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Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
---------------------------
Owens-Illinois, Inc.
- -------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 22-2781933
- ---------------- -----------------
(State or other (IRS Employer
jurisdiction of Identification No.)
incorporation or
organization)
One SeaGate, Toledo, Ohio 43666
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(Address of principal executive offices) (Zip Code)
---------------------------------
STOCK OPTION PLAN FOR
DIRECTORS OF OWENS-ILLINOIS, INC.
---------------------------------
Copy to:
THOMAS L. YOUNG, ESQ.
Executive Vice President- ROBERT K. BURGESS, ESQ.
Administration Latham & Watkins
and General Counsel 233 South Wacker Drive
Owens-Illinois, Inc. Suite 5800
One SeaGate Chicago, Illinois 60606
Toledo, Ohio 43666 (312) 876-7700
(419) 247-5000
---------------------------------------
(Name, address, including zip code,
and telephone number, including
area code, of agent for service)
(cover page continued over)
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Calculation of Registration Fee
- -------------------------------------------------------------------------------
Amount Proposed Proposed
of Shares Maximum Maximum
Title of Each to be Offering Aggregate Amount of
Class of Securities Registered Price Per Offering Registration
to be Registered (1) Share (2) Price Fee
- -------------------------------------------------------------------------------
Common Stock,
par value
$.01 per share (1) 200,000 $ 10.8375 $2,167,500 $747.42
- -------------------------------------------------------------------------------
(1) The Stock Option Plan for Directors of Owens-Illinois, Inc. (the "Plan")
authorizes the issuance of a maximum of 200,000 shares. Of such shares,
36,573 are subject to presently outstanding options granted under the
Plan.
(2) For purposes of computing the registration fee only. Pursuant to Rule
457(c), the Proposed Maximum Offering Price Per Share is based upon (1)
the exercise price per share of $12.625 of outstanding options for
36,573 shares and (2) for the remaining 163,427 shares, the average of
the high and low prices reported on the New York Stock Exchange for the
Company's Common Stock on December 23, 1994, which was $10.4375.
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PART I
Item 1. Plan Information
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information
Not required to be filed with this Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Owens-Illinois, Inc, a Delaware corporation
(the "Company"), are incorporated as of their respective dates in this
Registration Statement by reference:
A. The Company's Annual Report on Form 10-K filed with the
Commission pursuant to Section 13(a) or 15(d) under the
Securities Exchange Act of 1934,as amended (the "Exchange Act")
for the fiscal year ended December 31, 1993;
B. All other reports filed by the Company pursuant to Sections
13(a) and 15(d) of the Exchange Act since December 31, 1993;
and
C. Description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-2 filed with the
Commission on October 17, 1991 (No. 33-43224).
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, are incorporated by
reference in this Registration Statement and are a part hereof from the date
of filing such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
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Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides that
a corporation shall have the power, and in some cases is required, to indemnify
an agent, including an officer or director, who was or is a party or is
threatened to be made a party to any proceedings, against certain expenses,
judgments, fines, settlements and other amounts under certain circumstances.
Article III, Section 13 of the Company's Bylaws provides for indemnification
of the Company's officers and directors to the extent permitted by the
Delaware General Corporation Law, and the Company maintains insurance covering
certain liabilities of the directors and officers of the Company and its
subsidiaries.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 Restated Certificate of Incorporation of the Company.
Incorporated by reference to Exhibit No. 3.1 to the
Company's Registration Statement, File No. 33-43224.
4.2 Bylaws of the Company. Incorporated by reference to
Exhibit No. 3.2 to the Company's Registration Statement,
File No. 33-43224.
*4.3 Stock Option Plan for Directors of Owens-Illinois, Inc.
*4.4 Form Stock Option Agreement.
*5.1 Opinion of Latham & Watkins regarding the legality of the
Common Stock being registered.
*23.1 Consent of Independent Auditors.
23.2 Consent of Latham & Watkins (included in Exhibit 5.1).
*24 Power of Attorney.
______________________
*Filed herewith
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
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(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 this Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate,represent a fundamental change
in the information set forth in the Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
shall not apply to information contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act 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 Exchange Act (and where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered herein, 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 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
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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 Act and will be governed by
the final adjudication of such issue.
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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 Toledo, State of Ohio, on this 29th
day of December, 1994.
OWENS-ILLINOIS, INC.
By: /s/ Thomas L. Young
-------------------------
Executive Vice President
Administration
General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on behalf of
Owens-Illinois, Inc. and in the capacities and on the dates indicated.
Signature Title
- ------------------- ---------------------------
Joseph H. Lemieux Chairman, Chief Executive
Officer and Director
(Principal Executive Officer)
Lee A. Wesselmann Senior Vice President, Chief
Financial Officer and
Director (Principal Financial
Officer)
David G. Van Hooser Vice President, Treasurer
and Comptroller (Principal
Accounting Officer)
Michael W. Michelson Director
James H. Greene, Jr. Director
Edward A. Gilhuly Director
John J. McMackin, Jr. Director
By: /s/ Thomas L. Young
--------------------
Thomas L. Young
Attorney-in-fact
Date: December 29, 1994
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INDEX TO EXHIBITS
EXHIBIT
- -------
4.3 Stock Option Plan for Directors of Owens-Illinois, Inc.
4.4 Form Stock Option Agreement.
5.1 Opinion of Latham & Watkins regarding the legality
of the Common Stock being registered.
23.1 Consent of Independent Auditors.
24 Power of Attorney.
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Exhibit 4.3
STOCK OPTION PLAN FOR DIRECTORS OF
OWENS-ILLINOIS, INC.
OWENS-ILLINOIS, INC., a corporation organized under the laws of
the State of Delaware (the "Company"), hereby adopts this Stock Option Plan
for Directors of Owens-Illinois, Inc. The purposes of this Stock Option Plan
are as follows:
(1) To further the growth, development and financial success of
the Company by providing additional incentives to certain members of its Board
of Directors who are not employees of the Company, by assisting them to become
owners of capital stock of the Company and thus to benefit directly from its
growth, development and financial success.
(2) To enable the Company to obtain and retain the services of
the type of outside directors considered essential to the long-range success
of the Company by providing and offering them an opportunity to become owners
of capital stock of the Company under options.
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Plan, they shall
have the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter and the
singular shall include the plural, where the context so indicates.
Section 1.1 - Award Limit
"Award Limit" shall mean 250,000 shares of Common Stock or, as the
context may require, Options to acquire more than 250,000 shares of Common
Stock.
Section 1.2 - Board
"Board" shall mean the Board of Directors of the Company.
Section 1.3 - Committee
"Committee" shall mean a committee of the Board appointed to
administer the Plan, as provided in Section 6.1.
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Section 1.4 - Common Stock
"Common Stock" shall mean the Company's common stock, $.01 par
value.
Section 1.5 - Company
"Company" shall mean Owens-Illinois, Inc. In addition, "Company"
shall mean any corporation assuming, or issuing new employee stock options in
substitution for, Options, outstanding under the Plan, in a transaction to
which Section 424(a) of the Internal Revenue Code would apply if such Options
were "incentive stock options" within the meaning of Section 422 of said Code.
