<PAGE>
As filed with the Securities and Exchange Commission on March 10, 1998
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
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
(State or other jurisdiction of incorporation or organization)
22-2781933
(I.R.S. Employer Identification No.)
One SeaGate
Toledo, Ohio
(Address of principal executive offices)
43666
(Zip Code)
1997 EQUITY PARTICIPATION PLAN
Copy to:
THOMAS L. YOUNG, ESQ. Robert A. Koenig
Executive Vice President - Latham & Watkins
Administration, 633 West Fifth Street
General Counsel and Secretary Suite 4000
Owens-Illinois, Inc. Los Angeles, California 90071
One SeaGate (213) 485-1234
Toledo, Ohio 43666
(419) 247-5000
(Name, address, including zip code,
and telephone number, including area
code, of agent for service)
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
Proposed
Title of Each Amount Maximum Proposed
Class of of Shares Offering Maximum
Securities to be Price Aggregate Amount of
to be Registered Per Offering Registration
Registered (1) Share (2) Price Fee
- -------------- ---------- --------- --------- ------------
Common Stock,
par value $.01
per share (1) 10,000,000 $41.1373 $411,372,533 $121,254.90
- -------------------------------------------------------------------------------
(continued on next page)
<PAGE>
(continuation of cover page)
(1) The 1997 Equity Participation Plan of Owens-Illinois, Inc. (the "Plan")
authorizes the issuance of a maximum of 10,000,000 shares. Of such
shares, 1,141,350 are subject to presently outstanding options granted
under the Plan and 33,142 are subject to restricted stock agreements in
connection with deferred compensation plans.
(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 $31.625 of outstanding options for
1,140,150 shares, (2) the exercise price per share of $34.875 of
outstanding options for 1,200 shares, (3) the fair value per share of
$39.00 for 33,142 shares subject to restricted stock agreements, and (4)
for the remaining 8,825,508 shares, the average of the high and low
prices reported on the New York Stock Exchange for the Company's Common
Stock on March 3, 1998, which was $42.375.
<PAGE>
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" or the "Registrant"), are incorporated as of their respective
dates in this Registration Statement by reference:
A. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
B. All other reports filed by the Company pursuant to Sections 13(a)
and 15(d) of the Securities Exchange Act of 1934 since December
31, 1996; and
C. Description of the Company's Common Stock contained in the
Company's Registration on Form 8-A filed with the Commission on
December 3, 1991.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, 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
See item 3.C. above
Item 5. Interests of Named Experts and Counsel
Not applicable.
1
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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 Registrant's Bylaws provides for
indemnification of the Registrant's officers and directors to the extent
permitted by the Delaware General Corporation Law, and the Registrant
maintains insurance covering certain liabilities of the directors and officers
of the Registrant and its subsidiaries.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
3.1 Restated Certificate of Incorporation of Owens-Illinois, Inc.
Incorporated by reference to Exhibit 3.1 to Registrant's
Registration Statement File No. 33-43224.
3.2 Bylaws of Owens-Illinois, Inc. Incorporated by reference to
Exhibit 3.2 to Registrant's Registration Statement File No. 33-
43224.
4.1 1997 Equity Participation Plan of Owens-Illinois, Inc (the
"Plan"). Incorporated by reference to Exhibit 10.5 to
Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997, File No. 1-9576.
*4.2 First Amendment to 1997 Equity Participation Plan of Owens-
Illinois, Inc.
*4.3 Form of Non-Qualified Stock Option Agreement for use under the
Plan.
*4.4 Form of Restricted Stock Agreement for use under the Plan.
*5.1 Opinion of Latham & Watkins regarding the legality of the Common
Stock being registered.
*23.1 Consent of Ernst & Young LLP.
*23.2 Consent of KPMG S.p.A.
*23.3 Consent of Arthur Andersen S.p.A.
*23.4 Consent of AUDIHISPANA.
23.5 Consent of Latham & Watkins (included in Exhibit 5.1).
2
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*23.6 Consent of McCarter & English.
24 Power of Attorney (included on page 4).
*Filed herewith
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of 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 Securities Exchange Act of 1934
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
Securities Exchange Act of 1934 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.
3
<PAGE>
(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
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.
4
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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 10th
day of March, 1998.
OWENS-ILLINOIS, INC
By: /s/ Thomas L. Young
----------------------------
Thomas L. Young
Executive Vice President-
Administration,
Secretary and General Counsel
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 dates indicated. Each person whose signature appears
below hereby authorizes Thomas L. Young and Lee A. Wesselmann, and each of
them, as attorney-in-fact, with full power of substitution, to sign on his
behalf, individually and in such capacity stated below, and to file any
amendments, including post-effective amendments or supplements, to this
Registration Statement.
