UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
- --------------------------------------------------------------------------------
FORM S-8
Registration Statement under The Securities Act of 1933
- --------------------------------------------------------------------------------
WISCONSIN CENTRAL TRANSPORTATION CORPORATION
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 36-3541743
- ------------------- -------------------
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
One O'Hare Centre
Suite 9000, 6250 North River Road
P.O. Box 5062
Rosemont, Illinois 60017
------------------------------------------------------------
(Address of principal executive offices, including zip code)
WISCONSIN CENTRAL TRANSPORTATION CORPORATION 1997 LONG-TERM INCENTIVE PLAN
------------------------
(Full title of the plan)
Edward A. Burkhardt
Chairman, President and Chief Executive Officer
Wisconsin Central Transportation Corporation
One O'Hare Centre
Suite 9000, 6250 North River Road
P.O. Box 5062
Rosemont, Illinois 60017
---------------------------------------
(Name and address of agent for service)
(847) 318-4600
-------------------------------------------------------------
(Telephone number, including area code, of agent for service)
With a copy to:
Frederick L. Hartmann
Schiff Hardin & Waite
7200 Sears Tower
Chicago, Illinois 60606
(312) 876-1000
- --------------------------------------------------------------------------------
Calculation of Registration Fee
Title of securities to be registered: Common Stock, par value $0.01 per share
Amount to be registered: 1,500,000
Proposed maximum offering price per share (1): $32.3125
Proposed maximum aggregate offering price (1): $48,468,750
Amount of registration fee (1): $14,687.49
(1) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, on the
basis of $32.3125 per share, the average of the high and low sales price
for the Common Stock reported on the National Association of Securities
Dealers Automated Quotation System ("NASDAQ") on September 10, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by Wisconsin Central
Transportation Corporation (the "Registrant") are incorporated by reference
in this registration statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996;
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1997 and June 30, 1997;
(c) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A (File No. 0-19150) filed with the
Securities and Exchange Commission on April 11, 1991, under Section 12 of
the Securities Exchange Act of 1934, including any amendment thereto or
report filed for the purpose of updating such description; and
(d) The Registrant's Current Report on Form 8-K dated February 5,
1997.
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.
Section 145 of the General Corporation Law of the State of Delaware
permits indemnification of directors, officers, employees and agents of
corporations under certain conditions and subject to certain limitations.
Article 6 of the By-laws of the Registrant and Article 7 of the Restated
Certificate of Incorporation of the Registrant provide for the
indemnification of directors and officers of the Registrant to the fullest
extent permitted by Section 145.
-1-
<PAGE>
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 6.
Item 9. Undertakings.
(a) Rule 415 Offering.
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;
(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 information required to be included in
a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(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.
-2-
<PAGE>
(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) Filings Incorporating Subsequent Exchange Act Documents By
Reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Request for Acceleration of Effectiveness or Filing of
Registration Statement on Form S-8.
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 the 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 of 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.
-3-
<PAGE>
Signatures
The Registrant.
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rosemont, State of Illinois, on September 2, 1997.
WISCONSIN CENTRAL TRANSPORTATION CORPORATION (Registrant)
By: /s/ Thomas F. Power, Jr.
__________________________________________
Thomas F. Power, Jr.
Executive Vice President and
Chief Financial Officer and Director
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
date indicated.
Signature Name and Capacity Date
__________ __________________ _____
/s/ Edward A. Burkhardt Chairman, President, Chief September 2, 1997
_________________________ Executive Officer, and
Edward A. Burkhardt Director
(Principal Executive Officer)
/s/ Carl Ferenbach Director September 2, 1997
_________________________
Carl Ferenbach
/s/ Roland V. McPherson Director September 11, 1997
_________________________
Roland V. McPherson
/s/ Thomas F. Power, Jr. Executive Vice President, September 2, 1997
_________________________ Chief Financial Officer and
Thomas F. Power, Jr. Director
(Principal Financial Officer)
/s/ Thomas W. Rissman Director August 29, 1997
_________________________
Thomas W. Rissman
/s/ A. Francis Small Director August 29, 1997
_________________________
A. Francis Small
-4-
<PAGE>
/s/ Robert H. Wheeler Director September 4, 1997
_________________________
Robert H. Wheeler
/s/ Walter C. Kelly Vice President, Finance August 29, 1997
_________________________ (Principal Accounting Officer)
Walter C. Kelly
-5-
<PAGE>
EXHIBIT INDEX
Exhibit No. Exhibit Description Sequentially
Numbered Page
___________ ______________________________________________ ______________
4.1 Restated Certificate of Incorporation of the
Registrant, as amended (incorporated by
reference to Exhibit 3.1 to Registrant's
Registration Statement on Form S-8
(No. 33-84088) filed under the Securities Act
of 1933 on September 20, 1994).
4.2 By-laws of the Registrant, as amended
(incorporated by reference to Exhibit 3(iii)
to Registrant's Registration Statement on Form
S-8 (No. 33-65678) filed under the Securities
Act of 1933 on July 3, 1993).
4.3 Wisconsin Central Transportation Corporation 8
1997 Long-Term Incentive Plan.
5.1 Opinion of Schiff Hardin & Waite. 22
23.1 Consent of KPMG Peat Marwick LLP. 23
23.2 Consent of Schiff Hardin & Waite (included in
its opinion filed as Exhibit 5.1).
