any Option expires, terminates
or is canceled for any reason without having been exercised in full, the
number of shares of Stock to which the Option related which were not issued
upon exercise of the Option will again be available for issuance under the
Plan. The Options granted in a calendar year may not entitle the holders to
purchase more than 5% of the number of shares which are outstanding on the
last day of that calendar year.
7. Stock Options.
(a) Effective Date of Options. The effective date of an Option will be
the date specified by the Committee in its determination relating to the
award of that Option. The effectiveness of an Option may be made contingent
on the occurrence of a future event, in which case the effective date of
the option will be the date on which that future event occurs, unless the
Committee determines that the Option should become effective on a later
date.
(b) Eligibility/Grant of Options. Options may be granted to any
Director and to any Employee. No Option granted to an Employee will be
exercisable unless the Employee has (i) been in the employ of the Company
for twelve full months. Each Option shall become exercisable on the third
anniversary of its Granting Date, unless the Committee provides for a
longer or shorter period in the agreement setting forth the terms and
conditions of the grant. Except as provided in the preceding two sentences,
the Committee will have full authority to determine the Directors and
Employees to whom and the time or times at which Options will be granted,
the number of shares of Stock subject to each Option, the term of each
Option, the terms under which each Option may be exercised, the Option
exercise price per share, and the other terms and provisions of the Option.
Options granted under this Plan may have dissimilar terms and conditions.
(c) Exercise Price/Payment. Except as provided in Section 8, the
exercise price of each Option will be determined by the Committee, but will
not be less than 85% of the average of the Fair Market Value of the Stock
on the 20 Trading Days prior to the Granting Date of the Option. At the
time of exercise of an Option, the person exercising the Option will tender
payment to Turner of the entire exercise price with regard to the shares of
Stock to be purchased by certified check or, alternatively, by tendering
stock of Turner with a Fair Market Value on the date of the tender equal to
the amount of the exercise price. The Company may not extend credit, or
guarantee the extension of credit, to any person for the purpose of
enabling that person to exercise an Option.
(d) Term of Options. The term of each Option will be determined by the
Committee, but will not be longer than ten years from the Granting Date.
(e) Procedure for Exercising Options. A Director or an Employee will
exercise an Option by giving written notice of exercise to Turner at its
principal executive office, to the attention of the Secretary, accompanied
by full payment of the exercise price or tender of Stock as provided in
Section 7(c). The date Turner receives the written notice of exercise of an
Option accompanied by payment of the exercise price will be the date on
which the Option is exercised. As soon as practicable after the date on
which an Option is exercised, Turner will deliver to the Director or
Employee a certificate or certificates for the number of shares of Stock
purchased by the exercise, registered in the name of the Director or
Employee.
(f) Nontransferability of Options. During the lifetime of the holder
of an Option, the Option may be exercised only by the holder or the
holder's guardian or legal representative. An Option may not be assigned,
pledged or hypothecated in any way, may not be subject to execution, and
may not be transferred otherwise than by will or the laws of descent and
distribution. Any attempt at assignment, transfer, pledge, hypothecation or
other disposition of an Option contrary to the provisions of the Plan, and
any levy of any attachment or similar process upon any Option, will be null
and void.
(g) Retirement/Involuntary Termination of Employment of Holder of
Option. If there is a Termination of Employment of an Employee to whom an
Option has been granted by reason of the Employee's Retirement (other than
for Total Disability), or Involuntary Termination of Employment, the Option
will expire at the end of the three-month period immediately following the
date of the Termination of Employment (or at the end of such other period
as is determined by the Committee when the Option is granted), or on such
earlier date as is the expiration date specified in the Option.
(h) Total Disability of Holder of Option. If there is a Termination of
Employment of an Employee to whom an Option has been granted by reason of
the Employee's Total Disability, the Option will expire at the end of the
twelve-month period following the date of the Termination of Employment, or
on such earlier date as is the expiration date specified in the Option.
(i) Death of Holder of Option. If there is a Termination of Employment
of any Employee to whom an Option has been granted by reason of the
Employee's death, the Option shall become immediately exercisable if not
already fully exercisable, and, in such event or in the event a former
Employee dies before all the Options granted to the former Employee have
expired, that person's outstanding Options may be exercised by the person's
personal respresentatives, or by the persons to whom the right to exercise
the Options has passed by will or through the laws of descent and
distribution, during the twelve-month period immediately following the date
of death, even if that period does not end until after the expiration date
specified in the Option.
