As filed with the Securities and Exchange Commission on June 4, 1998
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMCOL INTERNATIONAL CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 36-0724340
(State of Incorporation) (I.R.S. Employer
Identification Number)
One North Arlington, 1500 West Shure Drive, Suite 500
Arlington Heights, Illinois 60004-7803
(Address, including Zip Code, of Registrant's Principal Executive Offices)
AMCOL International Corporation 1998 Long-Term Incentive Plan
(Full Title of the Plan)
Paul G. Shelton
Chief Financial Officer
AMCOL International Corporation
One North Arlington
1500 West Shure Drive, Suite 500
Arlington Heights, Illinois 60004-7803
(847) 394-8730
(Name, Address, and Telephone Number of Agent For Service)
Copies to:
Clarence O. Redman, Esq.
Lord, Bissell & Brook
115 South LaSalle Street
Chicago, Illinois 60603
(312) 443-0700
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered (1)(2) offering price per share aggregate offering price registration fee
<S> <C> <C> <C> <C>
Common Stock 1,900,000 $13.44(3) $25,543,700(3) $7,535(3)
<FN>
(1) Represents the maximum number of shares of Common Stock of the Company that may be issued hereunder.
(2) Together with an indeterminant number of additional shares which may be necessary to adjust the number
of shares reserved for issuance pursuant to the Plan as a result of any future stock split, stock
dividend or similar adjustment of the outstanding Common Stock of the Company.
(3) Estimated pursuant to Rule 457(c) and (h) of the Securities Act solely for the purpose of calculating
the registration fee and based on an exercise price of $14.06 with respect to 20,000 shares and the
average of the high and low prices of the Common Stock as reported by the Nasdaq National Market on June
1, 1998 with respect to the remaining 1,880,000 shares.
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration
Statement the documents listed below which have been filed with the Securities
and Exchange Commission (the "Commission"):
1. The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
2. The Registrant's Quarterly Report on Form 10-Q for the quarter ended March
31, 1998; and
3. The description of the shares of the Registrant's Common Stock, $0.01 par
value per share, contained in the Registrant's Form 10 filed with the
Securities and Exchange Commission on July 27, 1987.
In addition, each document or report subsequently filed by the Registrant
with the Commission pursuant to Sections 13(a), 13(c), 14, and 15(d) of the
Exchange Act after the date of this Registration Statement, but prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered by this Registration Statement have been
sold or which deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration Statement. Each
document or report incorporated into this Registration Statement by reference
shall be deemed to be a part of this Registration Statement from the date of the
filing of such document with the Commission until the information contained
therein is superseded or updated by any subsequently filed document which is
incorporated by reference into this Registration Statement or by any
subsequently furnished appendix to this Registration Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Clarence O. Redman, a Director and Secretary of the Company, is of counsel
to Lord, Bissell & Brook, the law firm that serves as corporate counsel to the
Company. As of June 4, 1998, Mr. Redman beneficially owned 68,138 shares of
Common Stock.
<PAGE>
Item 6. Indemnification of Directors and Officers.
The Registrant's Restated Certificate of Incorporation and By-Laws provide
that the Registrant shall, subject to certain limitations, indemnify its
directors and officers against expenses (including attorneys' fees, judgments,
fines and certain settlements) actually and reasonably incurred by them in
connection with any suit or proceeding to which they are a party so long as they
acted in good faith and in a manner reasonably believed to be in or not opposed
to the best interests of the Registrant, and, with respect to a criminal action
or proceeding, so long as they had no reasonable cause to believe their conduct
was unlawful.
Section 102 of the Delaware General Corporation Law permits a Delaware
corporation to include in its certificate of incorporation a provision
eliminating or limiting a director's liability to a corporation or its
stockholders for monetary damages for breaches of fiduciary duty. The enabling
statute provides, however, that liability for breaches of the duty of loyalty,
acts or omissions not in good faith or involving intentional misconduct, or
knowing violation of the law, and the unlawful purchase or redemption of stock
or payment of unlawful dividends or the receipt of improper personal benefits
cannot be eliminated or limited in this manner. The Registrant's Restated
Certificate of Incorporation includes a provision which eliminates to the
fullest extent permitted, director liability for monetary damages for breaches
of fiduciary duty.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Index to Exhibits immediately following the signature page.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
A. (1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement; and (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
(1)(i) and (1)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
<PAGE>
(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. That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the Registrant, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 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 Securities Act of 1933 and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. 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 Village of Arlington Heights, State of Illinois, on June
4, 1998.
