As filed with the Securities and Exchange Commission on August 31, 1998
Registration No. 33-55894
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8, REGISTRATION NO.33-55894
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ACX TECHNOLOGIES, INC.
(Exact name of issuer as specified in its charter)
Colorado 84-1208699
(State or other jurisdiction of (I.R.S. Employer Identification)
incorporation or organization)
16000 Table Mountain Parkway, Golden, Colorado 80403
(Address of principal executive offices) (Zip Code)
ACX Technologies, Inc. Equity Compensation Plan for
Non-Employee Directors, ACX Technologies, Inc. Equity
Incentive Plan, ACX Technologies, Inc. Savings and
Investment Plan A and ACX Technologies, Inc. Savings and
Investment Plan B
(Full title of the plans)
Jill B.W. Sisson
General Counsel
ACX Technologies, Inc.
16000 Table Mountain Parkway
Golden, Colorado 80403
(303) 271-7000
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
Common Stock, 3,000,000(1) $19.125(1) $57,375,000 $16,925.63(2)
par value $.01
per share
(1) In accordance with Rule 457(h), computed upon the basis of the prices
reported on the New York Stock Exchange on August 28, 1998. This price
is used solely for the purpose of calculating the registration fee.
(2) The Registrant has previously registered an aggregate of 6,000,000
shares (taking into account a 2 for 1 split of shares that occurred in
August 1995) and has previously paid a registration fee of $12,733.44.
Pursuant to Instruction E to Form S-8, the additional $16,925.63
registration fee is paid with respect to the additional 3,000,000 shares
registered hereby.
1
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AMENDMENT
The contents of the earlier Registration Statement on Form S-8,
Registration No.33-55894, are hereby incorporated by reference.
Item 8. Exhibits.
Exhibit No. Description
4.1 ACX Technologies, Inc. Savings and Investment Plan A, as
amended, and ACX Technologies, Inc. Savings and Investment Plan
B, as amended. (Incorporated by reference to the Annual Report
on Form 11-K, File No. 0-20704).
4.2 ACX Technologies, Inc. Equity Incentive Plan, as amended
(Incorporated by reference to Exhibit A to the Proxy Statement
filed in connection with the May 17, 1994, Annual Meeting of
Shareholders).
4.3 ACX Technologies, Inc. Equity Compensation Plan
for Non-Employee Directors, as amended (filed herewith).
5.1 Opinion of Holme Roberts & Owen LLP as to the legality of the
Common Stock being registered (filed herewith). The Registrant
has submitted the ACX Technologies, Inc. Savings and Investment
Plan A and ACX Technologies, Inc. Savings and Investment Plan B
and any amendments thereto to the Internal Revenue Service
("IRS") in a timely manner and has made or will make all changes
required by the IRS in order to qualify such plan.
23.1 Consent of PricewaterhouseCoopers LLP (filed herewith).
23.2 Consent of Holme Roberts & Owen LLP (found in Exhibit 5.1).
24 Powers of Attorney are on the signature page of this
Registration Statement.
2
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Golden, Colorado on August 25, 1998.
ACX TECHNOLOGIES, INC.
Date: August 25, 1998 By /s/ Jeffrey H. Coors
Jeffrey H. Coors
President
Date: August 25, 1998 By /s/ Joseph Coors, Jr.
Joseph Coors, Jr.
President
Date: August 25, 1998 By /s/ Jed J. Burnham
Jed J. Burnham
Chief Financial
Officer and Treasurer
Date: August 25, 1998 By /s/ Beth A. Parish
Beth A. Parish
Controller and
Principal Accounting
Officer
Power of Attorney
We, the undersigned officers and directors of ACX TECHNOLOGIES, INC. hereby
severally constitute and appoint Jed J. Burnham, Jill B. W. Sisson and Beth A.
Parish, and each of them singly, our true and lawful attorneys, with full power
to them and each of them singly, to sign for us in our names in the capacities
indicated below, all pre-effective and post- effective amendments to this
Registration Statement and any abbreviated Registration Statement in connection
with this Registration Statement pursuant to Rule 462(b) under the Securities
Act of 1933, as amended, and generally to do all things in our names and on our
behalf in such capacities to enable the Company to comply with the provisions of
the Securities Act of 1933, as amended, and all requirements of the Securities
and Exchange Commission.
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.
Date: August 25, 1998 By /s/ William K. Coors
William K. Coors
Chairman of the
Board of Directors
and Director
Date: August 25, 1998 By /s/ John D. Beckett
John D. Beckett
Director
Date: August 25, 1998 By /s/ Jeffrey H. Coors
Jeffrey H. Coors
Principal Executive
Officer and Director
3
<PAGE>
Date: August 25, 1998 By /s/ John K. Coors
John K. Coors
Director
Date: August 25, 1998 By /s/ Joseph Coors, Jr.
Joseph Coors, Jr.
Principal Executive
Officer and Director
Date: August 25, 1998 By /s/ Richard P. Godwin
Richard P. Godwin
Director
Date: August 25, 1998 By /s/John H. Mullin,III
John H. Mullin, III
Director
Date: August 25, 1998 By /s/ John Hoyt Stookey
John Hoyt Stookey
Director
Date: August 25, 1998 By /s/James K. Peterson
James K. Peterson
Director
Pursuant to the requirements of the Securities Act of 1933, the ACX
Technologies, Inc. Savings and Investment Plan A and ACX Technologies, Inc.
Savings and Investment Plan B have duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Golden, State of Colorado on the 25th day of August 1998.
ACX Technologies, Inc.
Savings and Investment Plan A and
ACX Technologies, Inc.