Signature Title Date
--------- ----- ----
/s/ Joseph H. Lemieux Chairman, Chief Executive March 10, 1998
- --------------------- Officer and Director
Joseph H. Lemieux (Principal Executive Officer)
/s/ Lee A. Wesselmann Senior Vice President, Chief March 10, 1998
- --------------------- Financial Officer and Director
Lee A. Wesselmann (Principal Financial and
Accounting Officer)
/s/ Henry R. Kravis Director March 10, 1998
- -------------------
Henry R. Kravis
/s/ Michael W. Michelson Director March 10, 1998
- ------------------------
Michael W. Michelson
/s/ James H. Greene, Jr. Director March 10, 1998
- ------------------------
James H. Greene, Jr.
5
<PAGE>
/s/ George R. Roberts Director March 10, 1998
- ---------------------
George R. Roberts
/s/ Robert J. Dineen Director March 10, 1998
- --------------------
Robert J. Dineen
/s/ Edward A. Gilhuly Director March 10, 1998
- ---------------------
Edward A. Gilhuly
/s/ Robert J. Lanigan Director March 10, 1998
- ---------------------
Robert J. Lanigan
/s/ Robert I. MacDonnell Director March 10, 1998
- ------------------------
Robert I. MacDonnell
/s/ John J. McMackin, Jr. Director March 10, 1998
- -------------------------
John J. McMackin, Jr.
6
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
- -------
3.1 Restated Certificate of Incorporation of Owens-Illinois, Inc.
Incorporated by reference to Exhibit 3.1 to Registrant's
Registration Statement File No. 33-43224.
3.2 Bylaws of Owens-Illinois, Inc. Incorporated by reference to
Exhibit 3.2 to Registrant's Registration Statement File No. 33-
43224.
4.1 1997 Equity Participation Plan of Owens-Illinois, Inc.,
(the"Plan"). Incorporated by reference to Exhibit 10.5 to
Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997, File No. 1-9576.
*4.2 First Amendment to 1997 Equity Participation Plan of Owens-
Illinois, Inc.
*4.3 Form of Non-Qualified Stock Option Agreement for use under the
Plan.
*4.4 Form of Restricted Stock Agreement for use under the Plan.
*5.1 Opinion of Latham & Watkins regarding the legality of the Common
Stock being registered.
*23.1 Consent of Ernst & Young LLP.
*23.2 Consent of KPMG S.p.A.
*23.3 Consent of Arthur Andersen S.p.A.
*23.4 Consent of AUDIHISPANA.
23.5 Consent of Latham & Watkins (included in Exhibit 5.1).
*23.6 Consent of McCarter & English.
24 Power of Attorney.
*Filed herewith
7
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Exhibit 4.2
FIRST AMENDMENT TO 1997 EQUITY PARTICIPATION PLAN OF OWENS-ILLINOIS, INC.
FIRST AMENDMENT
TO
1997 EQUITY PARTICIPATION PLAN
OF OWENS-ILLINOIS, INC.
Pursuant to the authority reserved to the Compensation Committee (the
"Committee") of the Board of Directors of Owens-Illinois, Inc. (the "Company")
under Section 9.2 of the 1997 Equity Participation Plan of Owens-Illinois,
Inc. (the "Plan"), the Committee hereby amends the Plan as follows:
1. Section 7.1(a) of the Plan is amended to read, in its entirety, as
follows:
Section 7.1 - Award of Restricted Stock
(a) The Committee may from time to time, in its absolute
discretion:
(i) Select from among the key Employees (including
Employees who have previously received Options under this Plan) such of
them as in its opinion should be awarded Restricted Stock;
(ii) Determine the term of the restrictions placed on the
Restricted Stock, provided, the term of such restrictions shall not be
less than three (3) years, subject to the right of the Committee to
grant Restricted Stock with a restriction period of less than three (3)
years, but not less than one (1) year, if (A) the grant of the Restricted
Stock is performance based, or (B) the total number of shares of
non-performance based Restricted Stock granted under the Plan with a
restriction period of less than three (3) years does not exceed five
percent (5%) of the aggregate number of shares which may be issued under
the Plan; and
(iii) Determine the purchase price, if any, and other
terms and conditions applicable to such Restricted Stock, consistent
with this Plan.