AMCOL INTERNATIONAL CORPORATION
By: /s/ John Hughes
Name: John Hughes
Its: President; Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Paul G. Shelton and Clarence O. Redman or
either of them with power to act without the other, as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all subsequent amendments and supplements to this Registration Statement, and
to file the same, or cause to be filed the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto each said attorney-in-fact and agent full power to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that any said
attorney-in-fact and agent or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
NAME AND CAPACITY DATE
/s/ John Hughes June 4, 1998
John Hughes
President, Chief Executive Officer and Director
/s/ Lawrence E. Washow June 4, 1998
Lawrence E. Washow
Executive Vice President, Chief Operating Officer
and Director
<PAGE>
/s/ Paul G. Shelton June 4, 1998
Paul G. Shelton
Senior Vice President, Chief Financial Officer;
Treasurer and Director
/s/ C. Eugene Ray June 4, 1998
C. Eugene Ray
Chairman of the Board and Director
/s/ Jay D. Proops June 4, 1998
Jay D. Proops
Director
/s/ James A. McClung June 4, 1998
James A. McClung
Director
/s/ Robert E. Driscoll, III June 4, 1998
Robert E. Driscoll, III
Director
/s/ Raymond A. Foos June 4, 1998
Raymond A. Foos
Director
/s/ Clarence O. Redman June 4, 1998
Clarence O. Redman
Director
/s/ Arthur Brown June 4, 1998
Arthur Brown
Director
/s/ Dale E. Stahl June 4, 1998
Dale E. Stahl
Director
/s/ Audrey L. Weaver June 4, 1998
Audrey L. Weaver
Director
/s/ Paul C. Weaver June 4, 1998
Paul C. Weaver
Director
<PAGE>
<TABLE>
INDEX TO EXHIBITS
<CAPTION>
Exhibit
No. Description
<S> <C>
4.1 Article Four of the Company's Restated Certificate of
Incorporation (1)
4.2 AMCOL International Corporation 1998 Long-Term Incentive
Plan (filed herewith)
5 Opinion of Lord, Bissell & Brook (filed herewith)
23.1 Consent of KPMG Peat Marwick LLP (filed herewith)
23.2 Consent of Lord, Bissell & Brook (included in Exhibit 5
above)
24 Power of Attorney of certain officers and directors of the
Company (included on the signature page)
______________
<FN>
(1) Exhibit is incorporated by reference to the Registrant's Form S-3 filed with the Securities and Exchange
Commission on September 15, 1993.
</FN>
</TABLE>
EXHIBIT 4.2
AMCOL INTERNATIONAL CORPORATION 1998 LONG-TERM INCENTIVE PLAN
1. Preamble.
AMCOL International Corporation, a Delaware corporation (the "Company"),
hereby establishes the AMCOL International Corporation 1998 Long-Term Incentive
Plan (the "Plan") as a means whereby the Company may, through awards of (i)
incentive stock options ("ISOs") within the meaning of Section 422 of the Code,
(ii) non-qualified stock options ("NSOs"), (iii) stock appreciation rights
("SARs"), and (iv) restricted stock ("Restricted Stock"):
(a) provide officers, directors and employees who have substantial
responsibility for the direction and management of the Company with
additional incentive to promote the success of the Company's business;
(b) encourage such persons to remain in the service of the Company; and
(c) enable such persons to acquire proprietary interests in the Company.
The provisions of this Plan do not apply to or affect any option, stock,
stock appreciation right, restricted stock or phantom stock heretofore or
hereafter granted under any other stock plan of the Company, and all such
options, stock, stock appreciation rights, restricted stock or phantom stock
shall be governed by and subject to the applicable provisions of the plan under
which they were or will be granted.
2. Definitions and Rules of Construction.
2.01 "Award" means the grant of Options, SARs and/or Restricted Stock
to a Participant.
2.02 "Award Date" means the date upon which an Option, SAR or
Restricted Stock is awarded to a Participant under the Plan.
2.03 "Board" or "Board of Directors" means the board of directors of
the Company.
2.04 "Code" means the Internal Revenue Code of 1986, as amended from
time to time or any successor thereto.
2.05 "Committee" means two (2) or more directors elected by the Board
of Directors from time to time; provided, however, that in the
absence of an election by the Board, the Committee shall mean the
Compensation Committee of the Board of Directors.