Section 1.6 - Director
"Director" shall mean a member of the Board, whether he is such a
member at the time this Plan is adopted or becomes such a member subsequent to
the adoption of this Plan, who is not an employee of the Company or of any
corporation which is a Parent Corporation or a Subsidiary.
Section 1.7 - Exchange Act
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
Section 1.8 - Fair Market Value
"Fair Market Value" of a share of the Company's stock as of a
given date shall be: (i) the closing price of a share of the Company's stock
on the principal exchange on which shares of the Company's stock are then
trading, if any, on the day previous to such date, or, if shares were not
traded on the day previous to such date, then on the next preceding trading
day during which a sale occurred; or (ii) if such stock is not traded on an
exchange but is quoted on NASDAQ or a successor quotation system, (1) the last
sales price (if the stock is then listed as a National Market Issue under the
NASD National Market System) or (2) the mean between the closing
representative bid and asked prices (in all other cases) for the stock on the
day previous to such date as reported by NASDAQ or such successor quotation
system; or (iii) if such stock is not publicly traded on an exchange and not
quoted on NASDAQ or a successor quotation system, the mean between the closing
bid and asked prices for the stock, on the day previous to such date, as
determined in good faith by the Committee; or (iv) if the Company's stock is
not publicly traded, the fair market value established by the Committee
acting in good faith.
Section 1.9 - Option
"Option" shall mean an option to purchase capital stock of the
Company, granted under the Plan.
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Section 1.10 - Optionee
"Optionee" shall mean a Director to whom an Option is granted
under the Plan.
Section 1.11 - Parent Corporation
"Parent Corporation" shall mean any corporation in an unbroken
chain of corporations ending with the Company if each of the corporations
other than the Company then owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
Section 1.12 - Plan
"Plan" shall mean this Stock Option Plan for Directors of Owens-
Illinois, Inc.
Section 1.13 - Rule 16b-3
"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange
Act, as such Rule may be amended in the future.
Section 1.14 - Securities Act
"Securities Act" shall mean the Securities Act of 1933, as
amended.
Section 1.15 - Subsidiary
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing 50% or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain. "Subsidiary" shall also mean any
partnership in which the Company and/or any Subsidiary owns more than 50% of
the capital or profits interests.
Section 1.16 - Termination of Membership
"Termination of Membership" shall mean the time when an Optionee's
membership on the Board of the Company or of a Parent Corporation or a
Subsidiary is terminated for any reason, with or without cause, including, but
not by way of limitation, a termination by resignation, discharge, death,
total disability or retirement, but excluding (i) terminations where there is
a simultaneous reelection to or other reestablishment of membership on the
Board of the Company or of a Parent Corporation or a Subsidiary or (ii)
terminations where the Optionee continues a relationship (e.g., as an employee
or as a consultant) with the Company, a Parent Corporation or a Subsidiary.
The Committee, in its absolute discretion, shall determine the effect of all
other matters and questions relating to Termination of Membership, including,
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but not by way of limitation, the question of whether a Termination of
Membership resulted from a discharge for good cause, and questions of
whether particular leaves of absence constitute Terminations of Membership.
ARTICLE II
SHARES SUBJECT TO PLAN
Section 2.1 - Shares Subject to Plan
The shares of stock subject to Options shall be shares of the
Company's $.01 par value Common Stock. The aggregate number of such shares
which may be issued upon exercise of Options shall not exceed 200,000.
Section 2.2 - Unexercised Options
If any Option expires or is cancelled without having been fully
exercised, the number of shares subject to such Option but as to which such
Option was not exercised prior to its expiration or cancellation may again be
granted hereunder, subject to the limitations of Section 2.1.
Section 2.3 - Changes in Company's Shares
In the event that the outstanding shares of Common Stock of the
Company are hereafter changed into or exchanged for a different number or kind
of shares or other securities of the Company, or of another corporation, by
reason of reorganization, merger, consolidation, recapitalization,
reclassification, or the number of shares is increased or decreased by reason
of a stock split-up, stock dividend, combination of shares or any other
increase or decrease in the number of such shares of Common Stock effected
without receipt of consideration by the Company (provided, however, that
conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration"), the Committee shall
make appropriate adjustments in the number and kind of shares for the purchase
of which Options may be granted, including adjustments of the limitations in
Section 2.1 on the maximum number and kind of shares which may be issued on
exercise of Options and of the Award Limit set forth in Section 1.1.
ARTICLE III
GRANTING OF OPTIONS
Section 3.1 - Eligibility
Any Director of the Company or of any corporation which is then a
Parent Corporation or a Subsidiary shall be eligible to be granted Options.
Section 3.2 - Granting of Options
(a) The Committee shall from time to time, in its absolute
discretion:
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(i) Determine the Directors (including those to whom Options
have been previously granted under the Plan) as in its opinion should be
granted Options; and
(ii) Determine the number of shares to be subject to such
Options granted to such Directors; and
(iii) Determine the terms and conditions of such Options,
consistent with the Plan.
(b) Upon the selection of a Director to be granted an Option, the
Committee shall instruct the appropriate officer or officers of the Company to
issue such Option and may impose such conditions on the grant of such Option
as it deems appropriate. Without limiting the generality of the preceding
sentence,the Committee may, in its discretion and on such terms as it deems
appropriate, require as a condition on the grant of an Option to a Director
that the Director surrender for cancellation some or all of the unexercised
Options which have been previously granted to him. An Option the grant of
which is conditioned upon such surrender may have an Option price lower (or
higher) than the Option price of the surrendered Option, may cover the same
(or a lesser or greater) number of shares as the surrendered Option, may
contain such other terms as the Committee deems appropriate and shall be
exercisable in accordance with its terms, without regard to the number of
shares, price, Option period or any other term or condition of the surrendered
Option.
(c) Notwithstanding anything contained herein to the contrary,
including, without limitation, Section 3.2(a)(ii) above, no Director shall be
granted during any calendar year an Option or Options for more than the Award
Limit.
ARTICLE IV
TERMS OF OPTIONS
Section 4.1 - Option Agreement
Each Option shall be evidenced by a written Stock Option
Agreement, which shall be executed by the Optionee and an authorized officer
of the Company and which shall contain such terms and conditions as the
Committee shall determine, consistent with the Plan.
Section 4.2 - Option Price
The price of the shares subject to each Option shall be set by the
Committee; provided, however, that the price per share shall be not less than
100% of the Fair Market Value of such shares on the date such Option is
granted.
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Section 4.3 - Commencement of Exercisability
(a) No Option may be exercised in whole or in part during the
first year after such Option is granted, except as may be provided in Sections
4.7 and 4.3(c).
(b) Subject to the provisions of Sections 4.3(a), 4.3(c), 4.7 and
7.3, Options shall become exercisable at such times and in such installments
(which may be cumulative) as the Committee shall provide in the terms of each
individual Option; provided, however, that by a resolution adopted after an
Option is granted the Committee may, on such terms and conditions as it may
determine to be appropriate and subject to Sections 4.3(a), 4.3(c), 4.7 and
7.3, accelerate the time at which such Option or any portion thereof may be
exercised.