2. Section 7.4 of the Plan is amended to read, in its entirety, as
follows:
Section 7.4 - Restrictions
All shares of Restricted Stock issued under this Plan (including
any shares received by holders thereof with respect to shares of
Restricted Stock as a result of stock dividends, stock splits or any
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other form of recapitalization) shall, in the terms of each individual
Restricted Stock Agreement, be subject to such restrictions as the
Committee shall provide, which restrictions may include, without
limitation, restrictions concerning voting rights and transferability
and restrictions based on duration of employment with the Company,
Company performance and individual performance. Restricted Stock may
not be sold or encumbered until all restrictions are terminated or
expire. Unless provided otherwise by the Committee, if no consideration
was paid by the holder of Restricted Stock upon issuance, a holder of
Restricted Stock's rights in unvested Restricted Stock shall lapse upon
Termination of Employment.
3. Section 7.6 of the Plan is amended to read, in its entirety, as
follows:
Section 7.6 - Repurchase of Restricted Stock
The Committee may provide in the terms of each individual
Restricted Stock Agreement that the Company shall have the right to
repurchase from the holder of Restricted Stock the Restricted Stock
then subject to restrictions under the Restricted Stock Agreement
immediately upon a Termination of Employment between the holder of
Restricted Stock and the Company, at a cash price per share equal to
the price paid by the holder of Restricted Stock for such Restricted
Stock; provided, however, that provision may be made that no such
right of repurchase shall exist in the event of a Termination of
Employment without cause, or following a change in control of the
Company or because of the holder of the Restricted Stock's
retirement, death or disability, or otherwise, and provided further
that provisions may be made that the right of repurchase may be
exercised at a price less than the price paid by the holder of
Restricted Stock in the event of termination for cause, voluntary
termination or otherwise.
4. This First Amendment shall be effective as of December 19, 1997. In
all other respects the Plan shall remain in full force and effect as originally
adopted.
IN WITNESS WHEREOF, the Committee has caused this First Amendment to be
executed by a duly authorized officer of the Company as of the 19th day of
December, 1997.
OWENS-ILLINOIS, INC.
By: /s/ Thomas L. Young
-------------------------
Executive Vice President
Attest:
/s/ James W. Baehren
- -------------------------
Assistant Secretary
2
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Exhibit 4.3
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT FOR USE UNDER THE PLAN
1997 EQUITY PARTICIPATION PLAN
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 _________________________, an employee of the Company or a
Subsidiary 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 1997 Equity
Participation Plan 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, its Parent Corporations or its Subsidiaries (each as
defined hereunder) and as an incentive for increased efforts during such
service, and has advised the Company thereof and instructed the undersigned
Officers (as defined hereunder) 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.
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Section 1.1 - Additional Option
"Additional Option" means an Option granted to an Optionee to
purchase a number of shares of Common Stock equal to the number of shares of
Common Stock tendered or relinquished by the Optionee in payment of the
exercise price upon exercise of the Option and/or the number of shares of
Common Stock tendered or relinquished in payment of the amount required to be
withheld under applicable federal, state and local income tax laws in
connection with the exercise of the Option as described in Article V.
Section 1.2 - Board
"Board" shall mean the Board of Directors of the Company.
Section 1.3 - Code
"Code" shall mean the Internal Revenue Code of 1986, as amended.
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, the Option and Incentive Stock Options (as defined in
Section 1.14 of the Plan), outstanding under the Plan, in a transaction to
which Section 424(a) of the Code applies.
Section 1.6 - Exchange Act
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
Section 1.7 - 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
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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 1.8 - Officer
"Officer" shall mean an officer of the Company, as defined in Rule
16a-1(f) under the Exchange Act, as such Rule may be amended in the future.
Section 1.9 - Option
"Option" shall mean the Non-Qualified Option (as defined in
Section 1.15 of the Plan) to purchase Common Stock of the Company under this
Agreement. This Option is a Transferable Option (as defined in Section 1.29
of the Plan).
Section 1.10 - 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 1.11 - Plan
"Plan" shall mean the 1997 Equity Participation Plan of
Owens-Illinois, Inc.
Section 1.12 - 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 1.13 - Secretary
"Secretary" shall mean the Secretary of the Company.
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 of profits interests.
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Section 1.16 - Termination of Employment
"Termination of Employment" shall mean the time when the
employee-employer relationship between the Optionee and 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 reemployment by the Company, a
Parent Corporation or a Subsidiary or (ii) any termination where the Optionee
continues a relationship (e.g., as a director 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 Employment, including, but not by way of
limitation, the question of whether a Termination of Employment resulted from
a discharge for good cause, and all questions of whether particular leaves of
absence constitute Terminations of Employment. Notwithstanding any other
provision of this Agreement, the Company or any of its subsidiaries has an
absolute and unrestricted right to terminate the Optionee's employment at any
time for any reason whatsoever, with or without cause.