Savings and Investment Plan B
By /s/Jill B.W. Sisson
Jill B.W. Sisson, Secretary
4
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ACX TECHNOLOGIES, INC.
EQUITY COMPENSATION PLAN FOR
NON-EMPLOYEE DIRECTORS
Amended and Restated
Effective May 13, 1997
<PAGE>
TABLE OF CONTENTS
Section 1 - Introduction..................................................1
1.1 Introduction..............................................1
1.2 Purposes..................................................1
1.3 Effective Date............................................1
Section 2 - Definitions...................................................1
2.1 Definitions...............................................1
2.2 Gender and Number.........................................3
Section 3 - Plan Administration...........................................3
Section 4 - Stock Subject to the Plan.....................................3
4.1 Number of Shares..........................................3
4.2 Other Shares of Stock.....................................4
4.3 Adjustments for Stock Split, Stock Dividend, Etc..........4
4.4 Other Distributions and Changes in Stock..................4
4.5 General Adjustment Rules..................................5
4.6 Determination by the Committee, Etc.......................5
Section 5 - Participation.................................................5
5.1 In General................................................5
5.2 Restriction on Award Grants to Certain Individuals........5
Section 6 - Restricted Stock Awards.......................................5
6.1 Minimum Grant of Restricted Stock.........................5
6.2 Elective Grant of Restricted Stock........................5
6.3 Date of Grant, Number of Shares...........................6
6.4 Retention of Award, Termination...........................6
6.5 Restrictions..............................................6
6.6 Lapse of Restrictions.....................................7
6.7 Privileges of a Stockholder, Transferability..............7
6.8 Enforcement of Restrictions...............................7
Section 6A - Grant of Options to Directors................................7
6A.1 Grant....................................................7
6A.2 Date of Grant............................................7
6A.3 Stock Option Certificates................................7
6A.4 Shareholder Privileges..................................10
<PAGE>
Section 6B - Grants to Subsidiary Directors..............................10
6B.1 Grant...................................................10
6B.2 Stock Option Certificates...............................10
6B.3 Restricted Stock........................................11
6B.4 Shareholder Privileges..................................11
Section 7 - Reorganization or Change of Control..........................12
7.1 Reorganization...........................................12
7.2 Change of Control........................................12
Section 8 - Rights of Directors..........................................13
8.1 Retention as Director....................................13
8.2 Nontransferability.......................................13
Section 9 - General Restrictions.........................................14
9.1 Investment Representations...............................14
9.2 Compliance with Securities Laws..........................14
9.3 Changes in Accounting Rules..............................14
9.4 Withholding of Tax.......................................14
Section 10 - Plan Amendment, Modification and Termination................14
Section 11 - Requirements of Law.........................................15
11.1 Requirements of Law.....................................15
11.2 Federal Securities Law Requirements.....................15
11.3 Governing Law...........................................15
Section 12 - Duration of the Plan........................................15
<PAGE>
ACX TECHNOLOGIES, INC.
EQUITY COMPENSATION PLAN
FOR NON-EMPLOYEE DIRECTORS
Amended and Restated
Effective May 13, 1997
Section 1
Introduction
..................1.1 Introduction. ACX Technologies, Inc., a Colorado
corporation (the "Company"), established the ACX Technologies, Inc. Equity
Compensation Plan for Non-Employee Directors (the "Plan") for certain Directors
(as defined below) of the Company. The Plan, which provides for the grant of
restricted stock awards to Directors of the Company, was effective August 12,
1992. The Plan was amended and restated in its entirety, effective November 11,
1992, January 21, 1994 and November 14, 1995. Pursuant to the power granted in
Section 10, the Company hereby amends and restates the Plan in its entirety,
effective May 13, 1997
..................1.2 Purposes. The purposes of the Plan are to encourage
the Directors and Subsidiary Directors to own shares of the Company's stock and
thereby to align their interests more closely with the interests of the other
shareholders of the Company, to encourage the highest level of director
performance by providing the directors with a direct interest in the Company's
attainment of its financial goals, and to provide a financial incentive that
will help attract and retain the most qualified directors.
..................1.3 Effective Date. The Effective Date of the Plan is
August 12, 1992. The Plan, each amendment to the Plan, and each award granted
under the Plan is conditioned on and shall be of no force and effect until
approval of the Plan by the holders of a majority of the shares of voting stock
of the Company, unless the Company, on the advice of counsel determines that
shareholder approval is not necessary.
Section 2
Definitions
..................2.1 Definitions. The following terms shall have the
meanings set forth below:
.................. (a) "Board" means the Board of Directors of the Company.
.................. (b) "Committee" means a committee consisting of members
of the Board, including the full Board, who are empowered hereunder to take
actions in the administration of the Plan. The Committee shall be so constituted
at all times as to permit the Plan to comply with Rule 16b-3, or any successor
rule promulgated under the Securities Exchange Act of 1934. Members of the
Committee shall be appointed from time to time by the Board, shall serve at the
pleasure of the Board and may resign at any time upon written notice to the
Board.
.................. (c) "Director" means a member of the Board who is
neither an officer nor an employee of the Company. For purposes of the Plan, an
employee is an individual whose wages are subject to the withholding of federal
income tax under Section 3401 of the Internal Revenue Code, and an officer is an
individual elected or appointed by the Board or chosen in such other manner as
may be prescribed in the bylaws of the Company to serve as such.
