As filed with the Securities and Exchange Commission on May 17, 1995
Registration No. 33-_______
======================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------------
FORM S-8
Registration Statement
under
The Securities Act of 1933
----------------------------------------
SCOTSMAN INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3635892
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
775 Corporate Woods Parkway
Vernon Hills, Illinois 60061
(Address of principal executive offices, including zip code)
SCOTSMAN INDUSTRIES, INC.
NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
(Full title of the plan)
Donald D. Holmes
Vice President-Finance
Scotsman Industries, Inc.
775 Corporate Woods Parkway
Vernon Hills, Illinois 60061
(Name and address of agent for service)
(708) 215-4447
(Telephone number, including area code, of agent for service)
With a copy to:
Shirley M. Lukitsch
Schiff Hardin & Waite
7200 Sears Tower
Chicago, Illinois 60606
(312) 258-5602
-----------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Proposed maximum Proposed maximum Amount of
Amount to be offering price aggregate offering registration
Title of Securities to be Registered registered per share <F1> price <F1> fee <F1>
------------------------------------ ------------- ------------------ ------------------ ---------------
<S> <C> <C>
Common Stock, par value $.10 per
share (including associated Common 100,000 $19.4375 $1,943,750 $670.26
Stock Purchase Rights)
=====================================================================================================================
<FN>
<F1> Estimated on the basis of $19.4375 per share, the average of the high and low sales prices as quoted on the
New York Stock Exchange consolidated reporting system on May 11, 1995, pursuant to Rule 457(h) and 457(c).
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
----------------------------------------
The following documents which have been filed by Scotsman
Industries, Inc. (the "Registrant") are incorporated herein by
reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended January 1, 1995;
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended April 2, 1995; and
(c) The description of the Registrant's Common Stock, par value
$.10 per share, and the Common Stock Purchase Rights
contained in the Registrant's Registration Statement on Form
10, filed with the Securities and Exchange Commission (the
"Commission") on February 14, 1989, as amended by Amendment
No. 1 on Form 8, filed with the Commission on March 14,
1989, Amendment No. 2 on Form 8, filed with the Commission
on March 23, 1989, Amendment No. 3 on Form 8, filed with the
Commission on March 27, 1989 and Amendment No. 4 on Form
10/A, filed with the Commission on January 27, 1994.
All documents subsequently filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed
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.
---------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
Under the General Corporation Law of the State of Delaware
(the "Delaware Law"), directors and officers as well as other
employees and individuals may be indemnified against expenses
- 2 -
<PAGE>
(including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation--a "derivative
action") if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the company,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar
standard of care is applicable in the case of derivative actions,
except that indemnification only extends to expenses (including
attorney's fees) incurred in connection with the defense or settlement
of such an action, and the Delaware Law requires court approval before
there can be any indemnification where the person seeking
indemnification has been found liable to the company.
Article Ninth of the Restated Certificate of Incorporation
of the Registrant ("Article Ninth") provides that each person who was
or is made a party to, or is involved in, any action, suit or
proceeding by reason of the fact that he or she is or was a director,
officer or employee of the Registrant (or was serving at the request
of the Registrant as a director, officer, employee or agent for
another entity) will be indemnified and held harmless by the
Registrant, to the full extent authorized by the Delaware Law, as
currently in effect (or, to the extent indemnification is broadened,
as it may be amended) against all expense, liability or loss
(including attorneys' fees, judgments, fines, Employee Retirement
Income Security Act excise taxes or penalties and amounts to be paid
in settlement) reasonably incurred by such person in connection
therewith. Article Ninth provides that the rights conferred thereby
are contract rights and will include the right to be paid by the
Registrant for the expenses incurred in defending the proceedings
specified above, in advance of their final disposition, except that,
if the Delaware Law so requires, such payment will only be made upon
delivery to the Registrant by the indemnified party of an undertaking
to repay all amounts so advanced if it is ultimately determined that
the person receiving such payments is not entitled to be indemnified
under such provision or otherwise. Article Ninth provides that the
Registrant may, by action of its board of directors, provide
indemnification to its agents with the same scope and effect as the
foregoing indemnification of directors, officers and employees.
