<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
ROBBINS & MYERS, INC.
(Exact name of registrant as specified in its charter)
OHIO 31-4242200
(State of Incorporation) (I.R.S. Employer Identification No.)
ROBBINS & MYERS, INC.
1400 KETTERING TOWER
DAYTON, OHIO 45423
(Address, including zip code, of
registrant's principal executive offices)
ROBBINS & MYERS, INC.
1999 LONG-TERM INCENTIVE STOCK PLAN
(Full title of the plan)
JOSEPH M. RIGOT, ESQ.
THOMPSON HINE & FLORY LLP
2000 COURTHOUSE PLAZA, N.E.
DAYTON, OHIO 45402
(937) 443-6586
(Name, address and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
========================================================================================================
Proposed
Amount to be Proposed Maximum Maximum Amount of
Title of Securities Registered Offering Price Per Aggregate Registration
to be Registered Share Offering Price Fee
---------------------------------- --------------- --------------------- ----------------- -------------
<S> <C> <C> <C> <C>
Common Shares, without par value 550,000 (1) $23.19 (2) $12,754,500 (2) $3,367
---------------------------------- --------------- --------------------- ----------------- -------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of Common Shares
that may be offered or sold as a result if any adjustments from stock
splits, stock dividends or similar events.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) on the basis of the average of the high and low
prices reported on the New York Stock Exchange Composite Tape on April 24,
2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Robbins & Myers, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference as of their respective dates of filing:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended August 31, 1999, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934 (the "Exchange Act").
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended November 30, 1999 and February 29, 2000, filed pursuant to Section
13(a) of The Exchange Act.
(c) All other reports filed pursuant to Section 13(a) and 15(d) of
the Exchange Act since August 31, 1999.
(d) The description of the Company's common shares contained in the
Registration Statement filed pursuant to Section 12 of the Exchange Act,
including any amendment or report 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 prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold
hereunder shall be deemed to be incorporated by reference herein 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.
Thompson Hine & Flory LLP has provided a legal opinion to the Company
with respect to the common shares of the Company issuable under Robbins & Myers,
Inc. 1999 Long-Term Incentive Stock Plan and registered hereunder. Members of
that Firm own beneficially approximately 4,547 common shares of the Company
and Joseph M. Rigot, a partner of the Firm, is the Secretary of the Company.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 2 of Article V of the Code of Regulations of the Company sets
forth certain rights of directors and officers of the Company to
indemnification. Such rights provide indemnification by the
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Company as permitted by Ohio law. The liabilities against which a director and
officer may be indemnified and factors employed to determine whether a director
and officer is entitled to indemnification in a particular instance depend on
whether the proceedings in which the claim for indemnification arises were
brought (a) other than by and in the right of the Company ("Third Party
Actions") or (b) by and in the right of the Company ("Company Actions").
In Third Party Actions, the Company will indemnify each director and
officer against expenses, including attorneys' fees, judgments, decrees, fines,
penalties, and amounts paid in settlement actually and reasonably incurred by
him in connection with any threatened or actual proceeding in which he may be
involved by reason of his having acted in such capacity, if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company and with respect to any matter the subject of a
criminal action, suit or proceeding, that he had no reasonable cause to believe
that his conduct was unlawful.
In Company Actions, the Company will indemnify each director and officer
against expenses, including attorneys' fees, actually and reasonably incurred by
him in connection with the defense or settlement of any such proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, except that no indemnification is
permitted with respect to (i) any matter as to which such person has been
adjudged to be liable for negligence or misconduct in the performance of his
duty to the Company unless a court determines such person is entitled to
indemnification and (ii) any liability asserted in connection with unlawful
loans, dividends, distribution, distribution of assets and repurchase of Company
shares under Section 1701.95 of the Ohio Revised Code.
Unless indemnification is ordered by a court, the determination as to
whether or not an individual has satisfied the applicable standards of conduct
(and therefore may be indemnified) is made by the Board of Directors of the
Company by a majority vote of a quorum consisting of directors of the Company
who were not parties to the action; or if such a quorum is not obtainable, or if
a quorum of disinterested directors so directs, by independent legal counsel in
a written opinion; or by the shareholders of the corporation.
Section 2 of Article V of the Company's Code of Regulations does not
limit in any way other indemnification rights to which those seeking
indemnification may be entitled. The Company has entered into an indemnification
agreement with each director of the Company, the form of which was approved by
the Shareholders of the Company. A copy of such agreement was filed as an
exhibit to the Company's Annual Report on Form 10-K for the year ended August
31, 1993.
The Company maintains insurance policies which presently provide
protection, within the maximum liability limits of the policies and subject to a
deductible amount for each claim, to the Company under its indemnification
obligations and to the directors and officers with respect to certain matters
which are not covered by the Company's indemnification obligations.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
S-3
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Item 8. EXHIBITS.
See Index to Exhibits following signature pages.
Item 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, 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
this registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that the undertakings set forth in
paragraphs (i) and (ii) above 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 with the Securities
and Exchange Commission or furnished to the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby further 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 plans 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 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 pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
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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.
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dayton, State of Ohio, on this 28th day of April,
2000.
ROBBINS & MYERS, INC.
