<PAGE>
As filed with the Securities and Exchange Commission on July 20, 1998
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-8
Registration Statement Under The Securities Act of 1933
--------------------
GEORGIA GULF CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
58-1563799
(I.R.S. Employer Identification No.)
400 Perimeter Center Terrace
Suite 595
Atlanta, Georgia 30346
(Address of principal executive offices) (zip code)
--------------------
Georgia Gulf Corporation
1998 Equity and Performance Incentive Plan
(Full title of the plan)
--------------------
Edward A. Schmitt
Georgia Gulf Corporation
400 Perimeter Center Terrace
Suite 595
Atlanta, Georgia 30346
(Name and address of agent for service)
--------------------
(770) 395-4500
(Telephone number, including area code, of agent for service)
--------------------
WITH COPY TO:
Lisa A. Stater, Esq.
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
(404) 521-3939
Exhibit Index Appears on Page 9
Page 1 of 9 Pages
<PAGE>
Calculation of Registration Fee
<TABLE><CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
Proposed maxi- Proposed maxi-
Title of securities Amount to be mum offering price mum aggregate Amount of
to be registered registered per share offering price registration fee
- --------------------- ------------------------- ----------------------- ----------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, 440,000 shares (1) $ 35.25 (1) $ 15,510,000 (1) $ 4,575.45 (2)
$.01 par value 1,540,000 shares (1) $22.65625(1) $ 34,890,625 (1) $10,292.73 (2)
----------------- -------- ----------- ---------
2,000,000 shares $14,868.18 (2)
---------
Total
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act of 1933, as amended. The
offering price for 440,000 shares currently subject to outstanding options is
based upon the exercise price of such options of $35.25 per share. Because
the offering price of the remaining 1,540,000 shares not subject to
outstanding options is not currently known, it is based upon the average of
the reported high and low sales prices of a share of the Registrant's Common
Stock on the New York Stock Exchange on July 16, 1998 of $22.65625 per
share. Also includes an indeterminate number of shares that may be issued
pursuant to the antidilution provision of the 1998 Equity and Performance
Incentive Plan, which is attached hereto as an exhibit, as to which no fee is
required.
(2) The registration fee of $14,868.18 is calculated by adding (i)
$4,575.45, the product obtained by multiplying $15,510,000, the proposed
maximum aggregate offering price for the 440,000 shares currently subject to
outstanding options, by .000295, and (ii) $10,292.73, the product obtained by
multiplying $34,890,625, the proposed maximum aggregate offering price for
the 1,540,000 shares not subject to outstanding options, by .000295.
Page 2 of 9 Pages
<PAGE>
EXPLANATORY NOTE
----------------
In accordance with the Note to Part I of Form S-8, the information specified by
Part I has been omitted from this Registration Statement.
Page 3 of 9 Pages
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
---------------------------------------
Georgia Gulf Corporation (the "Company") hereby incorporates by
reference into this Registration Statement the following documents:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1997.
(b) All other reports filed with the Securities and Exchange Commission
(the "Commission") pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), since December 31,
1997.
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A declared effective by the Commission
on May 15, 1990, as amended, and the description of the related
Preferred Share Purchase Rights contained in the Company's Registration
Statement on Form 8-A filed with the Commission on May 11, 1990, as
amended.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the filing of a
post-effective amendment which indicates that all securities have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing such documents.
Item 4. Description of Securities.
-------------------------
Inapplicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Inapplicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Article XIII of the Company's Certificate of Incorporation provides
that to the fullest extent permitted by the Delaware General Corporation Law, a
director of the Company shall not be liable to the Company or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware Corporation Law or (iv) for any transaction from which the director
derived any improper personal benefit.
The Company's Bylaws (Article XIII) provide that the Company shall
indemnify any person who was or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Company), by reason of the fact that he is or was a director or
officer of the Company or is or was serving at the request of the Company as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, against all expenses (including attorney's fees), judgments,
fines and amounts paid in settlementactually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in a manner he
reasonably believed to be in or not
Page 4 of 9 Pages
<PAGE>
opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful.
With respect to indemnification of officers and directors, Section 145
of the Delaware General Corporation Law provides that a corporation shall have
power to indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Under this provision of
the Delaware General Corporation Law, the termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Furthermore, the Delaware General Corporation Law provides that a
corporation shall have power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorney's fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall 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 duty to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery of such court shall deem proper.
Section 145(g) of the Delaware General Corporation Law provides that a
corporation shall have power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of Section 145.
The Company maintains several directors and officers liability policies
which, subject to the terms and exclusions of the policies, cover any claim or
claims made during the period the policies are in force, against all persons who
were, now are or shall be duly elected directors or officers of the Company for
any actual or alleged error or misstatement or misleading statement or act or
omission or neglect or breach of duty by such persons insured while acting in
their individual or collective capacities, on any matter, nor excluded by the
terms and conditions of the policies, claimed against them solely by reason of
their being directors or officers of the Company. The limit of liability under
the policies is $50 million per policy year.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Inapplicable.
Page 5 of 9 Pages
<PAGE>
Item 8. Exhibits.
--------
Exhibit
Number Description
- ------- -----------
Included in Part II of the Registration Statement:
4 Georgia Gulf Corporation 1998 Equity and Performance Incentive Plan
5 Opinion of Counsel re: legality
23(a) Consent of Counsel (contained in Exhibit 5)
23(b) Consent of independent public accountants
24 Power of Attorney (included in signature page)
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended
(the "1933 Act"), each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the 1934 Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the 1933 Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the 1933 Act and will be
governed by the final adjudication of such issue.
(c) The undersigned registrant undertakes 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.
(d) The undersigned registrant undertakes that, for the purpose of
determining any liability under the 1933 Act, each such post-effective
amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(e) The undersigned registrant undertakes 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.
Page 6 of 9 Pages
<PAGE>
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 Atlanta, State of Georgia, on the 20th day of July,
1998.