-6-
Exhibit 4.3
WISCONSIN CENTRAL TRANSPORTATION CORPORATION
1997 LONG-TERM INCENTIVE PLAN
I. INTRODUCTION
1.1 Purposes. The purposes of the l997 Long-Term Incentive Plan (the
"Plan") of Wisconsin Central Transportation Corporation (the "Company") and its
subsidiaries from time to time (individually a "Subsidiary" and collectively the
"Subsidiaries") are (i) to align the interests of the Company's stockholders and
the recipients of awards under the Plan by increasing the proprietary interest
of such recipients in the Company's growth and success, (ii) to advance the
interests of the Company by attracting and retaining officers and other key
employees and (iii) to motivate such employees to act in the long-term best
interests of the Company's stockholders. For purposes of this Plan, references
to employment by the Company shall also mean employment by a Subsidiary.
1.2 Certain Definitions.
"Agreement" shall mean the written agreement evidencing an award
hereunder between the Company and the recipient of such award.
"Board" shall mean the Board of Directors of the Company.
"Bonus Stock" shall mean shares of Common Stock which are not subject
to a Restriction Period or Performance Measures.
"Bonus Stock Award" shall mean an award of Bonus Stock under this
Plan.
"Cause" shall mean any act of dishonesty, commission of a felony,
significant activities harmful to the reputation of the Company, refusal to
perform or substantial disregard of duties properly assigned or significant
violation of any statutory or common law duty of loyalty to the Company.
"Change in Control" shall have the meaning set forth in Section
5.8(b).
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Committee" shall mean the Compensation Committee of the Board,
consisting of two or more members of the Board, each of whom shall be a
"disinterested person" within the meaning of Rule 16b-3 under the Exchange Act.
"Common Stock" shall mean the common stock of the Company.
"Company" has the meaning specified in Section 1.1.
"Disability" shall mean the inability of the holder of an award to
perform substantially such holder's duties and responsibilities for a continuous
period of at least six months, as determined solely by the Committee.
Ex. 4.3 - page 1
<PAGE>
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" shall mean, at any date, the closing transaction
price of a share of Common Stock on the last trading day prior to that date, as
reported by NASDAQ and published in The Wall Street Journal (Midwest Edition);
provided, however, that if Fair Market Value for any date cannot be so
determined, Fair Market Value shall be determined by the Committee by whatever
means or method as the Committee, in the good faith exercise of its discretion,
shall at such time deem appropriate.
"Free-Standing SAR" shall mean an SAR which is not issued in tandem
with, or by reference to, an option, which entitles the holder thereof to
receive, upon exercise, shares of Common Stock (which may be Restricted Stock),
cash or a combination thereof with an aggregate value equal to the excess of the
Fair Market Value of one share of Common Stock on the date of exercise over the
base price of such SAR, multiplied by the number of such SARs which are
exercised.
"Incentive Stock Option" shall mean an option to purchase shares of
common stock that meets the requirements of Section 422 of the Code, or any
successor provision, which is intended by the Committee to constitute an
Incentive Stock Option.
"Incumbent Board" means the members of the Board on May 14, 1997. For
this purpose, an individual who becomes a member of the Board subsequent to May
14, 1997 and who has been nominated for election by the Company's shareholders
by resolution adopted by a vote of at least two thirds of the directors then
comprising the Incumbent Board at a duly convened meeting thereof shall be
deemed to be a member of the Incumbent Board.
"Mature Shares" shall mean shares of Common Stock to which the holder
thereof has good title, free and clear of all liens and encumbrances and which
such holder either (i) has held for at least six months or (ii) has purchased on
the open market.
"Non-Statutory Stock Option" shall mean a stock option which is not an
Incentive Stock Option.
"Performance Measures" shall mean the criteria and objectives,
established by the Committee, which shall be satisfied or met (i) as a condition
to the exercisability of all or a portion of an option or SAR, (ii) as a
condition to the grant of a Stock Award or (iii) during the applicable
Restriction Period or Performance Period as a condition to the holder's receipt,
in the case of a Restricted Stock Award, of the shares of Common Stock subject
to such award, or in the case of a Performance Share Award, of payment with
respect to such award. Such criteria and objectives may include, but are not
limited to, the attainment by a share of Common Stock of a specified Fair Market
Value for a specified period of time, earnings per share, total earnings, net
income, return to stockholders (including dividends), return on gross assets,
return on net assets, growth in assets, return on equity, revenues, free cash
flow, expenses as a percentage of revenues, cost reduction goals, shareholder
value, and customer satisfaction, or any combination of the foregoing and any
other criteria and objectives established by the Committee. In the sole
discretion of the Committee, the Committee may amend or adjust the
Ex. 4.3 - page 2
<PAGE>
Performance Measures or other terms and conditions of an outstanding award in
recognition of unusual or nonrecurring events affecting the Company or its
financial statements or changes in law or accounting principles.
"Performance Period" shall mean a period of not less than one year or
greater than five years, designated by the Committee during which the
Performance Measures applicable to a Performance Share Award shall be measured.
"Performance Share" shall mean a right, contingent upon the attainment
of specified Performance Measures within a specified Performance Period, to
receive one share of Common Stock, which may be Restricted Stock, or in lieu of
all or a portion thereof, the Fair Market Value of such Performance Share in
cash.
"Performance Share Award" shall mean an award of Performance Shares
under this Plan.
"Permanent and Total Disability" shall have the meaning set forth in
Section 22(e)(3) of the Code or any successor thereto.
"Restricted Stock" shall mean shares of Common Stock which are subject
to a Restriction Period.
"Restricted Stock Award" shall mean an award of Restricted Stock under
this Plan.
"Restriction Period" shall mean a period of not less than one year or
greater than five years, designated by the Committee during which the Common
Stock subject to a Restricted Stock Award may not be sold, transferred,
assigned, pledged, hypothecated or otherwise encumbered or disposed of, except
as provided in this Plan or the Agreement relating to such award.
"SAR" shall mean a stock appreciation right which may be a
Free-Standing SAR or a Tandem SAR.