(c) No portion of an Option which is unexercisable at Termination
of Membership shall thereafter become exercisable; provided, however, that
provision may be made that such Option shall become exercisable in the event
of a Termination of Membership because of the Optionee's retirement or total
disability (each as determined by the Committee in accordance with Company
policies) or death.
Section 4.4 - Expiration of Options
(a) No Option may be exercised to any extent by anyone after the
first to occur of the following events:
(i) The expiration of ten years and one day from the date the
Option was granted; or
(ii) Except in the case of (A) any Optionee who is totally
disabled (as determined by the Committee in accordance with Company
policies), (B) any Optionee who retires within the meaning of clause
(iv) below, (C) any Optionee who dies or (D) any Optionee whose right to
exercise his Option is extended by the Committee pursuant to clause (vi)
below, the expiration of three months from the date of the Optionee's
Termination of Membership for any reason unless the Optionee dies within
said three-month period; or
(iii) In the case of an Optionee who is totally disabled (as
determined by the Committee in accordance with Company policies), the
expiration of one year from the date of the Optionee's Termination of
Membership by reason of his disability unless the Optionee dies within
said one-year period; or
(iv) In the case of an Optionee who retires (as determined by
the Committee in accordance with Company policies), the expiration of
three years from the date of Optionee's Termination of Membership by
reason of such retirement; or
(v) The expiration of one year from the date of the Optionee's
death; or
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(vi) In the case of any Optionee whose right to exercise his
Option is extended by the Committee, which extension shall not exceed
three years from the date of Optionee's Termination of Membership, the
date upon which such extension expires.
(b) Subject to the provisions of Section 4.4(a), the Committee
shall provide, in the terms of each individual Option, when such Option
expires and becomes unexercisable; and (without limiting the generality of the
foregoing) the Committee may provide in the terms of individual Options that
said Options expire immediately upon a Termination of Membership; provided,
however, that provision may be made that such Option shall become exercisable
in the event of a Termination of Membership because of the Optionee's
retirement or total disability (as determined by the Committee in accordance
with Company policies) or death.
Section 4.5 - Consideration
In consideration of the granting of an Option, the Optionee shall
agree, in the written Stock Option Agreement, to remain a member of the Board
of the Company or of a Parent Corporation or a Subsidiary for a period of at
least one year after the Option is granted. Nothing in this Plan or in any
Stock Option Agreement hereunder shall confer upon any Optionee any right to
continue as a member of the Board of the Company or of any Parent Corporation
or any Subsidiary or shall interfere with or restrict in any way the rights of
the Board or the stockholders of the Company, its Parent Corporations and its
Subsidiaries, which are hereby expressly reserved, to terminate any Optionee's
Board membership at any time for any reason whatsoever, with or without cause.
Section 4.6 - Adjustments in Outstanding Options
In the event that the outstanding shares of Common Stock subject
to Options are changed into or exchanged for a different number or kind of
shares of the Company or other securities of the Company by reason of merger,
consolidation, recapitalization, reclassification, or the number of shares is
increased or decreased by reason of a stock split-up, stock dividend,
combination of shares or any other increase or decrease in the number of such
shares of Common Stock effected without receipt of consideration by the
Company (provided, however, that conversion of any convertible securities of
the Company shall not be deemed to have been "effected without receipt of
consideration"), the Committee shall make appropriate adjustments in the
number and kind of shares as to which all outstanding Options, or portions
thereof then unexercised, shall be exercisable, to the end that after such
event the Optionee's proportionate interest shall be maintained as before the
occurrence of such event. Such adjustment in an outstanding Option shall be
made without change in the total price applicable to the Option or the
unexercised portion of the Option (except for any change in the aggregate
price resulting from rounding-off of share quantities or prices) and with any
necessary corresponding adjustment in Option price per share. Any such
adjustment made by the Committee shall be final andbinding upon all
Optionees, the Company and all other interested persons.
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Section 4.7 - Merger, Consolidation, Acquisition, Liquidation or Dissolution
Notwithstanding the provisions of Section 4.6, in its absolute
discretion, and on such terms and conditions as it deems appropriate, the
Committee may provide by the terms of any Option that such Option cannot be
exercised after the merger or consolidation of the Company with or into
another corporation, the acquisition by another corporation or person
(excluding any employee benefit plan of the Company or any trustee or other
fiduciary holding securities under an employee benefit plan of the Company) of
all or substantially all of the Company's assets or 51% or more of the
Company's then outstanding voting stock, or the liquidation or dissolution of
the Company; and if the Committee so provides, it may, in its absolute
discretion and on such terms and conditions as it deems appropriate, also
provide, either by the terms of such Option or by a resolution adopted prior
to the occurrence of such merger, consolidation, acquisition, liquidation or
dissolution, that, for some period of time prior to such event, such Option
shall be exercisable as to all shares covered thereby, notwithstanding
anything to the contrary in Section 4.3(a), Section 4.3(b) and/or any
installment provisions of such Option.
Section 4.8 - No Right to Continued Board Membership
Nothing in this Plan or in any Stock Option Agreement hereunder
shall confer upon any Optionee any right to continue as a member of the Board
of the Company or of any Parent Corporation or any Subsidiary or shall
interfere with or restrict in any way the rights otherwise conferred on or
reserved to the Board and the stockholders of the Company, its Parent
Corporations and Subsidiaries, and/or the stockholders of any of them, to
terminate any Optionee's Board membership.
ARTICLE V
EXERCISE OF OPTIONS
Section 5.1 - Person Eligible to Exercise
During the lifetime of the Optionee, only he may exercise an
Option (or any portion thereof) granted to him. After the death of the
Optionee, any exercisable portion of an Option may, prior to the time when
such portion becomes unexercisable under the Plan or the applicable Stock
Option Agreement, be exercised by his personal representative or by any person
empowered to do so under the deceased Optionee's will or under the then
applicable laws of descent and distribution.
Section 5.2 - Partial Exercise
At any time and from time to time prior to the time when any
exercisable Option or exercisable portion thereof becomes unexercisable under
the Plan or the applicable Stock Option Agreement, such Option or portion
thereof may be exercised in whole or in part; provided, however, that the
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Company shall no be required to issue fractional shares and the Committee
may, by the terms of the Option, require any partial exercise to be with
respect to a specified minimum number of shares.