GEORGIA GULF CORPORATION
By:/s/ Edward A. Schmitt
------------------------------------
Edward A. Schmitt
President and Chief Executive Officer
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Edward A. Schmitt and Richard B.
Marchese, jointly and severally, each in his own capacity, his true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Edward A. Schmitt President, Chief Executive Officer July 20, 1998
- ---------------------------------- and Director
Edward A. Schmitt (Principal Executive Officer)
/s/ Richard B. Marchese Vice President - Finance, Chief July 20, 1998
- ---------------------------------- Financial Officer and Treasurer
Richard B. Marchese (Principal Financial and
Accounting Officer)
/s/ James R. Kuse Chairman of the Board and Director July 20, 1998
- ----------------------------------
James R. Kuse
</TABLE>
Page 7 of 9 Pages
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ John D. Bryan Director July 20, 1998
- ----------------------------------
John D. Bryan
Director
- ----------------------------------
Dennis M. Chorba
/s/ Alfred C. Eckert III Director July 20, 1998
- ----------------------------------
Alfred C. Eckert III
Director
- ----------------------------------
Robert E. Flowerree
/s/ Jerry R. Satrum Director July 20, 1998
- ----------------------------------
Jerry R. Satrum
/s/ Edward S. Smith Director July 20, 1998
- ----------------------------------
Edward S. Smith
</TABLE>
Page 8 of 9 Pages
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Page
Number Description Number
- ------- ----------- ------
<S> <C>
Included in Part II of the Registration Statement:
4 Georgia Gulf Corporation 1998 Equity and Performance Incentive Plan
5 Opinion of Counsel re: legality
23(a) Consent of Counsel (contained in Exhibit 5)
23(b) Consent of independent public accountants
24 Power of Attorney (included in signature page)
</TABLE>
Page 9 of 9 Pages
<PAGE>
EXHIBIT 4
GEORGIA GULF CORPORATION
1998 Equity and Performance Incentive Plan
1. Purpose. The purpose of the 1998 Equity and Performance
Incentive Plan is to attract and retain officers, other key employees, and
directors for Georgia Gulf Corporation, a Delaware corporation and its
Subsidiaries and to motivate such persons to achieve performance objectives
related to the Company's overall goal of increasing shareholder value.
2. Definitions. As used in this Plan,
"Appreciation Right" means a right granted pursuant to Section 5
of this Plan, and shall include both Tandem Appreciation Rights and
Free-Standing Appreciation Rights.
"Base Price" means the price to be used as the basis for
determining the Spread upon the exercise of a Free-Standing Appreciation Right
and a Tandem Appreciation Right.
"Board" means the Board of Directors of the Company and, to the
extent of any delegation by the Board to a committee (or subcommittee thereof)
pursuant to Section 16 of this Plan, such committee (or subcommittee).
"Change in Control" shall have the meaning provided in Section 12
of this Plan.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Common Stock" means the Common Stock, par value $.01 per share,
of the Company or any security into which such Common Stock may be changed by
reason of any transaction or event of the type referred to in Section 11 of this
Plan.
"Company" means Georgia Gulf Corporation, a Delaware corporation.
"Covered Employee" means a Participant who is, or is determined by
the Board to be likely to become, a "covered employee" within the meaning of
Section 162(m) of the Code (or any successor provision).
"Date of Grant" means the date specified by the Board on which a
grant of Option Rights, Appreciation Rights, Performance Shares or Performance
Units or a grant or sale of Restricted Shares or Deferred Shares shall become
effective (which date shall not be earlier than the date on which the Board
takes action with respect thereto)
<PAGE>
"Deferral Period" means the period of time during which Deferred
Shares are subject to deferral limitations under Section 7 of this Plan.
"Deferred Shares" means an award made pursuant to Section 7 of
this Plan of the right to receive shares of Common Stock at the end of a
specified Deferral Period.
"Director" means a member of the Board of Directors of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, as such law, rules and
regulations may be amended from time to time.
"Free-Standing Appreciation Right" means an Appreciation Right
granted pursuant to Section 5 of this Plan that is not granted in tandem with an
Option Right.
"Immediate Family" has the meaning ascribed thereto in Rule
16a-1(e) under the Exchange Act (or any successor rule to the same effect) as in
effect from time to time.
"Incentive Stock Options" means Option Rights that are intended to
qualify as "incentive stock options" under Section 422 of the Code or any
successor provision.
"Management Objectives" means the measurable performance objective
or objectives established pursuant to this Plan for Participants who have
received grants of Performance Shares or Performance Units or, when so
determined by the Board, Option Rights, Appreciation Rights, Restricted Shares
and dividend credits pursuant to this Plan. Management Objectives may be
described in terms of Company-wide objectives or objectives that are related to
the performance of the individual Participant or of the Subsidiary, division,
department, region, function, or other organizational unit within the Company or
Subsidiary in which the Participant is employed. The Management Objectives may
be made relative to the performance of other corporations or business units of
other corporations. The Management Objectives applicable to any award to a
Covered Employee shall be based on specified and pre-established levels of or
growth in one or more of the following criteria:
1. increases in the price of Common Stock;
2. market share;
3. sales;
4. return on equity, assets, capital or sales;
5. economic profit;
6. total shareholder return;
7. costs;
8. margins;
9. earnings or earnings per share;
10. cash flow;
11. customer satisfaction;
12. pre-tax profit;
<PAGE>
13. earnings before interest and taxes;
14. earnings before interest, taxes, depreciation and
amortization;
15. debt/capital ratio; and
16. any combination of the foregoing.
If the Board determines that a change in the business, operations,
corporate structure or capital structure of the Company, or the manner in which
it conducts its business, or other events or circumstances render the Management
Objectives unsuitable, the Board may in its discretion modify such Management
Objectives or the related minimum acceptable level of achievement, in whole or
in part, as the Board deems appropriate and equitable, except in the case of a
Covered Employee where such action would result in the loss of the otherwise
available exemption of the award under Section 162(m) of the Code. In such case,
the Board shall not make any modification of the Management Objectives or
minimum acceptable level of achievement.