.................. (d) "Fair Market Value" means the average of the highest
and lowest prices of the Stock as reported on the New York Stock Exchange
("NYSE") on a particular date. If there are no Stock transactions on such date,
the Fair Market Value shall be determined as of the immediately preceding date
on which there were Stock transactions. If the price of the Stock is not
reported on NYSE, the Fair Market Value of the Stock on the particular date
shall be as determined by the Committee using a reference comparable to the NYSE
system. If, upon exercise of an Option, the exercise price is paid by a broker's
transaction as provided in subsection 6A.3(g)(ii)(c) or subsection 6B.2(g), the
Fair Market Value, for purposes of the exercise, shall be the price at which the
Stock is sold by the broker.
.................. (e) "Internal Revenue Code" means the Internal Revenue
Code of 1986, as it may be amended from time to time.
.................. (f) "Option" means a right to purchase Stock at a stated
price for a specified period of time. All options granted under the Plan shall
be "non-qualified stock options" whose grant is not intended to fall under the
provisions of Section 422 of the Code.
.................. (g) "Option Price" means the price at which shares of
Stock subject to an Option may be purchased, as determined in accordance with
subsection 6A.3(b) or subsection 6B.2(b).
.................. (h) "Restricted Stock Award" means an award of Stock
granted to a Director or Subsidiary Director pursuant to Section 6 or Section 6B
that is subject to certain restrictions imposed in accordance with the
provisions of the Plan.
.................. (i) "Stock" means the $0.01 par value Common Stock of
the Company.
.................. (j) "Subsidiary" means a corporation, more than 50% of
the stock of which is owned by the Company, or a corporation, more than 50% of
the stock of which is owned by a Subsidiary.
.................. (k) "Subsidiary Director" means a member of the board of
directors of a Subsidiary, who is neither an officer or employee of the
Subsidiary nor an officer, employee, or director of the Company. For purposes of
the Plan, an employee is an individual whose wages are subject to the
withholding of federal income tax under Section 3401 of the Internal Revenue
Code, and an officer is an individual elected or appointed by the board of
directors of the Subsidiary or chosen in such other manner as may be prescribed
in the bylaws of the Subsidiary to serve as such.
..................2.2 Gender and Number. Except when otherwise indicated by
the context, the masculine gender shall also include the feminine gender, and
the definition of any term herein in the singular shall also include the plural.
Section 3
Plan Administration
..................The Committee shall be responsible for the administration
of the Plan. However, the Committee shall have no authority, discretion or power
to select the Directors who will receive Restricted Stock Awards or Options,
determine the Restricted Stock Awards to be granted pursuant to the Plan, the
number of shares of Stock to be issued thereunder or the time at which such
Restricted Stock Awards are to be granted, determine the number of shares
subject to an Option granted to a Director, establish the duration and nature of
Restricted Stock Awards or Options or alter any other terms or conditions
specified in the Plan, except in the sense of administering the Plan subject to
the provisions of the Plan. However, as to Subsidiary Directors, the Committee
shall have the sole discretion and authority to select the Subsidiary Directors
to whom Options shall be granted, the number of shares subject to the Options,
the Option Price, the period and manner in which an Option becomes exercisable,
and all terms and conditions of the Options to the extent not otherwise
specified in the Plan. Subject to the foregoing limitations, the Committee, by
majority action thereof, is authorized to interpret the Plan, prescribe, amend
and rescind rules and regulations relating to the Plan, provide for conditions
and assurances deemed necessary or advisable to protect the interests of the
Company and make all other determinations necessary or advisable for the
administration of the Plan, but only to the extent not contrary to the express
provisions of the Plan. No member of the Committee shall be liable for any
action or determination made in good faith. The determinations, interpretations
and other actions of the Committee pursuant to the provisions of the Plan shall
be binding and conclusive for all purposes and on all persons.
Section 4
Stock Subject to the Plan
..................4.1 Number of Shares. Fifty Thousand shares of Stock are
authorized for issuance under the Plan in accordance with the provisions of the
Plan and subject to such restrictions or other provisions as the Committee may
from time to time deem necessary. This authorization may be increased from time
to time by approval of the Board and by the shareholders of the Company if, in
the opinion of counsel for the Company, such shareholder approval is required.
Shares of Stock that are issued as Restricted Stock Awards and that may be
issued on the exercise of Options shall be applied to reduce the maximum number
of shares of Stock remaining available for use under the Plan. The Company shall
at all times during the term of the Plan retain as authorized and unissued Stock
at least the number of shares from time to time required under the provisions of
the Plan or otherwise assure itself of its ability to perform its obligations
hereunder.
..................4.2 Other Shares of Stock. Any shares of Stock that are
subject to an Option that expires or for any reason is terminated unexercised
shall automatically become available for use under the Plan. Any shares of Stock
that are subject to a Restricted Stock Award and that are forfeited and any
shares of Stock that are withheld for the payment of taxes or received by the
Company as payment of the exercise price of an Option shall be available for use
under the Plan.
..................4.3 Adjustments for Stock Split, Stock Dividend, Etc. If
the Company shall at any time increase or decrease the number of its outstanding
shares of Stock or change in any way the rights and privileges of such shares by
means of the payment of a stock dividend or any other distribution upon such
shares payable in Stock, or through a stock split, subdivision, consolidation,
combination, reclassification or recapitalization involving the Stock, then in
relation to the Stock that is affected by one or more of the above events, the
numbers, rights and privileges of the following shall be increased, decreased or
changed in like manner as if they had been issued and outstanding, fully paid
and nonassessable at the time of such occurrence: (i) the shares of Stock as to
which Restricted Stock Awards and Options may be granted under the Plan; and
(ii) the shares of the Stock then included in each outstanding Restricted Stock
Award and Option granted hereunder.