Section 5.3 - Manner of Exercise
An exercisable Option, or any exercisable portion thereof, may be
exercised solely by delivery to the secretary of the Company or his office of
all of the following prior to the time when such Option or such portion
becomes unexercisable under the Plan or the applicable Stock Option Agreement:
(a) Notice in writing signed by the Optionee or other person
then entitled to exercise such Option or portion, stating that such
Option or portion is exercised, such notice complying with all
applicable rules established by the Committee; and
(b) (i) Full payment (in cash or by check) for the shares
with respect to which such Option or portion is thereby exercised; or
(ii) With the consent of the Committee, (A) shares of the
Company's Common Stock owned by the Optionee duly endorsed for transfer
to the Company, or, (B) subject to the timing requirements of Section
5.4, shares of the Company's Common Stock issuable to the Optionee upon
exercise of the Option, with a Fair Market Value on the date of Option
exercise equal to the aggregate Option price of the shares with respect
to which such Option or portion is thereby exercised; or
(iii) With the consent of the Committee, a full recourse
promissory note bearing interest (at least such rate as shall then
preclude the imputation of interest under the Internal Revenue Code) and
payable upon such terms as may be prescribed by the Committee. The
Committee may also prescribe the form of such note and the security to
be given for such note. No Option may, however, be exercised by
delivery of a promissory note or by a loan from the Company when or
where such loan or other extension of credit is prohibited by law; or
(iv) With the consent of the Committee, any combination of
the consideration provided in the foregoing subsections (i), (ii) and
(iii); and
(c) The payment to the Company (or other applicable
corporation) of all amounts, if any, which it is required to withhold
under federal, state or local law in connection with the exercise of the
Option; with the consent of the Committee, (i) shares of the Company's
Common Stock owned by the Optionee duly endorsed for transfer, or, (ii)
subject to the timing requirements of Section 5.4, shares of the
Company's Common Stock issuable to the Optionee upon exercise of the
Option, valued at Fair Market Value as of the date of Option exercise,
may be used to make all or part of such payment;
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(d) Such representations and documents as the Committee, in
its absolute discretion, deems necessary or advisable to effect
compliance with all applicable provisions of the Securities Act and any
other federal or state securities laws or regulations. The Committee
may, in its absolute discretion, also take whatever additional actions
it deems appropriate to effect such compliance including, without
limitation, placing legends on share certificates and issuing
stop-transfer orders to transfer agents and registrars; and
(e) In the event that the Option or portion thereof shall be
exercised pursuant to Section 5.1 by any person or persons other than
the Optionee, appropriate proof of the right of such person or persons
to exercise the Option or portion thereof.
Section 5.4 - Certain Timing Requirements
Shares of the Company's Common Stock issuable to the Optionee upon
exercise of the Option may be used to satisfy the Option price or the tax
withholding consequences of such exercise only (i) during the period beginning
on the third business day following the date of release of the quarterly or
annual summary statement of sales and earnings of the Company and ending on
the twelfth business day following such date or (ii) pursuant to an
irrevocable written election by the Optionee to use shares of the Company's
Common Stock issuable to the Optionee upon exercise of the Option to pay all
or part of the Option price or any withholding taxes (subject to the approval
of the Committee) made at least six months prior to the payment of such Option
price or withholding taxes.
Section 5.5 - Conditions to Issuance of Stock Certificates
The shares of stock issuable and deliverable upon the exercise of
an Option, or any portion thereof, may be either previously authorized but
unissued shares or issued shares which have then been reacquired by the
Company. The Company shall not be required to issue or deliver any
certificate or certificates for shares of stock purchased upon the exercise of
any Option or portion thereof prior to fulfillment of all of the following
conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other qualification
of such shares under any state or federal law or under the rulings or
regulations of the Securities and Exchange Commission or any other
governmental regulatory body, which the Committee shall, in its absolute
discretion, deem necessary or advisable; and
(c) The obtaining of any approval or other clearance from any
state or federal governmental agency which the Committee shall, in its
absolute discretion, determine to be necessary or advisable; and
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(d) The payment to the Company (or other applicable
corporation) of all amounts, if any, which it is required to withhold
under federal, state or local law in connection with the exercise of the
Option; and
(e) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may establish from time to time
for reasons of administrative convenience.
Section 5.6 - Rights as Stockholders
The holders of Options shall not be, nor have any of the rights or
privileges of, stockholders of the Company in respect to any shares
purchasable upon the exercise of any part of an Option unless and until
certificates representing such shares have been issued by the Company to such
holders.
Section 5.7 - Transfer Restrictions
Unless otherwise approved in writing by the Committee, no shares
acquired upon exercise of any Option by any Director may be sold, assigned,
pledged, encumbered or otherwise transferred until at least six months have
elapsed from (but excluding) the date that such Option was granted. The
Committee, in its absolute discretion, may impose such other restrictions on
the transferability of the shares purchasable upon the exercise of an Option
as it deems appropriate. Any such other restriction shall be set forth in the
respective Stock Option Agreement and may be referred to on the certificates
evidencing such shares.
ARTICLE VI
ADMINISTRATION
Section 6.1 - Committee
The Committee shall consist of two or more members of the Board,
appointed by and holding office at the pleasure of the Board, each of whom is
a "disinterested person" as defined by Rule 16b-3. Appointment of Committee
members shall be effective upon acceptance of appointment. Committee members
may resign at any time by delivering written notice to the Board. Vacancies
in the Committee shall be filled by the Board.
Section 6.2 - Duties and Powers of Committee
It shall be the duty of the Committee to conduct the general
administration of the Plan in accordance with its provisions. The Committee
shall have the power to interpret the Plan and the Options and to adopt such
rules for the administration, interpretation and application of the Plan as
are consistent therewith and to interpret, amend or revoke any such rules.
The Board shall have no right to exercise any of the rights or duties of the
Committee under the Plan.
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Section 6.3 - Majority Rule
The Committee shall act by a majority of its members in office.
The Committee may act either by vote at a meeting or by a memorandum or other
written instrument signed by a majority of the Committee.
Section 6.4 - Compensation; Professional Assistance; Good Faith Actions
Members of the Committee shall receive such compensation for their
services as members as may be determined by the Board. All expenses and
liabilities incurred by members of the Committee in connection with the
administration of the Plan shall be borne by the Company. The Committee may
employ attorneys, consultants, accountants, appraisers, brokers or other
persons. The Committee, the Company and its officers and directors shall be
entitled to rely upon the advice, opinions or valuations of any such persons.
All actions taken and all interpretations and determinations made by the
Committee in good faith shall be final and binding upon all Optionees, the
Company and all other interested persons. No member of the Committee shall be
personally liable for any action, determination or interpretation made in good
faith with respect to the Plan or the Options, and all members of the
Committee shall be fully protected by the Company in respect to any such
action, determination or interpretation.
ARTICLE VII
OTHER PROVISIONS
Section 7.1 - Options Not Transferable
No Option or interest or right therein or part thereof shall be
liable for the debts, contracts or engagements of the Optionee or his
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof
shall be null and void and of no effect; provided, however, that nothing in
this Section 7.1 shall prevent transfers by will or by the applicable laws of
descent and distribution.
Section 7.2 - Amendment, Suspension or Termination of the Plan
The Plan may be wholly or partially amended or otherwise modified,
suspended or terminated at any time or from time to time by the Committee.
However, without approval of the Company's stockholders given within twelve
months before or after the action by the Committee, no action of the Committee
may, except as provided in Section 2.3, increase any limit imposed in Section
2.1 on the maximum number of shares which may be issued on exercise of
Options, modify the Award Limit, materially modify the eligibility
requirements of Section 3.1, reduce the minimum Option price requirements of
Section 4.2, extend the limit imposed in this Section 7.2 on the period during
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which Options may be granted or amend or modify the Plan in a manner requiring
stockholder approval under Rule 16b-3. Neither the amendment, suspension nor
termination of the Plan shall, without the consent of the holder of the
Option, alter or impair any rights or obligations under any Option theretofore
granted. No Option may be granted during any period of suspension nor after
termination of the Plan, and in no event may any Option be granted under this
Plan after the first to occur of the following events:
(a) The expiration of ten years from the date the Plan is
adopted by the Board; or
(b) The expiration of ten years from the date the Plan is
approved by the Company's stockholders under Section 7.3.