Section 1.17 - Transferee
"Transferee" shall mean any person or entity to whom or to which
the Optionee has transferred all or any part of the Option in accordance with
Section 6.2.
ARTICLE II
GRANT OF OPTION
Section 2.1 - Grant of Option
In consideration of the Optionee's agreement to remain in the
employ 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, with such duties and responsibilities as
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the Company shall from time to time prescribe, for a period of at least one
year from the date this Option is granted. Nothing in this Agreement or in the
Plan shall confer upon the Optionee any right to continue in the employ of the
Company, any Parent Corporation or any Subsidiary or shall interfere with or
restrict in any way the rights of the Company, any Parent Corporation and any
Subsidiary, which are hereby expressly reserved, to discharge the Optionee at
any time for any reason whatsoever, with or without cause.
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
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
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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, no portion of the Option
which is unexercisable at Termination of Employment shall thereafter become
exercisable.
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 3.1 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) Except as provided in clauses (c) through (h) below, the date
of the Optionee's Termination of Employment; or
(c) In the case of an Optionee who retires after reaching the
Company's normal retirement age or who takes early retirement, the expiration
of three months from the date of Optionee's Termination of Employment by
reason of such retirement, or in the case of any such retiring Optionee whose
right to exercise his or her Option is extended by the Committee, which
extension shall not exceed three years from the date of Optionee's Termination
of Employment, the date upon which such extension expires; or
(d) In the case of an Optionee who is discharged not for good
cause, the expiration of three months from the Optionee's Termination of
Employment unless the Optionee dies within said three-month period; or
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(e) In the case of any Optionee whose right to exercise his or
her Option is extended by the Committee, which extension shall not exceed
three years from the date of Optionee's Termination of Employment, the date
upon which such extension expires; or
(f) In the case of an Optionee who is totally disabled, the
expiration of one year from the date of the Optionee's Termination of
Employment by reason of his or her disability unless the Optionee dies within
said one-year period; 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 provision in
connection with such transaction. At least ten days prior to the effective
date of such merger, consolidation, acquisition, liquidation or dissolution,
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 Employment resulting from
an Optionee's normal retirement or total disability (each as determined by the
Committee in accordance with Company policies), early retirement with the
consent of the Committee 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
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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 or his Transferee, if
any, 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
such portion becomes unexercisable under Section 3.3, be exercised by his
Transferee, if any, or by his personal representative or any other person
empowered to do so under the Optionee's will or under the then applicable laws
of descent and distribution. All of the terms and conditions of this Option
in the hands of the Optionee during his lifetime shall be and remain fully
applicable and binding on his Transferee, if any, and on any other person who
may become eligible to exercise this Option.
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 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
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(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) 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 or
successor provision) 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;
(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
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(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) 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 4.1 by any person or persons other than the
Optionee, appropriate proof of the right of such person or persons to
exercise the Option.
Section 4.4 - 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.
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Section 4.5 - 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
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
ADDITIONAL OPTIONS
Section 5.1 - Additional Options
(a) If, with the consent of the Committee pursuant to
Section 4.3(b)(ii), an Optionee exercises the Option by tendering or
relinquishing shares of Common Stock and/or when shares of Common Stock
are tendered or relinquished in payment for the amount to be withheld
under applicable federal, state and local income tax laws (at
withholding rates not to exceed the Optionee's applicable marginal tax
rates) in connection with the exercise of the Option, the Optionee shall
automatically be granted an Additional Option. The Additional Option
shall be subject to the following provisions:
(i) The Additional Option shall cover the number of
shares of Common Stock equal to the sum of (A) the number of
shares of Common Stock tendered or relinquished as consideration
upon the exercise of the Option and (B) the number of shares of
Common Stock tendered or relinquished in payment of the amount
required to be withheld under applicable federal, state and local
income tax laws in connection with the exercise of the Option;
(ii) The Additional Option will not have an
Additional Option Feature (as defined in the Plan) unless the
Committee directs otherwise;
(iii) The Additional Option exercise price shall be
100% of the Fair Market Value per share on the date the employee
tenders or relinquishes shares of Common Stock to exercise the
Option and/or tenders or relinquishes shares of Common Stock in
payment of income tax withholding on the exercise of the Option;
and
(iv) The Additional Option shall have the same
termination date and other termination provisions as the Option.
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ARTICLE VI
OTHER PROVISIONS
Section 6.1 - 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. In its absolute discretion, the Board may at any time and
from time to time exercise any and all rights and duties of the Committee
under the Plan and this Agreement except with respect to matters which under
Rule 16b-3 or Section 162(m) of the Code, or any regulations or rules issued
thereunder, are required to be determined in the sole discretion of the
Committee.
