As filed with the Securities and Exchange Commission
on May 31, 1995
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
--------------------
FORM S-8
Registration Statement
Under
The Securities Act of 1933
AMERON, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 77-0100596
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
245 South Los Robles Avenue 91101
Pasadena, California (Zip Code)
(Address of Principal
Executive Offices)
1994 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full Title of the Plan)
JAVIER SOLIS, ESQ.
Senior Vice President, Secretary and General Counsel
Ameron, Inc.
245 South Los Robles Avenue
Pasadena, California 91101
(Name and address of agent for service)
(818) 683-4000
(Telephone number, including area code, of agent for service)
-----------
With a copy to:
ANDREW E. BOGEN, ESQ.
Gibson, Dunn & Crutcher
333 South Grand Avenue
Los Angeles, California 90071
(213) 229-7000
------------
<PAGE>
=================================================================
CALCULATION OF REGISTRATION FEE
=================================================================
Title Proposed Proposed
of Maximum Maximum Amount of
Securities Amount Offering Aggregate Registration
to be to be Price Offering Fee
registered registered Per Share Price
- -----------------------------------------------------------------
Common Stock,
par value 120,000
$2.50 per shares(1) $35.375(2) $4,245,000(2) $1,463.79(2)
share
- ------------------------------------------------------------------
(1) These shares of Common Stock are reserved for issuance
pursuant to the 1994 Nonemployee Director Stock Option Plan of
Ameron, Inc. Pursuant to Rule 416, there is also being registered
such number of additional shares which may become available for
purchase pursuant to the foregoing Plan in the event of certain
changes in outstanding shares, including reorganizations,
recapitalizations, stock splits, stock dividends and reverse stock
splits.
(2) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(h) on the basis of the
average of the high and low prices of the Common Stock of Ameron,
Inc. as reported on the New York Stock Exchange on May 24, 1995.
2
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
Item 1. Plan Information.
Not filed as part of this Registration Statement
pursuant to Note to Item 1 of Form S-8.
Item 2. Registrant Information and Employee Plan Annual
Information.
Nothing required to be included in this Registration
Statement pursuant to Item 2 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents of the Registrant heretofore
filed with the Securities and Exchange Commission (the
"Commission") are hereby incorporated in the Registration Statement
by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal
year ended November 30, 1994.
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended February 28, 1995.
(3) The description of the Common Stock contained in the
Registrant's Registration Statement on Form 8-B, declared effective
on July 14, 1986, as amended; and
(4) The description of the rights to purchase preferred stock
issuable in connection with the Common Stock contained in the
Registrant's Registration Statement on Form 8-A, as amended.
All reports and other documents subsequently filed by the
Registrant pursuant to Sections 13(a) and (c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, prior to the filing of
a post-effective amendment which indicates that all securities
offered hereunder have been sold or which deregisters all such
securities then remaining unsold shall be deemed to be incorporated
by reference in this Registration Statement and to be a part hereof
from the date of filing of such reports and documents.
Item 4. Description of Securities.
Not applicable.
Page 3
Item 5. Interests of Named Experts and Counsel
The validity of the issuance of the shares of Common
Stock offered pursuant to the prospectus related hereto will be
passed on for the Registrant by Javier Solis, Esq., Senior Vice
President, Secretary and General Counsel of the Registrant.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware
empowers a corporation to indemnify any person who was or is a part
or is threatened to be made a part to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or
she is a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as director,
officer, employee or agent of another corporation or enterprise.
Depending on the character of the proceeding, a corporation
may indemnify against expenses (including) attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with such action, suit or
proceeding if the person identified acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the
best interest of the corporation and, with respect to any criminal
action or proceeding, had no cause to believe his or her conduct
was unlawful. In the case of an action by or in the right of the
corporation, no indemnification may be made in respect to any
claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the
performance of his or her duty to the corporation unless and only
to the extent that a Court of Chancery or the court in which such
action or suit was brought shall determine that despite the
adjudication of liability such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem
proper. Section 145 further provides that to the extent that a
director or officer of a corporation has been successful
in the defense of any action, suit or proceeding referred to above
or in the defense of any claim, issue or matter herein, he or she
shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection
therewith.
The Certificate of Incorporation and Bylaws of the
Registrant provide, in effect, that, to the fullest extent
permitted by Delaware General Corporation Law, the Registrant has
the power to indemnify any person who was or is a part or is
threatened to be made a part to any action, suit or proceeding of
the type described above by reason of the fact that he or she is a
director, officer, employee or agent of the Registrant.
The Registrant's Certificate of Incorporation relieves
its directors from monetary damages to the Registrant or its
stockholders for breach of such director's fiduciary duty as a
director to the full extent permitted by the Delaware General
Corporation Law. Under Section 102(7) of the Delaware General
Corporation Law a corporation may relieve its directors from
personal liability to such corporation or its stockholders for
monetary damages for any breach of their fiduciary duty as
directors except (1) for a breach of the duty of loyalty, (ii) for
failure to act in good faith, (iii) for intentional misconduct or
knowing violation of law, (iv) for willful or negligent violations
of certain provisions in the Delaware General Corporation Law
imposing certain requirements with respect to stock purchases,
redemptions and dividends or (v) for any transaction from which the
director derived an improper personal benefit.
4
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
3.1 Certificate of Incorporation of the Registrant
(previously filed as Exhibit 3(a) to the
Registrant's Annual Report on Form 10-K for the
fiscal year ended November 30, 1988 and
incorporated herein by reference
3.2 Restated Bylaws of the Registrant.
4.1 Ameron, Inc. 1994 Nonemployee Director Stock
Option Plan
4.2 Form of Nonemployee Director Stock Option
Agreement pursuant to 1994 Nonemployee Director
Stock Option Plan.
5.1 Opinion of Javier Solis, Esq.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Javier Solis, Esq. (included in Exhibit
5.1).
24 Power of Attorney (included on pages 7-8 of this
Registration Statement)
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective amendment to this
Registration Statement;
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date
of the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate
represent a fundamental change in the
information set forth in the Registration
Statement; and
5
(iii) To include any material information
with respect to the plan of distribution
not previously disclosed in the
Registration Statement or any material
change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes
that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d)of
the Securities Exchange Act of 1934) that is incorporated by
reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise,the Registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlled precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
6
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Pasadena, State of California, on this 26th day of May,
1995.
AMERON, INC.
By: Javier solis
Senior Vice President,
Secretary and General
Counsel
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature to this Registration Statement appears below hereby
constitutes and appoints Javier Solis as such persons's true and
lawful attorney-in-fact and agent with full power of substitution
for such person and in such person's name, place and stead, in any
and all capacities, to sign and to file with the Securities and
Exchange Commission, any and all amendments and post-effective
amendments to this Registration Statement, with exhibits thereto
and other documents in connection therewith, granting unto said
attorney-in-fact and agent 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 such person might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent,
or any substitute therefor, may lawfully do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the following
persons in the capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
James S. Marlen Chairman of the Board, May 26, 1995
President and Chief Executive
Officer (Principal Executive
Officer)
Gary Wagner Senior Vice President May 26, 1995
and Chief Financial Officer,
Treasurer (Principal Financial
and Principal Accounting Officer)
Donald H. Albrecht Director May 17, 1995
Victor K. Atkins Director May 18, 1995
Stephen W. Foss Director May 24, 1995
A. Frederick Gerstell Director May 21, 1995
J. Michael Hagan Director May 17, 1995
John F. King Director May 18, 1995
Richard J. Pearson Director May 17, 1995
Lawrence R. Tollenaere Director May 22, 1995
8
EXHIBIT INDEX
Exhibit
Number Description
- ------- ------------
3.1 Certificate of Incorporation of the Registrant
(previously filed as Exhibit 3(a) to the
Registrant's Annual Report on Form 10-K for the
fiscal year ended November 30, 1988 and
incorporated herein by reference).