Section 7.3 - Approval of Plan by Stockholders
This Plan will be submitted for the approval of the Company's
stockholders within twelve months after the date of the Board's initial
adoption of the Plan. Options may be granted prior to such stockholder
approval; provided, however, that such Options shall not be exercisable prior
to the time when the Plan is approved by the stockholders; provided, further,
that if such approval has not been obtained at the end of said twelve-month
period, all Options previously granted under the Plan shall thereupon be
cancelled and become null and void. The Company shall take such actions with
respect to the Plan as may be necessary to satisfy the requirements of Rule
16b-3(b).
Section 7.4 - Effect of Plan Upon Other Option and Compensation Plans
The adoption of this Plan shall not affect any other compensation
or incentive plans in effect for the Company, any Parent Corporation or any
Subsidiary. Nothing in this Plan shall be construed to limit the right of the
Company, any Parent Corporation or any Subsidiary (a) to establish any other
forms of incentives or compensation for members of the Board of the Company,
any Parent Corporation or any Subsidiary or (b) to grant or assume options
otherwise than under this Plan in connection with any proper corporate
purpose, including, but not by way of limitation, the grant or assumption of
options in connection with the acquisition by purchase, lease, merger,
consolidation or otherwise, of the business, stock or assets of any
corporation, firm or association.
Section 7.5 - Titles
Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of the Plan.
Section 7.6 - Conformity to Securities Laws
The Plan is intended to conform to the extent necessary with all
provisions of the Securities Act and the Exchange Act and any and all
regulations and rules promulgated by the Securities and Exchange Commission
thereunder, including without limitation Rule 16b-3. Notwithstanding anything
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herein to the contrary, the Plan shall be administered, and Options shall be
granted and may be exercised, only in such a manner as to conform to such
laws, rules and regulations. To the extent permitted by applicable law, the
Plan and Options granted hereunder shall be deemed amended to the extent
necessary to conform to such laws, rules and regulations.
* * * *
I hereby certify that the foregoing Plan was duly adopted by the
Compensation Committee of the Board of Directors of Owens-Illinois, Inc. on
March 11, 1994.
Executed as of the 12th day of May, 1994.
/s/ Thomas L. Young
------------------
Secretary
Corporate Seal
* * * *
I hereby certify that the foregoing Plan was duly approved by the
stockholders of Owens-Illinois, Inc. on May 11, 1994.
Executed as of the 12th day of May, 1994.
/s/ Thomas L. Young
------------------
Secretary
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Exhibit 4.4
STOCK OPTION PLAN FOR DIRECTORS
OF
OWENS-ILLINOIS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, dated ____________, 19__, is made by and between
Owens-Illinois, Inc., a Delaware corporation hereinafter referred to as
"Company," and _________________________, a Director of the Company,
hereinafter referred to as "Optionee":
WHEREAS, the Company wishes to afford the Optionee the opportunity
to purchase shares of its $.01 par value Common Stock (as defined hereunder);
and
WHEREAS, the Company wishes to carry out the Stock Option Plan for
Directors of Owens-Illinois, Inc. (the terms of which are hereby incorporated
by reference and made a part of this Agreement); and
WHEREAS, the Compensation Committee of the Company's Board of
Directors (hereinafter referred to as the "Committee"), appointed to
administer said Plan, has determined that it would be to the advantage and
best interest of the Company and its stockholders to grant the Non-Qualified
Option provided for herein to the Optionee as an inducement to remain in the
service of the Company and as an incentive for increased efforts during such
service, and has advised the Company thereof and instructed the appropriate
officers to issue said Option;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they
shall have the meaning specified below unless the context clearly indicates to
the contrary. The masculine pronoun shall include the feminine and neuter,
and the singular the plural, where the context so indicates.
<PAGE>
Section 1.1 - Board
"Board" shall mean the Board of Directors of the Company.
Section 1.2 - Code
"Code" shall mean the Internal Revenue Code of 1986, as amended.
Section 1.3 - Common Stock
"Common Stock" shall mean the Company's common stock, $.01 par
value.
Section 1.4 - Company
"Company" shall mean Owens-Illinois, Inc. In addition, "Company"
shall mean any corporation assuming, or issuing new director stock options in
substitution for, the Option, outstanding under the Plan, in a transaction to
which Section 424(a) of the Code applies.
Section 1.5 - Exchange Act
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
Section 1.6 - Fair Market Value
"Fair Market Value" of a share of the Company's stock as of a
given date shall be: (i) the closing price of a share of the Company's stock
on the principal exchange on which shares of the Company's stock are then
trading, if any, on the day previous to such date, or, if shares were not
traded on the day previous to such date, then on the next preceding trading
day during which a sale occurred; or (ii) if such stock is not traded on an
exchange but is quoted on NASDAQ or a successor quotation system, (1) the last
sales price (if the stock is then listed as a National Market Issue under the
NASD National Market System) or (2) the mean between the closing
representative bid and asked prices (in all other cases) for the stock on the
day previous to such date as reported by NASDAQ or such successor quotation
system; or (iii) if such stock is not publicly traded on an exchange and not
quoted on NASDAQ or a successor quotation system, the mean between the closing
bid and asked prices for the stock, on the day previous to such date, as
determined in good faith by the Committee; or (iv) if the Company's stock is
not publicly traded, the fair market value established by the Committee acting
in good faith.
Section 1.7 - Option
"Option" shall mean an option to purchase Common Stock of the
Company granted under this Agreement.
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Section 1.8 - Parent Corporation
"Parent Corporation" shall mean any corporation in an unbroken
chain of corporations ending with the Company if each of the corporations
other than the Company then owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
Section 1.9 - Plan
"Plan" shall mean the Stock Option Plan for Directors of Owens-
Illinois, Inc.
Section 1.10 - Rule 16b-3
"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange
Act, as such rule may be amended in the future.
Section 1.11 - Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.12 - Securities Act
"Securities Act" shall mean the Securities Act of 1933, as
amended.
Section 1.13 - Subsidiary
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing 50% or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain. "Subsidiary" shall also mean any
partnership in which the Company and/or any Subsidiary owns more than 50% of
the capital of profits interests.
Section 1.14 - Termination of Membership
"Termination of Membership" shall mean the time when an Optionee's
Membership on the Board the Company, a Parent Corporation or a Subsidiary is
terminated for any reason, with or without cause, including, but not by way of
limitation, a termination by resignation, discharge, death, total disability
or retirement, but excluding (i) any termination where there is a simultaneous
reelection to or other reestablishment of Membership on the Board of the
Company or of a Parent Corporation or a Subsidiary or (ii) any termination
where the Optionee continues a relationship (e.g., as an employee or as a
consultant) with the Company, a Parent Corporation or a Subsidiary. The
Committee, in its absolute discretion, shall determine the effect of all other
matters and questions relating to Termination of Membership, including, but
not by way of limitation, the question of whether a Termination of Membership
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resulted from a discharge for good cause, and all questions of whether
particular leaves of absence constitute Terminations of Membership.
