<PAGE> 1
As filed with the Securities and Exchange Commission on October 30, 1997
Registration No. 333
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ALUMAX INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-2762395
(STATE OR OTHER JURISDICTION OF (I.R.S. Employer
INCORPORATION OR ORGANIZATION) Identification No.)
3424 PEACHTREE ROAD, N.E.
SUITE 2100
ATLANTA, GEORGIA 30326
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (Zip Code)
1993 LONG TERM INCENTIVE PLAN AS AMENDED AND RESTATED
(AS FURTHER AMENDED ON SEPTEMBER 4, 1997)
(FULL TITLE OF PLAN)
------------------
HELEN M. FEENEY
VICE PRESIDENT AND CORPORATE SECRETARY
ALUMAX INC.
3424 PEACHTREE ROAD, N.E.
SUITE 2100
ATLANTA, GEORGIA 30326
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(404) 846-4531
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SHARE (1) PRICE (1) FEE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK $.01 2,210,129 $31.25 $69,066,531 $20,930
PAR VALUE PER SHARE SHARES
(INCLUDING RIGHTS)(2)
==================================================================================================================
</TABLE>
(1) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE. SUCH
ESTIMATE HAS BEEN COMPUTED IN ACCORDANCE WITH RULE 457(H) BASED UPON THE
AVERAGE OF THE HIGH AND LOW PRICE OF THE COMMON STOCK OF ALUMAX INC. AS
REPORTED ON THE NEW YORK STOCK EXCHANGE COMPOSITE TRANSACTIONS TAPE ON OCTOBER
28, 1997.
(2) EACH SHARE OF COMMON STOCK HAS ONE RIGHT THAT, AT SPECIFIED TIMES AND IN
CERTAIN CIRCUMSTANCES, ENTITLES THE HOLDER THEREOF TO PURCHASE SECURITIES OF
ALUMAX INC. OR, IN CERTAIN CASES, OF CERTAIN OTHER ENTITIES.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The contents of Alumax Inc.'s prior registration statement on Form S-8
(File No. 33-83008) with respect to its 1993 Long Term Incentive Plan as Amended
and Restated are incorporated herein by reference.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby will be
passed upon for the Registrant by Sullivan & Cromwell, New York, New York. In
rendering their opinion regarding the validity of the Rights, Sullivan &
Cromwell will note that the question of whether the Board of Directors of the
Registrant might be required to redeem the Rights at some future time will
depend upon the facts and circumstances existing at the time and, accordingly,
is beyond the scope of such opinion. W. Loeber Landau, a partner of Sullivan &
Cromwell, is a Director of the Registrant. As of September 30, 1997, Mr. Landau
beneficially owned 23,182 shares of Common Stock and held options on 10,000
shares of Common Stock, all of which are currently exercisable.
ITEM 8. EXHIBITS
4.1 Restated Certificate of Incorporation of Alumax Inc., filed
as Exhibit 3.01 to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1993 and
incorporated herein by reference.
4.2 Restated By-laws of Alumax Inc., as amended on September 5,
1996, filed as Exhibit 3.01 to the Registrant's Quarterly
Report on Form 10-Q for the quarterly period ended September
30, 1996 and incorporated herein by reference.
4.3 Rights Agreement, dated as of February 22, 1996, between
Alumax Inc. and Chemical Mellon Shareholder Services, L.L.C.,
as Right Agent, including as Exhibit A the forms of Rights
Certificate and Election to Exercise and as Exhibit B the
form of Certificate of Designation and Terms of the
Participating Preferred Stock of Alumax Inc., filed as
Exhibit 4 to the Registrant's Current Report on Form 8-K,
dated February 22, 1996 and incorporated herein by reference.
<PAGE> 3
4.4 Form of Common Stock Certificate, filed as Exhibit 4.01 to
the Company's Registration Statement on Form S-1 (Commission
File No. 33-69442) and incorporated herein by reference.
5.1 Opinion of Sullivan & Cromwell regarding the legality of the
securities being registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Sullivan & Cromwell (contained in Exhibit 5.1).
24.1 Power of Attorney.
99.1 Alumax Inc. 1993 Long Term Incentive Plan as Amended and
Restated (as Further Amended on September 4, 1997).
<PAGE> 4
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 of 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 Atlanta, State of Georgia, on October 30, 1997.
ALUMAX INC.
BY:/s/ Helen M. Feeney
---------------------------
Helen M. Feeney
Vice President and
Corporate Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on October 30, 1997, by the following
persons in the capacities indicated:
<TABLE>
<CAPTION>
Signature Capacity
<S> <C>
* Chairman, Chief Executive Officer and Director
- ----------------------------------- (Principal Executive and Financial Officer)
Allen Born
* Director
- -----------------------------------
J. Dennis Bonney
* Director
- -----------------------------------
Harold Brown
* Director
- -----------------------------------
L. Don Brown
* Director
- -----------------------------------
Pierre Des Marais II
* Director
- -----------------------------------
James C. Huntington, Jr.
* Director
- -----------------------------------
W. Loeber Landau
* Director
- -----------------------------------
Paul W. MacAvoy
* Director
- -----------------------------------
Anne Wexler
* Vice President and Controller (Principal Accounting Officer)
- -----------------------------------
Kevin J. Krakora
* By:/s/ Helen M. Feeney
------------------------------
Helen M. Feeney
As Attorney-in-Fact for each of the persons indicated
</TABLE>
<PAGE> 5
EXHIBIT INDEX
EXHIBITS.
4.1 Restated Certificate of Incorporation of Alumax Inc., filed as Exhibit
3.01 to the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1993 and incorporated herein by reference.
4.2 Restated By-laws of Alumax Inc., as amended on September 5, 1996, filed
as Exhibit 3.01 to the Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended September 30, 1996 and incorporated herein
by reference.
4.3 Rights Agreement, dated as of February 22, 1996, between Alumax Inc.
and Chemical Mellon Shareholder Services, L.L.C., as Rights Agent,
including as Exhibit A the forms of Rights Certificate and Election to
Exercise and as Exhibit B the form of Certificate of Designation and
Terms of the Participating Preferred Stock of Alumax Inc., filed as
Exhibit 4 to the Registrant's Current Report on Form 8-K, dated
February 22, 1996 and incorporated herein by reference.
4.4 Form of Common Stock Certificate, filed as Exhibit 4.01 to the
Company's Registration Statement on Form S-1 (Commission File No.
33-69442) and incorporated herein by reference.
5.1 Opinion of Sullivan & Cromwell regarding the legality of the
securities being registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Sullivan & Cromwell (contained in Exhibit 5.1).
24.1 Power of Attorney.
99.1 Alumax Inc. 1993 Long Term Incentive Plan as Amended and Restated (as
Further Amended on September 4, 1997).
<PAGE> 1
EXHIBIT 5.1
OPINION OF SULLIVAN & CROMWELL
October 30, 1997
Alumax Inc.,
3424 Peachtree Road, N.E.
Suite 2100
Atlanta, Georgia 30326
Dear Sirs:
In connection with the registration under the Securities Act of 1933
(the "Act") of 2,210,129 shares (the "Securities") of Common Stock, par value
$0.01 per share, of Alumax Inc., a Delaware corporation (the "Company"), and
2,210,129 related stock purchase rights (the "Rights") to be issued pursuant to
the Rights Agreement, dated as of February 22, 1996 (the "Rights Agreement"),
between the Company and Chemical Mellon Shareholder Services, L.L.C., as Rights
Agent (the "Rights Agent"), we, as your counsel, have examined such corporate
records, certificates and other documents, and such questions of law, as we
have considered necessary or appropriate for the purposes of this opinion. Upon
the basis of such examination, we advise you that, in our opinion:
(1) When the registration statement relating to the Securities and the
Rights (the "Registration Statement") has become effective under the Act, the
terms of the issuance of the Securities have been duly established in
conformity with the Company's Restated Certificate of Incorporation so as not
to violate any applicable law or result in a default under or breach of any
agreement or instrument binding on the Company and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company, and the Securities have been duly issued as
<PAGE> 2
contemplated by the Registration Statement out of the Company's authorized and
unissued capital, the Securities will be validly issued, fully paid and
nonassessable.