Section 6.2 - Option Not Transferable
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 6.2 shall not prevent:
(a) any transfer by gift, without the receipt of any consider-
ation, of the Option or any part thereof by the Optionee, in writing and
with written notice thereof to the Committee, (i) to the Optionee's
spouse; (ii) to any child or more remote lineal descendant of the
Optionee or to the spouse of any such child or more remote lineal
descendant; or (iii) to any trust, custodianship, or other similar fidu-
ciary relationship maintained for the benefit of any one or more of such
persons; or
(b) any transfer by will or by the applicable laws of descent and
distribution.
Section 6.3 - 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
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sufficient to satisfy the requirements of this Agreement.
Section 6.4 - 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
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 6.4, 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 6.4. 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 6.5 - Titles
Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this Agreement.
Section 6.6 - Rule 16b-3
The Company shall take such actions with respect to the Plan as
may be necessary to satisfy the requirements of Rule 16b-3.
Section 6.7 - 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 6.8 - 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 6.9 - 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.
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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:
________________________________________
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Exhibit 4.4
FORM OF RESTRICTED STOCK AGREEMENT FOR USE UNDER THE PLAN
OWENS-ILLINOIS, INC.
1997 EQUITY PARTICIPATION PLAN
FORM OF RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT, dated as of ___________ ___, 199_
(the "Award Date"), is made by and between OWENS-ILLINOIS, INC., a Delaware
corporation (the "Company"), and _____________________, an employee of the
Company or a Parent Corporation or a Subsidiary (the "Employee"):
WHEREAS, the Company has established the 1997 Equity Participation
Plan (the "Plan"); and
WHEREAS, the Company wishes to carry out the Plan (the terms of
which are hereby incorporated by reference and made a part of this Agreement);
WHEREAS, the Plan provides for the issuance of shares of the
Company's Common Stock (as defined hereunder), subject to certain restrictions
thereon (hereinafter referred to as "Restricted Stock");
WHEREAS, participants in the Company's Amended and Restated Senior
Management Plan dated as of January 1, 1993, as amended (the "SMIP Plan"), and
the Amended and Restated Performance Award Plan dated as of January 1, 1993,
as amended (the "PAP Plan"), may elect prior to (i) their receipt of their
cash bonus under the SMIP Plan or PAP Plan and (ii) the Company's award of
Restricted Stock under the Plan, to receive their cash bonus in the form of
Restricted Stock;
WHEREAS, the Compensation Committee of the Company's Board of
Directors (the "Committee"), appointed to administer the Plan, has determined
that it would be to the advantage and best interest of the Company and its
stockholders to issue the shares of Restricted Stock provided for herein to
the Employee in partial consideration of past services to the Company and/or
its subsidiaries, and has advised the Company thereof and instructed the
undersigned Officers (as defined hereunder) to issue said Restricted Stock.
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:
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ARTICLE I
DEFINITIONS
Whenever the following terms are used below in this Agreement,
they shall have the meaning specified below unless the context clearly
indicates to the contrary. Capitalized terms not otherwise defined herein
shall have the meanings set forth in the Plan. The masculine pronoun shall
include the feminine and neuter, and the singular the plural, where the
context so indicates.
Section 1.1 - Common Stock
"Common Stock" shall mean the Company's common stock, $.01 par
value.
Section 1.2 - Exchange Act
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
Section 1.3 - 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 1.4 - Involuntary Termination
"Involuntary Termination" shall mean the time when the
employee-employer relationship between the Employee and the Company, a Parent
Corporation or a Subsidiary is terminated for any reason except for a
Voluntary/Cause Termination, but excluding terminations where there is a
simultaneous reemployment by the Company, a Parent Corporation or a
Subsidiary.
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Section 1.5 - 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 1.6 - Plan
"Plan" shall mean the Company's 1997 Equity Participation Plan.
Section 1.7 - Restricted Stock
"Restricted Stock" shall mean Common Stock of the Company issued
under this Agreement and subject to the Restrictions imposed hereunder.
Section 1.8 - Restrictions
"Restrictions" shall mean the reacquisition and transferability
restrictions imposed upon Restricted Stock under this Agreement.
Section 1.9 - 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 1.10 - Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.11 - Securities Act
"Securities Act" shall mean the Securities Act of 1933, as
amended.