"Market Value per Share" means, as of any particular date the
closing price of a share of Common Stock as reported, for the last preceding
date for which a price is quoted on the New York Stock Exchange, or, if the
Common Stock is not then listed on the New York Stock Exchange, on such other
national securities exchange on which the Common Stock is listed or, if not so
listed, then on the Nasdaq National Market. If, as of a particular date, the
Common Stock is not listed or quoted on any national securities exchange or on
the Nasdaq National Market, then the Market Value per Share of a share of Common
Stock as of such date shall be determined according to such criteria as the
Board in good faith shall deem appropriate.
"Non-Employee Director" means a Director who is not an employee of
the Company or any Subsidiary.
"Optionee" means the optionee named in an agreement evidencing an
outstanding Option Right.
"Option Price" means the purchase price payable on exercise of an
Option Right.
"Option Right" means the right to purchase shares of Common Stock
upon exercise of an option granted pursuant to Section 4 or Section 9 of this
Plan.
"Outside Director" means a person who is an "outside director"
within the meaning of Section 162(m) of the Code.
"Participant" means a person who is selected by the Board to
receive benefits under this Plan and who is at the time an officer, or other key
employee of the Company or any one or more of its Subsidiaries, or who has
agreed to commence serving in any of such capacities, and shall also include
each Non-Employee Director who receives an award of Option Rights or Restricted
Shares.
<PAGE>
"Performance Period" means, in respect of a Performance Share or
Performance Unit, a period of time established pursuant to Section 8 of this
Plan within which the Management Objectives relating to such Performance Share
or Performance Unit are to be achieved.
"Performance Share" means a bookkeeping entry that records the
equivalent of one share of Common Stock awarded pursuant to Section 8 of this
Plan.
"Performance Unit" means a bookkeeping entry that records a unit
equivalent to $1.00 awarded pursuant to Section 8 of this Plan.
"Plan" means this Georgia Gulf Corporation 1998 Equity and
Performance Incentive Plan.
"Restricted Shares" means shares of Common Stock granted or sold
pursuant to Section 6 or Section 9 of this Plan as to which neither the
substantial risk of forfeiture nor the prohibition on transfers referred to in
such Section 6 has expired.
"Rule 16b-3" means Rule 16b-3 under the Exchange Act (or any
successor rule to the same effect) as in effect from time to time.
"Spread" means the excess of the Market Value per Share on the
date when an Appreciation Right is exercised, or on the date when Option Rights
are surrendered in payment of the Option Price of other Option Rights, over the
Option Price or Base Price provided for in the related Option Right or
Free-Standing Appreciation Right, respectively.
"Subsidiary" means a corporation, company or other entity (i) more
than 50 percent of whose outstanding shares or securities (representing the
right to vote for the election of directors or other managing authority) are, or
(ii) which does not have outstanding shares or securities (as may be the case in
a partnership, joint venture, limited liability company, or unincorporated
association), but more than 50 percent of whose ownership interest representing
the right generally to make decisions for such other entity is, now or
hereafter, owned or controlled, directly or indirectly, by the Company except
that for purposes of determining whether any person may be a Participant for
purposes of any grant of Incentive Stock Options, "Subsidiary" means any
corporation in which at the time the Company owns or controls, directly or
indirectly, more than 50 percent of the total combined voting power represented
by all classes of stock issued by such corporation.
"Tandem Appreciation Right" means an Appreciation Right granted
pursuant to Section 5 of this Plan that is granted in tandem with an Option
Right.
"Voting Power" means at any time, the total votes relating to the
then-outstanding securities entitled to vote generally in the election of
Directors.
<PAGE>
3. Shares Available Under the Plan. (a) Subject to adjustment as
provided in Section 11 of this Plan, the number of shares of Common Stock that
may be issued or transferred (i) upon the exercise of Option Rights or
Appreciation Rights, (ii) as Restricted Shares and released from substantial
risks of forfeiture thereof, (iii) as Deferred Shares, (iv) in payment of
Performance Shares or Performance Units that have been earned, (v) as awards to
Non-Employee Directors or (vi) in payment of dividend equivalents paid with
respect to awards made under the Plan shall not exceed in the aggregate 2.0
million shares of Common Stock, plus any shares described in Section 3(b). Such
shares may be shares of original issuance or treasury shares or a combination of
the foregoing.
(b) The number of shares available in Section 3(a) above shall be
adjusted to account for shares relating to awards that expire, are forfeited or
are transferred, surrendered or relinquished upon the payment of any Option
Price by the transfer to the Company of shares of Common Stock or upon
satisfaction of any withholding amount. Upon payment in cash of the benefit
provided by any award granted under this Plan, any shares that were covered by
that award shall again be available for issue or transfer hereunder.
(c) Notwithstanding anything in this Section 3, or elsewhere in
this Plan, to the contrary and subject to adjustment as provided in Section 11
of this Plan, (i) the aggregate number of shares of Common Stock actually issued
or transferred by the Company upon the exercise of Incentive Stock Options shall
not exceed 2.0 million shares of Common Stock; (ii) no Participant shall be
granted Option Rights and Appreciation Rights, in the aggregate, for more than
750,000 shares of Common Stock during any period of five years; (iii) the number
of shares issued as Restricted Shares shall not in the aggregate exceed 50,000
shares of Common Stock; and (iv) no Non-Employee Director shall be granted
Option Rights, Appreciation Rights and Restricted Shares, in the aggregate, for
more than 10,000 shares of Common Stock during any fiscal year of the Company.
The method of counting shares subject to the limits described in subsection (ii)
of this Section 3(c) shall conform to any requirements applicable to
performance-based compensation under Section 162(m) of the Code.