Article Ninth provides that persons indemnified thereunder
may bring suit against the Registrant to recover unpaid amounts
claimed thereunder, and that if such suit is successful, the expense
of bringing such a suit will be reimbursed by the Registrant. Article
Ninth further provides that while it is a defense to such a suit that
the person claiming indemnification has not met the applicable
standards of conduct making indemnification permissible under the
Delaware Law, the burden of proving the defense will be on the
Registrant and neither the failure of the Registrant's board of
directors to have made a determination that indemnification is proper
nor an actual determination that the claimant has not met the
- 3 -
<PAGE>
applicable standard of conduct will be a defense to the action or
create a presumption that the claimant has not met the applicable
standard of conduct.
Article Ninth provides that the rights to indemnification
and the payment of expenses incurred in defending a proceeding in
advance of its final disposition conferred therein will not be
exclusive of any other right which any person may have or acquire
under any statute, provision of the Registrant's Restated Certificate
of Incorporation or By-Laws, or otherwise. Finally, Article Ninth
provides that the Registrant may maintain insurance, at its expense,
to protect itself and any of its directors, officers, employees or
agents against any expense, liability or loss, whether or not the
Registrant would have the power to indemnify such person against such
expense, liability or loss under the Delaware Law.
The Registrant has insurance which insures directors and
officers of the Registrant for acts committed in their capacity as
directors and officers or claims made against them by reason of their
status as directors or officers, except for and to the extent the
Registrant has indemnified the directors or officers.
Item 7. Exemption from Registration Claimed.
------------------------------------
Not applicable.
Item 8. Exhibits.
---------
The exhibits filed herewith or incorporated by reference
herein are set forth in the Exhibit Index filed as part of this
registration statement on page 8 hereof.
Item 9. Undertakings.
-------------
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement;
- 4 -
<PAGE>
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8, or
Form F-3 and the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference 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 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.
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 the registration
statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
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.
- 5 -
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Village of Vernon Hills, State of Illinois, on
May 17, 1995.
SCOTSMAN INDUSTRIES, INC.
(Registrant)
By: /s/ Richard C. Osborne
---------------------------
Richard C. Osborne
Chairman of the Board,
President and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below appoints Richard
C. Osborne and Donald D. Holmes or either of them, as such person's
true and lawful attorneys to execute in the name of each such person,
and to file, any amendments to this registration statement that either
of such attorneys will deem necessary or desirable to enable the
Registrant to comply with the Securities Act of 1933, as amended, and
any rules, regulations, and requirements of the Securities and
Exchange Commission with respect thereto, in connection with the
registration of the shares of Common Stock (and the Common Stock
Purchase Rights attached thereto) which amendments may make such
changes in such registration statement as either of the above-named
attorneys deems appropriate, and to comply with the undertakings of
the Registrant made in connection with this registration statement;
and each of the undersigned hereby ratifies all that either of said
attorneys will do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons
in the capacities and on the dates indicated.
- 6 -
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Richard C. Osborne Chairman of the Board, May 17, 1995
---------------------------- President, Chief Executive
Richard C. Osborne Officer and Director
(Principal Executive Officer)
/s/ Donald D. Holmes Vice President -- Finance May 17, 1995
---------------------------- (Principal Financial and
Donald D. Holmes Accounting Officer)
/s/ Donald C. Clark Director May 17, 1995
----------------------------
Donald C. Clark
/s/ Frank W. Considine Director May 17, 1995
----------------------------
Frank W. Considine
/s/ Timothy C. Collins Director May 17, 1995
----------------------------
Timothy C. Collins
/s/ Matthew O. Diggs, Jr. Director May 17, 1995
----------------------------
Matthew O. Diggs, Jr.
/s/ George D. Kennedy Director May 17, 1995
----------------------------
George D. Kennedy
/s/ James J. O'Connor Director May 17, 1995
----------------------------
James J. O'Connor
/s/ Robert G. Rettig Director May 17, 1995
----------------------------
Robert G. Rettig
</TABLE>
- 7 -
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description Page No.
------- ----------- --------
4.1 Scotsman Industries, Inc. Non-Employee 9
Directors Stock Option Plan
4.2 Restated Certificate of Incorporation of
the Registrant (incorporated herein by
reference to the Registrant's 10-K for
the fiscal year ended December 31, 1989,
File No. 0-10182).