2.06 "Common Stock" means common sock of the Company, par value $.01
per share.
2.07 "Company" means AMCOL International Corporation, a Delaware
corporation, and any successor thereto.
2.08 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
it exists now or from time to time may hereafter be amended.
2.09 "Fair Market Value" as of any date means the closing sale price
for the Common Stock as of the close of business on that day (as
reported by the Nasdaq Stock Market System or any securities
exchange or automated quotation system of a registered securities
association on which the Common Stock is then traded or quoted).
<PAGE>
2.10 "ISO" means an incentive stock option within the meaning of
Section 422 of the Code.
2.11 "NSO" means a non-qualified stock option, which is not intended
to qualify under Section 422 of the Code.
2.12 "Option" means the right of a Participant, whether granted as an
ISO or an NSO, to purchase a specified number of shares of Common
Stock, subject to the terms and conditions of the Plan.
2.13 "Option Price" means the price per share of Common Stock at which
an Option may be exercised.
2.14 "Participant" means an individual to whom an Award has been
granted under the Plan.
2.15 "Plan" means the AMCOL International Corporation 1998 Long-Term
Incentive Plan, as set forth herein and from time to time
amended.
2.16 "Restricted Stock" means the Common Stock awarded to a
Participant pursuant to Section 8 of this Plan.
2.17 "SAR" means a stock appreciation right issued to a Participant
pursuant to Section 9 of this Plan.
2.18 "Subsidiary" means any entity of which the Company owns or
controls more than 50 percent of (i) the outstanding capital
stock, or (ii) the combined voting power of all classes of stock.
2.19 Rules of Construction:
2.19.1 Governing Law. The construction and operation of this Plan
are governed by the laws of the State of Illinois.
2.19.2 Undefined Terms. Unless the context requires another
meaning, any term not specifically defined in this Plan is
used in the sense given to it by the Code.
2.19.3 Headings. All headings in this Plan are for reference only
and are not to be utilized in construing the Plan.
2.19.4 Conformity with Section 422. Any ISOs issued under this
Plan are intended to qualify as incentive stock options
described in Section 422 of the Code, and all provisions of
the Plan relating to ISOs shall be construed in conformity
with this intention. Any NSOs issued under this Plan are not
intended to qualify as incentive stock options described in
Section 422 of the Code, and all provisions of the Plan
relating to NSOs shall be construed in conformity with this
intention.
2.19.5 Gender. Unless clearly inappropriate, all nouns of
whatever gender refer indifferently to persons or objects of
any gender.
2.19.6 Singular and Plural. Unless clearly inappropriate,
singular terms refer also to the plural and vice versa.
2.19.7 Severability. If any provision of this Plan is determined
to be illegal or invalid for any reason, the remaining
provisions are to continue in full force and effect and to
be construed and enforced as if the illegal or invalid
provision did not exist, unless the continuance of the Plan
in such circumstances is not consistent with its purposes.
<PAGE>
3. Stock Subject to the Plan.
Except as otherwise provided in Section 12, the aggregate number of shares
of Common Stock with respect to which Awards may be granted through this Plan
may not exceed 1,900,000 shares. If any Awards shall terminate or expire as to
any number of shares, new Awards may thereafter be awarded with respect to such
shares. The aggregate number of shares of Common Stock with respect to which
Awards may be granted to any Participant in any calendar year may not exceed
100,000 shares.
4. Administration.
The Committee shall administer the Plan. All determinations of the
Committee are made by a majority vote of its members. The Committee's
determinations are final and binding on all Participants. In addition to any
other powers set forth in this Plan, the Committee has the following powers:
(a) to construe and interpret the Plan;
(b) to establish, amend and rescind appropriate rules and regulations
relating to the Plan;
(c) subject to the terms of the Plan, to select the individuals who will
receive Awards, the times when they will receive them, the number of
Options, Restricted Stock and/or SARs to be subject to each Award, the
Option Price, the vesting schedule (including any performance targets
to be achieved in connection with the vesting of any Award), the
expiration date applicable to each Award and other terms and
provisions and restrictions of the Awards (which need not be
identical) and to amend or modify any of the terms of outstanding
Awards;
(d) to contest on behalf of the Company or Participants, at the expense of
the Company, any ruling or decision on any matter relating to the Plan
or to any Awards;
(e) generally, to administer the Plan, and to take all such steps and make
all such determinations in connection with the Plan and the Awards
granted thereunder as it may deem necessary or advisable; and
(f) to determine the form in which tax withholding under Section 15 of
this Plan will be made (i.e., cash, Common Stock or a combination
thereof).