By /s/ Gerald L. Connelly
-------------------------------------
Gerald L. Connelly
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on behalf of the
registrant and in the capacities and on the dates indicated:
- --------------------------------------------------------------------------------
Name Title Date
- ---- ----- ----
- --------------------------------------------------------------------------------
/s/ Gerald L. Connelly Director, President and April 28, 2000
- ---------------------- Chief Executive Officer
Gerald L. Connelly (principal executive
officer)
/s/ Kevin J. Brown Vice President, Finance and April 28, 2000
- ---------------------- Chief Financial Officer
Kevin J. Brown (principal financial officer)
S-5
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/s/ Thomas J. Schockman Corporate Controller April 28, 2000
- ---------------------- (principal accounting officer)
Thomas J. Schockman
*Maynard H. Murch IV Chairman of the Board April 28, 2000
*Robert J. Kegerreis Director April 28, 2000
*Thomas P. Loftis Director April 28, 2000
*William D. Manning Director April 28, 2000
*Jerome F. Tatar Director April 28, 2000
*John N. Taylor, Jr. Director April 28, 2000
* The undersigned, by signing his name hereto, executes this
Registration Statement pursuant to powers of attorney executed by the
above-named persons and filed with the Securities and Exchange Commission as an
Exhibit to this Registration Statement.
/s/ Gerald L. Connelly
--------------------------
Gerald L. Connelly
Attorney-in-Fact
INDEX TO EXHIBITS
-----------------
(4) INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING
INDENTURES:
4.1 Amended Articles of Incorporation of Robbins & Myers,
Inc. (filed as an Exhibit to the Company's Quarterly
Report on Form 10-Q for the quarter ended February
28, 1998).
4.2 Code of Regulations of Robbins & Myers, Inc., (filed
as an Exhibit to the Company's Quarterly Report on
Form 10-Q for the quarter ended February 28, 1995).
4.3 Robbins & Myers, Inc. 1999 Long-Term Incentive Stock
Plan.
(5) OPINION RE LEGALITY
5.1 Opinion of Thompson Hine & Flory LLP
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(23) CONSENTS OF EXPERTS AND COUNSEL:
23.1 Consent of Ernst & Young LLP
23.2 Consent of Thompson Hine & Flory LLP [contained in
their opinion filed as Exhibit 5.1]
(24) POWERS OF ATTORNEY
24.1 Powers of Attorney of each person whose signature in
this registration statement was signed by another
pursuant to a power of attorney.
-------------------------------------
S-7
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EXHIBIT 4.3
AS AMENDED THROUGH MARCH 22, 2000
ROBBINS & MYERS, INC.
---------------------
1999 LONG-TERM INCENTIVE STOCK PLAN
-----------------------------------
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1999 LONG-TERM INCENTIVE STOCK PLAN, AS AMENDED
-----------------------------------------------
Section 1. Purpose
- ------------------
The purpose of this 1999 Long-Term Incentive Stock Plan (the
"Plan") is to promote the long-term success of Robbins & Myers, Inc. (the
"Company") by providing financial incentives to key employees of the Company and
its subsidiaries who are in positions to make significant contributions toward
such success. The Plan is designed to attract individuals of outstanding ability
to employment with the Company and its subsidiaries and to encourage key
employees to acquire a proprietary interest in the Company through stock
ownership, to continue employment with the Company and its subsidiaries, and to
render superior performance during such employment. To accomplish the purposes
of the Plan, the Board of Directors of the Company establishes the Plan and
authorizes the Committee referred to in Section 4 to administer the Plan in such
manner and on such conditions as it deems appropriate, subject to the provisions
of the Plan.
Section 2. Definitions
- ----------------------
(a) "Board" means the Board of Directors of the Company.
(b) "Change of Control" means and shall be deemed to have
occurred on (i) the date upon which the Company is provided a copy of a Schedule
13D, filed pursuant to Section 13(d) of the Securities Exchange Act of 1934
indicating that a group or person, as defined in Rule 13d-3 under said Act, has
become the beneficial owner of 20% or more of the outstanding Voting Shares or
the date upon which the Company first learns that a person or group has become
the beneficial owner of 20% or more of the outstanding Voting Shares if a
Schedule 13D is not filed; (ii) the date of a change in the composition of the
Board such that individuals who were members of the Board on the date two years
prior to such change (or who were subsequently elected to fill a vacancy in the
Board, or were subsequently nominated for election by the Company's
shareholders, by the affirmative vote of at least two-thirds of the directors
then still in office who were directors at the beginning of such two year
period) no longer constitute a majority of the Board; (iii) the date the
shareholders of the Company approve a merger or consolidation of the Company
with any other corporation, other than a merger or consolidation which would
result in the Voting Shares of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into Voting Shares of the surviving entity) at least 80% of the total voting
power represented by the Voting Shares of the Company or such surviving entity
outstanding immediately after such merger or consolidation; or (iv) the date
shareholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all the Company's assets.
(c) "Code" means the Internal Revenue Code of 1986, as
amended.
(d) "Committee" means the committee referred to in Section 4.
<PAGE> 3
(e) "Company" means Robbins & Myers, Inc., an Ohio
corporation, and when used with reference to employment of a Participant,
Company includes any Subsidiary of the Company.