..................4.4 Other Distributions and Changes in Stock. If
.................. (a) the Company shall at any time distribute with
respect to the Stock assets or securities of persons other than the Company
(excluding cash or distributions referred to in Section 4.3),
.................. (b) the Company shall at any time grant to the holders
of its Stock rights to subscribe pro rata for additional shares or for any other
securities of the Company, or
.................. (c) there shall be any other change (except as described
in Section 4.3) in the number or kind of outstanding shares of Stock or of any
other stock or securities into which the Stock shall be changed or for which it
shall have been exchanged,
and if the Committee shall in its discretion determine that the event described
in subsection (a), (b), or (c) above equitably requires an adjustment in the
number or kind of shares subject to a Restricted Stock Award or Option or the
taking of any other action by the Committee, including without limitation, the
setting aside of any property for delivery to the Participant upon the exercise
of an Option or the full vesting of a Restricted Stock Award, then such
adjustments shall be made, or other action shall be taken, by the Committee and
shall be effective for all purposes of the Plan and on each outstanding
Restricted Stock Award or Option that involves the particular type of stock for
which a change was effected. Notwithstanding the foregoing provisions of this
Section 4.4, a Participant holding Stock received as a Restricted Stock Award
shall have the right to receive all amounts, including cash and property of any
kind, distributed with respect to the Stock after the grant of such Restricted
Stock Award upon the Participant's becoming a holder of record of the Stock.
..................4.5 General Adjustment Rules. No adjustment or
substitution provided for in this Section 4 shall require the Company to issue a
fractional share of Stock, and the total substitution or adjustment with respect
to each Restricted Stock Award and Option shall be limited by deleting any
fractional share. In the case of any such substitution or adjustment appropriate
adjustments shall be made to Restricted Stock Awards and Options to reflect any
such substitution or adjustment.
..................4.6 Determination by the Committee, Etc. Adjustments
under this Section 4 shall be made by the Committee, whose determinations with
regard thereto shall be final and binding upon all parties thereto.
Section 5
Participation
..................5.1 In General. Each Director shall receive Restricted
Stock Awards and Options on the terms and conditions set forth under the Plan.
Each Director shall, if required by the Committee, enter into an agreement with
the Company, in such form as the Committee shall determine and which is
consistent with the provisions of the Plan. In the event of any inconsistency
between the provisions of the Plan and any such agreement entered into
hereunder, the provisions of the Plan shall govern. Each Subsidiary Director who
is selected by the Committee for participation shall receive a grant of Options
or Restricted Stock Award pursuant to Section 6B.
..................5.2 Restriction on Award Grants to Certain Individuals.
Notwithstanding the foregoing provisions of Section 5.1, the Committee shall not
grant any Restricted Stock Award or Option to any lineal descendant of Adolph
Coors, Jr. without first consulting with counsel to the Company as to the effect
of any such grant on the possible status of the Company as a "personal holding
company" within the mean of Section 542 of the Internal Revenue Code.
Section 6
Restricted Stock Awards
..................6.1 Minimum Grant of Restricted Stock. Each Director
shall receive twenty percent of the value of his annual retainer as a director
in the form of a Restricted Stock Award (the "Minimum Grant").
..................6.2 Elective Grant of Restricted Stock.
.................. (a) Beginning in 1994, each Director may make an annual
election (the "Election") to receive any or all of the remaining cash balance of
his annual retainer as a director in the form of a Restricted Stock Award (the
"Elective Grant"). The Minimum Grant and the Elective Grant are referred to
collectively as the "Grants". The Election must be in writing and must be
delivered to the Secretary of the Company no later than the day before the last
business day of the month during which the annual meeting of shareholders of the
Company is held.
.................. (b) For the period commencing on December 28, 1992, and
ending with the annual meeting of the Company's shareholders in April 1994, a
Director may elect to receive an Elective Grant by giving written notice to the
Secretary of the Company no later than the last business day of January 1993. A
Director who becomes a Director after January 1993 may elect to receive an
Elective Grant by giving written notice to the Secretary of the Company no later
than the last business day of the month in which the Director is elected to the
Board.
.................. (c) All Elections made by a Director pursuant to this
Section 6.2 shall be irrevocable.
..................6.3 Date of Grant, Number of Shares.
.................. (a) The Minimum Grant for the first year, the period
commencing on December 28, 1992 and ending with the annual meeting of the
Company's shareholders in April 1994, shall be made on the last business day of
January 1993. A Director who becomes a member of the Board after January 1993
and before the annual meeting of the Company's shareholders in April 1994 shall
receive the Minimum Grant on the last business day of the month in which the
Director is elected to the Board. Beginning in 1994, the Minimum Grant shall be
made on the last business day of the month in which the annual meeting of
shareholders is held. Beginning in 1994 and prior to 1997, the Elective Grant
shall be made on the first business day that is at least six months and one day
following the date of the Minimum Grant. Beginning in 1997, the Elective Grant
shall be made on the last day of the month in which the annual meeting of
shareholders is held.
.................. (b) The total number of shares of Stock included in each
such Restricted Stock Award shall be determined by dividing the amount of the
Director's retainer that is to be paid in restricted stock by the Fair Market
Value of a share of stock on the date of grant. In no event shall the Company be
required to issue fractional shares. Whenever under the terms of this Section 6
a fractional share of Stock would otherwise be required to be issued, an amount
in lieu thereof shall be paid in cash based upon the Fair Market Value of such
fractional share.
..................6.4 Retention of Award, Termination. If a Director's
services as a Board member are terminated at any time, for any reason, before
the date of the annual meeting of the shareholders of the Corporation next
following the Minimum and Elective Grants, all of the shares of Stock granted
pursuant to the Minimum and Elective Grants shall be forfeited.