4.3 By-Laws of the Registrant, as amended
(incorporated herein by reference to the
Registrant's 8-K, dated June 21, 1991,
File No. 0-10182).
4.4 Rights Agreement, dated as of April 14,
1989, between Scotsman Industries, Inc.
and Harris Trust & Savings Bank
(incorporated herein by reference to the
Registrant's 8-K, dated April 25, 1989,
File No. 0-10182), as amended by
Amendment No. 1 thereto, dated as of
January 11, 1994 (incorporated herein by
reference to Scotsman Industries, Inc.
Amendment No. 4 to General Form for
Registration of Securities on Form 10/A,
as filed with the Commission on January
27, 1994, File No. 0-10182).
5 Opinion of Schiff Hardin & Waite. 20
23.1 Consent of Arthur Andersen LLP 21
23.2 Consent of Schiff Hardin & Waite
(contained in their opinion filed as
Exhibit 5).
24 Powers of Attorney (contained on the
signature pages hereto).
- 8 -
EXHIBIT 4.1
SCOTSMAN INDUSTRIES, INC.
NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
ARTICLE 1
Definitions
Whenever used in the Plan, the following terms shall have
the meanings set forth below:
1.1 Award Agreement. "Award Agreement" means an agreement
entered into by and between the Company and a Non-employee Director,
setting forth the terms and provisions applicable to an Option granted
under the Plan.
1.2 Beneficial Owner. "Beneficial Owner" shall have the
meaning given such term in Rule 13d-3 of the General Rules and
Regulations under the Exchange Act.
1.3 Board or Board of Directors. "Board" or "Board of
Directors" means the board of directors of the Company.
1.4 Change in Control. A "Change in Control" of the
Company shall be deemed to have occurred upon the occurrence of any of
the following:
(1) the acquisition by any Person of beneficial ownership
within the meaning of Rule 13d-3 promulgated under the
Exchange Act of 20% or more of either (i) the then
outstanding shares of Common Stock of the Company (the
"Outstanding Company Common Stock") or (ii) the
combined voting power of the then outstanding
securities of the Company entitled to vote generally in
the election of directors (the "Outstanding Company
Voting Securities"); provided, however, that the
following acquisitions shall not constitute a Change in
Control: (A) any acquisition directly from the Company
(excluding any acquisition resulting from the exercise
of a conversion or exchange privilege in respect of
outstanding convertible or exchangeable securities),
(B) any acquisition by the Company, (C) any acquisition
by an employee benefit plan (or related trust)
sponsored or maintained by the Company or any
corporation controlled by the Company or (D) any
acquisition by any corporation pursuant to a
reorganization, merger or consolidation involving the
Company, if immediately after such reorganization,
merger or consolidation, each of the conditions
described in clauses (i), (ii) and (iii) of subsection
(3) of this Section 1.4 shall be satisfied; and
provided further that, for purposes of clause (B), if
any Person (other than the Company or any employee
benefit plan (or related trust) sponsored or maintained
<PAGE>
by the Company or any corporation controlled by the
Company shall become the beneficial owner of 20% or
more of the Outstanding Company Common Stock or 20% or
more of the Outstanding Company Voting Securities by
reason of an acquisition by the Company and such Person
shall, after such acquisition by the Company, become
the beneficial owner of any additional shares of the
Outstanding Company Common Stock or any additional
Outstanding Company Voting Securities and such
beneficial ownership is publicly announced, such
additional beneficial ownership shall constitute a
Change in Control;
(2) individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of such Board; provided,
however, that any individual who becomes a director of
the Company subsequent to the date hereof whose
election, or nomination for election by the Company's
stockholders, was approved by the vote of at least a
majority of the directors then comprising the Incumbent
Board shall be deemed to have been a member of the
Incumbent Board; and provided further, that no
individual who was initially elected as a director of
the Company as a result of an actual or threatened
election contest, as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act,
or any other actual or threatened solicitation of
proxies or consents by or on behalf of any Person other
than the Board shall be deemed to have been a member of
the Incumbent Board;
(3) approval by the stockholders of the Company of a
reorganization, merger or consolidation unless, in any
such case, immediately after such reorganization,
merger or consolidation, (i) more than 60% of the then
outstanding shares of common stock of the corporation
resulting from such reorganization, merger or
consolidation and more than 60% of the combined voting
power of the then outstanding securities of such
corporation entitled to vote generally in the election
of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the