(j) Other Termination of Employment of Holder of Option. If there is a
Termination of Employment of an Employee to whom an Option has been granted
for Cause, due to voluntary resignation which is not treated as an
Involuntary Termination of Employment, or for any other reason except the
Employee's Retirement, Involuntary Termination of Employment, Total
Disability or death, all the Employee's Options will terminate when the
Termination of Employment occurs.
(k) Liquidation. If Turner is to be liquidated or dissolved, the time
when the outstanding Options may be exercised will be accelerated and all
the outstanding Options will become exercisable in full ten days before the
effective time of the liquidation or dissolution or such earlier time as
may be fixed by the Board and Options not exercised by the effective time
of the Liquidation or dissolution will automatically be cancelled and be of
no further force or effect. Nothing in this Subsection (k), however, will
extend the term specified in an Option. For the proposes of this Subsection
(k), a merger will not be a dissolution or liquidation of Turner and a sale
of all the assets of Turner or similar transaction will not be a
dissolution or liquidation of Turner unless and until substantially all the
assets of Turner are distributed to its stockholders.
(l) Change of Control. If there is a Change of Control, all
outstanding Options will become immediately exercisable on the date the
Change of Control occurs.
(m) Option Grant Agreement. Promptly after an Option is granted to a
Director or Employee, the Company will send the Director or Employee an
agreement setting forth the terms and conditions of the grant.
8. Recapitalization, Reorganization or Other Corporate Event.
If Turner, through a stock dividend, a stock split or a share
combination, changes its issued stock into a number of shares which is 5%
or more greater or less than it was prior to the change, then immediately
after the record date for the change, the number of shares of Stock subject
to each outstanding Option, and the maximum number of shares of Stock which
may be issued in total, and which may be issued to Directors, on exercise
of Options issued under the Plan will be increased proportionately in the
case of a stock dividend or stock split, or decreased proportionately in
the case of a combination of shares, to prevent dilution or enlargement of
rights (but without any obligation to issue fractional shares), and the
total purchase price of all the shares of Stock subject to each Option
immediately after the change will be the same as the total purchase price
of all the Stock subject to that Option immediately before the change.
If because of one or more recapitalization, reorganizations or other
corporate events, the holders of the outstanding Stock receive something
other than, or in addition to, shares of Stock, what the holder of an
Option will receive upon exercise of the Option will be adjusted at the
time of the corporate event in a manner which the Board of Directors deems
to be fair and equitable to the holders of the Options which are
outstanding at the time of the corporate event.
9. Rights of Option Holder.
(a) Stockholder. The holder of an Option will have no rights as a
stockholder by reason of having been granted an Option. Upon the exercise
of an Option, the holder will have no rights as a stockholder until the
issuance of Stock to the holder has been recorded on the books of Turner.
(b) Employment. Nothing in the Plan or in the grant of an Option will
confer upon any director the right to continue in office or will confer
upon any Employee the right to continue in the employ of the Company or
will interfere with or restrict in any way the rights of the Company to
discharge any Employee at any time for any reason whatsoever, with or
without cause.
10. Laws and Regulations.
The obligation of the Company to issue shares of Stock upon exercise
of Options will be subject to:
(a) the condition that counsel for the Company is satisfied that the
sale and delivery will be in compliance with the Securities Act of 1933, as
amended, and all other applicable laws, rules and regulations; and
(b) the condition that the shares of Stock reserved for issuance
under the Plan have been authorized for listing on any securities exchange or
exchanges on which the Stock is listed.
11. Withholding of Taxes.
In order to satisfy the withholding tax obligations imposed by any
level of government, the Company may in its discretion (i) withhold shares
of Stock purchased by exercise of an Option, (ii) require payment by the
holder of a sum equal to any sum which must be withheld (and, if the Stock
has not been issued, refuse to issue Stock on exercise of an Option until
the holder pays that sum), or (iii) deduct the sum which must be withheld
from one or more installments of compensation payable to the holder. If a
holder makes an election under Section 83(b) of the Code in connection with
the exercise of an Option, the holder must immediately notify the Company
of that election.