..................6.5 Restrictions. Except as otherwise provided in the
Plan, shares of Stock received pursuant to a Restricted Stock Award may not be
sold, assigned, pledged, hypothecated, transferred or otherwise disposed of
until the restrictions applicable to such Stock have lapsed pursuant to Section
6.6.
..................6.6 Lapse of Restrictions. All restrictions on Stock
covered by Restricted Stock Awards for a year shall lapse upon the date of the
annual meeting of the shareholders of the Corporation next following the Minimum
Grant.
..................6.7 Privileges of a Stockholder, Transferability. A
Director shall have all voting, dividend, liquidation and other rights with
respect to Stock in accordance with its terms received by him as a Restricted
Stock Award under this Section 6. A Director's right to sell, encumber or
otherwise transfer Stock after restrictions applicable to such Stock have lapsed
shall be subject to the limitations of Section 8.2.
..................6.8 Enforcement of Restrictions. The Committee shall
cause a legend to be placed on the Stock certificates issued pursuant to each
Restricted Stock Award referring to the restrictions imposed in the Plan and, in
addition, may in its sole discretion require one or more of the following
methods of enforcing such restrictions:
.................. (a) Requiring the Director to keep the Stock
certificates, duly endorsed, in the custody of the Company while the
restrictions remain in effect; or
.................. (b) Requiring that the Stock certificates, duly
endorsed, be held in the custody of a third party while the restrictions remain
in effect.
Section 6A
Grant of Options to Directors
..................6A.1 Grant. Each Director who is elected to the Board by
the shareholders of the Company for a three year term shall be granted an Option
to purchase 1,000 shares of Stock. If the term for which the Director is elected
is two years, the number of shares subject to the Option shall be 666 shares,
and if the terms for which the Director is elected is one year, the number of
shares subject to the Option shall be 333. If insufficient shares are available
for grant to each Director following the Directors' election to the Board, the
number of shares subject to each Option shall be reduced pro rata.
..................6A.2 Date of Grant. The Options shall be granted as of
the last business day of the month in which the shareholders' meeting at which
the Director was elected was held (the "Grant Date").
..................6A.3 Stock Option Certificates. Each Option granted to a
Director under the Plan shall be evidenced by a written stock option
certificate. A stock option certificate shall be issued by the Company in the
name of the Director to whom the Option is granted and shall incorporate and
conform to the conditions set forth in this Section 6A.3.
.................. (a) Number. Each Director shall receive under the Plan
Options to purchase the number of shares of Stock specified in Section 6A.1,
subject to adjustment as provided in Section 4. Such grants shall be effective
at the time specified in Section 6A.2.
.................. (b) Price. The Option Price for each share of Stock
covered by the Option shall be the Fair Market Value of the Stock on the
date of grant, subject to adjustment as provided in Section 4.
.................. (c) Vesting. An Option covering 1,000 shares shall vest
in increments as follows commencing on the first anniversary of the Grant Date:
Number of
Anniversary Shares
----------- ------
First 333
Second 333
Third 334
An option covering 666 shares shall vest as to an increment of 333 shares on the
first anniversary of the Grant Date and as to the remaining increment of 333
shares on the second anniversary of the Grant Date. An Option covering 333
shares shall vest as to all 333 shares on the first anniversary of the Grant
Date. Except as set forth in Sections 7.1 and 7.2, the Option shall not be
exercisable as to any shares as to which the continuous service requirement has
not been satisfied, regardless of the circumstances under which the Director
ceased to be a director. The number of shares as to which the Option may be
exercised shall be cumulative, so that once the Option becomes exercisable as to
any shares it shall continue to be exercisable as to those shares until
expiration or termination of the Option as provided below.
.................. (d) Duration of Options. Each vested increment shall be
exercisable for a period of six years (the "Option Period") after it vests,
unless terminated sooner pursuant to subsection (e) below or fully exercised
prior to the end of such period.
.................. (e) Termination of Service, Death, Etc. The Option shall
terminate in the following circumstances if the Director ceases to be a
director:
.................. (i) If the Director is removed from the Board during the
Option Period for cause, the Option shall be void thereafter for all purposes.
.................. (ii) If the Director ceases to be a member of the Board
for any other reason, the Option shall be exercisable for a period of three
years following the termination to the extent the Option was vested on the date
the Director's services as a director cease.
.................. (f) Transferability, Exercisability. Each Option granted
under the Plan shall not be transferable by a Director other than by will or the
laws of descent and distribution and shall be exercisable during the Director's
lifetime only by the Director or, in the event of disability or incapacity, by
the Director's guardian or legal representative. Notwithstanding any other
provision of the Plan, no Option may be exercised unless and until the amended
and restated Plan is approved by the shareholders of the Company in accordance
with Section 1.3.
.................. (g) Exercise, Payments, Etc.
.................. (i) The method for exercising each Option granted shall
be by delivery to the Corporate Secretary of the Company of written notice
specifying the number of shares with respect to which the Option is exercised
and payment of the Option Price. The notice shall be in a form satisfactory to
the Committee and shall specify the particular Option (or portion thereof) that
is being exercised and the number of shares with respect to which the Option is
being exercised. The exercise of the Option shall be deemed effective upon
receipt of such notice by the Corporate Secretary and payment to the Company. If
requested by the Company, such notice shall contain the Director's
representation that he or she is purchasing the Stock for investment purposes
only and his or her agreement not to sell any stock so purchased in any manner
that is in violation of the Securities Act of 1933, as amended, or any
applicable state law. Such restrictions, or notice thereof, shall be placed on
the certificates representing the Stock so purchased. The purchase of Stock
pursuant to the Option shall take place at the principal office of the Company
upon delivery of such notice, at which time the purchase price of the Stock
shall be paid in full by any of the methods set forth in Section 6A.3(g)(ii) or
a combination thereof. A properly executed certificate or certificates
representing the Stock shall be delivered to the Holder upon payment therefor.