3.2 Restated Bylaws of the Registrant.
4.1 Ameron, Inc. 1994 Nonemployee Director Stock
Option Plan.
4.2 Form of Nonemployee Director Stock Option
Agreement pursuant to 1994 Nonemployee Director
Stock Option Plan.
5.1 Opinion of Javier Solis, Esq.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Javier Solis, Esq. (included in Exhibit
5.1)
24 Power of Attorney (included on pages 7-8 of this
Registration Statement).
9
AMERON, INC.
(a Delaware corporation)
BYLAWS
(Restated with amendments
through April 24, 1995)
ARTICLE I
Offices
SECTION 1.01. Registered Office. The registered office
of AMERON, INC. (hereinafter called the Corporation) in the State
of Delaware shall be at 1209 Orange Street, City of Wilmington,
County of New Castle, and the name of the registered agent in
charge thereof shall be The Corporation Trust Company.
SECTION 1.02. Other Offices. The Corporation may also
have an office or offices at such other place or places, either
within or without the State of Delaware, as the Board of
Directors (hereinafter called the Board) may from time to time
determine or as the business of the Corporation may require.
ARTICLE II
Meetings of Stockholders
SECTION 2.01. Annual Meetings. Annual Meetings of the
stockholders of the Corporation for the purpose of electing
directors and for the transaction of such other proper business
as may come before such meetings may be held at such time, date
and place as the Board shall determine by resolution.
SECTION 2.02. Special Meetings. Special meetings of the
stockholders of the Corporation for any purpose may only be
called in accordance with the provisions of the Certificate of
Incorporation.
SECTION 2.03. Place of Meetings. All meetings of the
stockholders shall be held at such places, within or without the
State of Delaware, as may be designated by the Board.
SECTION 2.04. Notice of Meetings. Except as otherwise
required by law, notice of each meeting of the stockholders,
whether annual or special, shall be given not less than ten (10)
nor more than sixty (60) days before the date of the meeting to
each stockholder of record entitled to vote at such meeting by
delivering a typewritten or printed notice thereof to him
personally, or by depositing such notice in the United States
mail, in a postage prepaid envelope, directed to him at his post
office address furnished by him to the Secretary of the
Corporation for such purpose or, if he shall not have furnished
to the Secretary his address for such purpose, then at his post
office address last known to the Secretary, or by transmitting a
notice thereof to him at such address by telegraph, cable, or
wireless. Except as otherwise expressly required by law, no
publication of any notice of a meeting of the stockholders shall
be required. Every notice of a meeting of the stockholders shall
state the place, date and hour of the meeting, and, in the case
of a special meeting, shall also state the purpose or purposes
for which the meeting is called. Notice of any meeting of
stockholders shall not be required to be given to any stockholder
to whom notice may be omitted pursuant to applicable Delaware law
or who shall have waived such notice and such notice shall be
deemed waived by any stockholder who shall attend such meeting in
person or by proxy, except as a stockholder who shall attend such
meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Except as otherwise
expressly required by law, notice of any adjourned meeting of the
stockholders need not be given if the time and place thereof are
announced at the meeting at which the adjournment is taken.
SECTION 2.05. Quorum. Except as otherwise required by
law, the holders of record of a majority in voting interest of
the shares of stock of the Corporation entitled to be voted
thereat, present in person or by proxy, shall constitute a quorum
for the transaction of business at any meeting of the
stockholders of the Corporation or any adjournment thereof. In
the absence of a quorum at any meeting or any adjournment
thereof, a majority in voting interest of the stockholders
present in person or by proxy and entitled to vote thereat or, in
the absence therefrom of all the stockholders, any officer
entitled to preside at, or to act as secretary of, such meeting
may adjourn such meeting from time to time. At any such
adjourned meeting at which a quorum is present any business may
be transacted which might have been transacted at the meeting as
originally called.
SECTION 2.06. Voting.
(a) Each stockholder shall, at each meeting of the
stockholders, be entitled to vote in person or by proxy each
share or fractional share of the stock of the Corporation having
voting rights on the matter in question and which shall have been
held by him and registered in his name on the books of the
Corporation:
(i) on the date fixed pursuant to Section 6.05 of
these Bylaws as the record date for the determination of
stockholders entitled to notice of and to vote at such
meeting, or
(ii) if no such record date shall have been so
fixed, then (a) at the close of business on the day next
preceding the day on which notice of the meeting shall be
given or (b) if notice of the meeting shall be waived, at
the close of business on the day next preceding the day on
which the meeting shall be held.
(b) Shares of its own stock belonging to the Corporation
or to another corporation, if a majority of the shares entitled
to vote in the election of directors in such other corporation is
held, directly or indirectly, by the Corporation, shall neither
be entitled to vote nor be counted for quorum purposes. Persons
holding stock of the Corporation in a fiduciary capacity shall be
entitled to vote such stock. Persons whose stock is pledged
shall be entitled to vote, unless in the transfer by the pledgor
on the books of the Corporation he shall have expressly empowered
the pledges to vote thereon, in which case only the pledges, or
his proxy, may represent such stock and vote thereon. Stock
having voting power standing of record in the names of two or
more persons, whether fiduciaries, members of a partnership,
joint tenants in common, tenants by entirety or otherwise, or
with respect to which two or more persons have the same fiduciary
relationship, shall be voted in accordance with the provisions of
the General Corporation Law of the State of Delaware.
(c) Any such voting rights may be exercised by the
stockholder entitled thereto in person or by his proxy appointed
by an instrument in writing, subscribed by such stockholder or by
his attorney thereunto authorized and delivered to the secretary
of the meeting; provided, however, that no proxy shall be voted
or acted upon after three years from its date unless said proxy
shall provide for a longer period. The attendance at any meeting
of a stockholder who may theretofore have given a proxy shall not
have the effect of revoking the same unless he shall in writing
so notify the secretary of the meeting prior to the voting of the
proxy. At any meeting of the stockholders all matters, except as
otherwise provided in the Certificate of Incorporation, in these
Bylaws or by law, shall be decided by the vote of a majority in
voting interest of the stockholders present in person or by proxy
and entitled to vote thereat and thereon, a quorum being present.
The vote at any meeting of the stockholders on any question need
not be by ballot, unless so directed by the chairman of the
meeting. On a vote by ballot each ballot shall be signed by the
stockholder voting, or by his proxy, if there be such proxy, and
it shall state the number of shares voted.
SECTION 2.07. List of Stockholders. The Secretary of the
Corporation shall prepare and make, at least ten (10) days before
every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days
prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced
and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is
present.
SECTION 2.08. Judges. If at any meeting of the
stockholders a vote by written ballot shall be taken on any
question, the chairman of such meeting may appoint a judge or
judges to act with respect to such vote. Each judge so appointed
shall first subscribe an oath faithfully to execute the duties of
a judge at such meeting with strict impartiality and according to
the best of his ability. Such judges shall decide upon the
qualifications of the voters and shall report the number of
shares represented at the meeting and entitled to vote on such
question, shall conduct and accept the votes, and, when the
voting is completed, shall ascertain and report the number of
shares voted respectively for and against the question. Reports
of judges shall be in writing and subscribed and delivered by
them to the Secretary of the Corporation. The judges need not be
stockholders of the Corporation, and any officer of the
Corporation may be a judge on any question other than a vote for
or against a proposal in which he shall have a material interest.