(f) "Employee" means any key employee of the Company or any of
its Subsidiaries.
(g) "Fair Market Value" means the average of the high and low
prices of a Share on the date when the value of a Share is to be determined, as
reported on the New York Stock Exchange-Composite Transactions Tape; or, if no
sale of Shares is reported on such date, then the next preceding date on which a
sale occurred; or if the Shares are no longer listed on such exchange, the
determination of such value shall be made by the Committee in accordance with
applicable provisions of the Code and related regulations promulgated under the
Code.
(h) "Gross Misconduct" means engaging in any act or acts
involving conduct which violates Company policy or is illegal and which results,
directly or indirectly, in personal gain to the individual involved at the
expense of the Company or a Subsidiary.
(i) "Incentive Award" means an Option, Restricted Share Award
or Performance Award granted under the Plan.
(j) "Incentive Stock Option" means an Option that is an
Incentive Stock Option, as defined in Section 422 of the Code.
(k) "Nonqualified Stock Option" means an Option that is not an
Incentive Stock Option.
(l) "Option" means a right to purchase Shares at a specified
price; "Optionee" means the holder of an Option.
(m) "Participant" means an Employee selected to receive an
Incentive Award.
(n) "Performance Award" means a right to receive Restricted
Shares, Shares, cash, or a combination thereof, contingent upon the attainment
of performance objectives determined in the discretion of the Committee as more
fully set forth at Section 8 hereof.
(o) "Restricted Share Award" means a right to receive Shares
that is nontransferable and subject to substantial risk of forfeiture until
specific conditions are met; "Restricted Shares" means Shares which are the
subject of a Restricted Share Award; and "Restricted Period" shall have the
meaning ascribed to it at Section 7(a).
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(p) "Shares" means the Common Shares of the Company.
(q) "Subsidiary" means any company more than 50% of the voting
stock of which is owned or controlled, directly or indirectly, by the Company.
(r) "Voting Shares" means any securities of the Company which
vote generally in the election of directors of the Company.
Section 3. Shares Subject to the Plan
- -------------------------------------
(a) MAXIMUM NUMBER-AGGREGATE. The maximum number of Shares
that may be subject to Incentive Awards granted pursuant to the Plan shall be
Five Hundred Fifty Thousand (550,000), subject to adjustment in accordance with
Section 3(c). The Shares which may be issued pursuant to Incentive Awards may be
authorized and unissued Shares or Shares held in the Company's treasury. In the
event of a lapse, expiration, termination, or cancellation of any Incentive
Award granted under the Plan without the issuance of Shares or the payment of
cash, or if Shares are issued under a Restricted Share Award and are reacquired
by the Company as a result of rights reserved upon the issuance thereof, the
Shares subject to or reserved for such Incentive Award shall no longer be
charged against the 550,000 Share maximum and may again be used for new
Incentive Awards.
(b) MAXIMUM NUMBER-PER EMPLOYEE. The maximum Incentive Awards
that may be granted to each Employee in each fiscal year of the Company
commencing on or after September 1, 1999, is as follows:
(i) With respect to Options, no more than 100,000 may
be subject to options granted in the year;
(ii) With respect to Restricted Shares (not issued
in connection with Performance Awards), no more than $500,000
of such Shares may be granted in the year; and
(iii) With respect to Performance Awards, no more
than $1,000,000 of Performance Shares or Units may be granted
(based on the Fair Market Value of Shares on the date the
award is granted, not the date the award is earned or paid).
(c) RECAPITALIZATION ADJUSTMENT. In the event of any change
affecting the Shares by reason of any share dividend or split, recapitalization,
merger, consolidation, spin-off, combination or exchange of Shares or other
corporate change, or any distribution to a holder of Shares other than ordinary
cash dividends, the Committee shall make such adjustment, if any, as it may deem
appropriate to avoid dilution in the number and kind of
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shares authorized for issuance under the Plan, in the number and kind of shares
covered by Incentive Awards and, in the case of Options, in the option price.
Section 4. Administration
- -------------------------
(a) COMMITTEE. The Plan shall be administered by a Committee
of the Board, comprised of three or more directors, who shall from time to time
be appointed by, and serve at the pleasure of, the Board. Each director serving
on the Committee shall be a "non-employee director" within the meaning of Rule
16b-3 promulgated under the Securities Exchange Act of 1934 and an "outside
director" within the meaning of Code Section 162(m).
(b) AUTHORITY. The Committee shall have and exercise all the
power and authority granted to it under the Plan. Subject to the provisions of
the Plan, the Committee shall have authority in its sole discretion from time to
time (i) to designate from Employees the persons to whom Incentive Awards are
granted; (ii) to prescribe such limitations, restrictions and conditions upon
any such awards as the Committee shall deem appropriate, including establishing
and administering Performance Goals, as defined in Section 8(a), and certifying
whether the Performance Goals have been attained; (iii) to interpret the Plan
and to adopt, amend and rescind rules and regulations relating to the Plan; and
(iv) to make all other determinations and take all other actions necessary or
advisable for the implementation and administration of the Plan.