(d) Notwithstanding any other provision of this Plan to the
contrary, in no event shall any Participant in any calendar year receive an
award of Performance Shares or Performance Units or any amount of Restricted
Shares intended to qualify for exemption under Section 162(m) of the Code having
an aggregate maximum value as of their respective Dates of Grant in excess of
$1.5 million.
4. Option Rights. The Board may, from time to time and upon such
terms and conditions as it may determine, authorize the granting to Participants
of Option Rights. Each Option Right may utilize any or all of the
authorizations, and shall be subject to all of the requirements contained in the
following provisions:
(a) Each grant shall specify the number of shares of Common Stock
to which it pertains subject to the limitations set forth in Section 3 of this
Plan.
<PAGE>
(b) Each grant shall specify an Option Price per share, which may
not be less than the Market Value per Share on the Date of Grant.
(c) Each grant shall specify whether the Option Price shall be
payable (i) in cash or by check acceptable to the Company, (ii) by the actual
or constructive transfer to the Company of shares of Common Stock owned by
the Optionee for at least 6 months (or other consideration authorized
pursuant to Section 4(d)) having a value at the time of exercise equal to the
total Option Price, or (iii) by a combination of such methods of payment.
(d) The Board may determine, at or after the Date of Grant, that
payment of the Option Price of any Option Right (other than an Incentive Stock
Option) may also be made in whole or in part in the form of Restricted Shares or
other shares of Common Stock that are forfeitable or subject to restrictions on
transfer, Deferred Shares, Performance Shares (based, in each case, on the
Market Value per Share on the date of exercise), other Option Rights (based on
the Spread on the date of exercise) or Performance Units. Unless otherwise
determined by the Board at or after the Date of Grant, whenever any Option Price
is paid in whole or in part by means of any of the forms of consideration
specified in this Section 4(d), the shares of Common Stock received upon the
exercise of the Option Rights shall be subject to comparable risks of forfeiture
or restrictions on transfer to those that apply to the consideration
surrendered, but only to the extent of (i) the number of shares or Performance
Shares, (ii) the Spread of any unexercisable portion of Option Rights, or (iii)
the stated value of Performance Units representing the consideration
surrendered.
(e) Any grant may provide for deferred payment of the Option Price
from the proceeds of sale through a broker on a date satisfactory to the Company
of some or all of the shares to which such exercise relates.
(f) Successive grants may be made to the same Participant whether
or not any Option Rights previously granted to such Participant remain
unexercised.
(g) Each grant shall specify the period or periods of continuous
service by the Optionee with the Company or any Subsidiary, if any, or other
contingencies (including the satisfaction of Management Objectives), that may be
necessary before the Option Rights or installments thereof will become
exercisable and may provide for the earlier exercise of such Option Rights in
the event of a Change in Control or other circumstances.
(h) Option Rights granted under this Plan may be (i) options,
including, without limitation, Incentive Stock Options, that are intended to
qualify under particular provisions of the Code, (ii) options that are not
intended so to qualify, or (iii) combinations of the foregoing.
(i) The Board may, at or after the Date of Grant of any Option
Rights (other than Incentive Stock Options), provide for the payment of dividend
equivalents to the Optionee on either a current or deferred or contingent basis
or may provide that such equivalents shall be credited against the Option Price.
<PAGE>
(j) The exercise of an Option Right shall result in the
cancellation on a share-for-share basis of any Tandem Appreciation Right
authorized under Section 5 of this Plan.
(k) No Option Right shall be exercisable more than 10 years from
the Date of Grant.
(l) Any grant of Option Rights may specify Management Objectives
that must be achieved as a condition of the exercise of such Rights.
(m) Each grant of Option Rights shall be evidenced by an agreement
executed on behalf of the Company by an officer and delivered to the Optionee
and containing such terms and provisions, consistent with this Plan, as the
Board may approve.
5. Appreciation Rights. (a) The Board may authorize the
granting (i) to any Optionee, of Tandem Appreciation Rights in respect of
Option Rights granted hereunder, and (ii) to any Participant, of
Free-Standing Appreciation Rights. A Tandem Appreciation Right shall be a
right of the Optionee, exercisable by surrender of the related Option Right,
to receive from the Company an amount determined by the Board, which shall be
expressed as a percentage of the Spread (not exceeding 100 percent) at the
time of exercise. Tandem Appreciation Rights may be granted at any time prior
to the exercise or termination of the related Option Rights; provided,
however, that a Tandem Appreciation Right awarded in relation to an Incentive
Stock Option must be granted concurrently with such Incentive Stock Option. A
Free-Standing Appreciation Right shall be a right of the Participant to
receive from the Company an amount determined by the Board, which shall be
expressed as a percentage of the Spread (not exceeding 100 percent) at the
time of exercise.
(b) Each grant of Appreciation Rights may utilize any or all of
the authorizations, and shall be subject to all of the requirements, contained
in the following provisions:
(i) Any grant may specify that the amount payable on exercise
of an Appreciation Right may be paid by the Company in cash, in shares of
Common Stock or in any combination thereof and may either grant to the
Participant or retain in the Board the right to elect among those
alternatives.
(ii) Any grant may specify that the amount payable on
exercise of an Appreciation Right may not exceed a maximum specified by
the Board at the Date of Grant.
(iii) Any grant may specify waiting periods before exercise
and permissible exercise dates or periods.
(iv) Any grant may specify that such Appreciation Right may
be exercised only in the event of, or earlier in the event of, a Change in
Control or other circumstances.
<PAGE>
(v) Any grant may provide for the payment to the Participant
of dividend equivalents thereon in cash or shares of Common Stock on a
current, deferred or contingent basis.
(vi) Any grant of Appreciation Rights may specify Management
Objectives that must be achieved as a condition of the exercise of such
Rights.