"Stock Award" shall mean Restricted Stock Award or a Bonus Stock
Award.
"Tandem SAR" shall mean an SAR which is granted in tandem with, or by
reference to, an option (including a Non-Statutory Stock Option granted prior to
the date of grant of the SAR), which entitles the holder thereof to receive,
upon exercise of such SAR and surrender for cancellation of all or a portion of
such option, shares of Common Stock (which may be Restricted Stock), cash or a
combination thereof with an aggregate value equal to the excess of the Fair
Market Value of one share of Common Stock on the date of exercise over the base
price of such SAR, multiplied by the number of shares of Common Stock subject to
such option, or portion thereof, which is surrendered.
"Tax Date" shall have the meaning set forth in Section 5.5.
1.3 Administration. This Plan shall be administered by the Committee.
Any one or a combination of the following awards may be made under this Plan to
eligible officers and other key employees of the Company and its Subsidiaries: (
i ) options to purchase shares of Common Stock in the form of Incentive Stock
Options or Non-Statutory Stock Options, (ii) SARs in the form of Tandem
Ex. 4.3 - page 3
<PAGE>
SARs orFree-Standing SARs, (iii) Stock Awards in the form of Restricted Stock or
Bonus Stock and (iv) Performance Shares. The Committee shall, subject to the
terms of this Plan, select eligible officers and other key employees for
participation in this Plan and determine the form, amount and timing of each
award to such persons and, if applicable, the number of shares of Common Stock,
the number of SARs and the number of Performance Shares subject to such an
award, the exercise price or base price associated with the award, the time and
conditions of exercise or settlement of the award and all other terms and
conditions of the award, including, without limitation, the form of the
Agreement evidencing the award. The Committee shall, subject to the terms of
this Plan, interpret this Plan and the application thereof, establish rules and
regulations it deems necessary or desirable for the administration of this Plan
and may impose, incidental to the grant of an award, conditions with respect to
the award, such as limiting competitive employment or other activities. All such
interpretations, rules, regulations and conditions shall be conclusive and
binding on all parties.
The Committee may delegate some or all of its power and authority
hereunder to the President or other executive officer of the Company as the
Committee deems appropriate; provided, however, that the Committee may not
delegate its power and authority with regard to the selection for participation
in this Plan of an officer or other person subject to Section 16 of the Exchange
Act or decisions concerning the timing, pricing or amount of an award to such
officer or other person.
No member of the Board of Directors or the Committee, and neither the
President and Chief Executive Officer nor any other executive officer to whom
the Committee delegates any of its power and authority hereunder, shall be
liable for any act, omission, interpretation, construction or determination made
in connection with this Plan in good faith, and the members of the Board of
Directors and the Committee and the President and Chief Executive Officer or
other executive officer shall be entitled to indemnification and reimbursement
by the Company in respect of any claim, loss, damage or expense (including
attorneys' fees) arising therefrom to the full extent permitted by law, except
as otherwise may be provided in the Company's Certificate of Incorporation
and/or By-laws, and under any directors' and officers' liability insurance that
may be in effect from time to time.
A majority of the Committee shall constitute a quorum. The acts of the
Committee shall be either (i) acts of a majority of the members of the Committee
present at any meeting at which a quorum is present or (ii) acts approved in
writing by a majority of the members of the Committee without a meeting.
1.4 Eligibility. Participants in this Plan shall consist of such
officers and other key employees of the Company and its Subsidiaries as the
Committee in its sole discretion may select from time to time. The Committee's
selection of a person to participate in this Plan at any time shall not require
the Committee to select such person to participate in this Plan at any other
time.
1.5 Shares Available. Subject to adjustment as provided in Section
5.7, One Million Five Hundred Thousand shares of Common Stock shall be available
under this Plan, reduced by the sum of the aggregate number of shares of Common
Stock (i) that are issued upon the grant of a Stock Award and (ii) that are
subject to, or are issued upon exercise of, options, Free-Standing SARs or
Performance Shares. (The number of shares of Common Stock available under this
Plan shall not be reduced by settlements in cash of any options, Free-Standing
SARs or Performance Shares.)
Ex. 4.3 - page 4
<PAGE>
Shares of Common Stock to be delivered under this Plan shall be made
available from authorized and unissued shares of Common Stock, or authorized and
issued shares of Common Stock reacquired and held as treasury shares or
otherwise or a combination thereof.
II. STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
2.1 Stock Option. The Committee may, in its discretion, grant options
to purchase shares of Common Stock to such eligible persons as may be selected
by the Committee. Each option, or portion thereof that is not an Incentive Stock
Option, shall be a Non-Statutory Stock Option. Each Incentive Stock Option shall
be granted within ten years of the effective date of this Plan.
To the extent that the aggregate Fair Market Value (determined as of
the date of grant) of shares of Common Stock with respect to which options
designated as Incentive Stock Options are exercisable for the first time by a
participant during any calendar year (under this Plan or any other plan of the
Company, or any parent or Subsidiary) exceeds the amount (currently $100,000)
established by the Code, such options shall constitute Non-Statutory Stock
Options.
Options shall be subject to the following terms and conditions and
shall contain such additional terms and conditions, not inconsistent with the
terms of this Plan, as the Committee shall deem advisable.
(a) Number of Shares and Purchase Price. The number of shares
of Common Stock subject to an option and the purchase price per share of Common
Stock purchasable upon exercise of the option shall be determined by the
Committee; provided, however, that the purchase price per share of Common Stock
purchasable upon exercise of a Non-Statutory Stock Option may be less than 100%
of the Fair Market Value of a share of Common Stock on the date of grant of such
option and the purchase price per share of Common Stock purchasable upon
exercise of an Incentive Stock Option shall not be less than 100% of the Fair
Market Value of a share of Common Stock on the date of grant of such option.