(c) COMMITTEE ACTIONS. A majority of the Committee shall
constitute a quorum, and the acts of a majority of the members present at a
meeting at which a quorum is present, or acts reduced to or approved in writing
by all members of the Committee, shall be acts of the Committee. All such
actions shall be final, conclusive, and binding. No member of the Committee
shall be liable for any action taken or decision made in good faith relating to
the Plan or any Incentive Award thereunder.
(d) INTERPRETATION AND CONSTRUCTION. Any provision of this
Plan to the contrary notwithstanding, (i) certain designated Incentive Awards
under this Plan are intended to qualify as performance-based compensation within
the meaning of Code Section 162(m)(4)(C) and (ii) any provision of the Plan that
would prevent a designated Incentive Award from so qualifying shall be
administered, interpreted and construed to carry out such intention and any
provision that cannot be so administered, interpreted and construed shall to
that extent be disregarded.
Section 5. Eligibility and Incentive Awards
- -------------------------------------------
(a) Eligible Employees. The Committee may grant Incentive
Awards to officers and other key Employees.
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(b) INCENTIVE AWARDS. Incentive Awards may be granted in any
one or more combinations of (i) Incentive Stock Options, (ii) Nonqualified Stock
Options, (iii) Restricted Share Awards and (iv) Performance Awards. All
Incentive Awards shall be subject to such other terms and conditions as may be
established by the Committee. Determinations by the Committee under the Plan,
including without limitation, designation of Participants, the form, amount and
timing of Incentive Awards, the terms and provisions of Incentive Awards, and
the written agreements evidencing Incentive Awards, need not be uniform and may
be made selectively among Employees who receive, or are eligible to receive,
Incentive Awards hereunder, whether or not such Employees are similarly
situated.
(c) EMPLOYMENT. The Plan and the Incentive Awards granted
hereunder shall not confer upon any Employee the right to continued employment
with the Company or affect in any way the right of the Company to terminate the
employment of an Employee at any time and for any reason.
Section 6. Options
- ------------------
The Committee may grant Incentive Stock Options and
Nonqualified Stock Options and such Options shall be subject to the following
terms and conditions and such other terms and conditions as the Committee may
prescribe:
(a) OPTION PRICE. The option price per Share with respect to
each Option shall be determined by the Committee but shall not be less than the
Fair Market Value of a Share on the date the Option is granted.
(b) PERIOD OF OPTION. The period of each Option shall be fixed
by the Committee but in no case may an option be exercised more than ten years
after the date of its grant.
(c) EXERCISE OF OPTION. Subject to the provisions of Section
6(d) relating to continuous employment, an Option may be exercised with respect
to all Shares covered thereby or may be exercised with respect to a specified
number of Shares over a specified period or periods as determined by the
Committee. Any Shares not purchased during a specified period may be purchased
thereafter at any time prior to the expiration of the Option unless the
Committee determines otherwise. The Committee may at any time remove or alter
any restriction on exercise of an Option which was imposed by the Committee.
(d) TERMINATION OF EMPLOYMENT. No Option may be exercised
under the Plan unless the Optionee has been continuously employed by the Company
from the date of grant of the Option to the date of exercise except that an
Option may, subject to the ten year limitation at Section 6(b), be exercised (i)
within 30 days after the Optionee ceases to be employed by the Company if the
cause of cessation of employment was other than
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retirement, disability, death or termination of employment by the Company for
Gross Misconduct; (ii) within one year of cessation of employment in the case of
early retirement except that the Committee may, in its discretion, in the case
of early retirement, extend the period of exercise to a date not more than three
years after cessation of employment; and (iii) within three years of cessation
of employment in the case of normal retirement, death or disability. After
termination of employment Options may be exercised only to the extent they could
have been exercised on the date of the Optionee's termination of employment.
Whether authorized leave of absence or absence for military or governmental
service shall constitute a termination of employment shall be determined by the
Committee.
(e) LIMITS ON INCENTIVE STOCK OPTIONS. Except as may be
permitted by the Code, the Fair Market Value of Shares (determined at the time
of grant of Options) as to which Incentive Stock Options held by an Optionee
first become exercisable in any calendar year shall not exceed $100,000. In
addition, no Incentive Stock Option shall be granted to an Employee who
possesses, directly or indirectly (within the meaning of Code Section 424(d)),
at the time of grant more than 10% of the combined voting power of all classes
of stock of the Company unless the option price is at least 110% of the Fair
Market Value of the Shares subject to the Option on the date such Option is
granted and such Incentive Stock Option is not exercisable after the expiration
of five years from the date of grant.
(f) NOTICE OF EXERCISE AND PAYMENT. An Option granted under
the Plan may be exercised by the Optionee giving written notice of exercise to
the Committee. The Option price for the Shares purchased shall be paid in full
at the time such notice is given. An Option shall be deemed exercised on the
date the Committee receives written notice of exercise, together with full
payment for the Shares purchased. The Option price shall be paid to the Company
either in cash, by delivery to the Company of Shares already-owned by the
Optionee or any combination of cash and such Shares. The Committee may, however,
at any time and in its discretion, adopt guidelines limiting or restricting the
use of already-owned Shares to pay all or any portion of the Option price. In
the event already-owned Shares are used to pay all or a portion of the Option
price, the amount credited to payment of the Option price shall be the Fair
Market Value of the already-owned Shares on the date the Option is exercised.