(2) Assuming that the Rights Agreement has been duly authorized
executed and delivered by the Rights Agent, then when the Registration
Statement has become effective under the Act and the Securities have been
validly issued as contemplated by the Registration Statement out of the
Company's authorized and unissued capital, the Rights attributable to the
Securities will be validly issued.
In connection with our opinion set forth in paragraph (2) above, we
note that the question whether the Board of Directors of the Company might be
required to redeem the Rights at some future time will depend upon the facts
and circumstances existing at that time and, accordingly, is beyond the scope
of such opinion.
The foregoing opinion is limited to the Federal laws of the United
States and the General Corporation Law of the State of Delaware, and we are
expressing no opinion as to the effect of the laws of any other jurisdiction.
We have relied as to certain matters on information obtained from
public officials, officers of the Company and other sources believed by us to
be responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Interests
of Named Experts and Counsel" in the Registration Statement. In giving such
consent, we do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Act.
Very truly yours,
SULLIVAN & CROMWELL
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
registration statement of Alumax Inc. on Form S-8 of our report dated January
27, 1997, on our audits of the consolidated financial statements and financial
statement schedule of Alumax Inc. as of December 31, 1996 and 1995, and for the
years ended December 31, 1996, 1995 and 1994, which report is included in
Alumax Inc.'s Annual Report on Form 10-K for the year ended December 31, 1996.
COOPERS & LYBRAND L.L.P.
Atlanta, Georgia
October 30, 1997
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers and
directors, individually and collectively, hereby constitute and appoint Helen
M. Feeney, Lawrence B. Frost and Michael T. Vollkommer, and each of them, their
true and lawful attorneys and agents to execute and deliver on behalf of any
one or more of them, in any one or more of their various capacities as officer
or director of the registrant, a registration statement covering shares of
Alumax Inc. Common Stock, par value $0.01 per share, (and the stock purchase
rights relating thereto) issuable pursuant to the 1993 Long Term Incentive Plan
(as Amended and Restated and as Further Amended on October 3, 1996) and any and
all required amendments (including post-effective amendments) and supplements
thereto, for filing with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, the undersigned, and each of them, granting
unto said attorneys and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, hereby ratifying and confirming all that said
attorneys and agents, and each of them, shall lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has signed his or her name
hereto on the date set opposite his or her name.
May 29, 1997 /s/ Allen Born
-------------------------------------------------------------------
Allen Born, as Chairman, Chief Executive Officer
and Director (Principal Executive and Financial Officer)
<PAGE> 2
May 29, 1997 /s/ Kevin J. Krakora
-------------------------------------------------------------
Kevin J. Krakora, as Vice President and Controller
(Principal Accounting Officer)
May 29, 1997 /s/ J. Dennis Bonney
-------------------------------------------------------------
J. Dennis Bonney, as Director
May 29, 1997 /s/ Harold Brown
-------------------------------------------------------------
Harold Brown, as Director
May 29, 1997 /s/ L. Don Brown
-------------------------------------------------------------
L. Don Brown, as Director
May 29, 1997 /s/ Pierre Des Marais II
-------------------------------------------------------------
Pierre Des Marais II, as Director
May 29, 1997 /s/ James C. Huntington, Jr.
-------------------------------------------------------------
James C. Huntington, Jr., as Director
May 29, 1997 /s/ W. Loeber Landau
-------------------------------------------------------------
W. Loeber Landau, as Director
May 29, 1997 /s/ Paul W. MacAvoy
-------------------------------------------------------------
Paul W. MacAvoy, as Director
May 29, 1997 /s/ Anne Wexler
-------------------------------------------------------------
Anne Wexler, as Director
<PAGE> 1
EXHIBIT 99.1
ALUMAX INC.
- -------------------------------------------------------------------------------
1993 LONG TERM INCENTIVE PLAN AS AMENDED AND RESTATED
(AS FURTHER AMENDED ON SEPTEMBER 4, 1997)
- -------------------------------------------------------------------------------
9/4/97
<PAGE> 2
ALUMAX INC.
1993 LONG TERM INCENTIVE PLAN AS AMENDED AND RESTATED
(AS FURTHER AMENDED ON SEPTEMBER 4, 1997)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Page
<S> <C>
1. Purpose....................................................................................... 1
2. Definitions................................................................................... 1
3. Administration................................................................................ 3
a. Authority of the Committee........................................................... 3
b. Manner of Exercise of Committee Authority............................................ 3
c. Limitation of Liability.............................................................. 3
d. Performance-Based Awards to "Designated Participants"................................ 3
4. Stock Subject to Plan......................................................................... 4
5. Eligibility................................................................................... 4
6. Specific Terms of Awards...................................................................... 4
a. General.............................................................................. 4
b. Options.............................................................................. 5
c. Stock Appreciation Rights............................................................ 5
d. Restricted Stock..................................................................... 6
e. Deferred Stock (Restricted Stock Units).............................................. 7
f. Bonus Stock and Awards in Lieu of Cash Obligations................................... 7
g. Dividend Equivalents................................................................. 7
h. Other Stock-Based Awards............................................................. 8
i. Performance Awards................................................................... 8
7. Certain Provisions Applicable to Awards....................................................... 9
a. Stand-Alone, Additional, Tandem and Substitute Awards................................ 9
b. Performance Conditions............................................................... 10
c. Term of Awards....................................................................... 10
d. Form of Payment Under Awards; Deferrals.............................................. 10
e. Rule 16b-3 Compliance................................................................ 10
f. Limitations on Vesting and Repricing................................................. 11
8. Change in Control............................................................................. 11
a. Definition of "Change in Control".................................................... 11
b. Definition of "Change in Control Stock Value"........................................ 14
c. Definition of "Change in Control Settlement Value"................................... 14
d. Acceleration and Cash-Out Upon a Change in Control................................... 14
e. No Non-Exempt Section 16(b) Purchases Triggered...................................... 15
</TABLE>
<PAGE> 3
ALUMAX INC.
- --------------------------------------------------------------------------------
1993 LONG TERM INCENTIVE PLAN AS AMENDED AND RESTATED
(AS FURTHER AMENDED ON SEPTEMBER 4, 1997)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Page
<S> <C> <C>
9. General Provisions............................................................................ 15
a. Compliance With Legal and Other Requirements......................................... 15
b. Limits on Transferability; Beneficiaries............................................. 15
c. Adjustments.......................................................................... 16
d. Taxes................................................................................ 16
e. Changes to the Plan and Awards....................................................... 17
f. Limitation on Rights Conferred Under Plan............................................ 17
g. Unfunded Status of Awards; Creation of Trusts........................................ 17
h. Nonexclusivity of the Plan........................................................... 17
i. Payments in the Event of Forfeitures; Fractional Shares.............................. 18
j. Governing Law; Arbitration........................................................... 18
k. Effective Date; Plan Termination..................................................... 18
</TABLE>
<PAGE> 4
ALUMAX INC.
1993 LONG TERM INCENTIVE PLAN AS AMENDED AND RESTATED
(AS FURTHER AMENDED ON SEPTEMBER 4, 1997)
1. Purpose. The purpose of this 1993 Long Term Incentive Plan as
Amended and Restated (the "Plan") is to assist Alumax Inc. (the "Company") and
its subsidiaries in attracting, retaining, and rewarding high caliber
employees, enabling such employees to acquire or increase a proprietary
interest in the Company in order to strengthen the mutuality of interests
between such employees and the Company's stockholders, and providing such
employees with performance incentives to expend their maximum efforts in the
creation of long term shareholder value.