(b) Option Period and Exercisability. The period during which
an option may be exercised shall be determined by the Committee; provided,
however, that no Incentive Stock Option shall be exercisable later than ten
years after its date of grant. The Committee may, in its discretion, establish
Performance Measures which shall be satisfied or met as a condition to the grant
of an option or to the exercisability of all or a portion of an option. The
Committee shall determine whether an option shall become exercisable in
cumulative or non-cumulative installments and in part or in full at any time. An
exercisable option, or portion thereof, may be exercised only with respect to
whole shares of Common Stock.
(c) Method of Exercise. An option may be exercised (i) by
giving written notice to the Company specifying the number of whole shares of
Common Stock to be purchased and accompanied by payment therefor in full (or
arrangement made for such payment to the Company's satisfaction) either (A) in
cash, (B) by delivery of Mature Shares having a Fair Market Value, determined as
of the date of exercise, equal to the aggregate purchase price payable by reason
of such exercise, (C) by authorizing the Company to withhold whole shares of
Common Stock which would otherwise be delivered upon exercise of the option
having a Fair Market Value, determined as of the date of exercise, equal to the
aggregate purchase price payable by reason of such exercise, (D) in cash by a
broker-dealer
Ex. 4.3 - page 5
<PAGE>
acceptable to the Company to whom the optionee has submitted an irrevocable
notice of exercise, or (E) a combination of (A), (B), (C) and (D) in each case
to the extent set forth in the Agreement relating to the option, (ii) if
applicable, by surrendering to the Company any tandem SARs which are canceled by
reason of the exercise of the option and (iii) by executing such documents as
the Company may reasonably request. The Committee shall have sole discretion to
disapprove of an election pursuant to any of clauses (B)-(E) and in the case of
an optionee who is subject to Section 16 of the Exchange Act, the Company may
require that the method of making such payment be in compliance with Section 16
and the rules and regulations thereunder. Any fraction of a share of Common
Stock which would be required to pay such purchase price shall be disregarded
and the remaining amount due shall be paid in cash by the optionee. No
certificate representing Common Stock shall be delivered until the full purchase
price therefor has been paid.
2.2 Stock Appreciation Rights. The Committee, may, in its discretion,
grant SARs to such eligible persons as may be selected by the Committee. The
Agreement relating to an SAR shall specify whether the SAR is a Tandem SAR or a
Free-Standing SAR.
SARs shall be subject to the following terms and conditions and shall
contain such additional terms and conditions, not inconsistent with the terms of
this Plan, as the Committee shall deem advisable.
Number of SARs and Base Price. The number of SARs subject to an award
shall be determined by the Committee. Any Tandem SAR related to an Incentive
Stock Option shall be granted at the same time that such Incentive Stock Option
is granted. Subject to the terms of this Plan and any applicable Agreement
relating to an SAR, an SAR granted under this Plan shall confer on the holder
thereof a right to receive, upon exercise thereof the excess of (i) the Fair
Market Value of one share of Common Stock on the date of exercise or, if the
Committee shall so determine in the case of any such right other than a Tandem
SAR, at any time during a specified period before or after the date of exercise
over (ii) the grant price of the right as specified by the Committee, which
shall not be less than the Fair Market Value of one share of Common Stock on the
date of grant of the SAR (or if the Committee so determines, in the case of any
SAR retroactively granted in tandem with or substitution for another award or
any outstanding award granted under any other plan of the Company, on the date
of grant of such other award). Subject to the terms of this Plan and any
applicable agreement, the grant price, term, method of exercise, method of
settlement and any other terms and conditions of any SAR shall be determined by
the Committee. The Committee may impose such conditions or restrictions on the
exercise of any SAR or Tandem SAR as it may deem appropriate.
2.3 Termination of Employment.
(a) Disability. Subject to paragraph (f) below and Section 5.8
and unless otherwise specified in the Agreement relating to an option or SAR, as
the case may be, if the employment with the Company of the holder of an option
or SAR terminates by reason of Disability, each option and SAR held by such
holder shall be fully exercisable and may thereafter be exercised by such holder
(or such holder's legal representative or similar person) until and including
the earliest to occur of (i) a date set by the Committee and (ii) the expiration
date of the term of such option or SAR.
(b) Retirement. Subject to paragraph (f) below and Section 5.8
and unless otherwise specified in the Agreement relating to an option or SAR, as
the case may be, if the
Ex. 4.3 - page 6
<PAGE>
employment with the Company of the holder of an option or SAR terminates by
reason of retirement on or after age 62, each option and SAR held by such holder
shall be fully exercisable and may thereafter be exercised by such holder (or
such holder's legal representative or similar person) until and including the
earliest to occur of (i) a date set by the Committee and (ii) the expiration
date of the term of such option or SAR.
(c) Death. Subject to paragraph (f) below and Section 5.8 and
unless otherwise specified in the Agreement relating to an option or SAR, as the
case may be, if the employment with the Company of the holder of an option or
SAR terminates by reason of death, each option and SAR held by such holder shall
be fully exercisable and may thereafter be exercised by such holder's executor,
administrator, legal representative, beneficiary or similar person, as the case
may be, until and including the earliest to occur of (i) the date which is 1
year after the date of death and (ii) the expiration date of the term of such
option or SAR.
(d) Other Termination. Subject to paragraph (f) below and
Section 5.8 and unless otherwise specified in the Agreement relating to an
option or SAR, as the case may be, if the employment with the Company of the
holder of an option or SAR is terminated by the Company for Cause, each option
and SAR held by such holder shall terminate automatically on the effective date
of such holder's termination of employment.