(g) FRACTIONAL SHARES. No fractional shares shall be issued
pursuant to the exercise of an Option, nor shall any cash payment be made in
lieu of fractional shares.
(h) REPRICING OF OPTIONS. Without approval of shareholders of
the Company, the option exercise price per share of any previously granted
option will not, whether through amendment, cancellation, replacement grants or
any other means, be lowered.
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Section 7. Restricted Share Awards
- ----------------------------------
The Committee may issue Shares to an Employee which Shares
shall be subject to the following terms and conditions and such other terms and
conditions as the Committee may prescribe in connection with the grant of a
Restricted Share Award:
(a) GENERAL. With respect to each grant of Restricted Shares,
the Committee, in its sole discretion, shall determine the period during which
the restrictions set forth at Subsection 7(b) shall apply to the Restricted
Shares (the "Restricted Period").
(b) RESTRICTIONS. At the time of grant of Restricted Shares to
an Employee, a certificate representing the number of Shares granted shall be
registered in his name but shall be held by the Company for the account of the
Employee. The Employee shall have the entire beneficial ownership interest in,
and all rights and privileges of a shareholder as to, such Restricted Shares,
including the right to receive dividends and the right to vote such Restricted
Shares, subject to the following restrictions: (i) subject to Section 7(c), the
Employee shall not be entitled to delivery of the Share certificate until the
expiration of the Restricted Period; (ii) none of the Restricted Shares may be
sold, transferred, assigned, pledged, or otherwise encumbered or disposed of
during the Restricted Period; and (iii) all of the Restricted Shares shall be
forfeited and all rights of the Employee to such Restricted Shares shall
terminate without further obligation on the part of the Company unless the
Employee remains in the continuous employment of the Company for the entire
Restricted Period in relation to which such Restricted Shares were granted,
except as provided by Section 7(c). Any Shares received with respect to
Restricted Shares as a result of a recapitalization adjustment pursuant to
Section 3(b) shall be subject to the same restrictions as such Restricted
Shares.
(c) TERMINATION OF EMPLOYMENT.
(i) RETIREMENT. If an Employee ceases to be employed
by the Company prior to the end of a Restricted Period by
reason of normal retirement under a retirement plan of the
Company or the Employee otherwise retires with the consent of
the Company, the number of Restricted Shares granted to such
Employee for such Restricted Period shall be reduced in
proportion to the Restricted Period (determined on a quarterly
basis) remaining after the Employee ceases to be an Employee
and all restrictions on such reduced number of Shares shall
lapse. A certificate for such Shares shall be delivered to the
Employee in accordance with the provisions of Section 7(d)
hereof. The Committee may, if it deems appropriate, direct
that the Employee receive a greater number of Shares free of
all restrictions but not exceeding the number of Restricted
Shares then subject to the restrictions of Section 7(b).
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<PAGE> 9
(ii) DEATH. If an Employee ceases to be employed by
the Company prior to the end of a Restricted Period by reason
of death, the Restricted Shares granted to such Employee shall
immediately vest in his beneficiary or estate and all
restrictions applicable to such Shares shall lapse. A
certificate for such Shares shall be delivered to the
Employee's beneficiary or estate in accordance with the
provisions of Subsection 7(d).
(iii) ALL OTHER TERMINATIONS. If an Employee ceases
to be an Employee prior to the end of a Restricted Period for
any reason other than retirement or death, the Employee shall
immediately forfeit all Restricted Shares then subject to the
restrictions of Section 7(b) in accordance with the provisions
thereof, except that the Committee may, if it finds that the
circumstances in the particular case so warrant, allow an
Employee whose employment has so terminated to retain any or
all of the Restricted Shares then subject to the restrictions
of Section 7(b) and all restrictions applicable to such
retained shares shall lapse. A certificate for such retained
shares shall be delivered to the Employee in accordance with
the provisions of Section 7(d).
(d) PAYMENT OF RESTRICTED SHARES. At the end of the Restricted
Period or at such earlier time as provided for in Subsection 7(c), all
restrictions applicable to the Restricted Shares shall lapse and a Share
certificate for a number of Shares equal to the number of Restricted Shares,
free of all restrictions, shall be delivered to the Employee or his beneficiary
or estate, as the case may be. The Company shall not be required to deliver any
fractional Share but will pay, in lieu thereof, the Fair Market Value (measured
as of the date the restrictions lapse) of such fractional Share to the Employee
or his beneficiary or estate, as the case may be.
Section 8. Performance Awards
- -----------------------------
The Committee may grant to Employees Performance Awards which
shall be subject to the following terms and conditions and such other terms and
conditions as the Committee may prescribe in connection with the grant of a
Performance Award:
(a) AWARD PERIOD AND PERFORMANCE GOALS. The Committee shall
determine and include in a Performance Award the period of time during which a
Performance Award may be earned ("Award Period"). The Committee shall also
establish performance objectives ("Performance Goals") to be met by the Company,
Subsidiary or division during the Award Period as a condition to payment of the
Performance Award. The Performance Goals may include minimum and optimum
objectives or a single set of objectives.