12. Amendment of the Plan.
The Board of Directors of Turner may at any time and from time to time
modify or amend the Plan in any respect. However, no modification or
amendment of the Plan may adversely affect the rights of a holder of an
outstanding Option without the holder's consent. A determination of the
Board of Directors which changes the percentage of the outstanding common
stock or securities of any other class which is the Change of Control
threshold will not be deemed a modification or amendment of the Plan, but
will bind all holders of Options, including holders of Options which were
granted before the percentage was changed.
13. Termination of the Plan.
The Board of Director's may at any time suspend or terminate the Plan,
provided that no such action may adversely affect the rights of a holder of
an outstanding Option without the holder's consent.
<PAGE>
ATTACHMENT 4
The Turner Corporation
1997 Non-Qualified Stock Option Plan
Appendix A
effective May 8, 1998
Option Grants for Non-Employee Directors.
- -----------------------------------------
1. Grant. Each Eligible Director shall be granted a Director Option in
respect of 3,500 shares of Stock on August 7th (or if August 7th is not a
Trading Day, on the first Trading Day thereafter) in each year that the
Plan is in effect provided that the Eligible Director is a Director on such
date. All Director Options shall be evidenced by an agreement containing
such other terms and conditions not inconsistent with the provisions of
this Plan as determined by the Board; provided, however, that such terms
shall not vary the price, amount or timing of Director Options provided
under this Appendix A, including provisions dealing with vesting,
forfeiture and termination of such Director Options.
2. Exercise price. The exercise price for shares of Stock under each
Director Option shall be equal to 100% of the Fair Market Value of such
shares on the date the Director Option is granted.
3. Vesting. Subject to Section 7(l), each Director Option shall become
fully vested and exercisable with respect to 100% of the shares of Stock
subject thereto at any time after the date of grant; provided, however,
that the holder of the Director Option continues to serve as a Director as
of such date.
4. Duration. Subject to Section 7(l), each Director Option shall
terminate on the date which is the tenth anniversary of the date of grant
(or if later, the first anniversary of the date of the Director's death if
such death occurs prior to such tenth anniversary), unless terminated
earlier as follows:
(a) If a Director's service terminates for any reason other than
Disability, death or Cause, the Director may for a period of three (3)
months after such termination exercise his or her Option to the extent, and
only to the extent, that such Option or portion thereof was vested and
exercisable as of the date his or her service as a Director terminated,
after which time the Option shall automatically terminate in full.
(b) If a Director's service terminates by reason of the
Director's resignation or removal from the Board due to Disability, the
Director may, for a period of twelve (12) months after such termination,
exercise his or her Option to the extent, and only to the extent, that such
Option or portion thereof was vested and exercisable, as of the date his or
her service as a Director terminated, after which time the Option shall
automatically terminate in full.
(c) If a Director's service terminates for Cause, the Option
granted to the Director hereunder shall immediately terminate in full and
no rights thereunder may be exercised.
(d) If a Director dies during service as a Director or within
three (3) months after termination of service as a Director as described in
clause (a) of this Section 4 or within twelve (12) months after termination
of service as a Director as described in clause (b) of this Section 4, the
Option granted to the Director may be exercised at any time within twelve
(12) months after his or her death by the person or persons to whom such
rights under the Option shall pass by will, or by the laws of descent or
distribution, after which time the Option shall terminate in full;
provided, however, that an Option may be exercised to the extent, and only
to the extent, that the Option or portion thereof was exercisable on the
date of death or earlier termination of his or her services as a Director.
5. Definitions. For purposes of this Appendix A, the following terms
shall have the meanings set forth below.
(a) "Board" means the Board of Directors of Turner.
(b) "Cause" for purposes of this Appendix A shall mean 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.
(c) "Director Option" means an Option granted pursuant to this
Appendix A.
(d) "Disability" means:
(1) the term "Disability" as used in Turner's long-term
disability plan, if any; and
(2) 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 Eligible Director's
ability to perform substantially his or her duties for
a period of one hundred eighty (180) consecutive days.
(e) "Eligible Director" means a director of Turner who is not an
employee of Turner or any subsidiary.