Subject to paragraph (f) below and Section 5.8 and unless
otherwise specified in the Agreement relating to an option or SAR, as the case
may be, if the employment with the Company of the holder of an option or SAR
terminates for any reason other than Disability, retirement on or after age 62
with the consent of the Company, death or Cause, each option and SAR held by
such holder shall be exercisable only to the extent that such option or SAR is
exercisable on the effective date of such holder's termination of employment and
may thereafter be exercised by such holder (or such holder's legal
representative or similar person) until and including the earliest to occur of
(i) the date which is 6 months after the effective date of termination of
employment and (ii) the expiration date of the term of such option or SAR.
(e) Death Following Termination of Employment. Subject to
paragraph (f) below and Section 5.8 and unless otherwise specified in the
Agreement relating to an option or SAR, as the case may be, if the holder of an
option or SAR dies during the 1 year period following termination of employment
by reason of Disability, or if the holder of an option or SAR dies during the 1
year period following termination of employment by reason of retirement on or
after age 62 or if the holder of an option or SAR dies during the 6 month period
following termination of employment for any reason other than Disability or
retirement on or after age 62 (or, in each case, such other period as set forth
in the Agreement relating to such option or SAR), each option and SAR held by
such holder shall be exercisable only to the extent that such option or SAR, as
the case may be, is exercisable on the date of such holder's death and may
thereafter be exercised by the holder's executor, administrator, legal
representative, beneficiary or similar person, as the case may be, until and
including the earliest to occur of (i) the date which is 6 months after the date
of death and (ii) the expiration date of the term of such option or SAR.
(f) Termination of Employment Incentive Stock Options. Subject
to Section 5.8 and unless otherwise specified in the Agreement relating to the
option, if the employment with the Company of a holder of an Incentive Stock
Option terminates by reason of Permanent and Total
Ex. 4.3 - page 7
<PAGE>
Disability, each Incentive Stock Option held by such optionee shall be fully
exercisable and may thereafter be exercised by such optionee (or such optionee's
legal representative or similar person) until and including the earliest to
occur of (i) a date set by the Committee upon the determination a Permanent and
Total Disability exists, (ii) one year after the termination of employment and
(iii) the expiration date of the term of such option.
Subject to Section 5.8 and unless otherwise specified in the
Agreement relating to the option, if the employment with the Company of a holder
of an Incentive Stock Option terminates by reason of death, each Incentive Stock
Option held by such optionee shall be fully exercisable and may thereafter be
exercised by such optionee's executor, administrator, legal representative,
beneficiary or similar person until and including the earliest to occur of (i)
the date which is 1 year after the date of death and (ii) the expiration date of
the term of such option.
If the employment with the Company of the optionee of an
Incentive Stock Option is terminated by the Company for Cause, each Incentive
Stock Option held by such optionee shall terminate automatically on the
effective date of such optionee's termination of employment. Subject to Section
5.8 and unless otherwise specified in the Agreement relating to the option, if
the employment with the Company of a holder of an Incentive Stock Option
terminates for any reason other than Permanent and Total Disability, death or
Cause, each Incentive Stock Option held by such optionee shall be exercisable
only to the extent such option is exercisable on the effective date of such
optionee's termination of employment, and may thereafter be exercised by such
holder (or such holder's legal representative or similar person) until and
including the earliest to occur of (i) the date which is 3 months after the
effective date of such optionee's termination of employment and (ii) the
expiration date of the term of such option.
If the holder of an Incentive Stock Option dies during the
one-year period following termination of employment by reason of Permanent and
Total Disability (or such shorter period as set forth in the Agreement relating
to such option), or if the holder of an Incentive Stock Option dies during the
three-month period following termination of employment for any reason other than
Permanent and Total Disability, death or Cause, each Incentive Stock Option held
by such optionee shall be exercisable only to the extent such option is
exercisable on the date of the optionee's death and may thereafter be exercised
by the optionee's executor, administrator, legal representative, beneficiary or
similar person until and including the earliest to occur of (i) the date which
is 6 months after the date of death and (ii) the expiration date of the term of
such option.
III. STOCK AWARDS
3.1 Stock Awards. The Committee may, in its discretion, grant Stock
Awards to such eligible persons as may be selected by the Committee. The
Agreement relating to a Stock Award shall specify whether the Stock Award is a
Restricted Stock Award or Bonus Stock Award.
3.2 Terms of Stock Awards. Stock Awards shall be subject to the
following terms and conditions and shall contain such additional terms and
conditions, not inconsistent with the terms of this Plan, as the Committee shall
deem advisable.
Ex. 4.3 - page 8
<PAGE>
(a) Number of Shares and Other Terms. The number of shares of
Common Stock subject to a Restricted Stock Award or Bonus Stock Award and the
Performance Measures (if any) and Restriction Period applicable to a Restricted
Stock Award shall be determined by the Committee.
(b) Vesting and Forfeiture. The Agreement relating to a
Restricted Stock Award shall provide, in the manner determined by the Committee,
in its discretion, and subject to the provisions of this Plan, for the vesting
of the shares of Common Stock subject to such award (i) if specified Performance
Measures are satisfied or met during the specified Restriction Period or (ii) if
the holder of such award remains continuously in the employment of the Company
during the specified Restriction Period and for the forfeiture of the shares of
Common Stock subject to such award (x) if specified Performance Measures are not
satisfied or met during the specified Restriction Period or (y) if the holder of
such award does not remain continuously in the employment of the Company during
the specified Restriction Period.
Bonus Stock Awards shall not be subject to any Performance
Measures or Restriction Periods.