2. Definitions. The definitions of awards under the Plan,
including Options, SARs (including Limited SARs), Restricted Stock, Deferred
Stock, Stock granted as a bonus or in lieu of other awards, Dividend
Equivalents, Other Stock-Based Awards and Performance Awards, are set forth in
Section 6 of the Plan. Such awards, together with any other right or interest
granted to a Participant under the Plan, are termed "Awards." The definitions
of terms relating to a Change in Control of the Company are set forth in
Section 8 of the Plan.
For purposes of the Plan, the following additional terms shall be
defined as set forth below:
(a) "Board" means the Company's Board of Directors.
(b) "Beneficiary" with respect to members of the
Executive Group means the person, persons, trust or trusts which have
been designated by the Participant in his or her most recent written
beneficiary designation filed with the Company to receive the benefits
specified under this Plan in the event of the Participant's death;
Beneficiary with respect to all other Participants shall mean the
person, persons, trust or trusts which have been designated by the
Participant in his or her most recent beneficiary designation to
receive the benefits specified under the Company's Group Life
Insurance Plan. In either case, if there is no designated Beneficiary
or surviving designated Beneficiary, then Beneficiary shall mean the
person, persons, trust or trusts entitled by will or the laws of
descent and distribution to receive such benefits.
(c) "Cause" with respect to the forfeiture under the
terms of Award agreements in event of termination of employment means
(i) the willful and continued failure by the Employee to perform
substantially his or her duties with the Company (other than any such
failure resulting from the Employee's incapacity due to physical or
mental illness) after a written demand for substantial performance is
delivered to the Employee by the Chairman of the Board of Directors or
the President of the Company which specifically identifies the manner
in which the Employee has not substantially performed his or her
duties, (ii) the willful engagement by the Employee in conduct which
is not authorized by the Board of Directors of the Company or within
the normal course of the Employee's business decisions and is known by
the Employee to be materially detrimental to the best interests of the
Company or any of its subsidiaries, or (iii) the willful engagement by
the Employee in illegal conduct or any act of serious dishonesty which
adversely affects, or, in the reasonable estimation of the Board of
Directors of the Company, could in the future adversely affect, the
value, reliability or performance of the Employee to the Company in a
material manner. Any act, or failure to act, based upon authority
given pursuant to a resolution duly adopted by the Board of Directors
of the Company or based upon the advice of counsel for the
<PAGE> 5
Company shall be conclusively presumed to be done, or omitted to be
done, by the Employee in good faith and in the best interests of the
Company. Notwithstanding the foregoing, an Employee who is a member of
the Executive Group shall not be deemed to have been terminated for
Cause unless and until there shall have been delivered to the Employee
a copy of a resolution duly adopted by the affirmative vote of not
less than three-quarters of the entire membership of the Board of
Directors after reasonable notice to the Employee and an opportunity
for him or her, together with his or her counsel, to be heard before
the Board of Directors, finding that, in the good faith opinion of the
Board of Directors, the Employee was guilty of the conduct set forth
above in (i), (ii) or (iii) of this sub-paragraph and specifying the
particulars thereof in detail.
(d) "Code" means the Internal Revenue Code of 1986, as
amended from time to time. References to any provision of the Code
shall be deemed to include successor provisions and regulations
thereunder.
(e) "Committee" means the Human Resources and
Compensation Committee of the Board of Directors of the Company, or
such other Board committee as may be designated by the Board to
administer the Plan; provided that the Committee shall at all times be
comprised solely of two or more outside directors satisfying the
requirements of Section 162(m)(4)(C)(i) of the Code.
(f) "Company" means Alumax Inc., a Delaware corporation,
or any successor corporation.
(g) "Designated Participant" means any Participant who
is designated as such pursuant to Section 3(d).
(h) "Executive Group" means the Chief Executive Officer
of the Company and other key executives of the Company or its
subsidiaries who have been designated as such by the Chief Executive
Officer with Committee approval.
(i) "Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time. References to any provision of the
Exchange Act shall be deemed to include successor provisions thereto
and regulations thereunder.
(j) "Fair Market Value" means the fair market value of
Stock, Awards, or other property determined by the Committee or under
procedures established by the Committee. Unless otherwise determined
by the Committee, the Fair Market Value of Stock as of any given date
shall mean the closing sale price of Stock reported on the Composite
Tape for securities listed on the New York Stock Exchange in The Wall
Street Journal for such date, or, if no Stock was traded on that date,
on the next preceding day on which there was such a trade.
(k) "ISO" means any Option intended to be and designated
as an incentive stock option within the meaning of Section 422 of the
Code.
(l) "Participant" means a person who, as an employee of
the Company or a subsidiary, has been granted an Award under the Plan.
-2-
<PAGE> 6
(m) "Plan" means this 1993 Long Term Incentive Plan as
Amended and Restated.
(n) "Stock" means the Company's Common Stock, $.01 par
value, and such other securities as may be substituted (or
resubstituted) for Stock pursuant to Section 4.
3. Administration.
(a) Authority of the Committee. The Plan shall be
administered by the Committee. The Committee shall have full and final
authority, in each case subject to and consistent with the provisions
of the Plan, to select Participants, grant Awards, determine the type,
number, and other terms and conditions of, and all other matters
relating to, Awards, prescribe Award agreements (which need not be
identical for each Participant) and rules and regulations for the
administration of the Plan, construe and interpret the Plan and Award
agreements and correct defects, supply omissions, or reconcile
inconsistencies therein, and to make all other decisions and
determinations as the Committee may deem necessary or advisable for
the administration of the Plan.
(b) Manner of Exercise of Committee Authority. The
Committee shall exercise sole and exclusive discretion on any matter
relating to a Participant subject to Section 16 of the Exchange Act if
and to the extent necessary to obtain the exemption under Rule 16b-3
under the Exchange Act. Any action of the Committee shall be final,
conclusive, and binding on all persons, including the Company, its
subsidiaries, Participants, persons claiming rights from or through a
Participant, and stockholders. The express grant of any specific power
to the Committee, and the taking of any action by the Committee, shall
not be construed as limiting any power or authority of the Committee.
The Committee may delegate to officers or managers of the Company or
any subsidiary, or committees thereof, the authority, subject to such
terms as the Committee shall determine, to perform administrative
functions and, with respect to Participants not subject to Section 16
of the Exchange Act, to perform such other functions as the Committee
may determine, to the extent permitted under Rule 16b-3 and applicable
law.
(c) Limitation of Liability. The Committee may appoint
agents to assist it in administering the Plan. The Committee and each
member thereof shall be entitled to, in good faith, rely or act upon
any report or other information furnished to him by any officer or
employee of the Company or a subsidiary, the Company's independent
certified public accountants, consultants or any other agent assisting
in the administration of the Plan. Members of the Committee and any
officer or employee of the Company or a subsidiary acting at the
direction or on behalf of the Committee shall not be personally liable
for any action or determination taken or made in good faith with
respect to the Plan, and shall, to the extent permitted by law, be
fully indemnified and protected by the Company with respect to any
such action or determination.
(d) Performance-Based Awards to "Designated
Participants." Prior to March 31 of each year, the Committee may, in
its sole discretion, designate any Participant, whom it deems likely
to be at the time compensation will be paid under an Award a "covered
employee" under Section 162(m) of the Code and whose compensation may
exceed $1 million in such year and be subject to the limitation on tax
deductibility under Section 162(m) of the Code, as a "Designated
Participant" to be granted an Award under this Section 3(d)
-3-
<PAGE> 7
that will not be subject to such limitation on deductibility under
Section 162(m) of the Code. Notwithstanding any provision of the Plan
to the contrary, the Committee may, in its discretion, reduce but not
increase the amount payable under any such Award to such a Designated
Participant. All determinations by the Committee as to the achievement
of Performance Objectives (as described below in Section 6(i))
applicable to such an Award shall be made in writing, and the
Committee may not exercise discretion to modify the Performance
Objectives or the vesting conditions (other than with respect to the
death or disability of such Designated Participant or in the event of
a Change in Control) with respect to such Award if the exercise of
such discretion would cause such Award to fail to qualify as
"performance-based compensation" within the meaning of Section
162(m)(4)(C) of the Code.