SECTION 2.09. Action Without Meeting. No action shall be
taken by the stockholders except at an annual or special meeting
of stockholders. No action shall be taken by stockholders by
written consent.
SECTION 2.10 Notice of Stockholder Business. At any
annual stockholders' meeting, only such business shall
be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual stockholders'
meeting, business must be (i) specified in the notice of meeting
(or any supplement thereto) given by or at the direction of the
Board of Directors; (ii) otherwise properly brought before the
meeting by or at the direction of the Board of Directors; or
(iii) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before an
annual meeting by a stockholder, the stockholder must have given
timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice must be
received at the principal office of the Corporation not less than
sixty (60) days nor more than one hundred and twenty (120) days
prior to the meeting; provided, however, that in the event that
the first public disclosure (whether by mailing of a notice to
shareholders, press release or otherwise) of the date of the
meeting is made less than sixty-five (65) days prior to the date
of the meeting, notice by the stockholder will be timely if
received not later than the close of business on the tenth day
following the day on which such first public disclosure was made.
A stockholder's notice to the Secretary shall set forth, as to
each matter the stockholder proposes to bring before the annual
meeting, (i) the reasons for conducting such business at the
annual meeting; (ii) the name and address as they appear on the
Corporation's stock register, of the stockholder proposing such
business; (iii) the number of shares of capital stock of the
Corporation which are beneficially owned by the stockholder; and
(iv) any material interest of the stockholder in such business.
Notwithstanding any other provision of these Bylaws, no business
shall be conducted at an annual stockholders' meeting except in
accordance with the procedures set forth in this Section 2.10.
If the presiding officer of an annual stockholders' meeting
determines and declares that business was not properly brought
before the meeting in accordance with this Section 2.10, any such
business shall not be transacted.
ARTICLE III
Board of Directors
SECTION 3.01. General Powers. The property, business and
affairs of the Corporation shall be managed by the Board.
SECTION 3.02. Number and Term of Office. The number of
directors shall not be less than six (6) nor more than ten (10),
the exact number of which shall be fixed by Bylaw duly adopted by
the Board. The number of directors of the Corporation shall be ten (10).
The Board shall be divided into three classes, Class
I, Class II and Class III. Such classes shall be as nearly equal
in number of directors as possible. Each director shall serve
for a term ending on the third annual meeting following the
annual meeting at which such director was elected; provided,
however, that the directors first elected to Class I shall serve
for a term ending at the annual meeting to be held in 1987, the
directors first elected to Class II shall serve for a term ending
at the annual meeting to be held in 1988 and the directors first
elected to Class III shall serve for a term ending at the annual
meeting to be held in 1989. Directors need not be stockholders.
Each of the directors of the Corporation shall hold office until
his successor shall have been duly elected and shall qualify or
until he shall resign or shall have been removed in the manner
hereinafter provided.
SECTION 3.03. Election of Directors. In any election of
directors of the Corporation, a holder of any class or series of
stock then entitled to vote in such election shall be entitled to
as many votes as shall equal (i) the number of votes which
(except for this Section as to cumulative voting) he would be
entitled to cast for the election of directors with respect to
his shares of stock multiplied by (ii) the number of directors to
be elected in the election in which his class or series of shares
is entitled to vote, and each stockholder may cast all of such
votes for a single director or for any two or more of them as he
may see fit.
SECTION 3.04. Resignations. Any director of the
Corporation may resign at any time by giving written notice to
the Board or to the Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein, or,
if the time be not specified, it shall take effect immediately
upon its receipt; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective.
SECTION 3.05. Vacancies. Except as otherwise provided in
the Certificate of Incorporation, any vacancy in the Board,
whether because of death, resignation, disqualification, an
increase in the number of directors, or any other cause, may be
filled by vote of the majority of the remaining directors,
although less than a quorum. Each director so chosen to fill a
vacancy shall hold office for the unexpired term of his
predecessor or until his successor shall have been elected and
shall qualify or until he shall resign or shall have been removed
in the manner hereinafter provided.
SECTION 3.06. Place of Meeting, Etc. The Board may hold
any of its meetings at such place or places within or without the
State of Delaware as the Board may from time to time by
resolution designate or as shall be designated by the person or
persons calling the meeting or in the notice or a waiver of
notice of any such meeting. Directors may participate in any
regular or special meeting of the Board by means of conference
telephone or similar communications equipment pursuant to which
all persons participating in the meeting of the Board can hear
each other, and such participation shall constitute presence in
person at such meeting.
SECTION 3.07. First Meeting. The Board shall meet as
soon as practicable after each annual election of directors and
notice of such first meeting shall not be required.
SECTION 3.08. Regular Meetings. Regular meetings of the
Board may be held at such times as the Board shall from time to
time by resolution determine. If any day fixed for a regular
meeting shall be a legal holiday at the place where the meeting
is to be held, then the meeting shall be held at the same hour
and place on the next succeeding business day not a legal
holiday. Except as provided by law, notice of regular meetings
need not be given.
SECTION 3.09. Special Meetings. Special meetings of the
Board shall be held whenever called by the Chairman of the Board,
the President or a majority of the authorized number of
directors. Except as otherwise provided by law or by these
Bylaws, notice of the time and place of each such special meeting
shall be mailed to each director, addressed to him at his
residence or usual place of business, at least five (5) days
before the day on which the meeting is to be held, or shall be
sent to him at such place by telegraph or cable or be delivered
personally not less than twenty-four (24) hours before the time
at which the meeting is to be held. Except where otherwise
required by law or by these Bylaws, notice of the purpose of a
special meeting need not be given. Notice of any meeting of the
Board shall not be required to be given to any director who is
present at such meeting, except a director who shall attend such
meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
SECTION 3.10. Quorum and Manner of Acting. Except as
otherwise provided in these Bylaws or by law, the presence of a
majority of the number of directors then currently specified as
the size of the Board pursuant to
Section 3.02 of these Bylaws shall be required to constitute a
quorum for the transaction of business at any meeting of the Board, and
all matters shall be decided at any such meeting, a
quorum being present, by the affirmative votes of a majority of
the directors present. In the absence of a quorum, a majority of
directors present at any meeting may adjourn the same from time
to time until a quorum shall be present. Notice of any adjourned
meeting need not be given. The directors shall act only as a
Board, and the individual directors shall have no power as such.
SECTION 3.11. Action by Consent. Any action required or
permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without a meeting if a written
consent thereto is signed by all members of the Board or of such
committee, as the case may be, and such written consent is filed
with the minutes of proceedings of the Board or committee.
SECTION 3.12. Removal of Directors. Subject to the
provisions of the Certificate of Incorporation, a director may be
removed at any time, for cause only.
SECTION 3.13. Compensation. The directors shall receive
only such compensation for their services as directors as may be
allowed by resolution of the Board. The Board may also provide
that the Corporation shall reimburse each such director for any
expense incurred by him on account of his attendance at any
meetings of the Board or Committees of the Board. Neither the
payment of such compensation nor the reimbursement of such
expenses shall be construed to preclude any director from serving
the Corporation or its subsidiaries in any other capacity and
receiving compensation therefor.
SECTION 3.14. Committees. The Board may, by resolution
passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the
directors of the Corporation. Any such committee, to the extent
provided in the resolution of the Board and except as otherwise
limited by law, shall have and may exercise all the powers and
authority of the Board in the management of the business and
affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it.
