Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
LADISH CO., INC.
(Exact name of registrant as specified in its charter)
Wisconsin 31-1145953
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5481 South Packard Avenue 53110
Cudahy, Wisconsin (Zip Code)
(Address of principal executive offices)
Ladish Co., Inc. 1996 Long-Term Incentive Plan
(Full title of the plan)
Wayne E. Larsen Copy to:
Vice President Law/Finance and Secretary
Ladish Co., Inc. John M. Olson
5481 South Packard Avenue Foley & Lardner
Cudahy, Wisconsin 53110 777 East Wisconsin Avenue
(414) 747-2611 Milwaukee, Wisconsin 53202
(Name, address and telephone number, (414) 271-2400
including area code, of agent for
service)
__________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Per Offering Registration
be Registered Registered Share Price Fee
Common Stock,
$.01 par 722,500
value shares $10.4993(1) $7,585,744(1) $2,237.79
(1) Estimated pursuant to Rule 457(c) and (h) under the Securities Act of
1933 solely for the purpose of calculating the registration fee based
on the offering prices of 601,250 shares of Common Stock and the
average of the high and low prices of 121,250 shares of Common Stock
as reported by The Nasdaq National Market on May 27, 1998.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified
in Part I are not required to be filed with the Securities and Exchange
Commission ("Commission") as part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been previously filed by Ladish
Co., Inc. (the "Company") with the Commission and are incorporated herein
by reference:
(a) The Company's latest Prospectus, dated March 9, 1998,
included in the Company's Registration Statement on Form S-1 (Registration
No. 333-43011), filed pursuant to Rule 424(b) under the Securities Act of
1933, which includes audited financial statements as of and for the year
ended December 31, 1997.
(b) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since December 31, 1997.
(c) The description of the Company's Common Stock contained in
Item 1 of the Company's Registration Statement on Form 8-A, dated
December 23, 1997, with the Commission pursuant to Section 12 of the
Exchange Act, and any amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of
filing of this Registration Statement and prior to such time as the
Company files a post-effective amendment to this Registration Statement
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company is incorporated under the Wisconsin Business
Corporation Law ("WBCL"). Under Section 180.0851(1) of the WBCL, the
Company is required to indemnify a director or officer, to the extent that
such person is successful on the merits or otherwise in the defense of a
proceeding, for all reasonable expenses incurred in the proceeding if such
person was a party because he or she was a director or officer of the
Company. In all other cases, the Company is required by
Section 180.0851(2) to indemnify a director or officer against liability
incurred in a proceeding to which such a person was a party because he or
she was a director or officer of the Company, unless it is determined that
he or she breached or failed to perform a duty owed to the Company and the
breach or failure to perform constitutes:
(i) a willful failure to deal fairly with the Company or
its shareholders in connection with a matter in which the
director or officer has a material conflict of interest;
(ii) a violation of criminal law, unless the director or
officer had reasonable cause to believe his or her conduct was
lawful or no reasonable cause to believe his or her conduct was
unlawful;
(iii) a transaction from which the director or officer
derived an improper personal profit; or
(iv) willful misconduct.
Section 180.0858(1) provides that, subject to certain
limitations, the mandatory indemnification provisions do not preclude any
additional right to indemnification or allowance of expenses that a
director or officer may have under the Company's articles of
incorporation, by-laws, a written agreement or a resolution of the Board
of Directors or shareholders.
Section 180.0859 of the WBCL provides that it is the public
policy of the State of Wisconsin to require or permit indemnification,
allowance of expenses and insurance to the extent required to be permitted
under Sections 180.0850 to 180.0858 of the WBCL, for any liability
incurred in connection with a proceeding involving a federal or state
statute, rule or regulation regulating the offer, sale or purchase of
securities.
Section 180.0828 of the WBCL provides that, with certain
exceptions, a director is not liable to a corporation, its shareholders,
or any person asserting rights on behalf of the corporation or its
shareholders, for damages, settlements, fees, fines, penalties or other
monetary liabilities arising from a breach of or failure to perform, any
duty resulting solely from his or her status as a director, unless the
person asserting liability proves that the breach or failure to perform
constitutes any of the four exceptions to mandatory indemnification under
Section 180.0851(2) referred to above.
Under Section 180.0833 of the WBCL, directors of the Company
against whom claims are asserted with respect to the declaration of
improper dividends or distributions to shareholders or certain other
improper acts which they approved are entitled to contribution from other
directors who approved such actions and from shareholders who knowingly
accepted an improper dividend or distribution, as provided therein.
Article XIII of the By-Laws of the Registrant provides for
indemnification of directors, to the maximum extent allowed or mandated by
the laws of the State of Wisconsin and of officers and employees to the
maximum extent allowed or mandated by the laws of the State of Wisconsin
except that no indemnification shall be made in respect to any issue or
matter as to which such officer or employee shall have been adjudged to be
liable for negligence or misconduct in the performance of duty to the
corporation unless the court in which such action or suit is brought shall
determine that, despite the adjudication of liability but in view of all
circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit No. Exhibit
(4) Ladish Co., Inc. 1996 Long-Term Incentive Plan
(5) Opinion of Foley & Lardner
(23) Consent of Arthur Andersen LLP
(24) Power of Attorney relating to subsequent amendments
(included on the signature page to this
Registration Statement)
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement 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.
(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 herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by 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.
<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 City of Cudahy, and
State of Wisconsin, on this 27th day of May, 1998.
LADISH CO., INC.
By: /s/ Wayne E. Larsen
Wayne E. Larsen
Vice President
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated. Each person whose signature
appears below constitutes and appoints Kerry L. Woody and Wayne E. Larsen,
and each of them individually, his or her true and lawful attorney-in-fact
and agent, with full power of substitution and revocation, for him or her
and in his or her name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments) to this
Registration Statement and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or either of them, may lawfully do or cause to be done by
virtue hereof.
Signature Title Date
/s/ Kerry L. Woody President, Chief Executive May 27, 1998
Kerry L. Woody Officer (Principal
Executive Officer) and
Director
/s/ Wayne E. Larsen Vice President Law/Finance, May 27, 1998
Wayne E. Larsen Secretary (Principal
Financial Officer and
Accounting Officer) and
Director
/s/ Robert W. Sullivan Director May 29, 1998
Robert W. Sullivan
_______________________ Director May __, 1998
Lawrence W. Bianchi
_______________________ Director May __, 1998
Charles W. Finkl
<PAGE>
EXHIBIT INDEX
LADISH CO., INC.