(c) Share Certificates. During the Restriction Period, a
certificate or certificates representing a Restricted Stock Award may be
registered in the holder's name and may bear a legend, in addition to any legend
which may be required pursuant to Section 5.6, indicating that the ownership of
the shares of Common Stock represented by such certificate is subject to the
restrictions, terms and conditions of the Plan and the Agreement relating to the
Restricted Stock Award. All such certificates shall be deposited with the
Company, together with stock powers or other instruments of assignment
(including a power of attorney), each endorsed in blank with a guarantee of
signature if deemed necessary or appropriate, which would permit transfer to the
Company of all or a portion of the shares of Common Stock subject to the
Restricted Stock Award in the event such award is forfeited in whole or in part.
Upon termination of any applicable Restriction Period (and the satisfaction or
attainment of applicable Performance measures), or upon the grant of a Bonus
Stock Award, in each case subject to the Company's right to require payment of
any taxes in accordance with Section 5.5, a certificate or certificates
evidencing ownership of the requisite number of shares of Common Stock shall be
delivered to the holder of such award.
(d) Rights with Respect to Restricted Stock Awards. Unless
otherwise set forth in the Agreement relating to a Restricted Stock Award, and
subject to the terms and conditions of a Restricted Stock Award, the holder of
such award shall have all rights as a stockholder of the Company, including, but
not limited to, voting rights, the right to receive dividends and the right to
participate in any capital adjustment applicable to all holders of Common Stock;
provided, however, that a distribution with respect to shares of Common Stock,
other than a regular cash dividend, shall be deposited with the Company and
shall be subject to the same restrictions as the shares of Common Stock with
respect to which such distribution was made.
3.3 Termination of Employment
(a) Disability, Retirement and Death. Subject to Section 5.8
and unless otherwise set forth in the Agreement relating to a Restricted Stock
Award, if the employment with the Company of the holder of such award terminates
by reason of (i) Disability or death, then the Restriction Period shall
terminate as of the effective date of such holder's Disability or as of the date
of death and all
Ex. 4.3 - page 9
<PAGE>
Performance Measures, if any, applicable to such award shall be deemed to have
been satisfied at the target level or (ii) retirement on or after age 62 or
termination by the Company without cause, the Restriction Period shall continue
to apply and all Performance Measures, if any, applicable to such award shall
also continue to apply and the restrictions on the Restricted Stock Awards shall
be removed based on actual results with respect to any Performance Measures.
(b) Other Termination. Subject to Section 5.8 and unless
otherwise set forth in the Agreement relating to a Restricted Stock Award, if
the employment with the Company of the holder of a Restricted Stock Award
terminates for any reason other, than Disability, retirement on or after age 62,
termination by the Company without Cause or death, the portion of such award
which is subject to a Restriction Period on the effective date of such holder's
termination of employment shall be forfeited and such portion shall be canceled
by the Company.
IV. PERFORMANCE SHARE AWARDS
4.1 Performance Share Awards. The Committee may, in its discretion,
grant Performance Share Awards to such eligible persons as may be selected by
the Committee.
4.2 Terms of Performance Share Awards. Performance Share Awards shall
be subject to the following terms and conditions and shall contain such
additional terms and conditions, not inconsistent with the terms of this Plan as
the Committee shall deem advisable.
(a) Number of Performance Shares and Performance Measures. The
number of Performance Shares subject to any award and the Performance Measures
and Performance Period applicable to such award shall be determined by the
Committee.
(b) Vesting and Forfeiture. The Agreement relating to a
Performance Share Award shall provide, in the manner determined by the
Committee, in its discretion, and subject to the provisions of this Plan, for
the vesting of such award if specified Performance Measures are satisfied or met
during the specified Performance Period, and for the forfeiture of such award,
if specified Performance Measures are not satisfied or met during the specified
Performance Period.
(c) Settlement of Vested Performance Share Awards. The
Agreement relating to a Performance Share Award (i) shall specify whether such
award may be settled in shares of Common Stock (including shares of Restricted
Stock) or cash or a combination thereof and (ii) may specify whether the holder
thereof shall be entitled to receive, on a current or deferred basis, dividend
equivalents, and, if determined by the Committee, interest on any deferred
dividend equivalents, with respect to the number of shares of Common Stock
subject to such award. If a Performance Share Award is settled in shares of
Restricted Stock, a certificate or certificates representing such Restricted
Stock shall be issued in accordance with Section 3.2(c) and the holder of such
Restricted Stock shall have such rights of a stockholder of the Company as
determined pursuant to Section 3.2(d). Prior to the settlement of a Performance
Share Award in shares of Common Stock, including Restricted Stock, the holder of
such award shall have no rights as a stockholder of the Company with respect to
the shares of Common Stock subject to such award and shall have rights as a
stockholder of the Company in accordance with Section 5.10.
Ex. 4.3 - page 10
<PAGE>
4.3 Termination of Employment.
(a) Disability, Retirement and Death. Subject to Section 5.8
and unless otherwise set forth in the Agreement relating to a Performance Share
Award, if the employment with the Company of the holder of such award terminates
by reason of (i) Disability or death, then all Performance Measures applicable
to such award shall be deemed to have been satisfied at the target level and the
Performance Period applicable to such award shall thereupon terminate or (ii)
retirement on or after age 62 or termination by the Company without cause, all
Performance Measures applicable to such award shall continue to apply and
payment of any Performance Share Awards shall be made in a pro rata amount at
the same time and manner as with other eligible persons with respect to such
awards, based on actual results of the Performance Measures, unless in its sole
discretion, the Committee determines otherwise. Such pro rata amount shall be
determined by multiplying the award that would have otherwise been paid had
there been no termination under (ii) above by a fraction, the numerator of which
is the number of full months of employment during the Performance Period and the
denominator of which is the number of full months in the Performance Period. A
partial month shall be treated as a full month if the holder of a Performance
Share Award has held such award for 15 or more calendar days of such month.