individuals or entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock
and the Outstanding Company Voting Securities
immediately prior to such reorganization, merger or
consolidation and in substantially the same proportions
relative to each other as their ownership, immediately
prior to such reorganization, merger or consolidation,
of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities, as the case may
-10-
<PAGE>
be, (ii) no Person (other than the Company, any
employee benefit plan (or related trust) sponsored or
maintained by the Company or the corporation resulting
from such reorganization, merger or consolidation (or
any corporation controlled by the Company) and any
Person which beneficially owned, immediately prior to
such reorganization, merger or consolidation, directly
or indirectly, 20% or more of the Outstanding Company
Common Stock or the Outstanding Company Voting
Securities, as the case may be) beneficially owns,
directly or indirectly, 20% or more of the then
outstanding shares of common stock of such corporation
or 20% or more of the combined voting power of the then
outstanding securities of such corporation entitled to
vote generally in the election of directors and (iii)
at least a majority of the members of the board of
directors of the corporation resulting from such
reorganization, merger or consolidation were members of
the Incumbent Board at the time of the execution of the
initial agreement or action of the Board providing for
such reorganization, merger or consolidation; or
(4) approval by the stockholders of the Company of (i) a
plan of complete liquidation or dissolution of the
Company or (ii) the sale or other disposition of all or
substantially all of the assets of the Company other
than to a corporation with respect to which,
immediately after such sale or other disposition, (A)
more than 60% of the then outstanding shares of common
stock thereof and more than 60% of the combined voting
power of the then outstanding securities thereof
entitled to vote generally in the election of directors
is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and
entities who were the beneficial owners, respectively,
of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior
to such sale or other disposition and in substantially
the same proportions relative to each other as their
ownership, immediately prior to such sale or other
disposition, of the Outstanding Company Common Stock
and the Outstanding Company Voting Securities, as the
case may be, (B) no Person (other than the Company, any
employee benefit plan (or related trust) sponsored or
maintained by the Company or such corporation (or any
corporation controlled by the Company) and any Person
which beneficially owned immediately prior to such sale
or other disposition, directly or indirectly, 20% or
more of the Outstanding Company Common Stock or the
Outstanding Company Voting Securities, as the case may
be) beneficially owns, directly or indirectly, 20% or
more of the then outstanding shares of common stock
-11-
<PAGE>
thereof or 20% or more of the combined voting power of
the then outstanding securities thereof entitled to
vote generally in the election of directors and (C) at
least a majority of the members of the board of
directors thereof were members of the Incumbent Board
at the time of the execution of the initial agreement
or action of the Board providing for such sale or other
disposition.
1.5 Code. "Code" means the Internal Revenue Code of 1986,
as amended from time to time.
1.6 Commission. "Commission" means the United States
Securities and Exchange Commission or any successor agency thereto.
1.7 Company. "Company" means Scotsman Industries, Inc., a
Delaware corporation, or any successor thereto as provided in Section
8.5 herein.
1.8 Director. "Director" means any individual who is a
member of the Board of Directors of the Company.
1.9 Disability. "Disability" means a permanent and total
disability, within the meaning of Section 22(e)(3) of the Code.
1.10 Effective Date. "Effective Date" shall have the
meaning set forth in Section 2.3 hereof.
1.11 Employee. "Employee" means any employee of the Company
or of any of the Company's Subsidiaries. For purposes of the Plan, an
individual whose only employment relationship with the Company is as a
Director shall not be deemed to be an Employee.
1.12 Exchange Act. "Exchange Act" means the Securities
Exchange Act of 1934, as amended from time to time, or any successor
act thereto.
1.13 Fair Market Value. "Fair Market Value" shall mean the
average of the highest and lowest sale prices for Shares on the
relevant date, as reported on the New York Stock Exchange, or if there
were no sales on such date, the weighted average of the mean between
the highest and lowest sale prices reported on the New York Stock
Exchange the nearest day before and the highest and lowest sale prices
reported on the New York Stock Exchange on the nearest day after the
relevant date.