With respect to Performance Awards that are intended to
qualify as "performance based" within the meaning of Code Section 162(m)(4)(C),
the Committee
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<PAGE> 10
shall (i) select the Employees for such Incentive Awards, (ii) establish in
writing the applicable performance goals no later than 90 days after the
commencement of the period of service to which the performance goals relates (or
such earlier or later date as may be the applicable deadline for compensation
payable hereunder to qualify as "performance based" within the meaning of Code
Section 162(m)(4)(C)), and (iii) designate the Performance Awards that are to
qualify as "performance based" within the meaning of Code Section 162(m)(4)(C).
The Committee shall establish in writing the Performance Goals
for each Award Period commencing on or after September 1, 1999, which shall be
based on any of the following performance criteria, either alone or in any
combination, on either a consolidated or business unit or divisional level, and
which shall include or exclude discontinued operations and acquisition expenses
(e.g., pooling of interests), as the Committee may determine: level of sales,
earnings per share, income before income taxes and cumulative effect of
accounting changes, income before cumulative effect of accounting changes, net
income, return on assets, return on equity, return on capital employed, total
stockholder return, market valuation, cash flow and completion of acquisitions.
The foregoing criteria shall have any reasonable definitions that the Committee
may specify, which may include or exclude any or all of the following items, as
the Committee may specify: extraordinary, unusual or non-recurring items;
effects of accounting changes; effects of currency fluctuations; effects of
financing activities (e.g., effect on earnings per share of issuing convertible
debt securities); expenses for restructuring or productivity initiatives;
non-operating items; acquisition expenses (e.g., pooling of interests); and
effects of divestitures. Any such performance criterion or combination of such
criteria may apply to the participant's award opportunity in its entirety or to
any designated portion or portions of the award opportunity, as the Committee
may specify.
(b) NO DISCRETION. With respect to Performance Awards that are
intended to qualify as "performance based" within the meaning of Code Section
162(m)(4)(C), the Committee has no discretion to increase the amount of the
award due upon attainment of the applicable performance goals. No provision of
this Plan shall preclude the Committee from exercising negative discretion with
respect to any award (i.e., to reduce or eliminate the award payable) within the
meaning of Treasury Regulation Section 1.162-27(e)(2)(iii)(A).
(c) PERFORMANCE AWARD EARNED. The Performance Awards may be
expressed in terms of Shares and referred to as "Performance Shares" or
"Performance Units," as the Committee may specify. With respect to each
Performance Award, the Committee shall fix the number of allocable Performance
Shares or Performance Units. The level of Performance Goals attained will
determine the percentage of Performance Shares or Performance Units earned for
an Award Period. After completion of the Award Period, the Committee shall
certify in writing the extent to which the Performance Goals and other material
terms applicable to such award are attained. Unless and until the Committee so
certifies, the Performance Award shall not be paid.
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<PAGE> 11
(d) PERFORMANCE AWARD PAYMENT. The Committee, in its
discretion, may elect to make payment of the Performance Awards in Restricted
Shares, Shares, cash or any combination of the foregoing.
(e) REQUIREMENT OF EMPLOYMENT. A grantee of a Performance
Award must remain in the employment of the Company until the completion of the
Award Period in order to be entitled to payment under the Performance Award;
provided that the Committee may, in its sole discretion, provide for a partial
or full payment of the Performance Award that would have been payable if the
grantee had continued employment for the entire Award Period, which shall be
paid at the same time as would have been paid if no termination of employment
occurred, but only if and to the extent the exercise of such discretion does not
prevent any designated Incentive Award from qualifying as "performance based"
within the meaning of Code Section 162(m)(4)(C).
(f) DIVIDENDS. The Committee may, in its discretion, at the
time of the granting of a Performance Award, provide that any dividends declared
on Shares during the Award Period, and which would have been paid with respect
to Performance Shares had they been owned by a grantee, be (i) paid to the
grantee, or (ii) accumulated for the benefit of the grantee and used to increase
the number of Performance Shares of the grantee.
(g) DELAYED PAYMENT. To the extent that the Committee, in its
sole discretion, determines that the payment of any Performance Award is not
deductible by the Company based on Code Section 162(m), the Company shall delay
the payment of such Performance Award. The unpaid portion of a Performance Award
that is subject to this Section 8(g) shall be paid (in whole or in part), at the
discretion of the Committee, when such payment is deductible in accordance with
Code Section 162(m).
The delayed payment of a Performance Award payable in Shares
or Restricted Shares shall be equal to the number of Performance Shares earned
but unpaid. The delayed payment of a Performance Award payable in cash shall be
equal to the Fair Market Value of the earned but unpaid Performance Shares as of
the appropriate payment date selected by the Committee.
Section 9. Non-Assignability of Incentive Awards
- ------------------------------------------------
(a) Except as provided in Section 9(b) with respect to
Nonqualified Stock Options, no Incentive Award granted under the Plan shall be
assigned, transferred, pledged, or otherwise encumbered by an Employee,
otherwise than by will, by designation of a beneficiary after death, or by the
laws of descent and distribution, or be made subject to execution, attachment or
similar process. Except as provided in Section 9(b) with respect to Nonqualified
Stock Options, each Incentive Award shall be exercisable during the Employee's
lifetime only by the Employee or, if permissible under applicable law, by the
Employee's guardian or legal representative.