5. Eligible Participants.
Present and future directors, officers and employees of the Company shall
be eligible to participate in the Plan. The Committee from time to time shall
select those officers, directors and employees of the Company and any Subsidiary
or affiliate of the Company who shall be designated as Participants and shall
designate in accordance with the terms of the Plan the number, if any, of ISOs,
NSOs, SARs and shares of Restricted Stock or any combination thereof, to be
awarded to each Participant.
6. Terms and Conditions of Non-Qualified Stock Options.
Subject to the terms of the Plan, the Committee, in its discretion, may
award an NSO to any Participant. Each NSO shall be evidenced by an agreement, in
such form as is approved by the Committee, and except as otherwise provided by
the Committee in such agreement, each NSO shall be subject to the following
express terms and conditions, and to such other terms and conditions, not
inconsistent with the Plan, as the Committee may deem appropriate:
<PAGE>
6.01 Option Period. Each NSO will expire as of the earliest of:
(i) the date on which it is forfeited under the provisions of Section
11.1;
(ii) ten (10) years from the Award Date;
(iii)three (3) months after the Participant's termination of
employment with the Company and its parent and Subsidiaries or
service on the Board for any reason other than for cause, death,
total and permanent disability or retirement;
(iv) immediately upon the Participant's termination of employment with
the Company and its parent and Subsidiaries or service on the
Board for cause;
(v) twelve (12) months after the Participant's death or total and
permanent disability;
(vi) sixty (60) months after the Participant's termination of
employment with the Company and its parent and Subsidiaries or
service on the Board on account of retirement on or after age
sixty-five (65); or
(vii)any other date specified by the Committee when the NSO is
granted.
6.02 Option Price. At the time granted, the Committee shall determine the
Option Price of any NSO, which shall not be less than eighty-five percent (85%)
of the Fair Market Value of the Common Stock subject to the NSO on the Award
Date and in the absence of such determination, the Option Price shall be one
hundred percent (100%) of the Fair Market Value of the Common Stock subject to
the NSO on the Award Date.
6.03 Vesting. Unless otherwise determined by the Committee and set forth in
the Award agreement, NSO Awards shall vest in accordance with Section 11.1;
provided, that in no event shall an NSO granted to a Participant who is subject
to Section 16 of the Exchange Act be exercisable earlier than six (6) months
from the Award Date.
6.04 Other Option Provisions. The form of NSO authorized by the Plan may
contain such other provisions as the Committee may from time to time determine.
7. Terms and Conditions of Incentive Stock Options
Subject to the terms of the Plan, the Committee, in its discretion, may
award an ISO to any employee Participant. The aggregate fair market value of the
Common Stock covered by ISOs granted under the Plan or any other stock option
plan of the Company or any subsidiary or parent of the Company that become
exercisable for the first time by any employee in any calendar year shall not
exceed $100,000. The aggregate fair market value will be determined at the Award
Date. Each ISO shall be evidenced by an agreement, in such form as is approved
by the Committee, and except as otherwise provided by the Committee, each ISO
shall be subject to the following express terms and conditions and to such other
terms and conditions, not inconsistent with the Plan, as the Committee may deem
appropriate:
7.01 Option Period. Each ISO will expire as of the earliest of:
(i) the date on which it is forfeited under the provisions of Section
11.1;
(ii) ten (10) years from the Award Date, except as set forth in
Section 7.02 below;
<PAGE>
(iii)immediately upon the Participant's termination of employment
with the Company and any parent and Subsidiary of the Company for
cause;
(iv) three (3) months after the Participant's termination of
employment with the Company and any parent and Subsidiary of the
Company for any reason other than for cause or death or total and
permanent disability;
(v) twelve (12) months after the Participant's death or total and
permanent disability; or
(vi) any other date (within the limits of the Code) specified by the
Committee when the ISO is granted.
Notwithstanding the foregoing provisions granting discretion to the Committee to
determine the terms and conditions of ISOs, such terms and conditions shall meet
the requirements set forth in Section 422 of the Code or any successor thereto.