1.14 Non-employee Director. "Non-employee Director" means
any individual who is a member of the Board of Directors of the
Company, but who is not otherwise an Employee.
1.15 Option. "Option" means a nonqualified stock option to
purchase Shares, granted under Article 6 herein.
-12-
<PAGE>
1.16 Option Price. "Option Price" means the price at which
a Share may be purchased under an Option.
1.17 Participant. "Participant" means a Non-employee
Director who has outstanding an Option granted under the Plan.
1.18 Permitted Transferee. "Permitted Transferee" shall
have the meaning set forth in Section 6.11 hereof.
1.19 Person. "Person" shall have the meaning ascribed to
such term in Section 3(a)(9) of the Exchange Act and used in Sections
13(d) and 14(d) thereof, including a "group" as defined in Section
13(d).
1.20 Plan. "Plan" shall have the meaning set forth in
Section 2.1 hereof.
1.21 Shares. "Shares" means shares of common stock of the
Company, par value $.10 per share, together with the related common
stock purchase rights.
1.22 Subsidiary. "Subsidiary" means any corporation in
which the Company owns directly, or indirectly through subsidiaries,
at least fifty percent (50%) of the total combined voting power of all
classes of stock, or any other entity (including, but not limited to,
partnerships and joint ventures) in which the Company owns at least
fifty percent (50%) of the combined equity thereof.
ARTICLE 2
Establishment, Purpose and Duration
2.1 Establishment of the Plan. Subject to the subsequent
approval by an affirmative vote of the stockholders of the Company in
accordance with the requirements of Rule 16b-3 under the Exchange Act,
the Company hereby establishes an incentive compensation plan to be
known as the "Scotsman Industries Non-Employee Directors Stock Option
Plan" (the "Plan"), as set forth in this document. The Plan permits
the grant of Options, subject to the terms and provisions set forth
herein.
2.2 Purpose of the Plan. The purpose of the Plan is to
promote the achievement of long-term objectives of the Company by
linking the personal financial interests of Non-employee Directors to
those of the Company's stockholders and to attract and retain Non-
employee Directors of outstanding competence.
2.3 Duration of the Plan. Subject to the subsequent
approval of the stockholders in accordance with Section 2.1, the Plan
shall commence on August 11, 1994 (the "Effective Date") and shall
remain in effect, subject to the right of the Board of Directors to
terminate the Plan at any time pursuant to Article 7 hereof, until all
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<PAGE>
Shares subject to the Plan shall have been purchased or acquired
according to the Plan's provisions.
ARTICLE 3
Administration
3.1 Appointment of Board of Directors as Administrator.
The Plan shall be administered by the Board of Directors, subject to
the restrictions set forth in the Plan.
3.2 Powers of the Board. The Board shall have full power,
discretion, and authority to interpret and administer the Plan in a
manner which is consistent with the Plan's provisions; provided,
however, that in no event shall the Board have the power to determine
the criteria for eligibility to participate in the Plan, the number of
Options or Shares subject to Options granted under the Plan, or the
Option Price, vesting period, or timing of the grant of Options under
the Plan, all of which determinations shall be automatically made
pursuant to the provisions of the Plan.
3.3 Decisions Binding. All determinations and decisions
made by the Board pursuant to the provisions of the Plan shall be
final, conclusive, and binding on all Persons, including the Company,
its stockholders, Participants, and Permitted Transferees.
ARTICLE 4
Shares Subject to the Plan
4.1 Number of Shares. Subject to adjustment as provided in
Section 4.3 herein, the total number of Shares available for grant
under the Plan may not exceed one hundred thousand (100,000). Shares
issued pursuant to the Plan may consist of authorized and unissued
Shares or Shares which have been or may be held by the Company in
treasury, as determined from time to time by the Board. The grant of
an Option shall reduce the number of Shares available for grant under
the Plan by the number of Shares subject to such Option.