ARTICLE II
GRANT OF OPTION
Section 2.1 - Grant of Option
In consideration of the Optionee's agreement to remain as a
Director of the Company, its Parent Corporations or its Subsidiaries and for
other good and valuable consideration, on the date hereof the Company
irrevocably grants to the Optionee the option to purchase any part or all of
an aggregate of __________ shares of its $.01 par value Common Stock upon the
terms and conditions set forth in this Agreement.
Section 2.2 - Purchase Price
The purchase price of the shares of stock covered by the Option
shall be $________ per share without commission or other charge.
Section 2.3 - Consideration to Company
In consideration of the granting of this Option by the Company,
the Optionee agrees to render faithful and efficient services to the Company, a
Parent Corporation or a Subsidiary as a member of its Board of Directors.
Nothing in this Agreement or in the Plan shall confer upon the Optionee any
right to continue as a Director of the Company, any Parent Corporation or any
Subsidiary.
Section 2.4 - Adjustments in Option
In the event that the outstanding shares of Common Stock subject
to the Option are changed into or exchanged for a different number or kind of
shares of the Company or other securities of the Company by reason of merger,
consolidation, recapitalization, reclassification, or the number of shares is
increased or decreased by reason of a stock split up, stock dividend,
combination of shares or any other increase or decrease in the number of such
shares of Common Stock effected without receipt of consideration by the
Company (provided, however, that conversion of any convertible securities of
the Company shall not be deemed to have been "effected without receipt of
consideration") the Committee shall make appropriate adjustments in the number
and kind of shares as to which the Option, or portions thereof then
unexercised, shall be exercisable, to the end that after such event the
Optionee's proportionate interest shall be maintained as before the occurrence
of such event. Such adjustment in the Option shall be made without change in
the total price applicable to the unexercised portion of the Option (except
for any change in the aggregate price resulting from rounding-off of share
quantities or prices) and with any necessary corresponding adjustment in the
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Option price per share. Any such adjustment made by the Committee shall be
final and binding upon the Optionee, the Company and all other interested
persons.
ARTICLE III
PERIOD OF EXERCISABILITY
Section 3.1 - Commencement of Exercisability
(a) Except as provided in Section 3.4, no Option may be
exercised in whole or in part during the first year after such Option is
granted.
(b) Except to the extent that such Option becomes exercisable
sooner pursuant to Section 3.1(c), the Option shall become exercisable as to
50% of the shares covered by the Option on the fifth anniversary of the date
the Option is granted and as to the remaining 50% of the shares covered by the
Option on the sixth anniversary of the date the Option is granted. Such
installments shall be cumulative.
(c) The Option shall become exercisable after the first
anniversary of the date the Option is granted at the time when the average
Fair Market Value per share of Common Stock for any period of 20 consecutive
trading days (commencing after such first anniversary) is at least equal to
the product of the Fair Market Value per share on the date the Option is
granted times the amount shown below under "Stock Price Multiple" as to the
percentage of the shares of Common Stock initially subject to the Option shown
below under "Exercisable Percentage."
Stock Price Multiple Exercisable Percentage
-------------------- ----------------------
120% 25%
144% 50%
172% 75%
206% 100%
For example, a 1,000 share Option exercisable at $15.00 per share
(100% of Fair Market Value at the date of Option grant) would become
exercisable as to 250 shares when a 20 consecutive trading day period average
price of $18.00 is achieved ($18.00 is 120% of $15.00). Further vesting would
occur if and when the next percentage multiple or multiples are achieved.
(d) Except as provided in Section 3.4 or as otherwise determined
by the Committee in accordance with Section 4.3(c) of the Plan, no portion of
the Option which is unexercisable at Termination of Membership shall
thereafter become exercisable.
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Section 3.2 - Duration of Exercisability
The installments provided for in Section 3.1 are cumulative. Each
such installment which becomes exercisable pursuant to Section 3.l shall
remain exercisable until it becomes unexercisable under Section 3.3.
Section 3.3 - Expiration of Option
The Option may not be exercised to any extent by anyone after the
first to occur of the following events:
(a) The expiration of ten years and one day from the date the
Option was granted; or
(b) The time of the Optionee's Termination of Membership unless
such Termination of Membership results from his retirement or total disability
(each as determined by the Committee in accordance with Company policies) or
death or his being discharged not for good cause, or unless the Optionee's
right to exercise his Options has been extended by the Committee pursuant to
Section 4.4(a)(vi) of the Plan; or
(c) The expiration of three months from the date of the
Optionee's Termination of Membership by reason of his retirement, or the
expiration of such period as shall be determined by the Committee in the event
the Optionee's right to exercise his Options is extended by the Committee
pursuant to Section 4.4(a)(iv) of the Plan, unless the Optionee dies within
said period; or
(d) The expiration of three months from the date of the
Optionee's Termination of Membership by reason of his being discharged not for
good cause, unless the Optionee dies within said period; or
(e) The expiration of such period as shall be determined by the
Committee in the event the Optionee's right to exercise his Options is
extended by the Committee pursuant to Section 4.4(a)(vi) of the Plan, unless
the Optionee dies within such period; or
(f) The expiration of one year from the date of the Optionee's
Termination of Membership by reason of his total disability; or
(g) The expiration of one year from the date of the Optionee's
death; or
(h) The effective date of either the merger or consolidation of
the Company with or into another corporation, or the acquisition by another
corporation or person (excluding any employee benefit plan of the Company or
any trustee or other fiduciary holding securities under an employee benefit
plan of the Company) of all or substantially all of the Company's assets or
51% or more of the Company's then outstanding voting stock, or the liquidation
or dissolution of the Company, unless the Committee waives this provisions in
connection with such transaction. At least ten days prior to the effective
date of such merger, consolidation, acquisition, liquidation or dissolution,
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the Committee shall give the Optionee notice of such event if the Option has
then neither been fully exercised nor become unexercisable under this Section
3.3.
Section 3.4 - Acceleration of Exercisability
(a) In the event of a Termination of Membership resulting from
an Optionee's retirement or total disability (as determined by the Committee
in accordance with Company policies) or death, the Option shall be exercisable
as to all shares covered hereby, notwithstanding that this Option may not have
become fully exercisable under Section 3.1; or
(b) In the event of the merger or consolidation of the Company
with or into another corporation, or the acquisition by another corporation or
person (excluding any employee benefit plan of the Company or any trustee or
other fiduciary holding securities under an employee benefit plan of the
Company) of all or substantially all of the Company's assets or 51% or more of
the Company's then outstanding voting stock, or the liquidation or dissolution
of the Company, the Committee shall then provide by resolution, adopted prior
to such event and incorporated in the notice referred to in Section 3.3(h),
that at some time prior to the effective date of such event this Option shall
be exercisable as to all the shares covered hereby, notwithstanding that this
Option may not yet have become fully exercisable under Section 3.1; provided,
however, that this acceleration of exercisability shall not take place if:
(i) This Option becomes unexercisable under Section
3.3 prior to said effective date; or
(ii) In connection with such an event, provision is
made for an assumption of this Option or a substitution therefor of
a new option by an employer corporation or a parent or subsidiary
of such corporation.