4. Stock Subject to Plan. Subject to adjustment as provided in
Section 9(c), the total number of shares of Stock reserved and
available for issuance in connection with Awards under the Plan shall
be 4,250,000, plus 10% of the number of shares issued after the
effective date of the Plan (other than any issuance under the Plan or
any other compensation or benefit plan of the Company), except any
shares added as a result of issuances by the Company shall not be
available for grants of ISOs or Stock Appreciation Rights in tandem
with ISOs. When Awards are granted and while they are outstanding,
shares relating to an Award will be counted against the limitation set
forth in this Section 4 in accordance with Rule 16b-3; the Committee
may adopt reasonable counting procedures, consistent with Rule 16b-3,
to ensure appropriate counting, avoid double counting (as, for
example, in the case of tandem or substitute awards), and make
adjustments if the number of shares actually distributed differs from
the number of shares previously counted in connection with an Award.
Shares subject to an Award that is forfeited or settled in cash or
otherwise terminated without a distribution of shares to the
Participant, including shares withheld in payment of taxes relating to
Awards and the number of shares equal to the number of shares
surrendered in payment of the exercise price of Options (or any other
Awards in the nature of purchase rights) or taxes relating to Awards,
will again be available for Awards under the Plan, except that, if any
such shares could not again be available under Rule 16b-3 for Awards
to a Participant who is subject to Section 16 of the Exchange Act,
such shares shall be available exclusively for Awards to Participants
who are not subject to Section 16. Any shares delivered under the Plan
may consist, in whole or in part, of authorized and unissued shares or
treasury shares.
5. Eligibility. All salaried employees of the Company and its
subsidiaries, including any director or officer who is also such an
employee, are eligible to be granted Awards under the Plan. The
foregoing notwithstanding, directors of the Company who are not
salaried employees and members of the Committee shall not be eligible
to be granted Awards under the Plan.
6. Specific Terms of Awards.
(a) General. Awards may be granted on the terms and
conditions set forth in this Section 6. In addition, the Committee may
impose on any Award or the exercise thereof, at the date of grant or
thereafter (subject to Section 9(e)), such additional terms and
conditions, not inconsistent with the provisions of the Plan, as the
Committee shall determine, including terms requiring forfeiture of
Awards in the event of termination of employment by the Participant.
The Committee shall retain full power to accelerate or
-4-
<PAGE> 8
waive, at any time, any term or condition of an Award that is not
mandatory under the Plan. Except in cases in which the Committee is
specifically authorized to require other forms of consideration by the
Plan, or to the extent other forms of consideration must by paid to
satisfy the requirements of the Delaware General Corporation Law, only
services may be required as consideration for the grant (but not the
exercise) of any Award.
(b) Options. The Committee is authorized to grant
Options to Participants on the following terms and conditions:
(i) Exercise Price. The exercise price per
share of Stock purchasable under an Option shall be determined by the
Committee, provided that such exercise price shall be not less than
the Fair Market Value of a share on the date of grant of such Option
except as provided under Section 7(a) hereof.
(ii) Time and Method of Exercise. The Committee
shall determine the time or times at which or the circumstances under
which an Option may be exercised in whole or in part, the methods by
which such exercise price may be paid or deemed to be paid, the form
of such payment, including, without limitation, cash, Stock, other
Awards or awards issued under other Company plans, or other property
(including notes or other contractual obligations of Participants to
make payment on a deferred basis, such as through "cashless exercise"
arrangements, to the extent permitted by applicable law), and the
methods by which Stock will be delivered or deemed to be delivered to
Participants.
(iii) ISOs. The terms of any ISO granted under
the Plan shall comply in all respects with the provisions of Section
422 of the Code, including but not limited to the requirements that no
ISO shall be granted more than ten years after the effective date of
the Plan, no ISO shall be exercisable more than ten years after the
date of grant, and ISOs shall not be transferable otherwise than by
will or the laws of descent and distribution and shall be exercisable,
during the Participant's lifetime, only by the Participant.
(iv) Limitation. During any period of five
consecutive years under the Plan, a Participant may not be granted
Options covering more than 900,000 shares of Stock.
(c) Stock Appreciation Rights. The Committee is
authorized to grant Stock Appreciation Rights ("SARs") to Participants
on the following terms and conditions:
(i) Right to Payment. An SAR shall confer on
the Participant to whom it is granted a right to receive, upon
exercise thereof, the excess of (A) the Fair Market Value of one share
of Stock on the date of exercise (or, if the Committee shall so
determine in the case of any such right other than one related to an
ISO, the Fair Market Value of one share at any time during a specified
period before or after the date of exercise, or, in the case of a
"Limited SAR," the Fair Market Value determined by reference to
amounts paid or payable in connection with a Change in Control of the
Company, as specified by the Committee), over (B) the grant price of
the SAR as determined by the Committee as of the date of grant of the
SAR.
(ii) Other Terms. The Committee shall determine
the time or times at which and the circumstances under which an SAR
may be exercised in whole or in part, the method of exercise, method
of settlement, form of consideration payable in settlement,
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<PAGE> 9
method by which Stock will be delivered or deemed to be delivered to
Participants, whether or not an SAR shall be in tandem or in
combination with any other Award, and any other terms and conditions
of any SAR. Limited SARs that may only be exercised in connection with
a Change in Control or other event as specified by the Committee may
be granted on such terms, not inconsistent with this Section 6(c), as
the Committee may determine. Limited SARs may be either freestanding
or in tandem with other Awards.
(iii) Limitation. During any period of five
consecutive years under the Plan, a Participant may not be granted
SARs covering more than 900,000 shares of Stock.
(d) Restricted Stock. The Committee is authorized to
grant Restricted Stock to Participants on the following terms and
conditions:
(i) Issuance and Restrictions. Restricted Stock
shall be subject to such restrictions on transferability and other
restrictions, if any, as the Committee may impose, which restrictions
may lapse separately or in combination at such times, under such
circumstances, in such installments, or otherwise, as the Committee
may determine. Except to the extent restricted under the terms of the
Plan and any Award agreement relating to the Restricted Stock, a
Participant granted Restricted Stock shall have all of the rights of a
stockholder including, without limitation, the right to vote
Restricted Stock or the right to receive dividends thereon.
(ii) Forfeiture. Except as otherwise determined
by the Committee, upon termination of employment during the applicable
restriction period, Restricted Stock that is at that time subject to
restrictions shall be forfeited and reacquired by the Company;
provided that the Committee may provide, by rule or regulation or in
any Award agreement, or may determine in any individual case, that
restrictions or forfeiture conditions relating to Restricted Stock
will be waived in whole or in part in the event of terminations
resulting from specified causes, and the Committee may in other cases
waive in whole or in part the forfeiture of Restricted Stock.
(iii) Certificates for Stock. Restricted Stock
granted under the Plan may be evidenced in such manner as the
Committee shall determine. If certificates representing Restricted
Stock are registered in the name of the Participant, the Committee may
require such certificates to bear an appropriate legend referring to
the terms, conditions, and restrictions applicable to such Restricted
Stock, the Company to retain physical possession of the certificates,
and/or the Participant to deliver a stock power to the Company,
endorsed in blank, relating to the Restricted Stock.