1996 LONG-TERM INCENTIVE PLAN
Sequentially
Exhibit No. Exhibit Numbered Page
(4) Ladish Co., Inc. 1996 Long-Term
Incentive Plan
(5) Opinion of Foley & Lardner
(23) Consent of Arthur Andersen LLP
(24) Power of Attorney relating to
subsequent amendments (included
on the signature page to this
Registration Statement) -
LADISH CO, INC.
1996 LONG-TERM INCENTIVE PLAN
<PAGE>
TABLE OF CONTENTS
SECTION 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. Purpose . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Participation . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
OPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1. Definition . . . . . . . . . . . . . . . . . . . . . . . 2
2.2. Eligibility . . . . . . . . . . . . . . . . . . . . . . 2
2.3. Price . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.4. Exercise . . . . . . . . . . . . . . . . . . . . . . . . 3
2.5. Post-Exercise Limitations . . . . . . . . . . . . . . . 4
2.6. Expiration Date . . . . . . . . . . . . . . . . . . . . 4
2.7. Reload Provision . . . . . . . . . . . . . . . . . . . . 5
SECTION 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
STOCK APPRECIATION RIGHTS . . . . . . . . . . . . . . . . . . . 5
3.1. Definition . . . . . . . . . . . . . . . . . . . . . . . 5
3.2. Eligibility . . . . . . . . . . . . . . . . . . . . . . 5
3.3. Exercise . . . . . . . . . . . . . . . . . . . . . . . . 6
3.4. Settlement of Award . . . . . . . . . . . . . . . . . . 6
3.5. Post-Exercise Limitations . . . . . . . . . . . . . . . 6
3.6. Expiration Date . . . . . . . . . . . . . . . . . . . . 6
SECTION 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
STOCK AWARDS . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.1. Definition . . . . . . . . . . . . . . . . . . . . . . . 7
4.2. Eligibility . . . . . . . . . . . . . . . . . . . . . . 8
4.3. Terms and Conditions of Awards . . . . . . . . . . . . . 8
SECTION 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
STOCK PURCHASE PROGRAM . . . . . . . . . . . . . . . . . . . . . 9
5.1. Purchase of Stock . . . . . . . . . . . . . . . . . . . 9
5.2. Matching Shares . . . . . . . . . . . . . . . . . . . . 9
5.3. Restrictions on Shares . . . . . . . . . . . . . . . . . 9
SECTION 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
PERFORMANCE UNITS . . . . . . . . . . . . . . . . . . . . . . . 9
6.1. Definition . . . . . . . . . . . . . . . . . . . . . . . 9
6.2. Eligibility . . . . . . . . . . . . . . . . . . . . . . 9
6.3. Terms and Conditions of Awards . . . . . . . . . . . . . 9
6.4. Settlement . . . . . . . . . . . . . . . . . . . . . . . 10
6.5. Termination during Performance Period . . . . . . . . . 10
SECTION 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
OPERATION AND ADMINISTRATION . . . . . . . . . . . . . . . . . . 11
7.1. Effective Date . . . . . . . . . . . . . . . . . . . . . 11
7.2. Shares Subject to Plan . . . . . . . . . . . . . . . . . 11
7.3. Individual Limits on Awards . . . . . . . . . . . . . . 11
7.4. Adjustments to Shares . . . . . . . . . . . . . . . . . 12
7.5. Limit on Distribution . . . . . . . . . . . . . . . . . 14
7.6. Liability for Cash Payments. . . . . . . . . . . . . . . 15
7.7. Performance-Based Compensation . . . . . . . . . . . . . 15
7.8. Withholding . . . . . . . . . . . . . . . . . . . . . . 16
7.9. Transferability . . . . . . . . . . . . . . . . . . . . 16
7.10. Notices . . . . . . . . . . . . . . . . . . . . . . . . 16
7.11. Form and Time of Elections . . . . . . . . . . . . . . . 16
7.12. Agreement With Company . . . . . . . . . . . . . . . . . 17
7.13. Limitation of Implied Rights. . . . . . . . . . . . . . 17
7.14. Evidence . . . . . . . . . . . . . . . . . . . . . . . . 17
7.15. Action by Company or Related Company . . . . . . . . . . 17
7.16. Gender and Number . . . . . . . . . . . . . . . . . . . 18
7.17. Termination for Cause . . . . . . . . . . . . . . . . . 18
SECTION 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
COMMITTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.1. Administration . . . . . . . . . . . . . . . . . . . . . 18
8.2. Selection of Committee . . . . . . . . . . . . . . . . . 18
8.3. Powers of Committee . . . . . . . . . . . . . . . . . . 18
8.4. Delegation by Committee . . . . . . . . . . . . . . . . 19
8.5. Information to be Furnished to Committee . . . . . . . . 19
8.6. Liability and Indemnification of Committee . . . . . . . 19
SECTION 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
CHANGE IN CONTROL . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . . 22
<PAGE>
LADISH CO, INC.
1996 LONG-TERM INCENTIVE PLAN
SECTION
GENERAL
0.1. Purpose. The Ladish Co, Inc. 1996 Long-Term Incentive Plan
(the "Plan") has been established by Ladish Co, Inc. (the "Company") to:
(a) attract and retain employees and other persons providing
services to the Company and the Related Companies (as defined
below);
(b) motivate Participants, by means of appropriate incentives, to
achieve long-range goals;
(c) provide incentive compensation opportunities that are
competitive with those of other major corporations; and
(d) further identify Participants' interests with those of the
Company's other stockholders through compensation that is based
on the Company's common stock;
and thereby promote the long-term financial interest of the Company and
the Related Companies, including the growth in value of the Company's
equity and enhancement of long-term stockholder return. The term "Related
Company" means any company during any period in which it is a "subsidiary
corporation" (as that term is defined in section 424(f) of the Internal
Revenue Code of 1986, as amended (the "Code")) with respect to the
Company.
0.2. Participation. Subject to the terms and conditions of the
Plan, the Committee (as described in Section 8) shall determine and
designate, from time to time, from among the Eligible Individuals those
persons who will be granted one or more awards under Sections 2, 3, 4, 5
or 6 of the Plan (an "Award"), and thereby become "Participants" in the
Plan. In the discretion of the Committee, and subject to the terms of the
Plan, a Participant may be granted any Award permitted under the
provisions of the Plan, and more than one Award may be granted to a
Participant. Except as otherwise agreed by the Company and the
Participant, or except as otherwise provided in the Plan, an Award under
the Plan shall not affect any previous Award under the Plan or an award
under any other plan maintained by the Company or the Related Companies.