The Committee may make such determinations and adopt such rules
and conditions as it, in its absolute discretion, deems appropriate in
connection with such acceleration of exercisability, including, but not by way
of limitation, provisions to ensure that any such acceleration and resulting
exercise shall be conditioned upon the consummation of the contemplated
corporate transaction.
ARTICLE IV
EXERCISE OF OPTION
Section 4.1 - Person Eligible to Exercise
During the lifetime of the Optionee, only he may exercise the
Option or any portion thereof. After the death of the Optionee, any
exercisable portion of the Option may, prior to the time when the Option
becomes unexercisable under Section 3.3, be exercised by his personal
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representative or by any person empowered to do so under the Optionee's will
or under the then applicable laws of descent and distribution.
Section 4.2 - Partial Exercise
Any exercisable portion of the Option or the entire Option, if
then wholly exercisable, may be exercised in whole or in part at any time
prior to the time when the Option or portion thereof becomes unexercisable
under Section 3.3; provided, however, that each partial exercise shall be for
not less than one hundred (100) shares (or the minimum installment set forth
in Section 3.1, if a smaller number of shares) and shall be for whole shares
only.
Section 4.3 - Manner of Exercise
The Option, or any exercisable portion thereof, may be exercised
solely by delivery to the secretary of the Company or his office of all of the
following prior to the time when the Option or such portion becomes
unexercisable under Section 3.3:
(a) Notice in writing signed by the Optionee or the
other person then entitled to exercise the Option or portion,
stating that the Option or portion is thereby exercised, such
notice complying with all applicable rules established by the
Committee; and
(b) (i) Full payment (in cash or by check) for the
shares with respect to which such Option or portion is exercised;
or
(ii) With the consent of the Committee,
(A) shares of the Company's Common Stock owned by the
Optionee duly endorsed for transfer to the Company, or
(B) subject to the timing requirements of Section 4.4,
shares of the Company's Common Stock issuable to the
Optionee upon exercise of the Option, with a Fair
Market Value on the date of option exercise equal to
the aggregate purchase price of the shares with
respect to which such Option or portion is exercised;
or
(iii) With the consent of the Committee,
a full recourse promissory note bearing interest (at
least such rate as shall then preclude the imputation
of interest under the Code) and payable upon such
terms as may be prescribed by the Committee. The
Committee may also prescribe the form of such note and
the security to be given for such note. The Option
may not be exercised, however, by delivery of a
promissory note or by a loan from the Company when or
where such loan or other extension of credit is
prohibited by law; or;
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(iv) With the consent of the Committee,
any combination of the consideration provided in the
foregoing subparagraphs (i), (ii) and (iii); and
(c) A bona fide written representation and agreement,
in a form satisfactory to the Committee, signed by the Optionee or
other person then entitled to exercise such Option or portion,
stating that the shares of stock are being acquired for his own
account, for investment and without any present intention of
distributing or reselling said shares or any of them except as may
be permitted under the Securities Act and then applicable rules
and regulations thereunder, and that the Optionee or other person
then entitled to exercise such Option or portion will indemnify
the Company against and hold it free and harmless from any loss,
damage, expense or liability resulting to the Company if any sale or
distribution of the shares by such person is contrary to the
representation and agreement referred to above. The Committee may,
in its absolute discretion, take whatever additional actions it
deems appropriate to insure the observance and performance of such
representation and agreement and to effect compliance with the
Securities Act and any other federal or state securities laws or
regulations. Without limiting the generality of the foregoing, the
Committee may require an opinion of counsel acceptable to it to the
effect that any subsequent transfer of shares acquired on an Option
exercise does not violate the Securities Act, and may issue
stop-transfer orders covering such shares. Share certificates
evidencing stock issued on exercise of this Option shall bear an
appropriate legend referring to the provisions of this subsection
(c) and the agreements herein. The written representation and
agreement referred to in the first sentence of this subsection (c)
shall, however, not be required if the shares to be issued pursuant
to such exercise have been registered under the Securities Act, and
such registration is then effective in respect of such shares; and
(d) Full payment to the Company (or other employer
corporation) of all amounts which, under federal, state or local
tax law, it is required to withhold upon exercise of the Option;
with the consent of the Committee, (i) shares of the Company's
Common Stock owned by the Optionee duly endorsed for transfer, or,
(ii) subject to the timing requirements of Section 4.4, shares of
the Company's Common Stock issuable to the Optionee upon exercise
of the Option, valued at Fair Market Value as of the date of Option
exercise, may be used to make all or part of such payment; and
(e) In the event the Option or portion shall be
exercised pursuant to Section 4.l by any person or persons other
than the Optionee, appropriate proof of the right of such person or
persons to exercise the Option.
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Section 4.4 - Certain Timing Requirements
Shares of the Company's Common Stock issuable to the Optionee upon
exercise of the Option may be used to satisfy the tax withholding consequences
of such exercise only (i) during the period beginning on the third business
day following the date of release of the quarterly or annual summary statement
of sales and earnings of the Company and ending on the twelfth business day
following such date or (ii) pursuant to an irrevocable written election by the
Optionee to use shares of the Company's Common Stock issuable to the Optionee
upon exercise of the Option to pay all or part of the withholding taxes
(subject to the approval of the Committee) made at least six months prior to
the payment of such withholding taxes.
Section 4.5 - Conditions to Issuance of Stock Certificates
The shares of stock deliverable upon the exercise of the Option,
or any portion thereof, may be either previously authorized but unissued
shares or issued shares which have been reacquired by the Company. Such
shares shall be fully paid and nonassessable. The Company shall not be
required to issue or deliver any certificate or certificates for shares of
stock purchased upon the exercise of the Option or portion thereof prior to
fulfillment of all of the following conditions:
(a) The admission of such shares to listing on all
stock exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other
qualification of such shares under any state or federal law or under
rulings or regulations of the Securities and Exchange Commission or
of any other governmental regulatory body, which the Committee
shall, in its absolute discretion, deem necessary or advisable; and
(c) The obtaining of any approval or other clearance
from any state or federal governmental agency which the Committee
shall, in its absolute discretion, determine to be necessary or
advisable; and
(d) The payment to the Company (or other employer
corporation) of all amounts, if any, which, under federal, state or
local tax law, it is required to withhold upon exercise of the
Option; and
(e) The lapse of such reasonable period of time
following the exercise of the Option as the Committee may from time
to time establish for reasons of administrative convenience.
Section 4.6 - Rights as Stockholder
The holder of the Option shall not be, nor have any of the rights
or privileges of, a stockholder of the Company in respect to any shares
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purchasable upon the exercise of any part of the Option unless and until
certificates representing such shares shall have been issued by the Company
to such holder.