4.2 Lapsed Awards. If any Option granted under the Plan
terminates, expires, is forfeited, or lapses for any reason, any
Shares subject to such Option shall again be available for grant under
the Plan to the extent consistent with Rule 16b-3 of the Exchange Act
and the interpretations of the Commission thereunder.
4.3 Adjustments in Authorized Shares. In the event of
corporate changes affecting the Shares, this Plan or Options granted
thereunder (including without limiting the generality of the
foregoing, stock dividends, stock splits, recapitalizations,
reorganizations, mergers, consolidations or other relevant changes in
capitalization), the Board shall make appropriate adjustments in price
and number of Shares and kind of securities subject to Options or in
the terms of such Options, which it deems equitable to prevent
dilution or enlargement of rights under the Options; provided,
-14-
<PAGE>
however, that no such adjustment shall be made if the adjustment would
cause the Plan to fail to comply with the "formula award" exception
under Rule 16b-3 under the Exchange Act or any successor regulation.
In addition, the Board may from time to time equitably change the
aggregate number or remaining number of Shares or kind of securities
which may be issued under the Plan to reflect any such corporate
changes; provided, however, that no such change shall be made if such
change would cause the Plan to fail to comply with the "formula award"
exception under Rule 16b-3 under the Exchange Act or any successor
regulation.
ARTICLE 5
Eligibility and Participation
5.1 Eligibility. Persons eligible to participate in the
Plan are limited to Non-employee Directors who are serving on the
Board on the date of each scheduled grant under the Plan.
5.2 Actual Participation. All eligible Non-employee
Directors shall receive grants of Options pursuant to the terms and
provisions set forth in Article 6 herein.
ARTICLE 6
Options
6.1 Initial Grant of Options. Subject to the subsequent
approval of the Plan by the stockholders of the Company in accordance
with Section 2.1, each individual who is a Non-employee Director on
the Effective Date shall be granted, on the Effective Date, an Option
to purchase two thousand (2,000) Shares. Thereafter, each newly
elected or appointed Non-employee Director shall be granted, on the
next business day following the date on which such Non-employee
Director is first elected or appointed to the Board, an Option to
purchase two thousand (2,000) Shares. The specific terms and
provisions of such Options shall be incorporated in Award Agreements,
executed pursuant to Section 6.4 of the Plan.
6.2 Subsequent Grants of Options. During the period
beginning with the next business day following the 1995 Annual Meeting
and subject to the limitation on the number of Shares subject to the
Plan, on the next business day following each annual meeting of the
Company's stockholders, each Non-employee Director (other than a Non-
employee Director who has not then yet served at least six (6) months
on the Board) shall be granted an Option to purchase one thousand
(1,000) Shares, effective as of each such next business day following
the annual stockholders' meeting.
6.3 Limitation on Grant of Options. Other than those
grants of Options set forth in Sections 6.1 and 6.2 herein, no
additional Options shall be granted under the Plan.
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6.4 Option Award Agreement. Each Option grant shall be
evidenced by an Award Agreement that shall specify the Option Price,
the term of the Option, and the number of Shares available for
purchase under the Option, in accordance with the provisions of the
Plan.
6.5 Option Price. The purchase price per Share for each
Share which may be purchased pursuant to an Option shall equal the
Fair Market Value of a Share on the date the Option is granted.
6.6 Term of Options. Except as otherwise provided in
Section 6.8 hereof, each Option shall expire, and all rights to
purchase Shares thereunder shall cease, on the date ten (10) years and
one day from the date on which the Option was granted.
6.7 Vesting of Shares Subject to Option. Subject to the
terms of this Plan, each Option granted under the Plan shall vest one
hundred percent (100%) upon the day preceding the first annual
stockholder meeting following the date of grant of such Option.
Notwithstanding the provisions of the preceding sentence, all Options
held by a Participant or such Participant's Permitted Transferees
shall immediately become one hundred percent (100%) vested upon the
first to occur of the following:
(a) The death of the Participant during service on the
Board; or
(b) Termination of service on the Board due to the
Disability of the Participant; or
(c) A Change in Control.