Section 1.12 - 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 1.13 - Voluntary/Cause Termination
"Voluntary/Cause Termination" shall mean the time when the
employee-employer relationship between the Employee and the Company, a Parent
Corporation or a Subsidiary is terminated with cause or upon the Employee's
voluntary termination of employment (other than by retirement) with the
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Company, a Parent Corporation or a Subsidiary, but excluding terminations
where there is a simultaneous reemployment by the Company, a Parent
Corporation or a Subsidiary.
ARTICLE II
ISSUANCE OF RESTRICTED STOCK
Section 2.1 - Issuance of Restricted Stock
In consideration of past services rendered to the Company and for
other good and valuable consideration which the Committee has determined to be
equal to the par value of its Common Stock, on the date hereof the Company
issues to the Employee ____________ shares of its Common Stock upon the terms
and conditions set forth in this Agreement.
Section 2.2 - No Right to Continued Employment
Nothing in this Agreement or in the Plan shall confer upon the
Employee any right to continue in the employ of the Company, any Parent
Corporation or any Subsidiary or shall interfere with or restrict in any way
the rights of the Company, any Parent Corporation or any Subsidiary, which are
hereby expressly reserved, to discharge the Employee at any time for any
reason whatsoever, with or without cause.
ARTICLE III
RESTRICTIONS
Section 3.1 - Reacquisition of Restricted Stock
(a) All shares of Restricted Stock issued to the Employee
pursuant to Section 2.1 are initially subject to reacquisition by the Company
immediately upon an Involuntary Termination; provided, however, that no such
reacquisition shall occur in the event of an Involuntary Termination because
of the Restricted Stockholder's retirement or total disability (each as
determined by the Committee in accordance with Company policies) or death, in
which event all shares of Restricted Stock shall immediately fully vest and
all Restrictions with respect to such shares of Restricted Stock shall
immediately expire. Following such a reacquisition by the Company, the
Company shall promptly pay to the Employee an amount equal to the product of
.83 times the Fair Market Value on the Award Date of the Restricted Stock
which is reacquired. The restriction that such shares of Restricted Stock be
subject to reacquisition by the Company shall not apply to any "Vested Shares"
held by the Employee.
(b) All shares of Restricted Stock issued to the Employee
pursuant to Section 2.1 are initially subject to reacquisition by the Company
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immediately upon a Voluntary/Cause Termination; provided, however, that no
such reacquisition shall occur in the event of a Voluntary/Cause Termination
because of the Restricted Stockholder's total disability (as determined by the
Committee in accordance with Company policies), retirement or death, in which
event all shares of Restricted Stock shall immediately fully vest and all
Restrictions with respect to such shares of Restricted Stock shall immediately
expire. Following such a reacquisition by the Company, the Company shall
promptly pay to the Employee an amount equal to the product of $.01 times the
number of shares of Restricted Stock reacquired. The restriction that such
shares of Restricted Stock be subject to reacquisition by the Company shall
not apply to any "Vested Shares" held by the Employee.
(c) "Vested Shares" shall prior to the third anniversary of the
Award Date equal zero percent of the total number of shares of Restricted
Stock acquired by the Employee pursuant to Section 2.1, and on and after the
third anniversary of the Award Date shall equal 100 percent of the total
number of shares of Restricted Stock acquired by the Employee pursuant to
Section 2.1.
(d) In the event of a dispute, the Committee, in its absolute
discretion, shall determine the effect of all other matters and questions
relating to Involuntary Termination or Voluntary/Cause Termination, including,
but not by way of limitation, the question of whether an Involuntary
Termination or Voluntary/Cause Termination resulted from a discharge for good
cause, and all questions of whether particular leaves of absence constitute
Involuntary Termination or Voluntary/Cause Termination. Notwithstanding any
other provision of the Plan or this Agreement, the Company or any of its
Subsidiaries has an absolute and unrestricted right to terminate the
Employee's employment at any time for any reason whatsoever, with or without
cause.
Section 3.2 - Legend
Certificates representing shares of Restricted Stock issued
pursuant to this Agreement shall, until all restrictions lapse and new
certificates are issued pursuant to Section 3.3, bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
VESTING REQUIREMENTS AND MAY BE SUBJECT TO REACQUISITION BY THE COMPANY
UNDER THE TERMS OF THAT CERTAIN RESTRICTED STOCK AGREEMENT BY AND
BETWEEN OWENS-ILLINOIS, INC. (THE "COMPANY") AND THE HOLDER OF THE
SECURITIES. PRIOR TO VESTING OF OWNERSHIP IN THE SECURITIES, THEY MAY
NOT BE, DIRECTLY OR INDIRECTLY, OFFERED, TRANSFERRED, SOLD, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNDER ANY CIRCUMSTANCES.