ARTICLE V
OTHER PROVISIONS
Section 5.1 - Administration
The Committee shall have the power to interpret the Plan, this
Agreement and all other documents relating to the Option and to adopt such
rules for the administration, interpretation and application of the Plan as
are consistent therewith and to interpret or revoke any such rules. All
actions taken and all interpretations and determinations made by the Committee
in good faith shall be final and binding upon the Optionee, the Company and
all other interested persons. No member of the Committee shall be personally
liable for any action, determination or interpretation made in good faith with
respect to the Plan or the Option and all members of the Committee shall be
fully protected by the Company in respect to any such action, determination or
interpretation. The Board shall have no right to exercise any of the rights
or duties of the Committee under the Plan and this Agreement.
Section 5.2 - Option Not Transferable
Unless otherwise approved in writing by the Committee, no shares
acquired upon exercise of any Option by any Director may be sold, assigned,
pledged, encumbered or otherwise transferred until at least six months have
elapsed from (but excluding) the date that such Option was granted.
Neither the Option nor any interest or right therein or part
thereof shall be liable for the debts, contracts or engagements of the
Optionee or his successors in interest or shall be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect; provided, however, that this
Section 5.2 shall not prevent transfers by will or by the applicable laws of
descent and distribution.
Section 5.3 - Shares to Be Reserved
The Company shall at all times during the term of the Option
reserve and keep available such number of shares of stock as will be
sufficient to satisfy the requirements of this Agreement.
Section 5.4 - Notices
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
11
<PAGE>
notice to be given to the Optionee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this
Section 5.4, either party may hereafter designate a different address for
notices to be given to it or him. Any notice which is required to be given to
the Optionee shall, if the Optionee is then deceased, be given to the
Optionee's personal representative if such representative has previously
informed the Company of his status and address by written notice under this
Section 5.4. Any notice shall be deemed duly given when enclosed in a
properly sealed envelope or wrapper addressed as aforesaid, deposited (with
postage prepaid) in a post office or branch post office regularly maintained
by the United States Postal Service.
Section 5.5 - Titles
Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this Agreement.
Section 5.6 - Rule 16b-3
The Company shall take such actions with respect to the Plan as
maybe necessary to satisfy the requirements of Rule 16b-3.
Section 5.7 - Conformity to Securities Laws
This Agreement is intended to conform to the extent necessary with
all provisions of the Securities Act and the Exchange Act and any and all
regulations and rules promulgated by the Securities and Exchange Commission
thereunder, including without limitation Rule 16b-3. Notwithstanding anything
herein to the contrary, this Agreement shall be administered, and the Option
shall be granted and may be exercised, only in such a manner as to conform to
such laws, rules and regulations. To the extent permitted by applicable law,
this Agreement and the Option granted hereunder shall be deemed amended to the
extent necessary to conform to such laws, rules and regulations.
Section 5.8 - Amendment
This Agreement may be amended only by a writing executed by the
parties hereto which specifically states that it is amending this Agreement.
Section 5.9 - Governing Law
The laws of the State of Delaware shall govern the interpretation,
validity, administration, enforcement and performance of the terms of this
Agreement regardless of the law that might be applied under principles of
conflicts of laws.
12
<PAGE>
IN WITNESS HEREOF, this Agreement has been executed and delivered
by the parties hereto.
OWENS-ILLINOIS, INC.
By
----------------------------
Its
---------------------------
- ---------------------------------
Optionee
- ---------------------------------
- ---------------------------------
Address
Optionee's Social Security Number:
- ---------------------------------
13
<PAGE>
Exhibit 5.1
December 29, 1994
Owens-Illinois, Inc.
One SeaGate
Toledo, Ohio 43666
Re: Registration Statement on Form S-8;
Stock Option Plan for Directors of Owens-Illinois, Inc.
Gentlemen:
We have acted as your special counsel in connection with the
above-captioned Registration Statement (the "Registration Statement") with
respect to the offer and sale of up to 200,000 shares of common stock, $.01
par value (the"Common Stock"), of Owens-Illinois, Inc. (the "Company"),
pursuant to the Stock Option Plan for Directors of Owens-Illinois, Inc.
We are familiar with the proceedings taken and proposed to be
taken by you in connection with the authorization, issuance and sale of Common
Stock, and for purposes of this opinion, have assumed such proceedings will be
timely completed in the manner presently proposed. In addition, we have made
such legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction of
such documents, corporate records and instruments, as we deemed necessary or
appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals,
and the conformity to authentic original documents of all documents submitted
to us as copies.
We are opining herein as to the effect on the subject transaction
of the General Corporation Law of the State of Delaware, and we express no
opinion with respect to the applicability thereto, or the effect thereon, of
any other laws.
Subject to the foregoing, it is our opinion that, as of the date
hereof, the Common Stock has been duly authorized and, upon issuance, delivery
and payment therefor in the manner contemplated by the Registration Statement,
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
/s/ Latham & Watkins
---------------------
Latham & Watkins
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Stock Option Plan for Directors of Owens-
Illinois, Inc. of our report dated February 4, 1994, with respect to the
consolidated financial statements and schedules of Owens-Illinois, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31,
1993, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
----------------------
Ernst & Young LLP
Toledo, Ohio
December 29, 1994
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That each individual whose
signature appears below hereby consents to and appoints Thomas L. Young, Lee
A. Wesselmann, or either of them, individually, as his true and lawful
attorney-in-fact and agent with all power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign the Form S-8
Registration Statement of Owens-Illinois, Inc., a corporation organized and
existing under the laws of the State of Delaware, and any and all amendments
thereto prepared in connection with the registration of 200,000 shares of the
common stock of Owens-Illinois, Inc. for issuance or sale under the Stock
Option Plan for Directors of Owens-Illinois,Inc., and to file the same, with
all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission pursuant to the requirements of the
Securities and Exchange Act of 1934, 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 same as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, each of the undersigned has hereunto set his
hand on the date set opposite his name.
Signature Title Date
- ---------------------- --------------------------- ------------------
/s/ Joseph H. Lemieux Chairman of the Board of September 26, 1994
- ---------------------- Directors and Chief Executive ------------------
Joseph H. Lemieux Officer (Principal Executive
Officer); Director
/s/ Lee A. Wesselmann Senior Vice President September 22, 1994
- ---------------------- and Chief Financial Officer ------------------
Lee A. Wesselmann (Principal Financial
Officer); Director
Chairman Emeritus of
- ---------------------- the Board of Directors; ------------------
Robert J. Lanigan Director
<PAGE>
/s/ David G. Van Hooser Vice President, Treasurer September 22, 1994
- ----------------------- and Comptroller (Principal ------------------
David G. Van Hooser Accounting Officer)
Director
- ------------------------ ------------------
Robert J. Dineen
/s/ Edward A. Gilhuly Director September 20, 1994
- ------------------------ ------------------
Edward A. Gilhuly
/s/ James H. Greene, Jr. Director September 20, 1994
- ------------------------ ------------------
James H. Greene, Jr.
Director
- ------------------------ ------------------
Henry R. Kravis
Director
- ------------------------ ------------------
Robert I. MacDonnell
/s/ John J. McMackin, Jr. Director September 30, 1994
- ------------------------- ------------------
John J. McMackin, Jr.
/s/ Michael W. Michelson Director September 20, 1994
- ------------------------- ------------------
Michael W. Michelson
Director
- ------------------------- ------------------
George R. Roberts