For purposes of the Plan, the term "Eligible Individual" shall mean any
employee of the Company or a Related Company, and any other person
providing material services to the Company or a Related Company; provided,
however, that a member of the Board who is not an employee of the Company
or a Related Company shall not be an "Eligible Individual".
SECTION 1
OPTIONS
1.1. Definitions. The grant of an "Option" under this Section 2
entitles the Participant to purchase shares of common stock of the Company
("Stock") at a price fixed at the time the Option is granted, subject to
the terms of this Section. Options granted under this Section may be
either Incentive Stock Options or Non-Qualified Stock Options, as
determined in the discretion of the Committee. An "Incentive Stock
Option" is an Option that is intended to satisfy the requirements
applicable to an "incentive stock option" described in section 422 of the
Code. A "Non-Qualified Stock Option" is an Option that is not intended to
be an Incentive Stock Option.
1.2. Eligibility. The Committee shall designate the Participants to
whom Options are to be granted under this Section and shall determine the
number of shares of Stock subject to each such Option. To the extent that
the aggregate fair market value of Stock with respect to which Incentive
Stock Options are exercisable for the first time by any individual during
any calendar year (under all plans of the Company and all Related
Companies) exceeds $100,000, such options shall be treated as Non-
Qualified Stock Options, to the extent required by section 422 of the
Code.
1.3. Price. The determination and payment of the purchase price of
a share of Stock under each Option granted under this Section shall be
subject to the following:
(a) The purchase price shall be established by the Committee at the
time the Option is granted; provided, however, that in no event
shall such price be less than the par value of a share of Stock
on such date; further, provided, in no event shall the purchase
price of a share of Stock under an Incentive Stock Option be
less than the Fair Market Value (defined below) of a share of
stock at the time the Option is granted.
(b) Subject to the following provisions of this subsection, the full
purchase price of each share of Stock purchased upon the
exercise of any Option shall be paid at the time of such
exercise and, as soon as practicable thereafter, a certificate
representing the shares so purchased shall be delivered to the
person entitled thereto.
(c) The purchase price shall be payable in cash or in shares of
Stock (valued at Fair Market Value as of the day of exercise)
that have been held by the Participant at least six months, or
in any combination thereof, as determined by the Committee.
(d) A Participant may elect to pay the purchase price upon the
exercise of an Option through a cashless exercise arrangement to
the extent provided by the Committee.
(e) The "Fair Market Value" of a share of Stock of the Company as of
any date shall be the closing price per share of Stock (or the
mean of the closing bid and asked prices of a share, if the
Stock is so reported) on the National Association of Securities
Dealers Automated Quotation System ("NASDAQ") the NASDAQ
National Market System or other national or regional securities
exchange or market system on which the Stock is primarily traded
(not including "pink sheets" or the over-the-counter market),
or, if there shall have been no such sale so reported on that
date, on the last preceding date on which such a sale was so
reported, or if the Stock is not traded on any such exchange or
system then at a price established by the Committee.
1.4. Exercise. Except as otherwise expressly provided in the Plan,
an Option granted under this Section shall be exercisable in accordance
with the following terms of this subsection:
(a) The terms and conditions relating to exercise of an Option shall
be established by the Committee, and may include, without
limitation, conditions relating to completion of a specified
period of service (subject to paragraph (b) below), achievement
of performance standards prior to exercise of the Option or
achievement of Stock ownership objectives by the Participant.
The Committee, in its sole discretion, may accelerate the
vesting of any Option under circumstances designated by it at
the time the Option is granted or thereafter.
(b) No Option may be exercised by a Participant after the Expiration
Date (as defined in subsection 2.6) applicable to that Option.
(c) The exercise of an Option will result in the surrender of the
corresponding rights under a tandem Stock Appreciation Right (as
described in Section 3), if any.
1.5. Post-Exercise Limitations. The Committee, in its discretion,
may impose such restrictions on the transfer of shares of Stock acquired
pursuant to the exercise of an Option (including stock acquired pursuant
to the exercise of a tandem Stock Appreciation Right) as it determines to
be desirable.
1.6. Expiration Date. The "Expiration Date" with respect to an
Option means the date established as the Expiration Date by the Committee
at the time of the grant; provided, however, that the Expiration Date with
respect to any Option shall not be later than the earliest to occur of:
(a) the ten-year anniversary of the date on which the Option is
granted;
(b) if the Participant's Date of Termination occurs by reason of
death or Disability, 90 days after such Date of Termination;
(c) if the Participant's Date of Termination occurs by reason of
Retirement, 90 days after such Date of Termination;
(d) if the Participant's Date of Termination occurs for reasons
other than Retirement, death, Disability or Cause, such Date of
Termination; or
(e) if the Participant's Date of Termination occurs for reasons of
Cause, such Date of Termination.
On the Date of Termination of Participant, for any reason, all unvested
Options shall terminate. Subject to Section 7.17, on the Date of
Termination of Participant, for Cause, all unvested and unvested Options
shall terminate.
For purposes of the Plan, a Participant's "Date of Termination" shall be
the date on which he both ceases to be an employee of the Company and the
Related Companies and ceases to perform material services for the Company
and the Related Companies, regardless of the reason for the cessation;
provided that a "Date of Termination" shall not be considered to have
occurred during the period in which the reason for the cessation of
services is a leave of absence approved by the Company or the Related
Company which was the recipient of the Participant's services. Except as
otherwise provided by the Committee, a Participant shall be considered to
have a "Disability" during the period in which he is unable, by reason of
a medically determinable physical or mental impairment, to engage in any
substantial gainful activity, which condition, in the opinion of a
physician selected by the Committee, is expected to have a duration of not
less than 120 days. "Retirement" of a Participant shall mean the
occurrence of a Participant's Date of Termination for reasons other than
death, Disability or Cause after providing at least five years of service
to the Company or the Related Companies and attaining age 65 or the
Participant attaining age plus years of service totaling 90 or more.