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<PAGE> 12
(b) No Nonqualified Stock Option nor any right thereunder may
be assigned or transferred by the optionee except by will or the laws of descent
and distribution or pursuant to a qualified domestic relations order (as defined
in the Code or the Employee Retirement Income Security Act of 1974), provided,
however, the Committee may by written action permit any holder of a Nonqualified
Stock Option, either before or after the time of grant, to transfer a
Nonqualified Stock Option during his lifetime to one or more members of his
family, to one or more trusts for the benefit of one or more members of his
family, or to a partnership or partnerships of members of his family, provided
that no consideration is paid for the transfer and that such transfer would not
result in the loss of any exemption under Rule 16b-3 for any option granted
under any plan of the Company. The transferee of a Nonqualified Stock Option
shall be subject to all restrictions, terms and conditions applicable to the
Nonqualified Stock Option prior to its transfer. The Committee may impose on any
transferable Nonqualified Stock Option and on the shares to be issued upon the
exercise of a Nonqualified Stock Option such limitations and conditions as the
Committee deems appropriate.
Section 10. Change of Control
- -----------------------------
(a) GENERAL. In order to maintain all of the Employee's rights
in the event of a Change of Control of the Company, the Committee, in its sole
discretion, may, as to any Incentive Award, either at the time that an Incentive
Award is made or any time thereafter, take any one or more of the following
actions:
(i) provide for the acceleration of any time periods
relating to the exercise or realization of any such award, so
that such award may be exercised or realized in full on or
before a date fixed by the Committee,
(ii) provide for the purchase of any such award by
the Company, upon an Employee's request, for an amount of cash
equal to the amount that could have been attained upon the
exercise of such award or realization of such Employee's
rights had such award been currently exercisable or payable,
(iii) make such adjustment to any such award then
outstanding as the Committee deems appropriate to reflect a
Change of Control, or
(iv) cause any such award then outstanding to be
assumed, or new rights substituted therefor, by the acquiring
or surviving corporation, if any, in connection with a Change
of Control.
(b) OPTIONS. All outstanding Options which are not yet
exercisable shall become immediately exercisable in full in the event of a
Change of Control of the Company.
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<PAGE> 13
Section 11. Taxes
- -----------------
(a) WITHHOLDING FOR TAXES. The Company shall be entitled, if
necessary or desirable, to withhold the amount of any tax attributable to any
amounts payable under any Incentive Award and the Company may defer making
payment of any Incentive Award if any such tax, charge, or assessment may be
pending until indemnified to its satisfaction.
(b) USE OF SHARES FOR TAX WITHHOLDING PAYMENTS. With the
approval of the Committee, Shares may be used in lieu of cash to pay all or any
part of the mandatory federal, state or local withholding tax payments to be
made by the Employee in connection with an Incentive Award, as follows:
(i) NONQUALIFIED STOCK OPTIONS. (a) The holder of a
Nonqualified Stock Option may elect to have the Company retain
from the Shares to be issued upon exercise of such an option
Shares having a Fair Market Value equal to the withholding tax
to be paid; or (b) the holder of a Nonqualified Stock Option
may deliver to the Company already-owned Shares having a Fair
Market Value equal to the withholding tax to be paid and in
such case.
(ii) RESTRICTED SHARE AWARDS. If withholding taxes
are required to be paid at the time Restricted Shares are
delivered to an Employee or at the expiration of the
Restricted Period, then the Employee may pay such taxes by
delivering to the Company already-owned Shares having a Fair
Market Value equal to the amount of the withholding tax being
paid by the use of already-owned Shares.
(iii) PERFORMANCE SHARES. If withholding taxes are
required to be paid at the time Shares are delivered to an
Employee as a Performance Award, then the Employee may pay
such taxes by delivering to the Company already-owned Shares
having a Fair Market Value equal to the amount of the
withholding tax being paid by the use of already-owned Shares.
Section 12. Compliance With Laws and Exchange Requirements
- ----------------------------------------------------------
No Option shall be granted and no Shares shall be issued in
connection with any Incentive Award unless the grant of the Option and the
issuance and delivery of Shares or cash pursuant to the Incentive Award shall
comply with all relevant provisions of state and federal law, including, without
limitation, the Securities Act of 1933, the Securities Exchange Act of 1934, the
rules and regulations promulgated thereunder, and the requirements of any market
system or stock exchange upon which the Shares may then be listed.
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<PAGE> 14
Section 13. Amendment and Termination of Plan
- ---------------------------------------------
(a) AMENDMENT. The Board may from time to time amend the Plan,
or any provision thereof, in such respects as the Board may deem advisable
except that it may not amend the Plan without shareholder approval so as to:
(i) increase the maximum number of Shares that may be issued
under the Plan except in accordance with Section 3(c);
(ii) permit the granting of Options with exercise prices lower
than those specified in Section 6;
(iii) materially modify the requirements as to eligibility for
participation in the Plan; or
(iv) prevent future grant of Incentive Awards to qualify as
"performance based" within the meaning of Code Section 162(m)(4)(C).
(b) TERMINATION. The Board may at any time terminate the Plan.