Any such committee shall keep written minutes of its meetings and
report the same to the Board at the next regular meeting of the
Board. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of
such absent or disqualified member.
SECTION 3.15. Notice of Director Nominations. Only
persons who are nominated in accordance with the procedures set
forth in this Section 3.15 shall be eligible for election as Director
at annual meeting of the stockholders. Nominations of
candidates for election to the Board of Directors of the
Corporation at any annual meeting may be made only by or at the
direction of the Board of Directors or by a stockholder entitled
to vote at such annual meeting. All such nominations, except
those made by or at the direction of the Board of Directors,
shall be made pursuant to timely notice in writing to the
Secretary of the Corporation of the stockholder's intention to
make such nomination. To be timely, any such notice must be
received at the principal office of the Corporation not less than
sixty (60) no more than one hundred twenty (120) days prior to
the date of such annual meeting; provided, however, that in the
event that the first public disclosure (whether by mailing of a
notice to stockholders, press release or otherwise) of the date
of such annual meeting is made less than sixty-five (65) days
prior to the date of such annual meeting, notice by the
stockholder will be timely if received not later than the close
of business on the tenth day following the day on which such
first public disclosure was made. Such stockholder's notice with
respect to a proposed nomination shall set forth (i) the name,
age, business and residence address and principal occupation or
employment of each nominee proposed in such notice; (ii) the name
and address of the stockholder giving the notice as the same
appears in the Corporation's stock register; (iii) the number of
shares of capital stock of the Corporation which are beneficially
owned by each such nominee and by such stockholder; and (iv) such
other information concerning each such nominee as would be
required, under the rules of the Securities and Exchange
Commission, in a proxy statement soliciting proxies for the
election of such nominee. Such notice must also include a signed
consent of each such nominee to serve as a director of the
Corporation, if elected.
In the event that a person is validly designated as a
nominee in accordance with the procedures specified above and
shall thereafter become unable or unwilling to stand for election
to the Board of Directors, the Board of Directors or the
stockholder who proposed such nominee, as the case may be, may
designate a substitute nominee; provided, however, that in the
case of persons not nominated by the Board of Directors, such a
substitution may only be made if notice as provided above in this
Section 3.15 is received at the principal office of the
Corporation not later than the later of (i) thirty (30) days
prior to the date of the annual meeting or (ii) five (5) days
after the stockholder proposing the original nominee first
learned that such original nominee has become unable or unwilling
to stand for election.
ARTICLE IV
Officers
SECTION 4.01. Officers, Election and Removal. The
officers of the Corporation shall be a President, a Vice
President, a Secretary, and a Treasurer. The Corporation may
also have at the discretion of the Board of Directors an
Executive Vice President, one or more additional Vice Presidents,
one or more Assistant Secretaries, one or more Assistant
Treasurers, and such other officers as may be elected by the
Board of Directors. Any two or more offices may be held by the
same person except that the office of President and the office of
Secretary may not be held by the same person.
The officers of the Corporation shall be elected annually
by the Board of Directors at their first meeting after the annual
meeting of the stockholders and, unless they shall sooner resign,
be removed or become disqualified, shall hold office until their
respective successors shall be elected and qualify.
The Chairman of the Board and the President shall be
elected from among the Directors but the other officers need not
be Directors.
Any officer may be removed either with or without cause by
a majority of the Directors at the time in office at any regular
or special meeting of the Board of Directors.
SECTION 4.02. Chairman of the Board. The Chairman of the
Board, if there shall be one, shall preside at all meetings of
the stockholders and of the Board of Directors. He shall, ex
officio, be a member of all committees appointed or constituted
by the Board of Directors, including the Executive Committee.
SECTION 4.03. President, Executive Vice President and
Vice President. The President shall be responsible to the Board
of Directors for all actions and activities of the Corporation.
The Executive Vice President, if there shall be one, shall
act for the President in the President's absence. He shall have
such other powers and be required to perform such other duties as
the President and the Board of Directors shall prescribe.
The Vice President, or if there shall be more than one
such officer elected, shall have such powers and perform such
duties as may be delegated to him or them by the President or the
Board of Directors.
SECTION 4.04. Secretary. The Secretary shall issue
notices for all meetings, shall keep their minutes, shall have
charge of the seal and the Corporate books, and shall make such
reports and perform such other duties as are incident to his
office, or are properly required of him by the Board of
Directors. He shall also keep at the principal office of the
corporation or cause to be kept at the office of the
Corporation's transfer agent, a stock transfer book, and he shall
keep or cause to be kept by the Corporation's registrar, a share
registry book. The Secretary may be required to perform such
duties of the Treasurer as may be assigned to him from time to
time.
SECTION 4.05. Treasurer. The Treasurer shall have the
custody of all moneys and securities of the Corporation and shall
keep regular books of account. He shall disburse the funds of
the Corporation in payment of the just demands against the
Corporation or as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall render
to the President and to the Board of Directors from time to time
as may be required of him, an account of all his transactions as
Treasurer and of the financial condition of the Corporation. He
shall perform all other duties incident to his office or that are
properly required of him by the Board. He shall give the
Corporation a bond, if required by the Board of Directors, in a
sum, and with one or more sureties, satisfactory to the Board of
Directors, for the faithful performance of the duties of his
office, and for the restoration to the Corporation, in case of
his death, resignation, retirement, or removal from office, of
all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the
Corporation.
SECTION 4.06. Incapacity. In case of the absence or
inability of any officer of the Corporation to act and of any
person herein authorized to act in his place, the Board of
Directors may from time to time delegate the powers or duties of
such officer to any other officer or any Director or other person
whom they may select.
SECTION 4.07. Vacancies. Vacancies in any office arising
from any cause may be filled by the Directors at any regular or
special meeting.
SECTION 4.08. Other officers. The Board of Directors may
appoint such other officers and agents as it shall deem necessary
or expedient, who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
SECTION 4.09. Salaries. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of
Directors. Nothing contained herein shall preclude any officer
from serving the Corporation, or any subsidiary corporation, in
any other capacity and receiving proper compensation therefor.
ARTICLE V
Contracts, Checks, Drafts, Bank Accounts, Etc.
SECTION 5.01. Execution of Contracts. The Board, except
as in these Bylaws otherwise provided, may authorize any officer
or officers, agent or agents, to enter into any contract or
execute any instrument in the name of and on behalf of the
Corporation, and such authority may be general or confined to
specific instances; and unless so authorized by the Board or by
these Bylaws, no officer, agent or employee shall have any power
or authority to bind the Corporation by any contract or
engagement or to pledge its credit or to render it liable for any
purpose or in any amount.
SECTION 5.02. Checks, Drafts, Etc. All checks, drafts or
other orders for payment of money, notes or other evidence of
indebtedness, issued in the name of or payable to the
Corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be
determined by resolution of the Board. Each such officer,
assistant, agent or attorney shall give such bond, if any, as the
Board may require.
SECTION 5.03. Deposits. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the
credit of the Corporation in such banks, trust companies or other
depositories as the Board may select, or as may be selected by
any officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of the Corporation to whom such
power shall have been delegated by the Board and shall be drawn
out only by check signed by persons designated, from time to
time, by resolution of the Board of Directors.
SECTION 5.04. General and Special Bank Accounts. The
Board may from time to time authorize the opening and keeping of
general and special bank accounts with such banks, trust
companies or other depositories as the Board may select or as may
be selected by any officer or officers, assistant or assistants,
agent or agents, or attorney or attorneys of the Corporation to
whom such power shall have been delegated by the Board. The
Board may make such special rules and regulations with respect to
such bank accounts, not inconsistent with the provisions of these
Bylaws, as it may deem expedient.