For purposes of the Plan, "Cause" shall mean, in the reasonable judgment
of the Committee (i) the willful and continued failure by the Participant
to substantially perform his or her duties with the Company or any Related
Company after written notification by the Company or Related Company, (ii)
the willful engaging by the Participant in conduct which is demonstrably
injurious to the Company or any Related Company, monetarily or otherwise,
(iii) the engaging by the Participant in egregious misconduct involving
serious moral turpitude, or (iv) the breach or violation by Participant of
any agreement with the Company, including any option or award agreement
delivered in connection with grants and any confidentiality agreement
contained therein, or any employment or stockholders agreement. For
purposes hereof, no act, or failure to act, on the Participant's part
shall be deemed "willful" unless done, or omitted to be done, by the
Participant not in good faith and without reasonable belief that such
action was in the best interest of the Company or Related Company.
SECTION 2
STOCK APPRECIATION RIGHTS
2.1. Definition. Subject to the terms of this Section, a "Stock
Appreciation Right" granted under the Plan entitles the Participant to
receive, in cash or Stock (as determined in accordance with subsection
3.4), value equal to all or a portion of the excess of: (a) the Fair
Market Value of a specified number of shares of Stock at the time of
exercise over (b) a specified price designated at the time the Stock
Appreciation Right is granted or, if granted in tandem with an Option, the
exercise price with respect to shares under the tandem Option.
2.2. Eligibility. Subject to the provisions of the Plan, the
Committee shall designate the Participants to whom Stock Appreciation
Rights are to be granted under the Plan, shall determine the exercise
price or a method by which the price shall be established with respect to
each such Stock Appreciation Right and shall determine the number of
shares of Stock on which each Stock Appreciation Right is based. A Stock
Appreciation Right may be granted in connection with all or any portion of
a previously or contemporaneously-granted Option or not in connection with
an Option. If a Stock Appreciation Right is granted in connection with an
Option then, in the discretion of the Committee, the Stock Appreciation
Right may, but need not, be granted in tandem with the Option.
2.3. Exercise. The exercise of Stock Appreciation Rights shall be
subject to the following:
(a) If a Stock Appreciation Right is not in tandem with an Option,
then the Stock Appreciation Right shall be exercisable in
accordance with the terms established by the Committee in
connection with such right; and may include, without limitation,
conditions relating to completion of a specified period of
service, achievement of performance standards prior to exercise
of the Stock Appreciation Right or achievement of objectives
relating to Stock ownership by the Participant. The Committee,
in its sole discretion, may accelerate the vesting of any Stock
Appreciation Right under circumstances designated by it at the
time the Stock Appreciation Right is granted or thereafter. No
Stock Appreciation Right subject to this paragraph may be
exercised by a Participant after the Expiration Date (as defined
in subsection 3.6) applicable to that Stock Appreciation Right.
(b) If a Stock Appreciation Right is in tandem with an Option, then
the Stock Appreciation Right shall be exercisable at the time
the tandem Option is exercisable. The exercise of a Stock
Appreciation Right will result in the surrender of the
corresponding rights under the tandem Option.
2.4. Settlement of Award. Upon the exercise of a Stock Appreciation
Right, the value to be distributed to the Participant, in accordance with
subsection 3.1, shall be distributed in shares of Stock (valued at their
Fair Market Value at the time of exercise), in cash or in a combination
thereof, in the agreement of the Committee and the Participant.
2.5. Post-Exercise Limitations. The Committee, in its discretion,
may impose such transfer restrictions on shares of Stock acquired pursuant
to the exercise of a Stock Appreciation Right as it determines to be
desirable.
2.6. Expiration Date. If a Stock Appreciation Right is in tandem
with an Option, then the "Expiration Date" for the Stock Appreciation
Right shall be the Expiration Date for the related Option. If a Stock
Appreciation Right is not in tandem with an Option, then the "Expiration
Date" for the Stock Appreciation Right shall be the date established as
the Expiration Date by the Committee; provided, however, that subject to
the following provisions of this subsection, the Expiration Date with
respect to any Stock Appreciation Right shall not be later than the
earliest to occur of:
(a) the ten-year anniversary of the date on which the Stock
Appreciation Right is granted;
(b) if the Participant's Date of Termination occurs by reason of
death or Disability, 90 days after such Date of Termination; or
(c) if the Participant's Date of Termination occurs by reason of
Retirement, 90 days after such Date of Termination;
(d) if the Participant's Date of Termination occurs by reason other
than Retirement, death, Disability or Cause, such Date of
Termination; or
(e) if the Participant's Date of Termination occurs for reasons of
Cause, such Date of Termination.
SECTION 3
STOCK AWARDS
3.1. Definition. Subject to the terms of this Section, a Stock
Award under the Plan is a grant of shares of Stock to a Participant, the
earning, vesting or distribution of which is subject to one or more
conditions established by the Committee. Such conditions may relate to
events (such as performance or continued employment) occurring before or
after the date the Stock Award is granted, or the date the Stock is earned
by, vested in or delivered to the Participant. If the vesting of Stock
Awards is subject to conditions occurring after the date of grant, the
period beginning on the date of grant of a Stock Award and ending on the
vesting or forfeiture of such Stock (as applicable) is referred to as the
"Restricted Period". Stock Awards may provide for delivery of the shares
of Stock at the time of grant or may provide for a deferred distribution
date. A Stock Award may, but need not, be made in conjunction with a
cash-based incentive compensation program maintained by the Company and
may, but need not, be in lieu of cash otherwise awardable under such
program.
3.2. Eligibility. The Committee shall designate the Participants to
whom Stock Awards are to be granted and the number of shares of Stock that
are subject to each such Award.
3.3. Terms and Conditions of Awards. Stock Awards granted to
Participants under the Plan shall be subject to the following terms and
conditions:
(a) Beginning on the date of grant (or, if later, the date of
distribution) of shares of Stock comprising a Stock Award, and
including any applicable Restricted Period, the Participant as
owner of such shares shall have the right to vote such shares.
(b) Payment of dividends with respect to Stock Awards shall be
subject to the following:
(i) On and after date that a Participant has a fully earned and
vested right to the shares comprising a Stock Award, and
the shares have been distributed to the Participant, the
Participant shall have all dividend rights (and other
rights) of a stockholder with respect to such shares.
(ii) Prior to the date that a Participant has a fully earned and
vested right to the shares comprising a Stock Award, the
Committee, in its sole discretion, may award Dividend
Rights with respect to such shares.