(vii) Each grant of Appreciation Rights shall be evidenced by
an agreement executed on behalf of the Company by an officer and delivered
to and accepted by the Participant, which agreement shall describe such
Appreciation Rights, identify the related Option Rights (if applicable),
state that such Appreciation Rights are subject to all the terms and
conditions of this Plan, and contain such other terms and provisions,
consistent with this Plan, as the Board may approve.
(c) Any grant of Tandem Appreciation Rights shall provide that
such Rights may be exercised only at a time when the related Option Right is
also exercisable and at a time when the Spread is positive, and by surrender of
the related Option Right for cancellation.
(d) Regarding Free-standing Appreciation Rights only:
(i) Each grant shall specify in respect of each Free-standing
Appreciation Right a Base Price, which shall be equal to or
greater or less than the Market Value per Share on the Date of
Grant;
(ii) Successive grants may be made to the same Participant
regardless of whether any Free-standing Appreciation Rights
previously granted to the Participant remain unexercised; and
(iii) No Free-standing Appreciation Right granted under this
Plan may be exercised more than 10 years from the Date of Grant.
6. Restricted Shares. The Board may also authorize the grant or
sale of Restricted Shares to Participants. Each such grant or sale may utilize
any or all of the authorizations, and shall be subject to all of the
requirements, contained in the following provisions:
(a) Each such grant or sale shall constitute an immediate transfer
of the ownership of shares of Common Stock to the Participant in consideration
of the performance of services, entitling such Participant to voting, dividend
and other ownership rights, but subject to the substantial risk of forfeiture
and restrictions on transfer hereinafter referred to.
(b) Each such grant or sale may be made without additional
consideration or in consideration of a payment by such Participant that is less
than Market Value per Share at the Date of Grant.
<PAGE>
(c) Each such grant or sale shall provide that the Restricted
Shares covered by such grant or sale shall be subject to a "substantial risk of
forfeiture" within the meaning of Section 83 of the Code except (if the Board
shall so determine) in the event of a Change in Control or other circumstances
for a period of not less than 6 months to be determined by the Board at the Date
of Grant.
(d) Each such grant or sale shall provide that during the period
for which such substantial risk of forfeiture is to continue, the
transferability of the Restricted Shares shall be prohibited or restricted in
the manner and to the extent prescribed by the Board at the Date of Grant (which
restrictions may include, without limitation, rights of repurchase or first
refusal in the Company or provisions subjecting the Restricted Shares to a
continuing substantial risk of forfeiture in the hands of any transferee).
(e) Any grant of Restricted Shares may specify Management
Objectives that, if achieved, will result in termination or early termination of
the restrictions applicable to such shares. Each grant may specify in respect of
such Management Objectives a minimum acceptable level of achievement and may set
forth a formula for determining the number of Restricted Shares on which
restrictions will terminate if performance is at or above the minimum level, but
falls short of full achievement of the specified Management Objectives.
(f) Any such grant or sale of Restricted Shares may require that
any or all dividends or other distributions paid thereon during the period of
such restrictions be automatically deferred and reinvested in additional
Restricted Shares, which may be subject to the same restrictions as the
underlying award.
(g) Each grant or sale of Restricted Shares shall be evidenced by
an agreement executed on behalf of the Company by any officer and delivered to
and accepted by the Participant and shall contain such terms and provisions,
consistent with this Plan, as the Board may approve. Unless otherwise directed
by the Board, all certificates representing Restricted Shares shall be held in
custody by the Company until all restrictions thereon shall have lapsed,
together with a stock power or powers executed by the Participant in whose name
such certificates are registered, endorsed in blank and covering such Shares.
7. Deferred Shares. The Board may authorize the granting or sale
of Deferred Shares to Participants. Each such grant or sale may utilize any or
all of the authorizations, and shall be subject to all of the requirements
contained in the following provisions:
(a) Each such grant or sale shall constitute the agreement by the
Company to deliver shares of Common Stock to the Participant in the future in
consideration of the performance of services, but subject to the fulfillment of
such conditions during the Deferral Period as the Board may specify.
<PAGE>
(b) Each such grant or sale may be made without additional
consideration or in consideration of a payment by such Participant that is less
than the Market Value per Share at the Date of Grant.
(c) Each such grant or sale shall be subject to a Deferral Period
of not less than 1 year, as determined by the Board at the Date of Grant except
(if the Board shall so determine) in the event of a Change in Control or other
circumstances.
(d) During the Deferral Period, the Participant shall have no
right to transfer any rights under his or her award and shall have no rights of
ownership in the Deferred Shares and shall have no right to vote them, but the
Board may, at or after the Date of Grant, authorize the payment of dividend
equivalents on such Shares on either a current or deferred or contingent basis,
either in cash or in additional shares of Common Stock.
(e) Each grant or sale of Deferred Shares shall be evidenced by an
agreement executed on behalf of the Company by any officer and delivered to and
accepted by the Participant and shall contain such terms and provisions,
consistent with this Plan, as the Board may approve.
8. Performance Shares and Performance Units. The Board may also
authorize the granting of Performance Shares and Performance Units that will
become payable to a Participant upon achievement of specified Management
Objectives. Each such grant may utilize any or all of the authorizations, and
shall be subject to all of the requirements, contained in the following
provisions:
(a) Each grant shall specify the number of Performance Shares or
Performance Units to which it pertains, which number may be subject to
adjustment to reflect changes in compensation or other factors; provided,
however, that no such adjustment shall be made in the case of a Covered Employee
where such action would result in the loss of the otherwise available exemption
of the award under Section 162(m) of the Code.
(b) The Performance Period with respect to each Performance Share
or Performance Unit shall be such period as shall be determined by the Board at
the time of grant, except (if the Board shall so determine) in the event of a
Change in Control or other circumstances, if the Board shall so determine;
provided, however, that no acceleration determination shall be made in the case
of a Covered Employee where such action would result in the loss of the
otherwise available exemption of the award under Section 162(m) of the Code.