.................. (ii) The exercise price shall be paid by any of the
following methods or any combination of such methods, at the option of the
Director:
.................. (A) cash;
.................. (B) certified or cashier's check, payable to the order
of the Company;
.................. (C) delivery to the Company of a properly executed
notice of exercise together with irrevocable instructions to a broker to deliver
promptly to the Company the amount of the sale or all or a portion of the Stock
from the broker to the Director necessary to pay the purchase price of the
Stock; or
.................. (D) delivery to the Company of certificates representing
the number of shares of Stock then owned by the Director, the Fair Market Value
of which equals the price of the Stock to be purchased pursuant to the Option,
properly endorsed for transfer to the Company. No Option may be exercised by
delivery to the Company of certificates representing Stock that has been held by
the Director for less than six months or such other period as shall be
sufficient for the Company to avoid, if possible, the recognition of expense
with respect to the Option for accounting purposes. The exercise date shall be
the day of delivery of the certificates for the Stock used as payment of the
Option Price.
..................6A.4 Shareholder Privileges. No Director shall have any
rights as a shareholder with respect to any shares of Stock covered by an Option
until the Director becomes the holder of record of such Stock, and no
adjustments shall be made for dividends or other distributions or other rights
as to which there is a record date preceding the date such Director becomes the
holder of record of such Stock, except as provided in Section 4.
Section 6B
Grants to Subsidiary Directors
..................6B.1 Grant. Coincident with or following designation for
participation in the Plan, a Subsidiary Director may be granted one or more
Options and/or Restricted Stock Awards. In no event shall the exercise of one
Option affect the right to exercise any other Option or affect the number of
shares of Stock for which any other Option may be exercised.
..................6B.2 Stock Option Certificates. Each Option granted to a
Subsidiary Director under the Plan shall be evidenced by a written stock option
certificate. A stock option certificate shall be issued by the Company in the
name of the Subsidiary Director to whom the Option is granted and shall
incorporate and conform to the conditions set forth in this Section 6B.2.
.................. (a) Number of Shares. Each stock option certificate
shall state that it covers a specified number of shares of the Stock, as
determined by the Committee.
.................. (b) Price. The price at which each share of Stock
covered by an Option may be purchased shall be determined in each case by the
Committee and set forth in the stock option certificate, but in no event shall
the price be less than 100 percent of the Fair Market Value of the Stock on the
date the Option is granted.
.................. (c) Duration of Options; Restrictions on Exercise. Each
stock option certificate shall state the period of time, determined by the
Committee, within which the Option may be exercised by the Subsidiary Director
(the "Option Period"), and shall also set forth any installment or other
restrictions on Option exercise during such period, if any, as may be determined
by the Committee; however, no Option may be exercised for at least six months
after the date of grant.
.................. (d) Termination of Service, Death, Disability, Etc. The
Option shall terminate at the times provided in Section 6A.3(e).
.................. (e) Transferability, Exercisability. Each Option shall
not be transferable by the Option Holder except by will or pursuant to the laws
of descent and distribution, and shall be exercisable during the Option Holder's
lifetime only by him or her, or in the event of disability or incapacity, by his
or her guardian or legal representative.
.................. (f) Exercise, Payments, Etc. The Option shall be subject
to the same exercise and payment terms as provided in Section 6A.3(g).
.................. (g) Date of Grant. An option shall be considered as
having been granted on the date specified in the grant resolution of the
Committee.
..................6B.3 Restricted Stock.
.................. (a) Date of Grant, Number of Shares. The Committee shall
determine the number of shares of Restricted Stock to be granted to a Subsidiary
Director and shall determine the Date of Grant.
.................. (b) Restrictions. The restrictions shall be determined
by the Committee and need not be identical for all awards. The restrictions
shall lapse at the time or times established by the Committee. Except as
otherwise provided in the Plan, shares of Stock received pursuant to a
Restricted Stock Award may not be sold, assigned, pledged, hypothecated,
transferred or otherwise disposed of until the restrictions applicable to such
Stock have lapsed pursuant to this subsection 6B.3(b).
.................. (c) Retention of Award Termination. If a Subsidiary
Director's services as a board member are terminated at any time, for any
reason, before the Restricted Stock Award is fully vested, all of the unvested
shares shall be forfeited.
.................. (d) Enforcement of Restrictions. The Committee shall
cause a legend to be placed on the Stock certificates issued pursuant to each
Restricted Stock Award referring to the restrictions imposed in the Plan and, in
addition, may in its sole discretion require one or more of the following
methods of enforcing such restrictions:
.................. (i) Requiring the Subsidiary Director to keep the Stock
certificates, duly endorsed, in the custody of the Company while the
restrictions remain in effect; or
.................. (ii) Requiring that the Stock certificates, duly
endorsed, be held in the custody of a third party while the restrictions remain
in effect.
..................6B.4 Shareholder Privileges. No Subsidiary Director shall
have any rights as a shareholder with respect to any shares of Stock covered by
an Option until the Subsidiary Director becomes the holder of record of such
Stock, and no adjustments shall be made for dividends or other distributions or
other rights as to which there is a record date preceding the date such
Subsidiary Director becomes the holder of record of such Stock, except as
provided in Section 4. A Subsidiary Director shall have all voting, dividend,
liquidation and other rights with respect to Stock in accordance with its terms
received by him as a Restricted Stock Award under this Section 6B. A Subsidiary
Director's right to sell, encumber or otherwise transfer Stock after
restrictions applicable to such Stock have lapsed shall be subject to the
limitations of Section 8.2.