ARTICLE VI
Shares and Their Transfer
SECTION 6.01. Certificates for Stock. Every owner of
stock of the Corporation shall be entitled to have a certificate
or certificates, to be in such form as the Board shall prescribe,
certifying the number and class of shares of the stock of the
Corporation owned by him. The certificates representing shares
of such stock shall be numbered in the order in which they shall
be issued and shall be signed in the name of the Corporation by
the President or a Vice President, and by the Secretary or an
Assistant Secretary or by the Treasurer or an Assistant
Treasurer. Any of or all of the signatures on the certificates
may be a facsimile. In case any officer, transfer agent or
registrar who has signed, or whose facsimile signature has been
placed upon, any such certificate, shall have ceased to be such
officer, transfer agent or registrar before such certificate is
issued, such certificate may nevertheless be issued by the
Corporation with the same effect as though the person who signed
such certificate, or whose facsimile signature shall have been
placed thereupon, were such officer, transfer agent or registrar
at the date of issue. A record shall be kept of the respective
names of the persons, firms or corporations owning the stock
represented by such certificates, the number and class of shares
represented by such certificates, respectively, and the
respective dates thereof, and in case of cancellation, the
respective dates of cancellation. Every certificate surrendered
to the Corporation for exchange or transfer shall be cancelled,
and no new certificate or certificates shall be issued in
exchange for any existing certificate until such existing
certificate shall have been so cancelled, except in cases
provided for in Section 6.04.
SECTION 6.02. Transfers of Stock. Transfers of shares of
stock of the Corporation shall be made only on the books of the
Corporation by the registered holder thereof, or by his attorney
thereunto authorized by power of attorney duly executed and filed
with the Secretary, or with a transfer clerk or a transfer agent
appointed as provided in Section 6.03, and upon surrender of the
certificate or certificates for such shares properly endorsed and
the payment of all taxes thereon. The person in whose name
shares of stock stand on the books of the Corporation shall be
deemed the owner thereof for all purposes as regards the
Corporation. Whenever any transfer of shares shall be made for
collateral security, and not absolutely, such fact shall be so
expressed in the entry of transfer if, when the certificate or
certificates shall be presented to the Corporation for transfer,
both the transferor and the transferee request the Corporation to
do so.
SECTION 6.03. Regulations. The Board may make such rules
and regulations as it may deem expedient, not inconsistent with
these Bylaws, concerning the issue, transfer and registration of
certificates for shares of the stock of the Corporation. It may
appoint, or authorize any officer or officers to appoint, one or
more transfer clerks or one or more transfer agents and one or
more registrars, and may require all certificates for stock to
bear the signature or signatures of any of them.
SECTION 6.04. Lost, Stolen, Destroyed, and Mutilated
Certificates. In any case of loss, theft, destruction, or
mutilation of any certificate of stock, another may be issued in
its place upon proof of such loss, theft, destruction, or
mutilation and upon the giving of a bond of indemnity to the
Corporation in such form and in such sum as the Board may direct;
provided, however, that a new certificate may be issued without
requiring any bond when, in the judgment of the Board, it is
proper so to do.
SECTION 6.05. Fixing Date for Determination of
Stockholders of Record. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in
respect of any other change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board may fix, in
advance, a record date, which shall not be more than sixty (60)
nor less than ten (10) days before the date of such meeting, nor
more than sixty (60) days prior to any other action. If in any
case involving the determination of stockholders for any purpose
other than notice of or voting at a meeting of stockholders, the
Board shall not fix such a record date, the record date for
determining stockholders for such purpose shall be the close of
business on the day on which the Board shall adopt the resolution
relating thereto. A determination of stockholders entitled to
notice of or to vote at a meeting of stockholders shall apply to
any adjournment of such meeting; provided, however, that the
Board may fix a new record date for the adjourned meeting.
ARTICLE VII
Indemnification
SECTION 7.01. (DELETED MARCH 30, 1987)
ARTICLE VIII
Executive Committee
SECTION 8.01. Members and Powers. The Board, by
resolution adopted by majority of its total number, may annually
elect three or more of its number to constitute an Executive
Committee of the Board to have authority to exercise to the
extent permitted by law, in the intervals between meetings of the
Board, all powers of the Board, except to amend or repeal these
Bylaws, or to fill vacancies in its own membership or in the
Board, or to declare dividends. The actions of the Executive
Committee shall be ratified at the next succeeding meeting of the
Board.
SECTION 8.02. Meetings. The Executive Committee may
adopt rules governing the method of the notice of the time and
place of its meetings and the conduct of the proceedings thereat;
but, in the absence of such rules, meetings of the Executive
Committee may be called by any
member of the Committee. Notice to each member, regarding the
time and place of holding the proposed meeting, shall be given to
each member verbally or by mail at least twenty-four (24) hours
before the time of the meeting. No notice of a meeting will be
required if all members of the Committee are in attendance, or if
notice is waived. The Executive Committee shall keep a record of
its acts and proceedings.
SECTION 8.03. Quorum. To constitute a quorum of the
Executive Committee for the transaction of business at any
meeting, a majority shall be present and the act of a majority of
the whole Committee shall be necessary to constitute the act of
the Committee.
SECTION 8.04. Removal of Members. Any member of the
Executive Committee may be removed with or without cause by
resolution of the Board, adopted by a majority of its total
number then in office.
SECTION 8.05. Vacancies. Vacancies in the Executive
Committee shall be filled in the same manner as for the original
appointment to membership.
ARTICLE IX
Miscellaneous
SECTION 9.01. Seal. The Corporate seal of the
Corporation shall consist of two concentric circles, between
which is the name of the Corporation, and in the center shall be
inscribed the year of its incorporation and the words, "Corporate
Seal, Delaware."
SECTION 9.02. Waiver of Notices. Whenever notice is
required to be given by these Bylaws or the Certificate of
Incorporation or by law, the person entitled to said notice may
waive such notice in writing, either before or after the time
stated therein, and such waiver shall be deemed equivalent to
notice.
SECTION 9.03. Amendments. Except as otherwise provided
herein or in the Certificate of Incorporation, these Bylaws or
any of them, may be altered, amended, repealed or rescinded and
new Bylaws may be adopted, (i) by the Board, or (ii) by the
stockholders, at any annual meeting of stockholders, or at any
special meeting of stockholders, provided that notice of such
proposed alteration, amendment, repeal, rescission or adoption is
given in the notice of meeting.
AMERON, INC.
1994 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
Section 1. PURPOSE OF PLAN
The purpose of this 1994 Nonemployee Director Stock Option Plan
(this"Plan") of Ameron Inc., a Delaware corporation (the
"Company"), is to enhance the Company's ability to attract and
retain well qualified nonemployee directors and to encourage the
acquisition, by such directors, of common stock of the Company.
Section 2. PERSONS ELIGIBLE UNDER PLAN
Any director of the Company who is not an Employee (a
"Nonemployee Director") of the Company or one of its subsidiaries
shall automatically receive Nonemployee Director Options (as
hereinafter defined) pursuant to Section 3 hereof.
Section 3. GRANT OF NONEMPLOYEE DIRECTOR OPTIONS
(a) Each year, on the first business day following the date
of the annual meeting of stockholders of the Company, or any
adjournment thereof, at which directors of the Company are
elected, each Nonemployee Director shall automatically be granted
an option (a "Nonemployee Director Option") to purchase 1,000
shares of Class A Common Stock, par value $2.50 per share,of the
Company ("Common Shares").