(c) Any grant of Performance Shares or Performance Units shall
specify Management Objectives which, if achieved, will result in payment or
early payment of the award, and each grant may specify in respect of such
specified Management Objectives a minimum acceptable level of achievement and
shall set forth a formula for determining the number of Performance Shares or
Performance Units that will be earned if performance is at or above the minimum
level, but falls short of full achievement of the specified Management
<PAGE>
Objectives. The grant of Performance Shares or Performance Units shall specify
that, before the Performance Shares or Performance Units shall be earned and
paid, the Board must certify that the Management Objectives have been satisfied.
(d) Each grant shall specify the time and manner of payment of
Performance Shares or Performance Units that have been earned. Any grant may
specify that the amount payable with respect thereto may be paid by the Company
in cash, in shares of Common Stock or in any combination thereof and may either
grant to the Participant or retain in the Board the right to elect among those
alternatives.
(e) Any grant of Performance Shares may specify that the amount
payable with respect thereto may not exceed a maximum specified by the Board at
the Date of Grant. Any grant of Performance Units may specify that the amount
payable or the number of shares of Common Stock issued with respect thereto may
not exceed maximums specified by the Board at the Date of Grant.
(f) The Board may provide for the payment of dividend equivalents
to the holder of Performance Shares on either a current or deferred or
contingent basis, either in cash or in additional shares of Common Stock.
(g) Each grant of Performance Shares or Performance Units shall be
evidenced by an agreement executed on behalf of the Company by any officer and
delivered to and accepted by the Participant, which agreement shall state that
such Performance Shares or Performance Units are subject to all the terms and
conditions of this Plan, and contain such other terms and provisions, consistent
with this Plan, as the Board may approve.
9. Awards to Non-Employee Directors. The Board may, from time to
time and upon such terms and conditions as it may determine, authorize the
granting to Non-Employee Directors of Option Rights and may also authorize the
grant or sale of Restricted Shares to Non-Employee Directors.
(a) Each grant of Option Rights awarded pursuant to this Section 9
shall be upon terms and conditions consistent with Section 4 of this Plan and
shall be evidenced by an agreement in such form as shall be approved by the
Board. Each grant shall specify an Option Price per share, which shall not be
less than the Market Value per Share on the Date of Grant. Each such Option
Right granted under the Plan shall expire not more than 10 years from the Date
of Grant and shall be subject to earlier termination as hereinafter provided.
Unless otherwise determined by the Board, such Option Rights shall be subject to
the following additional terms and conditions:
(i) Each grant shall specify the number of shares of Common
Stock to which it pertains subject to the limitations set forth in Section
3 of this plan.
<PAGE>
(ii) Each such Option Right shall become exercisable on the
first anniversary of the Date of Grant. Such Option Rights shall become
exercisable in full immediately in the event of a Change in Control.
(iii) In the event of the termination of service on the Board
by the holder of any such Option Rights, other than by reason of
disability or death, the then outstanding Option Rights of such holder may
be exercised to the extent that they would be exercisable on the date that
is 60 days after the date of such termination and shall expire 60 days
after such termination, or on their stated expiration date, whichever
occurs first.
(iv) In the event of the death or disability of the holder of
any such Option Rights, each of the then outstanding Option Rights of such
holder may be exercised at any time within 1 year after such death or
disability, but in no event after the expiration date of the term of such
Option Rights.
(v) If a Non-Employee Director subsequently becomes an
employee of the Company or a Subsidiary while remaining a member of the
Board, any Option Rights held under the Plan by such individual at the
time of such commencement of employment shall not be affected thereby.
(vi) Option Rights may be exercised by a Non-Employee
Director only upon payment to the Company in full of the Option Price of
the shares of Common Stock to be delivered. Such payment shall be made in
cash or in shares of Common Stock then owned by the optionee for at least
six months, or in a combination of cash and such shares of Common Stock.
(b) Each grant or sale of Restricted Shares pursuant to this
Section 9 shall be upon terms and conditions consistent with Section 6 of this
Plan.
10. Transferability. (a) Except as otherwise determined by the
Board, no Option Right, Appreciation Right or other derivative security granted
under the Plan shall be transferable by a Participant other than by will or the
laws of descent and distribution. Except as otherwise determined by the Board,
Option Rights and Appreciation Rights shall be exercisable during the Optionee's
lifetime only by him or her or by his or her guardian or legal representative.
(b) The Board may specify at the Date of Grant that part or all of
the shares of Common Stock that are (i) to be issued or transferred by the
Company upon the exercise of Option Rights or Appreciation Rights, upon the
termination of the Deferral Period applicable to Deferred Shares or upon payment
under any grant of Performance Shares or Performance Units or (ii) no longer
subject to the substantial risk of forfeiture and restrictions on transfer
referred to in Section 6 of this Plan, shall be subject to further restrictions
on transfer.
(c) Notwithstanding the provisions of Section 10(a), but subject
to the prior approval of the Board, Option Rights (other than Incentive Stock
Options), Appreciation Rights,
<PAGE>
Restricted Shares, Deferred Shares, Performance Shares and Performance Units
shall be transferable by a Participant, without payment of consideration
therefor by the transferee, to any one or more members of the Participant's
Immediate Family (or to one or more trusts established solely for the benefit of
one or more members of the Participant's Immediate Family or to one or more
partnerships in which the only partners are members of the Participant's
Immediate Family); provided, however, that (i) no such transfer shall be
effective unless reasonable prior notice thereof is delivered to the Company and
such transfer is thereafter effected in accordance with any terms and conditions
that shall have been made applicable thereto by the Company or the Board and
(ii) any such transferee shall be subject to the same terms and conditions
hereunder as the Participant.