7.02 Option Price and Expiration. The Option Price of any ISO shall be
determined by the Committee at the time an ISO is granted, and shall be no less
than one hundred percent (100%) of the Fair Market Value of the Common Stock
subject to the ISO on the Award Date; provided, however, that if an ISO is
granted to a Participant who, immediately before the grant of the ISO,
beneficially owns stock representing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or its parent or
subsidiary corporations, the Option Price shall be at least one hundred ten
percent (110%) of the Fair Market Value of the Common Stock subject to the ISO
on the Award Date and in such cases, the exercise period specified in the Option
agreement shall not exceed five (5) years from the Award Date.
7.03 Vesting. Unless otherwise determined by the Committee and set forth in
the Award agreement, ISO Awards shall vest in accordance with Section 11.1;
provided that in no event shall an ISO granted to a Participant who is subject
to Section 16 of the Exchange Act be exercisable earlier than six (6) months
from the Award Date.
7.04 Other Option Provisions. The form of ISO authorized by the Plan may
contain such other provisions as the Committee may, from time to time,
determine; provided, however, that such other provisions may not be inconsistent
with any requirements imposed on incentive stock options under Code Section 422
and related Treasury regulations.
8. Terms and Conditions of Restricted Stock Awards.
Subject to the terms of the Plan, the Committee, in its discretion, may
award Restricted Stock to any Participant at no additional cost to the
Participant. Each Restricted Stock Award shall be evidenced by an agreement, in
such form as is approved by the Committee, and all shares of Common Stock
awarded to Participants under the Plan as Restricted Stock shall be subject to
the following express terms and conditions and to such other terms and
conditions, not inconsistent with the Plan, as the Committee shall deem
appropriate:
(a) Restricted Period. Shares of Restricted Stock awarded under this
Section 8 may not be sold, assigned, transferred, pledged or otherwise
encumbered before they vest.
(b) Vesting. Restricted Stock Awards under this Section 8 shall vest in
accordance with Section 11.2.
<PAGE>
(c) Certificate Legend. Each certificate issued in respect of shares of
Restricted Stock awarded under this Section 8 shall be registered in
the name of the Participant and shall bear the following (or a
similar) legend until such shares have vested:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions
(including forfeiture) relating to Restricted Stock contained in
Section 8 of the AMCOL International Corporation 1998 Long-Term
Incentive Plan and an Agreement entered into between the
registered owner and AMCOL International Corporation. Copies of
such Plan and Agreement are on file at the principal office of
AMCOL International Corporation."
9. Terms and Conditions of Stock Appreciation Rights.
The Committee may, in its discretion, grant a SAR to any Participant under
the Plan. Each SAR shall be evidenced by an agreement between the Company and
the Participant, and may relate to and be associated with all or any part of a
specific ISO or NSO. A SAR shall entitle the Participant to whom it is granted
the right, so long as such SAR is exercisable and subject to such limitations as
the Committee shall have imposed, to surrender any then exercisable portion of
his SAR and, if applicable, the related ISO or NSO, in whole or in part, and
receive from the Company in exchange, without any payment of cash (except for
applicable employee withholding taxes), that number of shares of Common Stock
having an aggregate Fair Market Value on the date of surrender equal to the
product of (i) the excess of the Fair Market Value of a share of Common Stock on
the date of surrender over the Fair Market Value of the Common Stock on the date
the SARs were issued, or, if the SARs are related to an ISO or an NSO, the per
share Option Price under such ISO or NSO on the Award Date, and (ii) the number
of shares of Common Stock subject to such SAR, and, if applicable, the related
ISO or NSO or portion thereof which is surrendered.
A SAR granted in conjunction with an ISO or NSO shall terminate on the same
date as the related ISO or NSO and shall be exercisable only if the Fair Market
Value of a share of Common Stock exceeds the Option Price for the related ISO or
NSO, and then shall be exercisable to the extent, and only to the extent, that
the related ISO or NSO is exercisable. The Committee may at the time of granting
any SAR add such additional conditions and limitations to the SAR as it shall
deem advisable, including, but not limited to, limitations on the period or
periods within which the SAR shall be exercisable and the maximum amount of
appreciation to be recognized with regard to such SAR. If a Participant is
subject to Section 16(a) and Section 16(b) of the Exchange Act, the Committee
may at any time add such additional conditions and limitations to such SAR
which, in its discretion, the Committee deems necessary or desirable to comply
with such Section 16(a) or Section 16(b) and the rules and regulations issued
thereunder, or to obtain any exemption therefrom. Any ISO or NSO or portion
thereof which is surrendered with an SAR shall no longer be exercisable. An SAR
that is not granted in conjunction with an ISO or NSO shall terminate on such
date as is specified by the Committee in the SAR agreement and shall vest in
accordance with Section 11.2. The Committee, in its sole discretion, may allow
the Company to settle all or part of the Company's obligation arising out of the
exercise of an SAR by the payment of cash equal to the aggregate Fair Market
Value of the shares of Common Stock which the Company would otherwise be
obligated to deliver.