6.8 Termination of Directorship. In the event that a
Participant ceases to be a Director for any reason other than death or
Disability, (i) all Options held by such Participant or such
Participant's Permitted Transferees which are not vested as of the
date on which such Participant ceases to be a Director shall be
forfeited (with no further vesting to occur), and any Shares subject
to such Options shall again be available to the Company for grants
under the Plan in accordance with Section 4.2, and (ii) all Options
held by such Participant or such Participant's Permitted Transferees
which are vested as of such date shall remain exercisable for six (6)
months following the date on which such Participant's service on the
Board terminates, or until their expiration date, whichever period is
shorter.
In the event of the termination of service on the Board due
to the death of a Participant, any Option held by such Participant or
such Participant's Permitted Transferees may be exercised at any time
prior to its expiration date or within (1) year following the date of
death, whichever period is shorter.
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<PAGE>
In the event of termination of service on the Board due to
the Disability of a Participant, any Option held by such Participant
or such Participant's Permitted Transferees may be exercised at any
time prior to its expiration date or within (1) year following the
date of such termination, whichever period is shorter, by such
Participant, such person or persons as shall have been named as such
Participant's legal representative, or such Participant's Permitted
Transferees.
Any Option which vests pursuant to a Change in Control may
be exercised at any time prior to the expiration date of such Option.
6.9 Payment. Options shall be exercised by the delivery of
a written notice of exercise to the Company, setting forth the number
of Shares with respect to which the Option is to be exercised,
accompanied by full payment for the Shares. Payment for Shares
purchased upon the exercise of an Option shall be made in cash or, in
the discretion of the Participant or such Participant's Permitted
Transferee and consistent with any applicable requirements under
Section 16 of the Exchange Act and the rules and regulations of the
Commission thereunder, in Shares valued at the then Fair Market Value
of such Shares or by a combination of cash and Shares. As soon as
practicable after receipt of a written notice of exercise and full
payment, the Company shall deliver to the Participant or such
Participant's Permitted Transferee certificates evidencing the number
of Shares purchased pursuant to the exercise of the Option.
6.10 Restrictions on Share Transferability. The Board may
impose such restrictions on any Shares acquired pursuant to the
exercise of an Option as may be necessary to comply with applicable
Federal securities laws, the requirements of any stock exchange or
market upon which such Shares are then listed and/or traded, and any
blue sky or state securities laws applicable to such Shares; provided,
however, that no such restriction shall be imposed if the restriction
would result in a failure of the grant of Options under the Plan to
comply with the "formula award" exception under Rule 16b-3 under the
Exchange Act or any successor regulation.
6.11 Non-transferability of Options. No Option granted
under the Plan may be sold, transferred, pledged, assigned, or
otherwise alienated or hypothecated, other than (i) by will or by the
laws of descent and distribution or, (ii) to the extent permitted by
Rule 16b-3 under the Exchange Act or any successor regulation and
solely for the purposes of estate planning by or on behalf of the
Participant, by transfer to members of such Participant's family,
family partnerships or trusts, provided that the sole beneficiaries of
such trusts consist of the Participant and members of the
Participant's family. Any person or entity to which an Option has
been transferred in accordance with clause (i) or (ii) of the
preceding sentence is referred to elsewhere in this Plan as a
"Permitted Transferee." All Options granted to a Participant under
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<PAGE>
the Plan shall be exercisable during his or her lifetime only by such
Participant or such Participant's Permitted Transferees.
ARTICLE 7
Amendment, Modification and Termination
7.1 Amendment, Modification and Termination. Subject to
the terms set forth in this Section 7.1, the Board may terminate,
amend, or modify the Plan at any time and from time to time; provided,
however, that the provisions set forth in the Plan governing the
criteria for eligibility to participate in the Plan, the number of
Options and Shares subject to Options to be awarded to Directors, the
Option Price, the vesting period and the timing of grants of Options
to Directors may not be amended more than once within any six (6)
month period, other than to comport with changes in the Code, the
Employee Retirement Income Security Act of 1974, as amended from time
to time, or the rules thereunder. Notwithstanding the foregoing,
without the prior approval of the stockholders of the Company, the
Board may not (i) materially increase the total number of Shares which
may be available for grants of Options under the Plan, except in
accordance with Section 4.3 hereof, (ii) change the class of persons
eligible to participate in the Plan, (iii) materially increase the
benefits accruing to Participants under the Plan, or (iv) adopt any
other amendment or modification for which stockholder approval may be
required in order to comply with the requirements of the Code or any
regulations thereunder, Rule 16b-3 under the Exchange Act or any
successor regulation, or any national securities exchange on which the
Shares are then listed or reported.