11. Adjustments. The Board may make or provide for such
adjustments in the numbers of shares of Common Stock covered by outstanding
Option Rights, Appreciation Rights, Deferred Shares, and Performance Shares
granted hereunder, in the Option Price and Base Price provided in outstanding
Appreciation Rights, and in the kind of shares covered thereby, as the Board, in
its sole discretion, exercised in good faith, may determine is equitably
required to prevent dilution or enlargement of the rights of Participants or
Optionees that otherwise would result from (a) any stock dividend, stock split,
combination of shares, recapitalization or other change in the capital structure
of the Company, or (b) any merger, consolidation, spin-off, split-off, spin-out,
split-up, reorganization, partial or complete liquidation or other distribution
of assets, issuance of rights or warrants to purchase securities, or (c) any
other corporate transaction or event having an effect similar to any of the
foregoing. Moreover, in the event of any such transaction or event, the Board,
in its discretion, may provide in substitution for any or all outstanding awards
under this Plan such alternative consideration as it, in good faith, may
determine to be equitable in the circumstances and may require in connection
therewith the surrender of all awards so replaced. The Board may also make or
provide for such adjustments in the numbers of shares specified in Section 3 of
this Plan as the Board in its sole discretion, exercised in good faith, may
determine is appropriate to reflect any transaction or event described in this
Section 11; provided, however, that any such adjustment to the number specified
in Section 3(c)(i) shall be made only if and to the extent that such adjustment
would not cause any Option Right intended to qualify as an Incentive Stock
Option to fail so to qualify.
12. Change in Control. For purposes of this Plan, a "Change in
Control" shall mean the occurrence of any of the following events shall have
occurred:
(a) The Company is merged or consolidated or reorganized into or
with another corporation or other legal person, and as a result of such merger,
consolidation or reorganization less than a majority of the combined voting
power of the then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate by the holders of
securities entitled to vote generally in the election of Directors immediately
prior to such transaction;
(b) The Company sells or otherwise transfers all or substantially
all of its assets to any other corporation or other legal person, and less than
a majority of the combined voting
<PAGE>
power of the then-outstanding securities of such corporation or person
immediately after such sale or transfer is held in the aggregate by the holders
of shares of Common Stock immediately prior to such sale or transfer;
(c) There is a report filed on Schedule 13D or Schedule 14D-1 (or
any successor schedule, form or report), each as promulgated pursuant to the
Exchange Act, disclosing that any person (as the term "person" is used in
Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the
beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or
any successor rule or regulation promulgated under the Exchange Act) of
securities representing 331/3% or more of the Voting Power;
(d) The Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Exchange Act disclosing in
response to Form 8-K or Schedule 14A (or any successor schedule, form or report
or item therein) that a change in control of the Company has or may have
occurred or will or may occur in the future pursuant to any then-existing
contract or transaction; or
(e) If during any period of two consecutive years, individuals who
at the beginning of any such period constitute the Directors cease for any
reason to constitute at least a majority thereof, unless the election, or the
nomination for election by the Company's shareholders, of each Director first
elected during such period was approved by a vote of at least two-thirds of the
Directors then still in office who were Directors at the beginning of any such
period.
Notwithstanding the foregoing provisions of Section 12(c) and (d)
above, a "Change in Control" shall not be deemed to have occurred for purposes
of this Plan (i) solely because (A) the Company; (B) a Subsidiary; or (C) any
Company-sponsored employee stock ownership plan or other employee benefit plan
of the Company either files or becomes obligated to file a report or proxy
statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or
Schedule 14A (or any successor schedule, form or report or item therein) under
the Exchange Act, disclosing beneficial ownership by it of shares, whether in
excess of 20% of the Voting Power or otherwise, or because the Company reports
that a change of control of the Company has or may have occurred or will or may
occur in the future by reason of such beneficial ownership or (ii) solely
because of a change in control of any Subsidiary.
13. Fractional Shares. The Company shall not be required to issue
any fractional shares of Common Stock pursuant to this Plan. The Board may
provide for the elimination of fractions or for the settlement of fractions in
cash.
14. Withholding Taxes. To the extent that the Company is required
to withhold federal, state, local or foreign taxes in connection with any
payment made or benefit realized by a Participant or other person under this
Plan, and the amounts available to the Company for such withholding are
insufficient, it shall be a condition to the receipt of such payment or the
realization of such benefit that the Participant or such other person make
arrangements
<PAGE>
satisfactory to the Company for payment of the balance of such taxes required to
be withheld, which arrangements (in the discretion of the Board) may include
relinquishment of a portion of such benefit. The Company and a Participant or
such other person may also make similar arrangements with respect to the payment
of any taxes with respect to which withholding is not required.
15. Foreign Employees. In order to facilitate the making of any
grant or combination of grants under this Plan, the Board may provide for such
special terms for awards to Participants who are foreign nationals or who are
employed by the Company or any Subsidiary outside of the United States of
America as the Board may consider necessary or appropriate to accommodate
differences in local law, tax policy or custom. Moreover, the Board may approve
such supplements to or amendments, restatements or alternative versions of
this Plan as it may consider necessary or appropriate for such purposes, without
thereby affecting the terms of this Plan as in effect for any other purpose, and
the Secretary or other appropriate officer of the Company may certify any such
document as having been approved and adopted in the same manner as this Plan. No
such special terms, supplements, amendments or restatements, however, shall
include any provisions that are inconsistent with the terms of this Plan as then
in effect unless this Plan could have been amended to eliminate such
inconsistency without further approval by the stockholders of the Company.