10. Manner of Exercise of Options.
To exercise an Option in whole or in part, a Participant (or, after his
death, his executor or administrator) must give written notice to the Committee,
stating the number of shares with respect to which he intends to exercise the
Option. The Company will issue the shares with respect to which the Option is
exercised upon payment in full of the Option Price. The Committee may permit the
Option Price to be paid in cash or shares of Common Stock held by the
Participant having an aggregate Fair Market Value, as determined on the date of
delivery, equal to the Option Price. The Committee may permit a Participant to
elect to pay the Option Price upon the exercise of an Option by authorizing a
third party to sell shares of Common Stock (or a sufficient portion of the
shares) acquired upon exercise of
<PAGE>
the Option and remit to the Company a sufficient portion of the sale proceeds to
pay the entire Option Price and any tax withholding resulting from such
exercise. The Committee may also permit the Option Price to be paid by any other
method permitted by law, including by delivery to the Committee from the
Participant of an election directing the Company to withhold the number of
shares of Common Stock from the Common Stock otherwise due upon exercise of the
Option having an aggregate Fair Market Value on that date equal to the Option
Price. If a Participant pays the Option Price with shares of Common Stock which
were received by the Participant upon exercise of one or more ISOs, and such
Common Stock has not been held by the Participant for at least the greater of:
(a) two (2) years from the date the ISOs were granted; or
(b) one (1) year after the transfer of the shares of Common Stock to the
Participant;
the use of the shares shall constitute a disqualifying disposition and the ISO
underlying the shares used to pay the Option Price shall no longer satisfy all
of the requirements of Code Section 422.
11. Vesting.
11.1 Options. A Participant may not exercise an Option until it has become
vested. The portion of an Award of Options that is vested depends upon the
period that has elapsed since the Award Date. The following schedule applies to
any Award of Options under this Plan unless the Committee establishes a
different vesting schedule on the Award Date:
Number of Years Since Award Date Vested Percentage
Fewer than two None
Two but fewer than three 40%
Three but fewer than four 60%
Four but fewer than five 80%
Five or more 100%
Notwithstanding anything herein to the contrary, however, all Awards will
become vested and exercisable upon the effective date of a "change in control"
and will remain exercisable during the 30 days following the effective date of
the change in control. As used in this paragraph, the term "change in control"
means the change in the legal or beneficial ownership of 51% of the outstanding
shares of Common Stock of the Company within a six-month period, other than by
death or operation of law, or the sale of 90% or more of the assets of the
Company within the six-month period.
If a Participant's employment with the Company or service on the Board is
terminated due to: (i) retirement on or after his sixty-fifth (65th) birthday;
(ii) retirement on or after his fifty-fifth (55th) birthday with consent of the
Company; (iii) total and permanent disability as determined by the Company; (iv)
death; or (v) a change in control of the Company (as determined by the
Committee), the Committee may, in its discretion, accelerate vesting. Unless the
Committee otherwise provides in the Award agreement, if a Participant's
employment with or service to the Company terminates for any other reason, any
Awards that are not yet vested are forfeited. A transfer from the Company to a
Subsidiary or affiliate, or vice versa, is not a termination of employment for
purposes of this Plan. The Committee shall be entitled to make such rules,
regulations and determinations as it deems appropriate in respect of any leave
of absence taken by a Participant. Without limiting the generality of the
foregoing, the Committee shall be entitled to determine (i) whether or not a
Participant's leave of absence shall constitute a termination of employment
within the meaning of the Plan and (ii) the impact, if any, of any such leave of
absence on Awards granted to such Participant. Unless otherwise determined by
the Committee in its sole discretion, a Participant shall be considered to have
terminated employment if his or her employer ceases to be an affiliate of the
Company, even if he or she continues to be employed by such employer.