(b) If, on any date upon which Nonemployee Director Options
are to be automatically granted pursuant to this Section 3 (a
"Date of Grant"), the number of Common Shares remaining available
for option under this Plan is insufficient for the grant to each
Nonemployee Director of a Nonemployee Director Option to purchase
the entire number of Common Shares specified in this Section 3,
then a Nonemployee Director Option to purchase a proportionate
amount of such available number of Common Shares (rounded to the
nearest whole share) shall be granted to each Nonemployee
Director on such date.
(c) Subject to Section 3(i) hereof, each Nonemployee Director
Option granted under this Plan may not be exercised until the
first anniversary of the Date of Grant of such Nonemployee
Director Option and thereafter may be exercised to purchase up to
(i) 25% of the Common Shares subject thereto from and
after the first anniversary of the Date of Grant
of such Nonemployee Director Option;
(ii) 50% of such Common Shares from and after the
second anniversary of such Date of Grant;
(iii) 75% of such Common Shares from and after the third
anniversary of such Date of Grant; and
(iv) 100% of such Common Shares from and after the
fourth anniversary of such Date of Grant;
provided, however, that (1) if the optionee shall cease to be a
Nonemployee Director as a result of death or permanent
disability, such Nonemployee Director Option may be exercised to
purchase 100% of the Common Shares then subject hereto as of the
date that such optionee ceases to be a Nonemployee Director, and
(2) if the optionee shall cease to be a Nonemployee Director as a
result of not standing for re-election because of the policies of
the Board of Directors ("Board") relating to age ("Normal
Retirement"), such Nonemployee Director Option may be exercised
to purchase 100% of the Common Shares, in each case whether or
not then exercisable as to such shares in accordance with the
preceding clauses (i) - (iv).
(d) Each Nonemployee Director Option granted under this Plan
shall expire upon the first to occur of the following:
(i) One year after the date upon which the optionee
shall cease to be a Nonemployee Director as a
result of death or permanent disability;
(ii) Ninety days after the date upon which the optionee
shall cease to be a Nonemployee Director for any
reason other than death, permanent disability, or
Normal Retirement; or
(iii) The tenth anniversary of the Date of Grant of such
Nonemployee Director Option.
(e) Notwithstanding anything to the contrary in this Plan, if
the optionee shall die at any time after the date on which he or
she ceases to be a Nonemployee Director and prior to the date on
which the
Nonemployee Director Option expires pursuant to Section 3(d),
that portion of the Nonemployee Director Option which is then
exercisable shall expire on the earlier of the tenth anniversary
of the Date of
Grant of such Nonemployee Director Option or the first
anniversary of the date of such death.
(f) Each Nonemployee Director Option shall have an exercise
price per share equal to the Fair Market Value (as hereinafter
defined) on the Date of Grant of such option of the Common
Shares.
(g) Payment of the exercise price of any Nonemployee Director
Option granted under this Plan and the optionee's tax withholding
obligation, if any, with respect to such Nonemployee Stock Option
shall be made in full in cash concurrently with the exercise of
such Nonemployee Director Option; provided, however, that the
payment of such exercise price and/or tax withholding may instead
be made, in
whole or in part, by any one or more of the following:
(i) the delivery of previously owned shares of capital
stock of the Company (including the delivery of
shares purchased upon exercise of the Nonemployee
Director Option to be used, in a series of
simultaneous transactions, to pay the exercise
price for additional shares) or other property,
provided that the Company is not then prohibited
from purchasing or acquiring shares of its capital
stock or such other property;
(ii) a reduction in the amount of Common Shares or
other property otherwise issuable pursuant to such
Nonemployee Director Option; or
(iii) the delivery, concurrently with such exercise and
in accordance with Section 220.3(e)(4) of
Regulation T promulgated under the Exchange Act,
of a properly executed exercise notice for such
Nonemployee Director Option and irrevocable
instructions to a broker promptly to deliver to
the Company a specified dollar amount of the
proceeds of a sale of the Common Shares issuable
upon exercise of such Nonemployee Director Option.
(h) The "Fair Market Value" of a Common Share or other
security on any date (the "Determination Date") shall be equal to
the closing price per Common Share or unit of such other security
on the business day immediately preceding the Determination Date,
as reported in The Wall Street Journal, Western Edition, or, if
no closing price was so reported for such immediately preceding
business day, the closing price for the next preceding business
day for which a closing price was so reported, or, if no closing
price was so reported for any of the 30 business days immediately
preceding the Determination Date, the average of the high bid and
low asked prices per Common Share or unit of such other security
on the business day immediately preceding the Determination Date
in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations
System ("NASDAQ") or such other system then in use, or, if the
Common Shares or such other security were not quoted by any such
organization on such immediately preceding business day, the
average of the closing bid and asked prices on such day as
furnished by a professional market maker making a market in the
Common Shares or such other security selected by the Board.
(i) All outstanding Nonemployee Director Options shall become
exercisable in full on the day following the record date for the
determination of shareholders entitled to vote upon, and shall
expire upon the consummation
of, any of the following events:
(i) the dissolution or liquidation of the Company;
(ii) a reorganization, merger or consolidation of the
Company (other than a reorganization, merger or
consolidation the sole purpose of which is to
change the Company's domicile solely within the
United States) as a result of which the
outstanding securities of the class then subject
to such outstanding Nonemployee Director Options
are exchanged for or converted into cash, property
and/or securities not issued by the Company,
unless the terms of such reorganization, merger
or consolidation shall provide that such
Nonemployee Director Options shall continue in
effect thereafter and shall be exercisable to
acquire the number and type of securities or other
consideration to which the Nonemployee Directors
would have been entitled had they exercised such
Nonemployee Director Options immediately prior to
such reorganization, merger or consolidation; or
(iii) the sale of all or substantially all of the
property and assets of the Company.
(j) Each Nonemployee Director Option shall be nontransferable
by the optionee other than by will or the laws of descent and
distribution, and shall be exercisable during the optionee's
lifetime only by the optionee
or the optionee's guardian or legal representative.
(k) Nonemployee Director Options are not intended to qualify
as incentive stock options under Section 422 of the Internal
Revenue Code.
Section 4. STOCK SUBJECT TO PLAN
(a) The aggregate number of Common Shares issued and issuable
pursuant to all Nonemployee Director Options granted under this
Plan shall not exceed 120,000, subject to adjustment as provided
in Section 7 hereof.
(b) For purposes of Section 4(a) hereof, the aggregate number
of Common Shares issued and issuable pursuant to all Nonemployee
Director Options granted under this Plan shall at any time be
deemed to be equal to the sum of the following:
(i) the number of Common Shares which were issued
prior to such time pursuant to Nonemployee
Director Options granted under this Plan; plus
(ii) the maximum number of Common Shares issuable at or
after such time pursuant to Nonemployee Director
Options granted under this Plan prior to such
time.
Section 5. DURATION OF PLAN
No Nonemployee Director Options shall be granted under this Plan
after June 27, 2004. Although Common Shares may be issued after
June 27, 2004 pursuant to Nonemployee Director Options granted
prior to such date, no Common Shares shall be issued under this
Plan after June 27, 2014.
Section 6. ADMINISTRATION OF PLAN
This Plan shall be administered by the Board, which shall have
and may exercise all the powers and authority granted to it under
the Plan.