(b) Other Termination. Subject to Section 5.8 and unless
otherwise set forth in the Agreement relating to a Performance Share Award, if
the employment with the Company of the holder of a Performance Share Award
terminates for any reason other than Disability, retirement on or after age 62,
termination by the Company without cause or death, the portion of such award
which is subject to a Performance Period on the effective date of such holder's
termination of employment shall be forfeited and such portion shall be canceled
by the Company.
V. GENERAL
5.1 Effective Date and Term of Plan. This Plan shall be submitted to
the stockholders of the Company for approval and, if approved by the affirmative
vote of a majority of the shares of Common Stock present in person or
represented by proxy at the May 15, 1997 annual meeting of stockholders, shall
become effective on the date of such approval. This Plan shall terminate 10
years after its effective date unless terminated earlier by the Board.
Termination of this Plan shall not affect the terms or conditions of any award
granted prior to termination.
Awards hereunder may be made at any time prior to the termination of
this Plan, provided that no award may be made later than 10 years after the
effective date of this Plan. In the event that this Plan is not approved by the
stockholders of the Company, this Plan and any awards hereunder shall be void
and of no force or effect.
5.2 Amendments. The Board may amend this Plan as it shall deem
advisable, subject to any requirement of stockholder approval required by
applicable law, rule or regulation including Rule 16b-3 under the Exchange Act;
provided, however, that no amendment shall be made without stockholder approval
if such amendment would (a) increase the maximum number of shares of Common
Stock available under this Plan (subject to Section 5.7), (b) reduce the minimum
purchase price in the case of an option or the base price in the case of an SAR,
(c) effect any change with respect to Incentive Stock Options inconsistent with
Section 422 of the Code, or (d) extend the term of this
Ex. 4.3 - page 11
<PAGE>
Plan. No amendment may impair the rights of a holder of an outstanding award
without the consent of such holder.
5.3 Agreement. Except with respect to Restricted Stock Awards under
Article V, each award under this Plan shall be evidenced by an Agreement setting
forth the terms and conditions applicable to such award. No award shall be valid
until an Agreement is executed by the Company and the recipient of such award
and, upon execution by each party and delivery of the Agreement to the Company,
such award shall be effective as of the effective date set forth in the
Agreement.
5.4 Non-Transferability of Stock Options, SARs and Performance Shares.
No option, SAR or Performance Share shall be transferable other than by will,
the laws of descent and distribution or pursuant to beneficiary designation
procedures approved by the Company as set forth in the Agreement relating to
such award. Except to the extent permitted by the foregoing sentence, each
option, SAR or Performance Share may be exercised or settled during the
participant's lifetime only by the holder or the holder's legal representative
or similar person. Except as permitted by the second preceding sentence, no
option, SAR or Performance Share may be sold, transferred, assigned, pledged,
hypothecated, encumbered or otherwise disposed of (whether by operation of law
or otherwise) or be subject to execution, attachment or similar process. Upon
any attempt to so sell, transfer, assign, pledge, hypothecate, encumber or
otherwise dispose of any option, SAR or Performance Share, such award and all
rights thereunder shall immediately become null and void.
5.5 Tax Withholding. The Company shall have the right to require,
prior to the issuance or delivery of any shares of Common Stock or the payment
of any cash pursuant to an award made hereunder, payment by the holder of such
award of any Federal, state, local or other taxes which may be required to be
made or paid in connection with such award. An Agreement may provide that (i)
the Company shall withhold whole shares of Common Stock which would otherwise be
delivered to a holder, having an aggregate Fair Market Value determined as of
the date the obligation to withhold or pay taxes arises in connection with an
award (the "Tax Date"), or withhold an amount of cash which would otherwise be
payable to a holder, in the amount necessary to satisfy any such obligation, or
(ii) the holder may satisfy any such obligation by any of the following means:
(A) a cash payment to the company, (B) delivery to the Company of Mature Shares
having an aggregate Fair Market Value, determined as of the Tax Date equal to
the amount necessary to satisfy any such obligation, (C) authorizing the Company
to withhold whole shares of Common Stock which would otherwise be delivered
having an aggregate Fair Market Value, determined as of the Tax Date, or
withhold an amount of cash which would otherwise be payable to a holder, equal
to the amount necessary to satisfy any such obligation, (D) in the case of the
exercise of an option, a cash payment by a broker-dealer acceptable to the
Company, to whom the optionee has submitted an irrevocable notice of exercise or
(E) any combination of (A), (B), (C) and (D), in each case to the extent set
forth in the Agreement relating to the award; provided, however, that the
Committee shall have sole discretion to disapprove of an election pursuant to
any of clauses (B)-(E) and that in the case of a holder who is subject to
Section 16 of the Exchange Act, the Company may require that the method of
satisfying such an obligation be in compliance with Section 16 and the rules and
regulations thereunder. An Agreement may provide for shares of Common Stock to
be delivered or withheld having an aggregate Fair Market Value in excess of the
minimum amount required to be withheld, but not in excess of the amount
determined by applying the holder's maximum marginal tax rate. Any fraction of a
share of Common Stock which would be required to satisfy such an obligation
shall be disregarded and the remaining amount due shall be paid in cash by the
holder.
Ex. 4.3 - page 12
<PAGE>
5.6 Restrictions on Shares. Each award made hereunder shall be subject
to the requirement that if at any time the Company determines that the listing,
registration or qualification of the shares of Common Stock subject to such
award upon any securities exchange or under any law, or the consent or approval
of any governmental body, or the taking of any other action is necessary or
desirable as a condition of, or in connection with, the delivery of shares
thereunder, such shares shall not be delivered unless such listing,
registration, qualification, consent, approval or other action shall have been
effected or obtained, free of any conditions not acceptable to the Company. The
Company may require that certificates evidencing shares of Common Stock
delivered pursuant to any award made hereunder bear a legend indicating that the
sale, transfer or other disposition thereof by the holder is prohibited except
in compliance with the Securities Act of 1933, as amended, and the rules and
regulations thereunder.