(iv) Dividends. Dividends paid on Restricted
Stock shall be either paid at the dividend payment date in cash or in
shares of unrestricted Stock having a Fair Market Value equal to the
amount of such dividends, or the payment of such dividends shall be
deferred and/or the amount or value thereof automatically reinvested
in additional Restricted Stock, other Awards, or other investment
vehicles, as the Committee shall determine or permit the Participant
to elect. Unless otherwise determined by the Committee, Stock
distributed in connection with a Stock split or Stock dividend, and
other property distributed as a dividend, shall be subject to
restrictions and a risk of forfeiture to the same extent as the
Restricted Stock with respect to which such Stock or other property
has been distributed.
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<PAGE> 10
(v) Limitation. During any period of five
consecutive years under the Plan, a Participant may not be granted
Restricted Stock covering more than 900,000 shares of Stock.
(e) Deferred Stock (Restricted Stock Units). The
Committee is authorized to grant Deferred Stock to Participants,
subject to the following terms and conditions:
(i) Award and Restrictions. Delivery of Stock
will occur upon expiration of the deferral period specified for an
Award of Deferred Stock by the Committee (or, if permitted by the
Committee, as elected by the Participant). In addition, Deferred Stock
shall be subject to such restrictions as the Committee may impose, if
any, which restrictions may lapse at the expiration of the deferral
period or at earlier specified times, separately or in combination, in
installments, or otherwise, as the Committee may determine.
(ii) Forfeiture. Except as otherwise determined
by the Committee, upon termination of employment (as determined under
criteria established by the Committee) during the applicable deferral
period or portion thereof to which forfeiture conditions apply (as
provided in the Award agreement evidencing the Deferred Stock), all
Deferred Stock that is at that time subject to deferral (other than a
deferral at the election of the Participant) shall be forfeited;
provided that the Committee may provide, by rule or regulation or in
any Award agreement, or may determine in any individual case, that
restrictions or forfeiture conditions relating to Deferred Stock will
be waived in whole or in part in the event of terminations resulting
from specified causes, and the Committee may in other cases waive in
whole or in part the forfeiture of Deferred Stock.
(iii) Limitation. During any period of five
consecutive years under the Plan, a Participant may not be granted
Deferred Stock covering more than 900,000 shares of Stock.
(f) Bonus Stock and Awards in Lieu of Cash Obligations.
The Committee is authorized to grant Stock as a bonus, or to grant
Stock or other Awards in lieu of Company obligations to pay cash under
other plans or compensatory arrangements, provided that, in the case
of Participants subject to Section 16 of the Exchange Act, such cash
amounts are determined under such other plans or the Participant's
election to receive an Award in lieu of such Company obligations is
made in a manner that complies with applicable requirements of Rule
16b-3 so that the acquisition of Stock or Awards hereunder shall be
exempt from liability under Section 16(b) of the Exchange Act. Stock
or Awards granted hereunder shall be subject to such other terms as
shall be determined by the Committee. During any period of five
consecutive years under the Plan, a Participant may not be granted
more than 900,000 shares of bonus Stock or other Awards in lieu of
cash obligations. In addition, during any calendar year under the
Plan, a Participant may not be granted under the Plan bonus Stock or
other Awards in lieu of cash obligations valued at more than
$3,000,000.
(g) Dividend Equivalents. The Committee is authorized to
grant Dividend Equivalents to a Participant, entitling the Participant
to receive cash, Stock, other Awards, or other property equal in value
to dividends paid with respect to a specified number of shares of
Stock, or other periodic payments. Dividend Equivalents may be awarded
on a
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<PAGE> 11
free-standing basis or in connection with another Award. The Committee
may provide that Dividend Equivalents will be paid or distributed when
accrued or will be deemed to have been reinvested in additional Stock,
Awards, or other investment vehicles as the Committee may specify.
(h) Other Stock-Based Awards. The Committee is
authorized, subject to limitations under applicable law, to grant to
Participants such other Awards that may be denominated or payable in,
valued in whole or in part by reference to, or otherwise based on, or
related to, Stock, as deemed by the Committee to be consistent with
the purposes of the Plan, including, without limitation, convertible
or exchangeable debt securities, other rights convertible or
exchangeable into Stock, purchase rights for Stock, Awards with value
and payment contingent upon performance of the Company or any other
factors designated by the Committee, and Awards valued by reference to
the book value of Stock or the value of securities of or the
performance of specified subsidiaries. The Committee shall determine
the terms and conditions of such Awards. Stock delivered pursuant to
an Award in the nature of a purchase right granted under this Section
6(h) shall be purchased for such consideration, paid for at such
times, by such methods, and in such forms, including, without
limitation, cash, Stock, other Awards, or other property, as the
Committee shall determine. Cash awards, as an element of or supplement
to any other Award under the Plan, may also be authorized pursuant to
this Section 6(h). During any period of five consecutive years under
the Plan, a Participant may not be granted awards under both Sections
6(h) and 6(i) of the Plan covering more than 900,000 shares of Stock.
In addition, during any calendar year a Participant shall not be
granted Awards under both Sections 6(h) and 6(i) of the Plan having an
aggregate value of more than $3,000,000.
(i) Performance Awards. Subject to the following
provisions, Performance Awards expressed as amounts of cash, Stock, a
percentage of an award pool specified by the Committee or other Awards
may be granted by the Committee in such form and upon such terms and
conditions as the Committee, in its discretion, may from time to time
determine. Each Performance Award shall specify the range and nature
of the payment which may be received by the Participant based upon the
range of performance to be achieved for specified Performance
Objectives within a specified Performance Period, as hereinafter
defined.
(i) Performance Period. The Performance Period
with respect to each Performance Award shall be the period of time
within which the Performance Objectives relating to that Award are to
be achieved.
(ii) Performance Objectives, Performance Award
Targets and Award Ranges. Performance Objectives may specify measures
or performance of the Company as a whole, subsidiaries, or business
units within the Company or subsidiaries, measures of individual
performance of the Participant, or such other objectives (and
combinations of objectives), the achievement of which is expected to
benefit the Company and its stockholders. Performance Objectives for a
Performance Period may be established by the Committee with respect to
an Award to a Designated Participant from among the following:
consolidated, subsidiary or business unit operating profits before
interest expense and taxes, consolidated, subsidiary or business unit
pre-tax profits, consolidated, subsidiary or business unit cash flow,
net income, earnings per share, return on average equity, and/or
return on invested capital. The Performance Objectives applicable to
any year shall be
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<PAGE> 12
established by the Committee on or before March 31 of such year. A
single Performance Objective may be specified for different groups of
Participants or for individual Participants. As soon as practicable,
the Committee (or the Chief Executive Officer of the Company, if
assigned by the Committee) shall establish target Performance Awards
and, if deemed appropriate, Performance Award ranges for each
Performance Period. Such target Performance Awards will specify the
amount payable to each Participant upon 100% achievement of the
Performance Objectives applicable to such Participant. In addition,
ranges may be established to determine whether, and the extent to
which, a portion of the Performance Award shall be payable to a
Participant if the applicable Performance Objectives are not fully
achieved, and whether, and the extent to which, payments in addition
to the target Performance Award shall be made if the applicable
Performance Objectives are exceeded.
The Committee (or the Chief Executive Officer, if assigned by the
Committee) is authorized at any time during or after a Performance
Period, in its sole and absolute discretion, to adjust, modify, or
specify new Performance Objectives, target Performance Award ranges,
and related terms and conditions, (x) in recognition of extraordinary
or nonrecurring items affecting the financial statements of the
Company or any subsidiary, or in response to changes in applicable
laws, regulations, or accounting principles, (y) with respect to any
Participant whose position or duties with the Company or any
subsidiary changes during a Performance Period, or (z) with respect to
any person who first becomes a Participant after the first date of the
Performance Period.