COPIES OF THE ABOVE REFERENCED AGREEMENT ARE ON FILE AT THE OFFICES OF
THE COMPANY AT ONE SEAGATE, TOLEDO, OHIO 43666."
Section 3.3 - Lapse of Restrictions
Upon the vesting of the shares of Restricted Stock as provided in
Section 3.1 and subject to Section 4.3, the Company shall cause new
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certificates to be issued with respect to such Vested Shares and delivered to
the Employee or his legal representative, free from the legend provided for in
Section 3.2(a) and any of the other Restrictions. Such Vested Shares shall
cease to be considered Restricted Stock subject to the terms and conditions of
this Agreement.
Section 3.4 - Changes in the 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 or exchange of any convertible or exchangeable 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 which may be granted as Restricted Stock.
ARTICLE IV
MISCELLANEOUS
Section 4.1 - Administration
It shall be the duty of the Committee to conduct the general
administration of the Plan and this Agreement in accordance with their
provisions. The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan and this Agreement as are consistent therewith and to
interpret, amend or revoke any such rules. 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 this Agreement, and all members of the
Committee shall be fully protected by the Company in respect to any such
action, determination or interpretation. In its absolute discretion, the
Board may at any time and from time to time exercise any and all rights and
duties of the Committee under the Plan or this Agreement except with respect
to matters which under Rule 16b-3 or Section 162(m) of the Code, or any
regulations or rules issued thereunder, are required to be determined in the
sole discretion of the Committee.
Section 4.2 - Restricted Stock Not Transferable
No Restricted Stock or any interest or right therein or part
thereof shall be liable for the debts, contracts or engagements of the
Employee 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
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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 4.2 shall not prevent transfers by will or by applicable laws of
descent and distribution.
Section 4.3 - Conditions to Issuance of Stock Certificates
The Company shall not be required to issue or deliver any
certificate or certificates for shares of stock pursuant to this Agreement
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) Subject to the provisions of Section 4.10, the payment
by the Employee of all amounts required to be withheld, under
federal, state and local tax laws, with respect to the issuance of
Restricted Stock and/or the lapse or removal of any of the
Restrictions; and
(e) The lapse of such reasonable period of time as the
Committee may from time to time establish for reasons of
administrative convenience.
Section 4.4 - Escrow
The Secretary or such other escrow holder as the Committee may
appoint shall retain physical custody of the certificates representing
Restricted Stock, including shares of Restricted Stock issued pursuant to
Section 3.4, until all of the Restrictions expire or shall have been removed;
provided, however, that in no event shall the Employee retain physical custody
of any certificates representing Restricted Stock issued to him.
Section 4.5 - 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
notice to be given to the Employee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this
7
<PAGE>
Section 4.5, 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 Employee shall, if the Employee is then deceased, be given to the
Employee's personal representative if such representative has previously
informed the Company of his status and address by written notice under this
Section 4.5. Any notice shall have been 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 4.6 - Rights as Stockholder
Upon delivery of the shares of Restricted Stock to the escrow
holder pursuant to Section 4.4, the Employee shall have all the rights of a
stockholder with respect to said shares, subject to the restrictions herein
(including the provisions of Section 4.10), including the right to vote the
shares and to receive all dividends or other distributions paid or made with
respect to the shares.
Section 4.7 - Titles
Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this Agreement.
Section 4.8 - 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
Restricted Stock shall be issued, 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 Restricted Stock issued hereunder shall be deemed amended to
the extent necessary to conform to such laws, rules and regulations.
Section 4.9 - 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 4.10 - Tax Withholding
The Company's obligation (i) to issue or deliver to the Employee
any certificate or certificates for unrestricted shares of stock or (ii) to
pay to the Employee any dividends or make any distributions with respect to
the Restricted Stock, is expressly conditioned upon receipt from the Employee,
on or prior to the date the same is required to be withheld, of:
(a) Full payment (in cash or by check) of any amount that must
be withheld by the Company for federal, state and/or local tax purposes;
or
8
<PAGE>
(b) Subject to the Committee's consent and Section 4.10(c), full
payment by delivery to the Company of unrestricted shares of the
Company's Common Stock previously owned by the Employee duly endorsed
for transfer to the Company by the Employee with an aggregate Fair
Market Value (determined, as applicable, as of the date of the lapse of
the restrictions or vesting, or as of the date of the distribution)
equal to the amount that must be withheld by the Company for federal,
state and/or local tax purposes; or
(c) With respect to the withholding obligation for shares of
Restricted Stock that become unrestricted shares of stock as of a
certain date (the "Vesting Date"), subject to the Committee's consent,
full payment by retention by the Company of a portion of such shares of
Restricted Stock which become unrestricted or vested with an aggregate
Fair Market Value (determined as of the Vesting Date) equal to the
amount that must be withheld by the Company for federal, state and/or
local tax purposes; or
(d) Subject to the Committee's consent, any combination of
payments provided for in the foregoing subsections (a), (b) or (c).