<PAGE>
11.2 Restricted Stock and SARs. The Committee shall establish the vesting
schedule to apply to any Award of Restricted Stock or SAR that is not associated
with an ISO or NSO granted under the Plan to a Participant, and in the absence
of such a vesting schedule, such Award shall vest according to the vesting
schedule set forth in Section 11.1. In no event, however, will a SAR or
Restricted Stock Award granted to a Participant who is subject to Section 16 of
the Exchange Act be exercisable until at least six (6) months from its Award
Date.
If a Participant's employment with the Company or service on the Board is
terminated due to: (i) retirement on or after his sixty-fifth (65th) birthday;
(ii) retirement on or after his fifty-fifth (55th) birthday with consent of the
Company; (iii) total and permanent disability as determined by the Company; (iv)
death; or (v) a change in control of the Company (as determined by the
Committee), the Committee may, in its discretion, accelerate vesting. Unless the
Committee otherwise provides in the Award agreement, if a Participant's
employment with or service to the Company is terminated for any other reason,
any Awards that are not yet vested are forfeited. A transfer from the Company to
a Subsidiary or affiliate, or vice versa, is not a termination of employment for
purposes of this Plan.
12. Adjustments to Reflect Changes in Capital Structure.
If there is any change in the corporate structure or shares of the Company,
the Committee may make any adjustments necessary to prevent accretion, or to
protect against dilution, in the number and kind of shares authorized by the
Plan and, with respect to outstanding Awards, in the number and kind of shares
covered thereby and in the applicable Option Price. For the purpose of this
Section 12, a change in the corporate structure or shares of the Company
includes, without limitation, any change resulting from a recapitalization,
stock split, stock dividend, consolidation, rights offering, separation,
reorganization, or liquidation and any transaction in which shares of Common
Stock are changed into or exchanged for a different number or kind of shares of
stock or other securities of the Company or another corporation.
13. Nontransferability of Awards.
ISOs are not transferable, voluntarily or involuntarily, other than by will
or by the laws of descent and distribution or pursuant to a qualified domestic
relations order as defined by the Code. During a Participant's lifetime, his
ISOs may be exercised only by him. All other Awards granted pursuant to this
Plan are transferable by will or by the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined by the Code, or in
the Committee's discretion after vesting.
14. Rights as Shareholder.
No Common Stock may be delivered upon the exercise of any Option until full
payment has been made. A Participant has no rights whatsoever as a shareholder
with respect to any shares covered by an Option until the date of the issuance
of a stock certificate for the shares.
15. Withholding Tax.
The Committee may, in its discretion and subject to such rules as it may
adopt, permit or require a Participant to pay all or a portion of the federal,
state and local taxes, including FICA and Medicare withholding tax, arising in
connection with any Awards by (i) having the Company withhold shares of Common
Stock, (ii) tendering back shares of Common Stock received in connection with
such Award or (iii) delivering other previously acquired shares of Common Stock
having a Fair Market Value approximately equal to the amount to be withheld.
<PAGE>
16. No Right to Employment.
Participation in the Plan will not give any Participant a right to be
retained as an employee or director of the Company or its parent or
Subsidiaries, or any right or claim to any benefit under the Plan, unless the
right or claim has specifically accrued under the Plan. Nothing contained in the
Plan, or in any Award granted pursuant to the Plan, nor in any Agreement made
pursuant to the Plan, shall interfere in any way with the right of the Company
or its parent or Subsidiaries to terminate the Participant's employment at will
or change the Participant's compensation at any time.
17. Amendment of the Plan.
The Board of Directors may from time to time amend or revise the terms of
this Plan in whole or in part and may, without limitation, adopt any amendment
deemed necessary; provided, however, that no change in any Award previously
granted to a Participant may be made that would impair the rights of the
Participant without the Participant's consent.
18. Shareholder Approval.
Operation of the Plan shall be subject to approval by the shareholders of
the Company within twelve months before or after the date the Plan is adopted by
the Board of Directors. If such shareholder approval is obtained at a duly held
shareholders' meeting, it may be obtained by the affirmative vote of the holders
of a majority of the shares of the Company present at the meeting or represented
and entitled to vote thereon. The approval of such shareholders of the Company
shall be solicited substantially in accordance with Section 14(a) of the
Exchange Act and the rules and regulations promulgated thereunder.