16. Administration of the Plan. (a) This Plan shall be
administered by the Board, which may from time to time delegate all or any part
of its authority under this Plan to a committee of the Board (or subcommittee
thereof) consisting solely of not less than two Non-Employee Directors appointed
by the Board. A majority of the committee (or subcommittee) shall constitute a
quorum, and the action of the members of the committee (or subcommittee) present
at any meeting at which a quorum is present, or acts unanimously approved in
writing, shall be the acts of the committee (or subcommittee). To the extent of
any such delegation, references in this Plan to the Board shall be deemed to be
references to any such committee or subcommittee. Awards of Option Rights and
Appreciation Rights are, and certain awards of Restricted Shares, Performance
Awards and Performance Units may be, intended to qualify as performance-based
compensation under Section 162(m) of the Code. The grant of such awards, and the
administration thereof and any determinations to be made in connection
therewith, shall be carried out only by a committee of the Board (or
subcommittee thereof) consisting solely of not less than two Outside Directors
appointed by the Board. Such committee shall grant or award such options, rights
or other awards in a manner consistent with the rules governing
performance-based compensation under Section 162(m) of the Code.
(b) The interpretation and construction by the Board of any
provision of this Plan or of any agreement, notification or document evidencing
the grant of Option Rights, Appreciation Rights, Restricted Shares, Deferred
Shares, Performance Shares or Performance Units and any determination by the
Board pursuant to any provision of this Plan or of any such agreement,
notification or document shall be final and conclusive. No member of the Board
shall be liable for any such action or determination made in good faith.
<PAGE>
17. Amendments, Etc. (a) The Board may at any time and from time
to time amend the Plan in whole or in part; provided, however, that any
amendment which must be approved by the stockholders of the Company in order to
comply with applicable law or the rules of the New York Stock Exchange or, if
the shares of Common Stock are not traded on the New York Stock Exchange, the
principal national securities exchange upon which the shares of Common Stock are
traded or quoted, shall not be effective unless and until such approval has been
obtained. Presentation of this Plan or any amendment hereof for stockholder
approval shall not be construed to limit the Company's authority to offer
similar or dissimilar benefits under other plans without stockholder approval.
(b) The Board shall not, without the further approval of the
shareholders of the Company, authorize the amendment of any outstanding Option
Right to reduce the Option Price. Furthermore, no Option Right shall be
cancelled and replaced with awards having a lower Option Price without further
approval of the shareholders of the Company. This Section 17(b) is intended to
prohibit the repricing of "underwater" Option Rights and shall not be construed
to prohibit the adjustments provided for in Section 11 of this Plan.
(c) The Board also may permit Participants to elect to defer the
issuance of shares of Common Stock or the settlement of awards in cash under the
Plan pursuant to such rules, procedures or programs as it may establish for
purposes of this Plan. The Board also may provide that deferred issuances and
settlements include the payment or crediting of dividend equivalents or interest
on the deferral amounts.
(d) The Board may condition the grant of any award or combination
of awards authorized under this Plan on the surrender or deferral by the
Participant of his or her right to receive a cash bonus or other compensation
otherwise payable by the Company or a Subsidiary to the Participant.
(e) In case of termination of employment by reason of death,
disability or normal or early retirement, or in the case of hardship or other
special circumstances, of a Participant who holds an Option Right or
Appreciation Right not immediately exercisable in full, or any Restricted Shares
as to which the substantial risk of forfeiture or the prohibition or restriction
on transfer has not lapsed, or any Deferred Shares as to which the Deferral
Period has not been completed, or any Performance Shares or Performance Units
which have not been fully earned, or who holds shares of Common Stock subject to
any transfer restriction imposed pursuant to Section 10(b) of this Plan, the
Board may, in its sole discretion, accelerate the time at which such Option
Right or Appreciation Right may be exercised or the time at which such
substantial risk of forfeiture or prohibition or restriction on transfer will
lapse or the time when such Deferral Period will end or the time at which such
Performance Shares or Performance Units will be deemed to have been fully earned
or the time when such transfer restriction will terminate or may waive any other
limitation or requirement under any such award.
(f) This Plan shall not confer upon any Participant any right with
respect to continuance of employment or other service with the Company or any
Subsidiary, nor shall it
<PAGE>
interfere in any way with any right the Company or any Subsidiary would
otherwise have to terminate such Participant's employment or other service at
any time.
(g) To the extent that any provision of this Plan would prevent
any Option Right that was intended to qualify as an Incentive Stock Option from
qualifying as such, that provision shall be null and void with respect to such
Option Right. Such provision, however, shall remain in effect for other Option
Rights and there shall be no further effect on any provision of this Plan.
18. Termination. No grant shall be made under this Plan more than
five years after the date on which this Plan is first approved by the
stockholders of the Company, but all grants made on or prior to such date shall
continue in effect thereafter subject to the terms thereof and of this Plan.
<PAGE>
EXHIBIT 5
Jones, Day, Reavis and Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
(404) 521-3939
July 20, 1998
Georgia Gulf Corporation
400 Perimeter Center Terrace
Suite 595
Atlanta, Georgia 30346
Gentlemen:
We have acted as counsel to Georgia Gulf Corporation, a Delaware
corporation (the "Company"), in connection with the registration of 2,000,000
shares of Common Stock, $.01 par value per share, of the Company (the "Shares"),
to be issued by the Company in accordance with the Georgia Gulf Corporation 1998
Equity and Performance Incentive Plan (the "Plan") pursuant to a Registration
Statement on Form S-8 filed with the Securities and Exchange Commission (the
"Registration Statement") to which this opinion appears as Exhibit 5.
We have examined originals or certified or photostatic copies of
such records of the Company, certificates of officers of the Company, and public
officials and such other documents as we have deemed relevant or necessary as
the basis of the opinion set forth below in this letter. In such examination, we
have assumed the genuineness of all signatures, the conformity to original
documents submitted as certified or photostatic copies, and the authenticity of
originals of such latter documents. Based on the foregoing, we are of the
following opinion:
The Shares, when issued by the Company in the manner contemplated
by the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to
the Registration Statement.
Sincerely,
/s/ Jones, Day, Reavis and Pogue
JONES, DAY, REAVIS & POGUE
<PAGE>
Exhibit 23b
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 12,
1998 included in Georgia Gulf Corporation's Form 10-K for the year ended
December 31, 1997 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Atlanta, Georgia
July 20, 1998