5.7 Adjustment. In the event of any stock split, stock dividend,
recapitalization, reorganization, merger, consolidation, combination, exchange
of shares, liquidation, spin-off or other similar change in capitalization or
event or any distribution to holders of Common Stock other than a regular cash
dividend, the number and class of securities available under this Plan, the
number and class of securities subject to each outstanding option, the purchase
price per security and the terms of each outstanding Performance Share shall be
appropriately adjusted by the Committee, such adjustments to be made in the case
of outstanding options and SARs without an increase in the aggregate purchase
price or base price. The decision of the Committee regarding any such adjustment
shall be final, binding and conclusive. If any such adjustment would result in a
fractional security being (i) available under this Plan, such fractional
security shall be disregarded, or (ii) subject to an award under this Plan, the
Company shall pay the holder of such award, in connection with the first
vesting, exercise or settlement of such award, in whole or in part, occurring
after such adjustment, an amount in cash determined by multiplying (i) the
fraction of such security (rounded to the nearest hundredth) by (ii) the excess,
if any, of (A) the Fair Market Value on the vesting, exercise or settlement date
over (B) the exercise or base price, if any, of such award.
5.8 Change in Control.
(a) Notwithstanding any provision in this Plan or any
Agreement, in the event of a Change in Control, (i) all outstanding options and
SARs shall immediately become exercisable in full, (ii) the Restriction Period
applicable to any outstanding Restricted Stock Award shall lapse, (iii) the
Performance Period applicable to any outstanding Performance Share Award shall
lapse, and (iv) the Performance Measures applicable to any outstanding
Restricted Stock Award (if any) and to any outstanding Performance Share Award
shall be deemed to be satisfied at the target level.
(b) "Change in Control" shall be deemed to have occurred as
of:
(1) The closing date of the restructuring of the
Company as a result of merger, consolidation, takeover or reorganization unless
at least a majority of the members of the Board of Directors of the Corporation
resulting from such merger, consolidation, takeover or reorganization were
members of the Incumbent Board; or
(2) the occurrence of any other event that is
designated as being a "Change in Control" by a majority vote of the directors of
the Incumbent Board who are not also employees of the Company.
Ex. 4.3 - page 13
<PAGE>
5.9 No Right of Participation or Employment. No person shall have any
right to participate in this Plan. Neither this Plan nor any award made
hereunder shall confer upon any person any right to continued employment by the
Company, any Subsidiary or any affiliate of the Company or affect in any manner
the right of the Company, any Subsidiary or any affiliate of the Company to
terminate the employment of any person at any time without liability hereunder.
5.10 Rights as Stockholder. No person shall have any right as a
stockholder of the Company with respect to any shares of Common Stock or other
equity security of the Company which is subject to an award hereunder unless and
until such person becomes a stockholder of record with respect to such shares or
Common Stock or equity security.
5.11 Governing Law. This Plan, each award hereunder and the related
Agreement, and all determinations made and actions taken pursuant thereto, to
the extent not otherwise governed by the Code or the laws of the United States,
shall be governed by the laws of the State of Illinois and construed in
accordance therewith without giving effect to principles of conflicts of laws.
Ex. 4.3 - page 14
Exhibit 5.1
OPINION OF SCHIFF HARDIN & WAITE
September 10, 1997
Securities and Exchange Commission
Filing Desk - Stop 1-4
Judiciary Plaza
450 Fifth Street
Washington, D.C. 20549-1004
Re: Wisconsin Central Transportation Corporation
Registration Statement on Form S-8 --
Registration of 1,500,000 Shares of
Common Stock, Par Value $0.01 Per Share
_____________________________________________
Ladies and Gentlemen:
We have acted as special counsel to Wisconsin Central Transportation
Corporation, a Delaware corporation (the "Company"), in connection with the
Company's filing of a Registration Statement on Form S-8 (the "Registration
Statement") covering 1,500,000 shares of common stock, par value $0.01 per share
(the "Common Stock"), to be issued pursuant to the terms of the Wisconsin
Central Transportation Corporation 1997 Long-Term Incentive Plan (the "Plan").
In this connection, we have made such investigation and have examined
such documents as we have deemed necessary to enable us to render the opinion
contained herein. Based upon the foregoing, it is our opinion that the Common
Stock, upon issuance in accordance with the terms of the Plan, and as described
in the Registration Statement, will be legally issued, fully paid and
nonassessable.
The foregoing opinions are based on and are limited to the laws of the
State of Illinois, the General Corporation Law of the State of Delaware and the
laws of the United States of America, and we express no opinion with respect to
the law of any other jurisdiction.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
SCHIFF HARDIN & WAITE
By: /s/ Frederick L. Hartmann
_______________________________________
Frederick L. Hartmann
Ex. 5.1 - page 1
Exhibit 23.1
CONSENT OF KPMG PEAT MARWICK LLP
We consent to incorporation herein by reference of our report dated
January 27, 1997, relating to the consolidated balance sheets of Wisconsin
Central Transportation Corporation and Subsidiaries as of December 31, 1996 and
1995 and the related consolidated statements of income, changes in stockholders'
equity, and cash flows for each of the years in the three-year period ended
December 31, 1996, which report appears in the December 31, 1996 annual report
on Form 10-K of Wisconsin Central Transportation Corporation.
/s/ KPMG Peat Marwick LLP
Chicago, Illinois
September 10, 1997
Ex. 23.1 - page 1