(iii) On and after the date that a Participant has a fully earned
and vested right to the shares comprising a Stock Award,
but before the shares have been distributed to the
Participant, the Participant shall be entitled to Dividend
Rights with respect to such shares, at the time and in the
form determined by the Committee.
(iv) A "Dividend Right" with respect to shares comprising a
Stock Award shall entitle the Participant, as of each
dividend payment date, to an amount equal to the dividends
payable with respect to a share of Stock multiplied by the
number of such shares. Dividend Rights shall be settled in
cash or in shares of Stock, as determined by the Committee,
shall be payable at the time and in the form determined by
the Committee and shall be subject to such other terms and
conditions as the Committee may determine.
SECTION 4
STOCK PURCHASE PROGRAM
4.1. Purchase of Stock. The Committee may, from time to time,
establish one or more programs under which Participants will be permitted
to purchase shares of Stock under the Plan and shall designate the
Participants eligible to participate under such Stock purchase programs.
The purchase price for shares of Stock available under such programs, and
other terms and conditions of such programs, shall be established by the
Committee; provided, however, that with respect to shares of Stock
purchased under a program that does not result in an award of matching
shares (as provided in subsection 5.2), the purchase price may not be less
than 50% of the Fair Market Value of the Stock at the time of purchase
(or, in the Committee's discretion, the average stock value over a period
determined by the Committee), and further provided that the purchase price
may not be less than par value.
4.2. Matching Shares. Except as otherwise provided in subsection
5.1, any Stock purchase program established by the Committee under this
Section may provide for the award of matching shares of Stock.
4.3. Restrictions on Shares. The Committee may impose such
restrictions with respect to shares purchased under subsection 5.1, or
matching shares awarded pursuant to subsection 5.2, as the Committee
determines to be appropriate. Such restrictions may include, without
limitation, restrictions of the type that may be imposed with respect to
Stock Awards under Section 4.
SECTION 5
PERFORMANCE UNITS
5.1. Definition. Subject to the terms of this Section, the Award of
Performance Units under the Plan entitles the Participant to receive value
for the units at the end of a Performance Period to the extent provided
under the Award. The number of units earned, and the value received for
them, will be contingent on the degree to which the performance measures
established at the time of grant of the Award are met. For purposes of
the Plan, the "Performance Period" with respect to the award of any
Performance Units shall be the period over which the applicable
performance is to be measured.
5.2. Eligibility. The Committee shall designate the Participants to
whom Performance Units are to be granted and the number of units subject
to each such Award.
5.3. Terms and Conditions of Awards. For each Participant, the
Committee will determine the value of units, which may be stated either in
cash or in units representing shares of Stock; the performance measures
used for determining whether the Performance Units are earned; the
Performance Period during which the performance measures will apply; the
relationship between the level of achievement of the performance measures
and the degree to which Performance Units are earned; whether, during or
after the Performance Period, any revision to the performance measures or
Performance Period should be made to reflect significant events or changes
that occur during the Performance Period; and the number of earned
Performance Units that will be paid in cash and the number of earned
Performance Units to be paid in shares of Stock.
5.4. Settlement. Settlement of Performance Units shall be subject
to the following:
(a) The Committee will compare the actual performance to the
performance measures established for the Performance Period and
determine the number of units as to which settlement is to be
made, and the value of such units.
(b) Settlement of units earned shall be wholly in cash, wholly in
Stock or in a combination of the two and distributed in a lump
sum or installments, as determined by the Committee.
(i) For Performance Units stated in units representing shares
of Stock when granted, either one share of Stock will be
distributed for each unit earned or cash will be
distributed for each unit earned equal to either (A) the
Fair Market Value of a share of Stock at the end of the
Performance Period or (B) the average Stock value over a
period determined by the Committee.
(ii) For Performance Units stated in cash when granted, the
value of each unit earned will be distributed in its
initial cash value or shares of Stock will be distributed
based on the cash value of the units earned divided by (A)
the Fair Market Value of a share of Stock at the end of the
Performance Period or (B) the average Stock value over a
period determined by the Committee.
(c) Shares of Stock distributed in settlement of the units shall be
subject to such vesting requirements and other conditions, if
any, as the Committee shall determine. Such vesting
restrictions may include, without limitation, restrictions of
the type that may be imposed with respect to Stock Awards under
Section 4.
5.5. Termination during Performance Period. If a Participant's Date
of Termination occurs during a Performance Period with respect to any
Performance Units granted to him, the Committee may determine that the
Participant will be entitled to settlement of all or any portion of the
Performance Units as to which he would otherwise be eligible and may
accelerate the determination of the value and settlement of such
Performance Units or make such other adjustments as the Committee, in its
sole discretion, deems desirable.
SECTION 6
OPERATION AND ADMINISTRATION
6.1. Effective Date. The Plan shall be effective as of the date it
is adopted by the Board of Directors of the Company (the "Board");
provided, however, that Awards granted under the Plan prior to its
approval by stockholders will be contingent on approval of the Plan by the
Company's stockholders. The Plan shall be unlimited in duration and, in
the event of Plan termination, shall remain in effect as long as any
shares of Stock awarded under it are outstanding and not fully vested;
provided, however, that no new Awards shall be made under the Plan on or
after the tenth anniversary of the date on which the Plan is adopted by
the Board.
6.2. Shares Subject to Plan. The shares of Stock with respect to
which Awards may be made under the Plan shall be shares currently
authorized but unissued or currently held or subsequently acquired by the
Company as treasury shares, including shares purchased in the open market
or in private transactions. Subject to the provisions of subsection 7.4,
the number of shares of Stock which may be issued with respect to Awards
under the Plan shall not exceed 5,000,000 shares in the aggregate. Except
as otherwise provided herein, any shares subject to an Award which for any
reason expires or is terminated without issuance of shares (whether or not
cash or other consideration is paid to a Participant in respect of such
shares) shall again be available under the Plan.
6.3. Individual Limits on Awards. Notwithstanding any other
provision of the Plan to the contrary, no Participant shall receive any
Award of an Option or Stock Appreciation Right under the Plan to the
extent that the sum of:
(a) the number of shares of Stock subject to such Award;
(b) the number of shares of Stock subject to all other prior Awards
of Options and Stock Appreciation Rights under the Plan during
the one-year period ending on the date of the Award; and
(c) the number of shares of Stock subject to all other prior stock
options and stock appreciation rights granted to the Participant
under other plans or arrangements of the Company and Related
Companies during the one-year period ending on the date of the
Award;
would exceed the Participant's Individual Limit under the Plan. The
determination made under the foregoing provisions of this subsection shall
be based on the shares subject to the awards at the time of grant,
regardless of when the awards become exercisable. Subject to the
provisions of subsection 7.4, a Participant's "Individual Limit" shall be
1,000,000 shares.