Section 4.11 - 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.
IN WITNESS HEREOF, this Agreement has been executed and delivered
by the parties hereto.
OWENS-ILLINOIS, INC.
By ___________________________
Its ___________________________
____________________________
Employee
____________________________
____________________________
Address
Employee's Social Security Number
_______________________________
<PAGE>
Exhibit 5.1
OPINION OF LATHAM & WATKINS
March 10, 1998
Owens-Illinois, Inc.
One SeaGate
Toledo, Ohio 43666
Re: Owens-Illinois, Inc.
S-8 Registration Statement
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on
Form S-8 (the "Registration Statement"), which you intend to file with the
Securities and Exchange Commission in connection with the registration under
the Securities Act of 1933, as amended, of 10,000,000 shares of Common Stock,
par value $0.01 per share (the "Shares"), issuable as restricted stock or upon
the exercise of options granted by Owens-Illinois, Inc. (the "Company") under
the 1997 Equity Participation Plan of Owens-Illinois, Inc. (the "Plan"). We
are familiar with the proceedings undertaken in connection with the
authorization, issuance and sale of the Shares. Additionally, we have
examined such questions of law and fact as we have considered necessary or
appropriate for purposes of this opinion.
We are opining herein as to the effect on the subject transaction
only 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 the laws of any other jurisdiction or, in the case of Delaware, any other
laws, or as to any matters of municipal law or the laws of any other local
agencies within any state. Based upon the foregoing, we are of the opinion
that the Shares have been duly authorized, and upon the issuance of Shares
under the terms of the Plan and, subject to the Company completing all actions
and proceedings required on its part to be taken prior to the issuance of such
Shares pursuant to the terms of the Plan, including the delivery and payment
therefor of legal consideration in excess of the aggregate par value of the
Shares issued, such Shares will be validly issued, fully paid and
nonassessable.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Latham & Watkins
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 relating to the 1997 Equity Participation Plan of Owens-Illinois,
Inc. of our report dated February 4, 1997, with respect to the consolidated
financial statements and schedule of Owens-Illinois, Inc. included in its
Annual Report (Form 10-K) for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
Ernst & Young LLP
Toledo, Ohio
March 6, 1998
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Avirunion, a.s.:
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the 1997 Equity Participation Plan of Owens-Illinois,
Inc. of our report dated February 17, 1997, with respect to the financial
statements of Avirunion, a.s. as of and for the year ended December 31, 1996,
which report appears in the Form 8-K/A of Owens-Illinois, Inc. dated May 9,
1997.
KPMG Ceska republika Audit, spol.
S.r.o.
Prague, Czech Republic
March 6, 1998
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the registration statement on Form S-8 pertaining to the 1997
Equity Participation Plan of Owens-Illinois, Inc. of our report dated March
28, 1997, with respect to the consolidated financial statements of AVIR S.p.A.
as of and for the year ended December 31, 1996, which report appears in the
Form 8-K/A of Owens-Illinois, Inc. dated May 9, 1997.
Arthur Andersen S.p.A.
Milan, Italy
March 6, 1998
<PAGE>
Exhibit 23.4
CONSENT OF AUDIHISPANA
We consent to the incorporation by reference in the registration statement on
Form S-8 pertaining to the 1997 Equity Participation Plan of Owens-Illinois,
Inc. of our report dated 5 February, 1997, with respect to the consolidated
financial statements of Vidrieria Rovira, S.A. as of and for the year ended 28
December, 1996, which report appears in the Form 8-K/A of Owens-Illinois, Inc.
dated May 9, 1997.
AUDIHISPANA
/s/ Alberto Ribas
-----------------
Alberto Ribas
Partner
Barcelona
6 March, 1998
<PAGE>
Exhibit 23.6
CONSENT OF MCCARTER & ENGLISH
March 6, 1998
Ladies and Gentlemen:
We consent to the reference to our firm contained under the caption
"Contingencies" in the Annual Report on Form 10-K of Owens-Illinois, Inc. for
the year ended December 31, 1996 being incorporated by reference in the
Registration Statement on Form S-8 relating to the 1997 Equity Participation
Plan of Owens-Illinois, Inc.
Very truly yours,
/s/ McCarter & English