(iii) Earning of Performance Awards. As promptly
as practicable following the end of each Performance Period, the
Committee (or the Chief Executive Officer, if assigned by the
Committee) shall determine whether and the extent to which Performance
Objectives applicable to Participants were achieved and the
Performance Awards that correspond to such achievement and/or
allocations as specified under the Performance Award ranges for the
Performance Period. The Committee may, in its sole and absolute
discretion, in view of the Committee's assessment of the business
strategy of the Company and subsidiaries, performance of comparable
organizations, economic and business conditions, and any other
circumstances deemed relevant, increase or decrease final Performance
Award amounts.
(iv) Termination of Employment. If a
Participant's employment has terminated prior to completion of a
Performance Period, the extent to which a Performance Award shall be
deemed to have been earned and payable shall be determined by the
Committee, in its sole discretion, at or after the time of grant.
(v) Distributions. A Performance Award, to the
extent that it has been earned, may be distributed in cash, Stock or
other Awards, in a lump sum, in installments, or a combination thereof
as determined by the Committee, in its sole discretion, at or after
the time of grant.
7. Certain Provisions Applicable to Awards.
(a) Stand-Alone, Additional, Tandem, and Substitute
Awards. Awards granted under the Plan may, in the discretion of the
Committee, be granted either alone or in addition to, in tandem with,
or in substitution or exchange for, any other Award or award
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<PAGE> 13
granted under any plan of the Company, any subsidiary, or any business
entity to be acquired by the Company or a subsidiary, or any other
right of a Participant to receive payment from the Company or any
subsidiary. Such additional, tandem, and substitute or exchange Awards
may be granted at any time. If an Award is granted in substitution or
exchange for another Award or award, the Committee shall require the
surrender of such other Award or award in consideration for the grant
of the new Award. In addition, grants of Awards in lieu of cash
compensation, including in lieu of cash amounts payable under other
plans of the Company, in which the value of Stock subject to the Award
is equal to the value of the cash compensation (for example, Deferred
Stock or Restricted Stock), or in which the exercise price, grant
price, or purchase price of the Award in the nature of a right that
may be exercised is equal to Fair Market Value of the underlying Stock
minus the value of the cash compensation surrendered (for example,
Options granted with an exercise price "discounted" by the amount of
the cash compensation surrendered), are specifically authorized.
(b) Performance Conditions. The right of a Participant
to exercise or receive a grant or settlement of any Award, and the
timing thereof, may be subject to such performance conditions as may
be specified by the Committee. Any Award subject to such conditions
may be denominated "performance shares," "performance units," or any
other title deemed appropriate by the Committee.
(c) Term of Awards. The term of each Award shall be for
such period as may be determined by the Committee; provided, however,
that in no event shall the term of any ISO or an SAR granted in tandem
therewith exceed a period of ten years (or such shorter term as may be
required under Section 422 of the Code).
(d) Form of Payment Under Awards; Deferrals. Subject to
the terms of the Plan and any applicable Award agreement, payments to
be made by the Company or a subsidiary upon the exercise of an Option
or other Award or settlement of an Award may be made in such forms as
the Committee shall determine, including, without limitation, cash,
Stock, other Awards, or other property, and may be made in a single
payment or transfer, in installments, or on a deferred basis.
Installment or deferred payments may be required by the Committee
(subject to Section 9(e) of the Plan) or permitted at the election of
the Participant. Payments may include, without limitation, provisions
for the payment or crediting of reasonable interest on installment or
deferred payments or the grant or crediting of Dividend Equivalents in
respect of installment or deferred payments denominated in Stock.
(e) Rule 16b-3 Compliance.
(i) Six-Month Holding Period. Unless a
Participant could otherwise transfer Stock acquired under the Plan
without incurring liability under Section 16(b) of the Exchange Act,
(a) Stock acquired under the Plan other than upon exercise of a
derivative security shall be held for at least six months from the
date of acquisition, and (b) at least six months shall elapse from the
date of acquisition of a derivative security to the date of
disposition of the derivative security (other than upon exercise or
conversion) or disposition of any Stock acquired upon exercise or
conversion of such derivative security.
(ii) Other Rule 16b-3 Compliance Provisions. It
is the intent of the
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<PAGE> 14
Company that this Plan comply in all respects with applicable
provisions of Rule 16b-3 or Rule 16a-1(c)(3) under the Exchange Act in
connection with any grant of Awards to or other transaction by a
Participant who is subject to Section 16 of the Exchange Act (except
for transactions exempted under alternative Exchange Act Rules or
acknowledged in writing to be non-exempt by such Participant).
Accordingly, if any provision of this Plan or any Award agreement does
not comply with the requirements of Rule 16b-3 or Rule 16a-1(c)(3) as
then applicable to any such transaction, such provision will be
construed or deemed amended to the extent necessary to conform to the
applicable requirements of Rule 16b-3 or Rule 16a-1(c)(3) so that such
Participant shall avoid liability under Section 16(b). In addition,
the per share exercise price of any Option, grant price of any SAR, or
purchase price of any other Award conferring a right to purchase Stock
shall be not less than any specified percentage of the Fair Market
Value of Stock at the date of grant of the Award then required in
order to comply with Rule 16b-3.
(f) Limitations on Vesting and Repricing
(i) Vesting Limitations. Restricted Stock, Deferred
Stock and Other Stock-Based Awards, as described in Sections 6(d),
6(e) and 6(h) of the Plan, respectively, granted after the 1997 Annual
Meeting generally will vest over a minimum three-year period except in
the event of the Participant's death, disability, or retirement, or in
the event of a Change in Control or other special circumstances.
However, Restricted Stock, Deferred Stock and Other Stock-Based Awards
for which either the grant or vesting is based on the achievement of
one or more performance conditions generally will vest over a minimum
one-year period except in the event of the Participant's death,
disability, or retirement, or in the event of a Change in Control or
other special circumstances. Notwithstanding the foregoing, up to 5%
of the shares of Stock authorized under the Plan immediately following
the 1997 Annual Meeting, subject to adjustment as provided in Section
9(c), may be granted as Restricted Stock, Deferred Stock or Other
Stock-Based Awards without any minimum vesting requirements.
(ii) Repricing. The Committee will not, without further
approval of the Company's stockholders, grant any Options under the
Plan that would constitute a "repricing" of such Options and thereby
trigger the disclosure obligations under Item 402(i) of Regulation S-K
or any successor provision.