Section 7. ADJUSTMENTS
If the outstanding securities of the class then subject to this
Plan are increased, decreased or exchanged for or converted into
cash, property or a different number or kind of securities, or if
cash,
property or securities are distributed in respect of such
outstanding securities, in either case as a result of a
reorganization, merger, consolidation, recapitalization,
restructuring, reclassification,
dividend (other than a regular, quarterly cash dividend) or other
distribution, stock split, reverse stock split or the like, or if
substantially all of the property and assets of the Company are
sold,
then, unless the terms of such transaction shall provide
otherwise, the Board shall make appropriate and proportionate
adjustments in (a) the number and type of shares or other
securities or cash or other
property that may be acquired pursuant to Nonemployee Director
Options theretofore granted under this Plan, and (b) the maximum
number and type of shares or other securities that may be issued
pursuant to
Nonemployee Director Options thereafter granted under this Plan.
Section 8. AMENDMENT AND TERMINATION OF PLAN
(a) Subject to Section 8(b) hereof, the Board may alter,
amend, suspend or terminate the Plan, provided that no such
action shall, without the consent of such optionee, deprive an
optionee of any outstanding Nonemployee Director Options or any
of the rights of such optionee thereunder or with respect
thereto; and provided further that no such action, unless and
until it is approved by the stockholders of
the Company, shall
(i) increase the maximum number of Common Shares that
may be acquired upon the exercise of Nonemployee
Director Options granted under the Plan;
(ii) reduce the exercise price of Nonemployee Director
Options granted under the Plan;
(iii) alter the class of persons eligible for the grant
of Nonemployee Director Options under the Plan;
(iv) extend the duration of the Plan; or
(v) materially increase the benefits accruing to the
optionees of Nonemployee Director Options granted
under the Plan.
(b) Section 3 hereof shall not be amended more than once
every six months, other than to comport with changes in the
Internal Revenue Code, the Employee Retirement Income Security
Act, or the rules thereunder.
Section 9. EFFECTIVE DATE OF PLAN
This Plan shall be effective as of June 27, 1994, the date upon
which it was approved by the Board; provided, however, that no
Common Shares may be issued under this Plan until it has been
approved, directly or indirectly, by the affirmative votes of the
holders of a majority of the securities of the Company present,
or represented, and entitled to vote at a meeting duly held in
accordance with the laws of the State of Delaware.
AMERON, INC.
NONEMPLOYEE DIRECTOR STOCK OPTION AGREEMENT
Pursuant to the
1994 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
This Nonemployee Director Stock Option Agreement (this
"Agreement") is made and entered into effective as of the Date of
Grant indicated below by and between Ameron, Inc., a Delaware
corporation (the "Company"), and the person named below as
Optionee.
WHEREAS, Optionee is a nonemployee director of the
Company (a "Nonemployee Director"); and
WHEREAS, pursuant to the Company's 1994 Nonemployee
Director Stock Option Plan (the "Plan"), an option to purchase
shares of the common stock, par value $2.50 per share, of the
Company (the "Common Stock") has been granted to Optionee, on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing
recitals and the covenants set forth herein, the parties hereto
hereby agree as follows:
1. Grant of Option; Certain Terms and Conditions.
The Company hereby grants to Optionee, and Optionee hereby
accepts, as of the Date of Grant, an option to purchase the
number of shares of Common Stock indicated below (the "Option
Shares") at the Exercise Price per share indicated below, which
option shall expire at 5:00 o'clock p.m., Los Angeles time, on
the Expiration Date indicated below and shall be subject to all
of the terms and conditions set forth in this Agreement (the
"Option"). On each anniversary of the Date of Grant, the Option
shall become exercisable to purchase ("vest with respect to") an
incremental number of Option Shares (rounded to the nearest whole
share) equal to the total number of Option Shares multiplied by
the Annual Vesting Rate indicated below.
Optionee:
Date of Grant:
Number of shares purchasable:
Exercise Price per share:*
Expiration Date:**
Annual Vesting Rate:
___________________
* Fair Market Value (as defined in the Plan) on Date of Grant
of Option Shares.
** Tenth anniversary of Date of Grant. The Option is not intended to
qualify as an incentive stock option under Section 422 of the
Internal Revenue Code.
2. Acceleration of Vesting and Expiration of Option.
(a) Termination of Nonemployee Director Status.
(i) Retirement. If Optionee ceases to be a
Nonemployee Director as a result of not standing for re-election
because of the policies of the Board of Directors of the Company
(the "Board") relating to age ("Retirement"), then (A) the
portion of the Option that has not vested on or prior to the date
of such Retirement shall fully vest and (B) the Option shall
expire upon the Expiration Date.
(ii) Death or Permanent Disability. If
Optionee shall cease to be a Nonemployee Director by reason of
the death or permanent disability of Optionee, then (A) the
portion of the Option that has not vested on or prior to the date
of death or disability shall vest on such date, and (B) the
Option shall expire one year after the date of Optionee's death
or permanent disability.
(iii) Reasons other than Retirement,
Death or Permanent Disability. If Optionee shall cease to be a
Nonemployee Director for any reason other than Retirement, Death
or Permanent Disability, then the Option shall expire ninety days
after such date.
(b) Death Following Termination of Nonemployee
Director Status. Notwithstanding anything to the contrary in
this Agreement, if Optionee shall die at any time after the date
on which he or she ceases to be a Nonemployee Director and prior
to the date on which the Option expires pursuant to Section 2(a),
then the vested portion of the Option shall expire on the earlier
of the Expiration Date or the first anniversary of the date of
such death.
(c) Other Events Causing Acceleration and
Expiration of Option. Notwithstanding anything to the contrary
in this Agreement, the Option shall become exercisable in full on
the day following the record date for the determination of
shareholders entitled to vote upon, and shall expire upon the
consummation of, any of the following events:
(i) the dissolution or liquidation of the
Company;
(ii) a reorganization, merger or
consolidation of the Company (other than a reorganization, merger
or consolidation the sole purpose of which is to change the
Company's domicile solely within the United States) the
consummation of which results in the outstanding securities of
any class then subject to the Option being exchanged for or
converted into cash, property and/or a different kind of
securities, unless the terms of such reorganization, merger or
consolidation shall provide that the Option shall continue in
effect thereafter and shall be exercisable to acquire the number
and type of securities or other consideration to which Optionee
would have been entitled had he or she exercised the Option
immediately prior to such reorganization, merger or
consolidation; or
(iii) a sale of substantially all of the
property and assets of the Company.
3. Adjustments. In the event that the outstanding
securities of the class then subject to the Option are increased,
decreased or exchanged for or converted into cash, property
and/or a different number or kind of securities, or cash,
property and/or securities are distributed in respect of such
outstanding securities, in either case as a result of a
recapitalization, reclassification, dividend (other than a
regular, quarterly cash dividend) or other distribution, stock
split, reverse stock split or the like, then, the Board shall
make appropriate and proportionate adjustments in the number and
type of shares or other securities or cash or other property that
may thereafter be acquired upon the exercise of the Option;
provided, however, that any such adjustments in the Option shall
be made without changing the aggregate Exercise Price of the then
unexercised portion of the Option.