(c) EFFECT OF AMENDMENT OR TERMINATION. Any amendment or the
termination of the Plan shall not adversely affect any Incentive Award
previously granted nor disqualify an Incentive Award from being treated as
"performance based" within the meaning of Code Section 162(m)(4)(C). Incentive
Awards outstanding at the time that the Plan is amended or terminated shall
remain in full force and effect as if the Plan had not been amended or
terminated.
Section 14. Notices
- -------------------
Each notice relating to the Plan shall be in writing and
delivered in person or by certified or registered mail to the proper address.
Each notice to the Committee shall be addressed as follows: Robbins & Myers,
Inc., 1400 Kettering Tower, Dayton, Ohio 45423, Attention: Compensation
Committee. Each notice to a Participant shall be addressed to the Participant at
the address of the Participant maintained by the Company on its books and
records. Anyone to whom a notice may be given under this Plan may designate a
new address by written notice to the other party to that effect.
Section 15. Benefits of Plan
- ----------------------------
This Plan shall inure to the benefit of and be binding upon
each successor of the Company. All rights and obligations imposed upon a
Participant and all rights granted to the Company under this Plan shall be
binding upon the Participant's heirs, legal representatives and successors.
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<PAGE> 15
Section 16. Pronouns and Plurals
- --------------------------------
All pronouns shall be deemed to refer to the masculine,
feminine, singular or plural, as the identity of the person or persons may
require.
Section 17. Shareholder Approval and Term of Plan
- -------------------------------------------------
(a) The Plan shall become effective upon its adoption by the
Board. No payment of cash or Shares in connection with an Incentive Award shall
be made, and no Option shall be exercised, prior to the approval of the Plan by
the affirmative vote of the holders of a majority of the outstanding Shares
present, in person or by proxy, and entitled to vote at an annual meeting of the
shareholders of the Company. Unless the Plan shall be so approved by the
shareholders of the Company at the next annual meeting after its adoption by the
Board, the Plan shall terminate and all Incentive Awards granted under the Plan
shall be canceled.
(b) Unless sooner terminated under Section 13, the Plan shall
be in effect from the date of its adoption by the Board and automatically
terminate on the ninth anniversary of its adoption by the shareholders of the
Company.
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<PAGE> 1
Exhibit 5.1
Thompson Hine & Flory LLP
2000 Courthouse Plaza NE
Dayton, Ohio 45402
April 28, 2000
Robbins & Myers, Inc.
1400 Kettering Tower
Dayton, Ohio 45323
Ladies and Gentlemen:
We have acted as counsel to Robbins & Myers, Inc., an Ohio corporation (the
"Company"), in connection with the 1999 Long-Term Incentive Stock Plan (the
"Plan") and the preparation of the Company's Registration Statement on Form S-8
being filed with the Securities and Exchange Commission in connection therewith.
Please be advised that we have examined such proceedings and records of the
Company, and have made investigation of such other matters, as in our judgment
permits us to render an informed opinion on the matters set forth herein.
Based upon the foregoing, it is our opinion that the common shares of the
Company offered under the Plan have been duly authorized and, when issued in
accordance with the terms of the Plan, will be legally issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Company's
Registration Statement on Form S-8 with respect to the Plan.
Very truly yours,
/s/ Thompson Hine & Flory LLP
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of our report dated October 4, 1999 with respect to the consolidated
financial statements and schedule of Robbins & Myers, Inc. incorporated by
reference in its Annual Report on Form 10-K for the year ended August 31, 1999.
Dayton, Ohio /s/ Ernst & Young LLP
April 26, 2000 ---------------------------
Ernst & Young LLP
<PAGE> 1
Exhibit 24.1
ROBBINS & MYERS, INC.
LIMITED POWER OF ATTORNEY
WHEREAS, Robbins & Myers, Inc., an Ohio corporation (the
"Company"), intends to file with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "Act"), a Registration Statement on
Form S-8 covering 550,000 of its common shares, without par value, that may be
issued under the Company's 1999 Long-Term Incentive Stock Plan (the
"Registration Statements").
NOW THEREFORE, the undersigned, in his capacity as a director
of the Company, hereby appoints Gerald L. Connelly to be his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
to execute his name, place and stead, as aforesaid, the Registration Statements
and any post-effective amendments thereto, and any and all other instruments
necessary or incidental in connection therewith, and to file the same with the
Securities and Exchange Commission. Said attorney shall have full power and
authority to do and perform, in the name and on behalf of the undersigned, every
act whatsoever necessary or desirable to be done, as fully to all intents and
purposes as the undersigned might or could do in person. The undersigned hereby
ratifies and approves the acts of said attorney.
IN WITNESS WHEREOF, the undersigned has executed this
instrument this 21st day of March, 2000.
/s/ Robert J. Kegerreis /s/ Thomas P. Loftis
- ------------------------------------- -----------------------------------
Robert J. Kegerreis Thomas P. Loftis
/s/ William D. Manning /s/ Maynard H. Murch IV
- ------------------------------------- -----------------------------------
William D. Manning Maynard H. Murch IV
/s/ Jerome F. Tatar /s/ John N. Taylor, Jr.
- ------------------------------------- -----------------------------------
Jerome F. Tatar John N. Taylor, Jr.