8. Change in Control.
(a) Definition of "Change In Control." For purposes of
this Plan, the term "Change in Control" shall mean the occurrence of
any of the following events after consummation of the spin-off of
Stock by AMAX Inc. which resulted in the registration of the Stock
under Section 12 of the Exchange Act:
(i) any person is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Company
representing 20 percent or more of the combined voting power of the
Company's then-outstanding securities (a "20% Beneficial Owner");
provided, however, that (a) the term "20% Beneficial Owner" shall not
include any Beneficial Owner who has crossed such 20 percent threshold
solely as a result of an acquisition of securities directly from the
Company, or solely as a result of an acquisition by the Company of
Company securities, until such time thereafter as such person acquires
additional voting
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<PAGE> 15
securities other than directly from the Company and, after giving
effect to such acquisition, such person would constitute a 20%
Beneficial Owner; and (b) with respect to any person eligible to file
a Schedule 13G pursuant to Rule 13d-1(b)(1) under the Exchange Act
with respect to Company securities (an "Institutional Investor"),
there shall be excluded from the number of securities deemed to be
beneficially owned by such person a number of securities representing
not more than 10 percent of the combined voting power of the Company's
then-outstanding securities;
(ii) during any period of two consecutive years
beginning after the Stock first became registered under Section 12 of
the Exchange Act, individuals who at the beginning of such period
constitute the Board together with those individuals who first became
Directors during such period (other than by reason of an agreement
with the Company in settlement of a proxy contest for the election of
directors) and whose election or nomination for election to the Board
was approved by a vote of at least two-thirds (2/3) of the Directors
then still in office who either were Directors at the beginning of the
period or whose election or nomination for election was previously so
approved (the "Continuing Directors"), cease for any reason to
constitute a majority of the Board;
(iii) the stockholders of the Company approve a
merger, consolidation, recapitalization or reorganization of the
Company, or a reverse stock split of any class of voting securities of
the Company, or the consummation of any such transaction if
stockholder approval is not obtained, other than any such transaction
which would result in at least 75% of the total voting power
represented by the voting securities of the Company or the surviving
entity outstanding immediately after such transaction being
beneficially owned by persons who together owned at least 75% of the
combined voting power of the voting securities of the Company
outstanding immediately prior to such transaction, with the relative
voting power of each such continuing holder compared to the voting
power of each other continuing holder not substantially altered as a
result of the transaction; provided that, for purposes of this
paragraph (iii), such continuity of ownership (and preservation of
relative voting power) shall be deemed to be satisfied if the failure
to meet such 75% threshold (or to preserve such relative voting power)
is due solely to the acquisition of voting securities by an employee
benefit plan of the Company or such surviving entity or any subsidiary
of the Company or such surviving entity;
(iv) the stockholders of the Company approve a
plan of complete liquidation or dissolution of the Company or an
agreement for the sale or disposition of all or substantially all the
assets of the Company; or
(v) any other event which a majority of the
members of the Committee who are Continuing Directors determines shall
constitute a Change in Control for purposes of this Plan;
provided, however that a Change in Control shall not be deemed to have
occurred if one of the following exceptions applies:
(1) Unless a majority of the members of the Committee who are
Continuing Directors determines that the exception set forth
in this paragraph (1) shall not apply, none of the foregoing
conditions would have been satisfied but for one or more of
the following persons acquiring or otherwise becoming the
Beneficial Owner of
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securities of the Company: (A) any person who has entered
into a binding agreement with the Company, which agreement
has been approved by two-thirds (2/3) of the Continuing
Directors, limiting the acquisition of additional voting
securities by such person, the solicitation of proxies by
such person or proposals by such person concerning a business
combination with the Company (a "Standstill Agreement"); (B)
any employee benefit plan, or trustee or other fiduciary
thereof, maintained by the Company or any subsidiary of the
Company; (C) any subsidiary of the Company; or (D) the
Company.
(2) Unless a majority of the members of the Committee who are
Continuing Directors determines that the exception set forth
in this paragraph (2) shall not apply, none of the foregoing
conditions would have been satisfied but for the acquisition
by the Company of another entity (whether by merger or
consolidation, the acquisition of stock or assets, or
otherwise) in exchange, in whole or in part, for securities
of the Company, provided that, immediately following such
acquisition, the Continuing Directors constitute a majority
of the Board, or a majority of the board of directors of any
other surviving entity, and, in either case, no agreement,
arrangement or understanding exists at that time which would
cause such Continuing Directors to cease thereafter to
constitute a majority of the Board or of such other board of
directors.
(3) A majority of the members of the Committee who are Continuing
Directors determines that a Change in Control shall be deemed
not to have occurred.
Notwithstanding the foregoing, unless otherwise determined by a
majority of the Committee who are Continuing Directors, no Change in
Control shall be deemed to have occurred with respect to a particular
Participant if the Change in Control results from actions or events in
which such Participant is a participant in a capacity other than
solely as an officer, employee, or director of the Company.
For purposes of the foregoing definition of Change in Control, the
term "Beneficial Owner," with respect to any securities, shall mean
any person who, directly or indirectly, has or shares the right to
vote or dispose of such securities or otherwise has "beneficial
ownership" of such securities (within the meaning of Rule 13d-3 and
Rule 13d-5 (as such Rules are in effect on the effective date of the
Plan) under the Exchange Act, including pursuant to any agreement,
arrangement, or understanding (whether or not in writing); provided,
however, that (i) a person shall not be deemed the Beneficial Owner of
any security as a result of any agreement, arrangement, or
understanding to vote such security (A) arising solely from a
revocable proxy or consent solicited pursuant to, and in accordance
with, the applicable provisions of the Exchange Act and the rules and
regulations thereunder or (B) made in connection with, or otherwise to
participate in, a proxy or consent solicitation made, or to be made,
pursuant to, and in accordance with, the applicable provisions of the
Exchange Act and the rules and regulations thereunder, in either case
described in clause (A) or clause (B) above whether or not such
agreement, arrangement or understanding is also then reportable by
such person on Schedule 13D under the Exchange Act (or any comparable
or successor report), and (ii) a person engaged in business as an
underwriter of securities shall not be deemed to be the Beneficial
Owner of any securities acquired through such person's participation
in good faith in a firm commitment underwriting until the expiration
of forty days after the date of such acquisition.
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<PAGE> 17
(b) Definition of "Change in Control Stock Value."
"Change in Control Stock Value" shall mean the value of a share of
Stock determined as follows:
(i) if the Change in Control results from an
event described in clause (iii) of the Change in Control definition in
Section 8(a), the highest per share price paid for shares of Stock of
the Company in the transaction resulting in the Change in Control;
(ii) if the Change in Control results from an
event described in clauses (i), (ii) or (v) of the Change in Control
definition in Section 8(a) and no event described in clauses (iii) or
(iv) of the Change in Control definition in Section 8(a) has occurred
in connection with such Change in Control, the highest sale price of a
share of Stock of the Company on any trading day during the sixty (60)
consecutive trading days immediately preceding and following the date
of such Change in Control as reported on the New York Stock Exchange
Composite Tape and published in the Wall Street Journal; or
(iii) if the Change in Control results from an
event described in clause (iv) of the Change in Control definition in
Section 8(a), the price per share at which shares of Stock are
redeemed or exchanged by their holders in the transaction described in
such clause (iv).
(c) Definition of "Change in Control Settlement Value."
"Change in Control Settlement Value" shall mean, with respect to a
share of Stock, the excess of the Change in Control Stock Value over
the exercise, grant, or base price of an Award covering such share of
Stock, provided that, with respect to any Option which is an ISO
immediately prior to the election to receive the Change in Control
Settlement Value, the Change in Control Settlement Value shall not
exceed the maximum amount permitted for such Option to continue to
qualify as an ISO.
(d) Acceleration and Cash-Out Upon a Change in Control.
Notwithstanding any other provisions of this Plan to the contrary
(except the provisions of Section 7(e) hereof), in the event of a
Change in Control the following provisions shall apply:
(i) All outstanding Awards on the date of the
Change in Control in the nature of a right that may be exercised not
previously exercisable shall become fully and immediately exercisable
on the date of such Change in Control, and such Awards shall not be
subject to termination upon the termination of employment of the
Participant; and
(ii) Unless waived by a given Participant, the
restrictions, deferral periods and limitations, and forfeiture
conditions applicable to any other Award granted under the Plan shall
lapse and such Awards shall be deemed fully vested, subject only to
the restrictions on dispositions of equity securities set forth in
Section 7(e); and
(iii) Section 6(b)(iv) notwithstanding, any
optionee who holds an Option shall be entitled to elect, during the
60-day period immediately following such Change in Control, in lieu of
acquiring the shares of Stock covered by such Option, to receive, and
the Company shall be obligated to pay, the Change in Control
Settlement Value (as defined in Section 8(c) hereof) with respect to
shares of Stock up to the number of shares covered by such Option,
which amount shall be paid in cash; and
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(iv) A Participant shall be entitled to elect,
during the 60-day period immediately following such Change in Control,
to surrender any other Award and receive, in full settlement thereof,
and the Company shall be obligated to pay, the Change in Control
Settlement Value with respect to the number of shares of Stock covered
by an Award in the nature of a right that may be exercised, or the
Change in Control Stock Value with respect to the number of shares of
Stock covered by any other type of Award, which amount shall in either
case be paid in cash; and
(v) Notwithstanding the provisions of Section
9(a), the Board shall not, at any time following a Change in Control,
impose any conditions on any outstanding Award that have not been
previously imposed as of the date of such Change in Control, unless,
in the written opinion of independent counsel to the Company, such
condition is necessary to comply with any federal, state, or local
securities or other law or regulation, or the rules of any applicable
securities exchange, and, in the good faith opinion of the Board,
compliance with such law, regulation or rule without the imposition of
such condition would be impracticable; and
(vi) In lieu of any other form of settlement
authorized under this Section 8(d), a Participant may elect under
terms set by and subject to approval of the Committee to receive
Deferred Stock or Restricted Stock, or, if authorized by the
Committee, other deferred forms of payment, in order to defer federal
income taxation of the Participant with respect to amounts payable
hereunder; and
(vii) Notwithstanding the provisions of Section
9(e) hereof, the provisions of this Section 8 may not be amended in
any respect following a Change in Control except with the consent of
any affected Participant.