4. Exercise. The Option shall be exercisable during
Optionee's lifetime only by Optionee or by his or her guardian or
legal representative, and after Optionee's death only by the
person or entity entitled to do so under Optionee's last will and
testament or applicable intestate law. The Option may only be
exercised by the delivery to the Company of a written notice of
such exercise (the "Exercise Notice"), which notice shall specify
the number of Option Shares to be purchased (the "Purchased
Shares") and the aggregate Exercise Price for such shares,
together with payment in full of such aggregate Exercise Price in
cash or by check payable to the Company; provided, however, that
payment of such aggregate Exercise Price may instead be made, in
whole or in part, by one or more of the following means:
(a) the delivery, concurrently with such exercise
and in accordance with Section 220.3(e)(4) of Regulation T
promulgated under the Exchange Act, of an irrevocable
instructions to a broker promptly to deliver to the Company
a specified dollar amount of the proceeds of a sale of the
Option Shares issuable upon exercise of the Option; or by
(b) (i) the delivery to the Company of a
certificate or certificates representing shares of Common Stock,
duly endorsed or accompanied by a duly executed stock powers,
which delivery effectively transfers to the Company good and
valid title to such shares, free and clear of any pledge,
commitment, lien, claim or other encumbrance (such shares to be
valued on the basis of the aggregate Fair Market Value (as
defined in the Plan) thereof on the date of such exercise),
(ii) a reduction in the amount of Option
Shares or other property otherwise issuable pursuant to the
Option and/or
(iii) the delivery of shares purchased
upon exercise of the Option to be used, in a series of
simultaneous transactions, to pay the exercise price for
additional shares (i.e., "pyramiding"), provided that in the case
of clause (i), clause (ii) or clause (iii) the Company is not
then prohibited from purchasing or acquiring such shares of
Common Stock and provided further that Optionee must exercise at
least one-third of the Option in order to take advantage of
clause (iii).
5. Payment of Withholding Taxes. If the Company
becomes obligated to withhold an amount on account of any tax
imposed as a result of the exercise of the Option, including,
without limitation, any federal, state, local or other income
tax, or any F.I.C.A., state disability insurance tax or other
employment tax (the "Withholding Liability"), then Optionee
shall, on the date of exercise and as a condition to the issuance
of the Option Shares, pay the Withholding Liability to the
Company in cash or by check payable to the Company; provided,
however, that payment of the Withholding Liability may instead be
made, in whole or in part, by any of the means set forth in
Section 4(b), provided that the Company is not then prohibited
from purchasing or acquiring such shares of Common Stock.
Optionee hereby consents to the Company withholding the full
amount of the Withholding Liability from any compensation or
other amounts otherwise payable to Optionee if Optionee does not
pay the Withholding Liability to the Company on the date of
exercise of the Option, and Optionee agrees that the withholding
and payment of any such amount by the Company to the relevant
taxing authority shall constitute full satisfaction of the
Company's obligation to pay such compensation or other amounts to
Optionee.
_______________________________
CAUTION: PAYMENT OF THE EXERCISE PRICE OR WITHHOLDING
LIABILITY BY ANY OF THE MEANS PERMITTED IN SECTION 4(B) MAY
HAVE IMPLICATIONS UNDER SECTION 16(B) OF THE SECURITIES
EXCHANGE ACT (SHORT-SWING PROFIT RECOVERY) AND SHOULD NOT BE
UNDERTAKEN WITHOUT ADVICE OF COUNSEL.
_______________________________
6. Notices. All notices and other communications
required or permitted to be given pursuant to this Agreement
shall be in writing and shall be deemed given if delivered
personally or five days after mailing by certified or registered
mail, postage prepaid, return receipt requested, to the Company
at 245 South Los Robles Ave., Pasadena, California 91101,
Attention: Corporate Secretary, or to Optionee at the address set
forth beneath his or her signature on the signature page hereto,
or at such other addresses as they may designate by written
notice in the manner aforesaid.
7. Stock Exchange Requirements; Applicable Laws.
Notwithstanding anything to the contrary in this Agreement, no
shares of stock purchased upon exercise of the Option, and no
certificate representing all or any part of such shares, shall be
issued or delivered if (a) such shares have not been admitted to
listing upon official notice of issuance on each stock exchange
upon which shares of that class are then listed or (b) in the
opinion of counsel to the Company, such issuance or delivery
would cause the Company to be in violation of or to incur
liability under any federal, state or other securities law, or
any requirement of any stock exchange listing agreement to which
the Company is a party, or any other requirement of law or of any
administrative or regulatory body having jurisdiction over the
Company.
8. Nontransferability. Neither the Option nor any
interest therein may be sold, assigned, conveyed, gifted,
pledged, hypothecated or otherwise transferred in any manner
other than by will or the laws of descent and distribution
9. Plan. The Option is granted pursuant to the Plan,
as in effect on the Date of Grant, and is subject to all the
terms and conditions of the Plan, as the same may be amended from
time to time; provided, however, that no such amendment shall
deprive Optionee, without his or her consent, of the Option or of
any of Optionee's rights under this Agreement. Until the Option
shall expire, terminate or be exercised in full, the Company
shall, upon written request therefor, send a copy of the Plan, in
its then-current form, to Optionee or any other person or entity
then entitled to exercise the Option.
10. Stockholder Rights. No person or entity shall be
entitled to vote, receive dividends or be deemed for any purpose
the holder of any Option Shares until the Option shall have been
duly exercised to purchase such Option Shares in accordance with
the provisions of this Agreement.
11. Governing Law. This Agreement and the Option
granted hereunder shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware.
<PAGE>
IN WITNESS WHEREOF, the Company and Optionee
have duly executed this Agreement effective as of the Date of
Grant.
AMERON, INC.
By:______________________________
OPTIONEE:
____________________________
Signature
May 30, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20509
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
I am an attorney-at-law, duly licensed to practice law in the
State of California, and I am the Senior Vice President, Secretary
and General Counsel of Ameron, Inc. (the "Company"). I have acted
as legal counsel to the Company in connection with the preparation
of a Registration Statement on Form S-8 to be filed with the
Securities and Exchange Commission (the "Registration Statement")
with respect to the registration under the Securities Act of 1933
of 120,000 shares of Common Stock, $2.50 par value per share, and
the associated preferred stock purchase rights (the "Shares") of
the Company which have been reserved for issuance from time-to-time
pursuant to awards granted and to be granted pursuant to the
Company's 1994 Nonemployee Director Stock Option Plan (the "Plan").
I have examined, among other things, the Registration
Statement, the related Prospectus, the Plan, the Company's
definitive Proxy Statement for the 1995 Annual Meeting of
Stockholders, and such other documents, and have obtained such
certificates and assurances from public officials and from officers
and representatives of the Company, as I have deemed necessary for
the purpose of rendering this opinion. I have assumed the
genuineness of all signatures on, and the authenticity of, all
documents and instruments submitted to me as originals, and the
conformity to original documents of all documents submitted to me
as copies.
I have also examined the proceedings heretofore taken, and I
am familiar with the proceedings proposed to be taken, by the
Company in connection with the authorization, reservation, issuance
and sale of the Shares and, in reliance thereon, I assume for
purposes of this opinion, that the Company will not grant any award
under the Plan pursuant to which Shares could be issued for
consideration that is not adequate in form or amount to support the
issuance of fully paid stock under applicable state law.
Based on the foregoing and in reliance thereon, it is my
opinion that the Shares, when issued pursuant to awards granted and
exercised in accordance with the provisions of the Plan and related
agreements, will be legally issued, fully paid and nonassessable.
I hereby consent to the use of this opinion as an exhibit to
the Registration Statement and further consent to the use of my
name under the caption "Interest Of Named Experts And Counsel" in
the Registration Statement.
Very truly yours,
Javier Solis
Senior Vice President, Secretary
and General Counsel
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
May 26, 1995As independent public accountants, we hereby consent to
the incorporation by reference in this registration statement of
our reports dated January 19, 1995 included and incorporated
by reference in Ameron's Form 10-K for the year ended November
30, 1994 and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
May 26, 1995