19. Conditions Upon Issuance of Shares.
An Option shall not be exercisable and a share of Common Stock shall not be
issued pursuant to the exercise of an Option, and Restricted Stock shall not be
awarded until such time as the Plan has been approved by the shareholders of the
Company and unless the award of Restricted Stock, exercise of such Option and
the issuance and delivery of such share pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act of
1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange or national securities
association upon which the shares of Common Stock may then be listed or quoted,
and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
As a condition to the exercise of an Option, the Company may require the
person exercising such Option to represent and warrant at the time of any such
exercise that the shares of Common Stock are being purchased only for investment
and without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
20. Assumption of Awards by the Company.
The Company, from time to time, also may substitute or assume outstanding
awards granted by another company, whether in connection with an acquisition of
such other company or otherwise, by either (a) granting an Award under the Plan
in substitution of such other company's award, or (b) assuming such award as if
it had been granted under the Plan if the terms of such assumed award could be
applied to an Award granted under the Plan. Such substitution or assumption
shall be permissible if the holder of the substituted or assumed award would
have been eligible to be granted an Award under the Plan if the other company
had applied the rules of the Plan to such grant. In the event the Company
assumes an award granted by another company, the terms and conditions of
<PAGE>
such award shall remain unchanged (except that the exercise price and the number
and nature of Shares issuable upon exercise of any such option will be adjusted
appropriately pursuant to Section 424(a) of the Code). In the event the Company
elects to grant a new Award rather than assuming an existing option, such new
Award may be granted with a similarly adjusted exercise price.
21. Effective Date and Termination of Plan.
21.01Effective Date. This Plan is effective as of the date of its adoption
by the Board of Directors; provided, however, that the Plan and any
Awards granted hereunder shall be null and void if shareholder
approval is not obtained within twelve months of the date of such
adoption.
21.02Termination of the Plan. The Plan will terminate ten (10) years after
the date it is approved by the Board of Directors; provided, however,
that the Board of Directors may terminate the Plan at any time prior
thereto with respect to any shares that are not then subject to
Awards. Termination of the Plan will not affect the rights and
obligations of any Participant with respect to Awards granted before
termination.
[LORD, BISSELL & BROOK LETTERHEAD]
EXHIBIT 5
June 3, 1998
AMCOL International Corporation
1500 West Shure Drive
Arlington Heights, IL 60004
Ladies and Gentlemen:
We are acting as counsel to AMCOL International Corporation, a Delaware
corporation (the "Company"), in connection with its Registration Statement on
Form S-8 (the "Registration Statement") being filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act"),
covering 1,900,000 shares of Common Stock of the Company, $.01 par value per
share (the "Shares") to be issued pursuant to the AMCOL International
Corporation 1998 Long-Term Incentive Plan (the "Plan").
In connection with the offering of the Shares, we have examined:
(i) the Registration Statement including the exhibits thereto;
(ii) the Plan;
(iii)certain resolutions adopted by the Board of Directors of the Company
relating to the authorization, issuance and sale of the Shares
pursuant to the Plan; and
(iv) such other documents as we deem necessary to form the opinions
hereinafter expressed.
As to various questions of fact material to such opinions, where relevant
facts were not independently established, we have relied upon statements of
officers of the Company. Our opinion assumes that the pertinent provisions of
such blue sky and state securities laws as may be applicable have been complied
with and that the Shares are issued in accordance with the terms of the Plan.
<PAGE>
AMCOL International Corporation
June 3, 1998
Page 2
Based and relying solely upon the foregoing, we advise you that, in our
opinion, the Shares, or any portion thereof, to the extent such Shares represent
original issuances by the Company when issued pursuant to the Plan after the
Registration Statement has become effective under the Act, will be validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
Very truly yours,
Lord, Bissell & Brook
/s/ James W. Ashley, Jr.
By: James W. Ashley, Jr.
Opinion.doc
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors
AMCOL International Corporation
We consent to the use of our report dated March 20, 1998, incorporated
herein by reference, with respect to the consolidated financial statements of
AMCOL International Corporation and subsidiaries as of December 31, 1997 and
1996 and for each of the years in the three-year period ended December 31, 1997,
and the financial statement schedule for the three-year period ended December
31, 1997, which report appears in the December 31, 1997 annual report on Form
10-K of AMCOL International Corporation.
/s/ KPMG Peat Marwick LLP
- -------------------------
Chicago, Illinois
June 1, 1998