6.4. Adjustments to Shares.
(a) If the Company shall effect any subdivision or consolidation of
shares of Stock or other capital readjustment, payment of stock
dividend, stock split, combination of shares or recapitalization
or other increase or reduction of the number of shares of Stock
outstanding without receiving compensation therefor in money,
services or property, then the Committee shall adjust (i) the
number of shares of Stock available under the Plan; (ii) the
number of shares available under any individual or other limits;
(iii) the number of shares of Stock subject to outstanding
Awards; and (iv) the per-share price under any outstanding Award
to the extent that the Participant is required to pay a purchase
price per share with respect to the Award.
(b) If the Company is reorganized, merged or consolidated or is
party to a plan of exchange with another corporation, pursuant
to which reorganization, merger, consolidation or plan of
exchange, the stockholders of the Company receive any shares of
stock or other securities or property, or the Company shall
distribute securities of another corporation to its
stockholders, there shall be substituted for the shares subject
to outstanding Awards an appropriate number of shares of each
class of stock or amount of other securities or property which
were distributed to the stockholders of the Company in respect
of such shares, subject to the following:
(i) If the Committee determines that the substitution described
in accordance with the foregoing provisions of this
paragraph would not be fully consistent with the purposes
of the Plan or the purposes of the outstanding Awards under
the Plan, the Committee may make such other adjustments to
the Awards to the extent that the Committee determines such
adjustments are consistent with the purposes of the Plan
and of the affected Awards.
(ii) All or any of the Awards may be cancelled by the Committee
on or immediately prior to the effective date of the
applicable transaction, but only if the Committee gives
reasonable advance notice of the cancellation to each
affected Participant, and only if either: (A) the
Participant is permitted to exercise the Award for a
reasonable period prior to the effective date of the
cancellation; or (B) the Participant receives payment or
other benefits that the Committee determines to be
reasonable compensation for the value of the cancelled
Awards.
(iii) Upon the occurrence of a reorganization of the Company or
any other event described in this paragraph (b), the
Company will use its best efforts to cause any successor to
the Company to be substituted for the Company under the
Plan;
(c) Upon (or, in the discretion of the Committee, immediately prior
to) the sale to (or exchange with) a third party unrelated to
the Company of all or substantially all of the assets of the
Company, all Awards shall be cancelled. If Awards are cancelled
under this paragraph, then, with respect to any affected
Participant, either:
(i) the Participant shall be provided with reasonable advance
notice of the cancellation, and the Participant shall be
permitted to exercise the Award for a reasonable period
prior to the effective date of the cancellation; or
(ii) the Participant shall receive payment or other benefits
that the Committee determines to be reasonable compensation
for the value of the cancelled Awards.
The foregoing provisions of this paragraph shall also apply to
the sale of all or substantially all of the assets of the
Company to a related party, if the Committee determines such
application is appropriate.
(d) In determining what action, if any, is necessary or appropriate
under the foregoing provisions of this subsection, the Committee
shall act in a manner that it determines to be consistent with
the purposes of the Plan and of the affected Awards and in a
manner that it determines to be necessary to preserve the
benefits and potential benefits of the affected Awards for the
Participants and the Company.
(e) The existence of this Plan and the Awards granted hereunder
shall not affect in any way the right or power of the Company or
its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the
Company's capital structure or its business, any merger or
consolidation of the Company, any issue of bonds, debentures,
preferred or prior preference stocks ahead of or affecting the
Company's Stock or the rights thereof, the dissolution or
liquidation of the Company, any sale or transfer of all or any
part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
(f) Except as expressly provided by the terms of this Plan, the
issue by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, for
cash or property or for labor or services, either upon direct
sale, upon the exercise of rights or warrants to subscribe
therefor or upon conversion of shares or obligations of the
Company convertible into such shares or other securities, shall
not affect, and no adjustment by reason thereof, shall be made
with respect to Awards then outstanding hereunder.
(g) Awards under the Plan are subject to adjustment under this
subsection only during the period in which they are considered
to be outstanding under the Plan. For purposes of this
subsection, an Award is considered "outstanding" on any date if
the Participant's ability to obtain all benefits with respect to
the Award is subject to limits imposed by the Plan (including
any limits imposed by the Agreement reflecting the Award). The
determination of whether an Award is outstanding shall be made
by the Committee.
6.5. Limit on Distribution. Distribution of shares of Stock or
other amounts under the Plan shall be subject to the following:
(a) Notwithstanding any other provision of the Plan, the Company
shall have no liability to deliver any shares of Stock under the
Plan or make any other distribution of benefits under the Plan
unless such delivery or distribution would comply with all
applicable laws and the applicable requirements of any
securities exchange or similar entity.
(b) In the case of a Participant who is subject to Section 16(a) and
16(b) of the Securities Exchange Act of 1934, the Committee may,
at any time, add such conditions and limitations to any Award to
such Participant, or any feature of any such Award, as the
Committee, in its sole discretion, deems necessary or desirable
to comply with Section 16(a) or 16(b) and the rules and
regulations thereunder or to obtain any exemption therefrom.
6.6. Liability for Cash Payments. Subject to the provisions of this
Section, each Related Company shall be liable for payment of cash due
under the Plan with respect to any Participant to the extent that such
benefits are attributable to the service rendered for that Related Company
by the Participant. Any disputes relating to liability of a Related
Company for cash payments shall be resolved by the Committee.
6.7. Performance-Based Compensation. To the extent that the
Committee determines that it is necessary or desirable to conform any
Awards under the Plan with the requirements applicable to "Performance-
Based Compensation", as that term is used in Code section 162(m)(4)(C), it
may, at or prior to the time an Award is granted, take such steps and
impose such restrictions with respect to such Award as it determines to be
necessary to satisfy such requirements including, without limitation:
(a) The establishment of performance goals that must be satisfied
prior to the payment or distribution of benefits under such
Awards.
(b) The submission of such Awards and performance goals to the
Company's stockholders for approval and making the receipt of
benefits under such Awards contingent on receipt of such
approval.