Section 7
Reorganization or Change of Control
..................7.1 Reorganization. If the Company is merged or
consolidated with another corporation (other than a merger or consolidation in
which the Company is the continuing corporation and which does not result in any
reclassification or change of outstanding stock), or if all or substantially all
of the assets or more than 50 percent of the outstanding voting stock of the
Company is acquired by any other corporation, business entity or person (other
than a sale or conveyance in which the Company continues as a holding company of
an entity or entities that conduct the business or businesses formerly conducted
by the Company), or in case of a reorganization (other than a reorganization
under the United States Bankruptcy Code) including a divisive reorganization
under Section 355 of the Code, or liquidation of the Company, the Committee, or
the board of directors of any corporation assuming the obligations of the
Company, shall, as to the Plan and outstanding Restricted Stock Awards and
Options, either (i) make appropriate provision for the adoption and continuation
of the Plan by the acquiring or successor corporation and for the protection of
any such outstanding Restricted Stock Awards and Options by the substitution on
an equitable basis of appropriate stock of the Company or of the merged,
consolidated or otherwise reorganized corporation which will be issuable with
respect to the Stock, provided that no additional benefits shall be conferred
upon the Directors and Subsidiary Directors holding such Restricted Stock Awards
and Options as a result of such substitution and the excess of the aggregate
Fair Market Value of the shares subject to such Options immediately before such
substitution over the Option Price thereof, or (ii) accelerate the restriction
period for any outstanding Restricted Stock Awards so that all restrictions
applicable to Restricted Stock Awards shall lapse prior to any such event and,
upon written notice to the Directors and Subsidiary Directors, provide that all
unexercised Options must be exercised within a specified number of days of the
date of such notice or they will be terminated. In the latter event, the
Committee shall accelerate the exercise dates of outstanding Options.
..................7.2 Change of Control
.................. (a) In General. Upon a change in control of the Company
as defined in subsection 7.2(c), then (i) all Options shall become immediately
exercisable in full during the remaining term thereof, and shall remain so,
whether or not the individuals to whom such Option have been granted remain
Directors or Subsidiary Directors; and (ii) all restrictions with respect to
outstanding Restricted Stock Awards shall immediately lapse.
.................. (b) Limitation on Payments. If the provisions of this
Section 7.2 would result in the receipt by any Director or Subsidiary Director
of a payment within the meaning of Section 280G of the Code and the regulations
promulgated thereunder and if the receipt of such payment by any Director or
Subsidiary Director would, in the opinion of independent tax counsel of
recognized standing selected by the Company, result in the payment of such
Director or Subsidiary Director of any excise tax provided for in Sections 280G
and 4999 of the Code, then the amount of such payment shall be reduced to the
extent required, in the opinion of independent tax counsel, to prevent the
imposition of such excise tax; provided, however, that the Committee, in its
sole discretion, may authorize the payment of all or any portion of the amount
of such reduction to the Director or Subsidiary Director.
.................. (c) Definition. For purposes of the Plan, a "change in
control" shall mean any of the following:
.................. (i) The acquisition of or the ownership of 50 percent or
more of the total Stock of the Company then issued and outstanding, by any
person, or group of affiliated persons, or entities not affiliated with the
Company as of the Effective Date of this Plan, without the consent of the Board
of Directors, or
.................. (ii) The election of individuals constituting a majority
of the Board of Directors who were not either (A) members of the Board of
Directors prior to the election or (B) recommended to the shareholders by
management of the Company, or
.................. (iii) A legally binding and final vote of the
shareholders of the Company in favor of selling all or substantially all of the
assets of the Company.
Section 8
Rights of Directors
..................8.1 Retention as Director. Nothing contained in the Plan
or in any Restricted Stock Award or Option granted under the Plan shall
interfere with or limit in any way the right of the shareholders of the Company
to remove any Director from the Board or a Subsidiary Director from the board of
directors of a Subsidiary, pursuant to the bylaws of the Company or Subsidiary,
nor confer upon any Director or Subsidiary Director any right to continue in the
service of the Company or Subsidiary.
..................8.2 Nontransferability. No right or interest of any Director
or Subsidiary Director in a Restricted Stock Award (prior to the completion of
the restriction period applicable thereto) or Option, granted pursuant to the
Plan, shall be assignable or transferable during the lifetime of the Director or
Subsidiary Director, either voluntarily or involuntarily, or subjected to any
lien, directly or indirectly, by operation of law, or otherwise, including
execution, levy, garnishment, attachment, pledge or bankruptcy. In the event of
a Director's or a Subsidiary Director's death, the Director's or Subsidiary
Director's rights and interests in Restricted Stock Awards and Options shall, to
the extent provided in Section 6, be transferable by testamentary will or the
laws of descent and distribution. If in the opinion of the Committee a person
entitled to payments or to exercise rights with respect to the Plan is disabled
from caring for his affairs because of mental condition, physical condition or
age, payment due such person may be made to, and such rights shall be exercised
by, such person's guardian, conservator or other legal personal representative
upon furnishing the Committee with evidence satisfactory to the Committee of
such status.
Section 9
General Restrictions
..................9.1 Investment Representations. The Company may require
any person to whom a Restricted Stock Award or Option is granted, as a condition
of receiving such Restricted Stock Award or of exercising such Option, to give
written assurances in substance and form satisfactory to the Company and its
counsel to the effect that such person is acquiring the Stock subject to the
Restricted Stock Award or Option for his own account for investment and not with
any present intention of selling or otherwise distributing the same, and to such
other effects as the Company deems necessary or appropriate in order to comply
with Federal and applicable state securities laws.