7.2 Awards Previously Granted. Unless required by law, no
termination, amendment, or modification of the Plan shall in any
material manner adversely affect the rights of any holder of an Option
previously granted under the Plan, without the written consent of the
Participant holding such Option.
ARTICLE 8
Miscellaneous
8.1 Gender and Number. Except where otherwise indicated by
the context, any masculine term used herein also shall include the
feminine; the plural shall include the singular and the singular shall
include the plural.
8.2 Severability. In the event any provision of the Plan
shall be held illegal or invalid for any reason, the illegality or
invalidity shall not affect the remaining parts of the Plan, and the
Plan shall be construed and enforced as if the illegal or invalid
provisions had not been included.
8.3 Beneficiary Designation. Each Participant under the
Plan may, from time to time, name any beneficiary or beneficiaries
(who may be named contingently or successively) to whom any benefit
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under the Plan is to be paid in the event of his or her death (and/or
who may exercise the Participant's vested Options following his or her
death). Each designation will revoke all prior designations by the
same Participant, shall be in a form prescribed by the Board, and will
be effective only when filed by the Participant in writing with the
Board during his or her lifetime. In the absence of any such
designation or in the event that all designated beneficiaries have
predeceased the Participant, benefits remaining unpaid at the
Participant's death shall be paid to the Participant's estate (and,
subject to the terms and provisions of the Plan, any unexercised
vested Options may be exercised by the administrator or executor of
the Participant's estate).
8.4 No Right of Nomination. Nothing in the Plan shall be
deemed to create any obligation on the part of the Board to nominate
any Director for reelection by the Company's stockholders.
8.5 Successors. All obligations of the Company under the
Plan with respect to Options granted hereunder shall be binding on any
successor to the Company, whether the existence of such successor is
the result of a direct or indirect purchase of all or substantially
all of the business and/or assets of the Company or a merger or
consolidation with the Company.
8.6 Requirements of Law. The granting of Options under the
Plan shall be subject to all applicable laws, rules, and regulations,
and to such approvals by any governmental agencies or national
securities exchanges as may be required.
8.7 Governing Law. To the extent not preempted by Federal
law, the Plan and all agreements hereunder shall be construed in
accordance with and governed by the laws of the State of Delaware.
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SCHIFF HARDIN & WAITE EXHIBIT 5
7200 Sears Tower
Chicago, Illinois 60606
-------------------------
Mark C. Zaander
(312) 258-5520
May 17, 1995
Scotsman Industries, Inc.
775 Corporate Woods Parkway
Vernon Hills, Illinois 60061
Re: Registration on Form S-8 of 100,000 shares of common stock, $0.10
par value per share, and the related common stock purchase rights
("Common Stock")
Ladies and Gentlemen:
We have acted as counsel to Scotsman Industries, Inc., a
Delaware corporation (the "Company"), in connection with the Company's
filing of a Registration Statement on Form S-8 (the "Registration
Statement") covering 100,000 shares of Common Stock to be offered and
sold pursuant to the terms of the Scotsman Industries Inc. Non-
Employee Director Stock Option Plan (the "Plan").
In this connection, we have considered such questions of law
and have examined such documents as we have deemed necessary to enable
us to render the opinions contained herein. We have also assumed that
the Plan will have been approved by the shareholders of the Company,
as required under the terms and conditions of the Plan, prior to the
exercise of any options granted under the Plan. Based upon the
foregoing, it is our opinion that those shares of the Common Stock
that are originally issued shares, when issued upon the exercise of an
option granted under the Plan and subject to the terms and conditions
thereof, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
SCHIFF HARDIN & WAITE
By: /s/ Mark C. Zaander
--------------------------
Mark C. Zaander
MCZ:rl
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8
of our reports, dated February 7, 1995, included or incorporated by
reference to the Annual Report on Form 10-K of Scotsman Industries,
Inc. for the year ended January 1, 1995, and to all references to our
firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
May 16, 1995
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