(c) Providing that no payment or distribution be made under such
Awards unless the Committee certifies that the goals and the
applicable terms of the Plan and Agreement reflecting the Awards
have been satisfied.
To the extent that the Committee determines that the foregoing
requirements relating to Performance-Based Compensation do not apply to
Awards under the Plan because the Awards constitute Options or Stock
Appreciation Rights, the Committee may, at the time the Award is granted,
conform the Awards to alternative methods of satisfying the requirements
applicable to Performance-Based Compensation.
6.8. Withholding. All Awards and other payments under the Plan are
subject to withholding of all applicable taxes, which withholding
obligations may be satisfied, with the consent of the Committee, through
the surrender of shares of Stock which the Participant already owns or to
which a Participant is otherwise entitled under the Plan.
6.9. Transferability. Awards under the Plan are not transferable
except as designated by the Participant by will or by the laws of descent
and distribution or pursuant to a qualified domestic relations order as
defined by the Code, Title I of the Employee Retirement Income Security
Act of 1974, as amended, or the rules thereunder. To the extent that the
Participant who receives an Award under the Plan has the right to exercise
such Award, the Award may be exercised during the lifetime of the
Participant only by the Participant. Notwithstanding the foregoing
provisions of this subsection, the Committee may permit Awards under the
Plan to be transferred to or for the benefit of the Participant's family
(including, without limitation, to a trust for the benefit of a
Participant's family), subject to such limits as the Committee may
establish. In no event shall an Incentive Stock Option be transferable to
the extent that such transferability would violate the requirements
applicable to such option under Code section 422.
6.10. Notices. Any notice or document required to be filed with the
Committee under the Plan will be properly filed if delivered or mailed by
registered mail, postage prepaid, to the Committee, in care of the
Company, at its principal executive offices. The Committee may, by
advance written notice to affected persons, revise such notice procedure
from time to time. Any notice required under the Plan (other than a
notice of election) may be waived by the person entitled to notice.
6.11. Form and Time of Elections. Unless otherwise specified
herein, each election required or permitted to be made by any Participant
or other person entitled to benefits under the Plan, and any permitted
modification or revocation thereof, shall be in writing filed with the
Committee at such times, in such form, and subject to such restrictions
and limitations, not inconsistent with the terms of the Plan, as the
Committee shall require.
6.12. Agreement With Company. At the time of an Award to a
Participant under the Plan, the Committee may require a Participant to
enter into an agreement with the Company (the "Agreement") in a form
specified by the Committee, agreeing to the terms and conditions of the
Plan and to such additional terms and conditions, not inconsistent with
the Plan, as the Committee may, in its sole discretion, prescribe.
6.13. Limitation of Implied Rights.
(a) Neither a Participant nor any other person shall, by reason of
the Plan, acquire any right in or title to any assets, funds or
property of the Company or any Related Company whatsoever,
including, without limitation, any specific funds, assets, or
other property which the Company or any Related Company, in its
sole discretion, may set aside in anticipation of a liability
under the Plan. A Participant shall have only a contractual
right to the amounts, if any, payable under the Plan, unsecured
by any assets of the Company and any Related Company. Nothing
contained in the Plan shall constitute a guarantee by the
Company or any Related Company that the assets of such companies
shall be sufficient to pay any benefits to any person.
(b) The Plan does not constitute a contract of employment, and
selection as a Participant will not give any employee the right
to be retained in the employ of the Company or any Related
Company, nor any right or claim to any benefit under the Plan,
unless such right or claim has specifically accrued under the
terms of the Plan. Except as otherwise provided in the Plan, no
Award under the Plan shall confer upon the holder thereof any
right as a stockholder of the Company prior to the date on which
he fulfills all service requirements and other conditions for
receipt of such rights and shares of Stock are registered in his
name.
6.14. Evidence. Evidence required of anyone under the Plan may be
by certificate, affidavit, document or other information which the person
acting on it considers pertinent and reliable, and signed, made or
presented by the proper party or parties.
6.15. Action by Company or Related Company. Any action required or
permitted to be taken by the Company or any Related Company shall be by
resolution of its board of directors, or by action of one or more members
of the board (including a committee of the board) who are duly authorized
to act for the board or (except to the extent prohibited by applicable law
or the rules of any stock exchange) by a duly authorized officer of the
company.
6.16. Gender and Number. Where the context admits, words in any
gender shall include any other gender, words in the singular shall include
the plural and the plural shall include the singular.
6.17. Termination for Cause. Unless the Committee determines
otherwise, all of a Participant's outstanding and unexercised Awards
whether vested or unvested under the Plan shall be forfeited on the
Participant's Date of Termination if the Participant's employment with the
Company or a Related Company is terminated for Cause.
SECTION 7
COMMITTEE
7.1. Administration. The authority to control and manage the
operation and administration of the Plan shall be vested in a committee
(the "Committee") in accordance with this Section 8.
7.2. Selection of Committee. The Committee shall be selected by the
Board, and shall consist of not fewer than two members of the Board or
such greater number as may be required for compliance with Rule 16b-3
issued under the Securities Exchange Act of 1934, none of whom shall be
eligible to receive Awards under the Plan.
7.3. Powers of Committee. The authority to manage and control the
operation and administration of the Plan shall be vested in the Committee,
subject to the following:
(a) Subject to the provisions of the Plan, the Committee will have
the authority and discretion to select employees to receive
Awards, to determine the time or times of receipt, to determine
the types of Awards and the number of shares covered by the
Awards, to establish the terms, conditions, performance
criteria, restrictions, and other provisions of such Awards,
including the vesting provisions applicable to such Awards, and
to cancel or suspend Awards, provided that the cancelled or
suspended Award is replaced with an Award of at least equal
value. In making such Award determinations, the Committee may
take into account the nature of services rendered by the
respective employee, his present and potential contribution to
the Company's success and such other factors as the Committee
deems relevant.
(b) Subject to the provisions of the Plan, the Committee will have
the authority and discretion to determine the extent to which
Awards under the Plan will be structured to conform to the
requirements applicable to Performance-Based Compensation, and
to take such action, establish such procedures, and impose such
restrictions at the time such Awards are granted as the
Committee determines to be necessary or appropriate to conform
to such requirements.
(c) The Committee will have the authority and discretion to
interpret the Plan, to establish, and to prospectively amend and
rescind any rules and regulations relating to the Plan, to
determine the terms and provisions of any agreements made
pursuant to the Plan and to make all other determinations that
may be necessary or advisable for the administration of the
Plan.