..................9.2 Compliance with Securities Laws. Each Restricted
Stock Award and Option shall be subject to the requirement that, if at any time
counsel to the Company shall determine that the listing, registration or
qualification of the shares subject to such Restricted Stock Award or Option
upon any securities exchange or under any state or federal law, or the consent
or approval of any governmental or regulatory body, is necessary as a condition
of, or in connection with, the issuance of shares thereunder, such Restricted
Stock Award or Option may not be accepted or exercised in whole or in part
unless such listing, registration, qualification, consent or approval shall have
been effected or obtained on conditions acceptable to the Committee. Nothing
herein shall be deemed to require the Company to apply for or to obtain such
listing, registration or qualification.
..................9.3 Changes in Accounting Rules. Notwithstanding any
other provision of the Plan to the contrary, if, during the term of the Plan,
any changes in the financial or tax accounting rules applicable to Restricted
Stock Awards or Options shall occur which, in the sole judgment of the
Committee, may have a material adverse effect on the reported earnings, assets
or liabilities of the Company, the Committee shall have the right and power to
modify as necessary any then outstanding Restricted Stock Awards and Options as
to which the applicable restrictions have not been satisfied.
..................9.4 Withholding of Tax. To the extent required by
applicable law and regulation, each Director and Subsidiary Director must
arrange with the Company for the payment of any federal, state or local income
or other tax applicable to the Restricted Stock Award granted hereunder or the
exercise of an Option granted hereunder before the Company shall be required to
deliver to the Director or Subsidiary Director a certificate for such Stock free
and clear of all restrictions under this Plan.
Section 10
Plan Amendment, Modification and Termination
..................The Board may at any time terminate, and from time to time may
amend or modify the Plan provided, however, that no amendment or modification
may become effective without approval of the amendment or modification by the
shareholders if shareholder approval is required to enable the Plan to satisfy
any applicable statutory or regulatory requirements, or if the Company, on the
advice of counsel, determines that shareholder approval is otherwise necessary
or desirable.
..................No amendment, modification or termination of the Plan
shall in any manner adversely affect any Restricted Stock Awards or Options
theretofore granted under the Plan without the consent of the Director holding
such Restricted Stock Awards or Options.
Section 11
Requirements of Law
..................11.1 Requirements of Law. The issuance of stock and the
payment of cash pursuant to the Plan shall be subject to all applicable laws,
rules and regulations.
..................11.2 Federal Securities Law Requirements. Restricted
Stock Awards and Options granted hereunder shall be subject to all conditions
required under Rule 16b-3 to qualify the Restricted Stock Award or Option for
any exception from the provisions of Section 16(b) of the 1934 Act available
under that Rule. Such conditions shall be set forth in the agreement or stock
option certificate with the Director or Subsidiary Director that describes the
Restricted Stock Award or Option.
..................11.3 Governing Law. The Plan and all agreements hereunder
shall be construed in accordance with and governed by the laws of the State of
Colorado.
Section 12
Duration of the Plan
..................The Plan shall terminate at such time as may be
determined by the Board of Directors, and no Restricted Stock Award or Option
shall be granted after such termination. Restricted Stock Awards outstanding at
the time of the Plan termination shall become free of restrictions in accordance
with their terms. Options outstanding at the time of the Plan termination shall
continue for the duration of the Option Term applicable to the Option.
Dated: May 13, 1997
ATTEST:........... ACX TECHNOLOGIES, INC.
.................. By: /s/ Jill B.W. Sisson
General Counsel
EXH. 5.1 OPINION AND CONSENT OF HRO
[LETTERHEAD OF HOLME ROBERTS & OWEN LLP APPEARS HERE]
August 31, 1998
ACX Technologies, Inc.
16000 Table Mountain Parkway
Golden, Colorado 80403
Re: Sale of Shares of Common Stock Pursuant to
Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to ACX Technologies, Inc. (the "Company") in
connection with the registration by the Company of 3,000,000 shares of common
stock (the "Shares"), described in the Post-Effective Amendment No. 1 to the
registration statement on Form S-8 (No. 33-55894) of the Company, being filed
with the Securities and Exchange Commission concurrently herewith. In such
connection we have examined certain corporate records and proceedings of the
Company including actions taken by the Company's Board of Directors in respect
of the authorization and issuance of the Shares, and such other matters as we
deemed appropriate.
Based upon the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued and sold as contemplated by the Registration
Statement and in accordance with the employee benefit plans covered thereby,
will be legally issued, fully paid and non- assessable shares of capital stock
of the Company.
We hereby consent to be named in the Registration Statement and in the
Prospectus constituting a part thereof, as amended from time to time, as the
attorneys who will pass upon legal matters in connection with the issuance of
the Shares, and to the filing of this Opinion as an Exhibit to the aforesaid
Registration Statement. In giving this consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the rules of the Securities and Exchange Commission.
Very truly yours,
HOLME ROBERTS & OWEN LLP
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
---------------------------------------
To the Board of Directors and Stockholders
ACX Technologies, Inc.:
We hereby consent to the incorporation by reference in this Post-Effective
Amendment No. 1 to the Registration Statement on Form S-8 (No. 33-55894) of our
report dated February 12, 1998 appearing on page 27 of ACX Technologies, Inc.
Annual Report on Form 10-K for the year ended December 31, 1997.
PricewaterhouseCoopers LLP
Denver, Colorado
August 28, 1998