(d) Any interpretation of the Plan by the Committee and any decision
made by it under the Plan is final and binding on all persons.
(e) Except as otherwise expressly provided in the Plan, where the
Committee is authorized to make a determination with respect to
any Award.
7.4. Delegation by Committee. Except to the extent prohibited by
applicable law or the rules of any stock exchange, the Committee may
allocate all or any portion of its responsibilities and powers to any one
or more of its members and may delegate all or any part of its
responsibilities and powers to any person or persons selected by it. Any
such allocation or delegation may be revoked by the Committee at any time.
7.5. Information to be Furnished to Committee. The Company and
Related Companies shall furnish the Committee with such data and
information as may be required for it to discharge its duties. The
records of the Company and Related Companies as to an employee's or
Participant's employment (or other provision of services), termination of
employment (or cessation of the provision of services), leave of absence,
reemployment and compensation shall be conclusive on all persons unless
determined to be incorrect. Participants and other persons entitled to
benefits under the Plan must furnish the Committee such evidence, data or
information as the Committee considers desirable to carry out the terms of
the Plan.
7.6. Liability and Indemnification of Committee. No member or
authorized delegate of the Committee shall be liable to any person for any
action taken or omitted in connection with the administration of the Plan
unless attributable to his own fraud or willful misconduct. The
Committee, the individual members thereof, and persons acting as the
authorized delegates of the Committee under the Plan, shall be indemnified
by the Company against any and all liabilities, losses, costs and expenses
(including legal fees and expenses) of whatsoever kind and nature which
may be imposed on, incurred by or asserted against the Committee or its
members or authorized delegates by reason of the performance of a
Committee function if the Committee or its members or authorized delegates
did not act dishonestly or in willful violation of the law or regulation
under which such liability, loss, cost or expense arises. This
indemnification shall not duplicate but may supplement any coverage
available under any applicable insurance.
SECTION 8
CHANGE IN CONTROL
Except as otherwise provided in the Plan or in the Agreement reflecting
the applicable Award, upon the occurrence of a Change in Control (i) all
outstanding Options and Stock Appreciation Rights shall become immediately
exercisable, (ii) all shares of Restricted Stock and Performance Stock
shall become fully vested, (iii) all vesting restrictions imposed under
subsection 6.3 (relating to restrictions on shares purchased by
Participants and matching shares) shall cease to apply, and (iv)
Performance Units may be paid out in such manner and amounts as determined
by the Committee. For purposes of the Plan, a "Change in Control" shall
be deemed to occur on the earliest of the existence of both of the
following events:
(a) the stockholders of the Company approve a definitive agreement
to merge the Company into or consolidate the Company with
another entity, sell or otherwise dispose of all or
substantially all of its assets or adopt a plan of liquidation,
provided, however, that a Change in Control shall not be deemed
to have occurred by reason of a transaction, or a substantially
concurrent or otherwise related series of transactions, upon the
completion of which 51% or more of the beneficial ownership of
the voting power of the Company, the surviving corporation or
corporation directly or indirectly controlling the Company or
the surviving corporation, as the case may be, is held by the
same persons (as defined below) (although not necessarily in the
same proportion) as held the beneficial ownership of the voting
power of the Company immediately prior to the transaction or the
substantially concurrent or otherwise related series of
transactions, except that upon the completion thereof, employees
or employee benefit plans of the Company may be a new holder of
such beneficial ownership; and
(b) at any time during any period of two consecutive years,
individuals who at the beginning of such period were members of
the Board of Directors of the Company cease for any reason to
constitute at least a majority of the Board of Directors (unless
the election, or the nomination for election by the Company's
stockholders, of each new director was approved by a vote of at
least two-thirds of the directors still in office at the time of
such election or nomination who were directors at the beginning
of such period).
Notwithstanding the foregoing provisions of this Section 9, a Change in
Control will not be deemed to occur solely because (i) the Company effects
any primary offering of equity securities, including an initial public
offering, or (ii) of the occurrence of a transaction or series of
transactions in which either or both of the Company's two largest
stockholders, determined as of the date the Plan is adopted, disposes of
all or a portion of its interest in the Company; provided that such
transaction or series of transactions does not result in a person being
the beneficial owner of 51% or more of the voting power of the Company who
was not previously such an owner.
SECTION 9
AMENDMENT AND TERMINATION
The Board may, at any time, amend or terminate the Plan, provided
that, no amendment or termination may materially adversely affect the
rights of any Participant or beneficiary under any Award made under the
Plan prior to the date such amendment is adopted by the Board.
Foley & Lardner
Firstar Center
777 East Wisconsin Avenue
Milwaukee, WI 53202-5367
EXHIBIT 5
May 27, 1998
Ladish Co., Inc.
5481 South Packard Avenue
Cudahy, Wisconsin 53110
Ladies and Gentlemen:
We have acted as counsel for Ladish Co., Inc., a Wisconsin
corporation (the "Company"), in connection with the preparation of a
Form S-8 Registration Statement (the "Registration Statement") to be filed
by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to
722,500 shares of the Company's Common Stock, $.01 par value per share
(the "Common Stock"), that may be issued pursuant to the Ladish Co., Inc.
1996 Long-Term Incentive Plan (the "Plan").
In this regard, we have examined: (a) the Plan; (b) signed
copies of the Registration Statement; (c) the Company's Articles of
Incorporation and Bylaws, as amended to date; (d) resolutions of the
Company's Board of Directors relating to the Plan; and (e) such other
documents and records as we have deemed necessary to enable us to render
this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the
laws of the State of Wisconsin.
2. The shares of Common Stock, when issued by the Company in
the manner contemplated in the Plan, will be validly issued, fully paid
and nonassessable, except with respect to wage claims of, or other debts
owing to, employees of the Company for services performed, but not
exceeding six months' service in any one case, as provided in
Section 180.0622(2)(b) of the Wisconsin Business Corporation Law and
judicial interpretations thereof.
We consent to the use of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we
are "experts" within the meaning of Section 11 of the Securities Act or
within the category of persons whose consent is required by Section 7 of
the Securities Act.
Very truly yours,
FOLEY & LARDNER
Exhibit 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report
dated February 16, 1998 included in the Ladish Co., Inc. Form S-1 dated
March 9, 1998 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
May 26, 1998