(e) No Non-Exempt Section 16(b) Purchases Triggered. No
Participant who is then subject to Section 16 of the Exchange Act
shall have any right to receive a cash payment under Section 8(d)
hereof if the acquisition of such right would, under the
circumstances, constitute a non-exempt purchase for purposes of
Section 16(b) of the Exchange Act.
9. General Provisions.
(a) Compliance With Legal and Other Requirements. The
Plan, the grant, exercise, and settlement of Awards thereunder, and
the other obligations of the Company under the Plan and any Award
agreement shall be subject to all applicable federal and state laws,
rules, and regulations, and to such approvals by any regulatory or
governmental agency as may be required. The Company may, in its
discretion, postpone the issuance or delivery of Stock under any Award
until completion of such registration or qualification of such Stock
or other required action under any federal or state law, rule, or
regulation, listing or other required action with respect to any stock
exchange or automated quotation system upon which the Stock or other
Company securities are listed or designated, or compliance with any
other contractual obligation of the Company, as the Company may
consider appropriate, and may require any Participant to make such
representations and furnish such information as it may consider
appropriate in connection with the issuance or delivery of Stock in
compliance with applicable laws, rules, and regulations, listing or
designation, or other contractual obligations.
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(b) Limits on Transferability; Beneficiaries. No Award
or other right or interest of a Participant under the Plan, including
any Award or right which constitutes a derivative security as
generally defined in Rule 16a-1(c) under the Exchange Act, shall be
pledged, hypothecated, or otherwise encumbered or subject to any lien,
obligation, or liability of such Participant to any party (other than
the Company or a subsidiary), or assigned or transferred by such
Participant otherwise than by will or the laws of descent and
distribution or to a Beneficiary upon the death of a Participant, and
such Awards or rights that may be exercisable shall be exercised
during the lifetime of the Participant only by the Participant or his
or her guardian or legal representative, except that Awards and other
rights (other than ISOs and SARs in tandem therewith) may be
transferred to one or more Beneficiaries or other transferees during
the lifetime of the Participant in connection with the Participant's
estate planning, and may be exercised by such transferees in
accordance with the terms of such Award, but only if and to the extent
such transfers are then permitted under Rule 16b-3, consistent with
the registration of the offer and sale of Stock on Form S-8 or a
successor registration form of the Securities and Exchange Commission
or such other form of registration statement as has in fact been filed
in connection with the Plan, and permitted by the Committee (subject
to any terms and conditions which the Committee may impose thereon). A
Beneficiary, transferee, or other person claiming any rights under the
Plan from or through any Participant shall be subject to all terms and
conditions of the Plan and any Award agreement applicable to such
Participant, except as otherwise determined by the Committee, and to
any additional terms and conditions deemed necessary or appropriate by
the Committee.
(c) Adjustments. In the event that the Committee shall
determine that any dividend or other distribution (whether in the form
of cash, Stock, or other property), recapitalization, forward or
reverse split, reorganization, merger, consolidation, spin-off,
combination, repurchase, or share exchange, or other similar corporate
transaction or event, affects the Stock such that an adjustment is
appropriate in order to prevent dilution or enlargement of the rights
of Participants under the Plan, then the Committee shall, in such
manner as it may deem equitable, adjust any or all of (i) the number
and kind of shares of Stock which may thereafter be issued in
connection with Awards, (ii) the number and kind of shares of Stock
issued or issuable in respect of outstanding Awards, and (iii) the
exercise price, grant price, or purchase price relating to any Award
or, if deemed appropriate, make provision for payment of cash or other
property with respect to any outstanding Award; provided, in each
case, that, with respect to ISOs, no such adjustment shall be
authorized to the extent that such authority would cause the Plan to
violate Section 422 of the Code. In addition, the Committee is
authorized to make adjustments in the terms and conditions of, and the
criteria included in, Awards in recognition of unusual or nonrecurring
events (including, without limitation, events described in the
preceding sentence) affecting the Company or any subsidiary or the
financial statements of the Company or any subsidiary, or in response
to changes in applicable laws, regulations, accounting principles, tax
rates and regulations or business conditions.
(d) Taxes. The Company or any subsidiary is authorized
to withhold from any Award granted, any payment relating to an Award
under the Plan, including from a distribution of Stock, or any payroll
or other payment to a Participant, amounts of withholding and other
taxes due in connection with any transaction involving an Award, and
to take such other action as the Committee may deem advisable to
enable the Company and Participants
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to satisfy obligations for the payment of withholding taxes and other
tax obligations relating to any Award. This authority shall include
authority for the Company to withhold or receive Stock or other
property and to make cash payments in respect thereof in satisfaction
of a Participant's tax obligations, either on a mandatory or elective
basis in the discretion of the Committee.
(e) Changes to the Plan and Awards. The Board may amend,
alter, suspend, discontinue, or terminate the Plan or the Committee's
authority to grant Awards under the Plan without the consent of
stockholders or Participants, except that any such action shall be
subject to the approval of the Company's stockholders at the annual
meeting next following such Board action if such stockholder approval
is required by any federal or state law or regulation or the rules of
any stock exchange or automated quotation system on which the Stock
may then be listed or quoted, and the Board may otherwise, in its
discretion, determine to submit other such changes to the Plan to
stockholders for approval; provided that, without the consent of an
affected Participant, no such Board action may materially and
adversely affect the rights of such Participant under any Award
theretofore granted to him. The Committee may waive any conditions or
rights under, or amend, alter, suspend, discontinue, or terminate, any
Award theretofore granted and any Award agreement relating thereto;
provided that, without the consent of an affected Participant, no such
Committee action may materially and adversely affect the rights of
such Participant under such Award. The foregoing notwithstanding, any
performance condition specified in connection with an Award shall not
be deemed a fixed contractual term, but shall remain subject to
adjustment by the Committee, in its discretion, at any time in view of
the Committee's assessment of the Company's strategy, performance of
comparable companies, and other circumstances.
(f) Limitation on Rights Conferred Under Plan. Neither
the Plan nor any action taken hereunder shall be construed as (i)
giving any Participant or employee the right to be retained in the
employ of the Company or any of its subsidiaries, (ii) interfering in
any way with the right of the Company or any of its subsidiaries to
terminate any Participant's or employee's employment at any time,
(iii) giving a Participant or employee any claim to be granted any
Award under the Plan or to be treated uniformly with other
Participants and employees, or (iv) conferring on a Participant any of
the rights of a stockholder of the Company unless and until Stock is
duly issued or transferred to the Participant in accordance with the
terms of the Award.
(g) Unfunded Status of Awards; Creation of Trusts. The
Plan is intended to constitute an "unfunded" plan for incentive and
deferred compensation. With respect to any payments not yet made to a
Participant or obligation to issue Stock pursuant to an Award, nothing
contained in the Plan or any Award shall give any such Participant any
rights that are greater than those of a general creditor of the
Company; provided that the Committee may authorize the creation of
trusts and deposit therein cash, Stock, other Awards, or other
property, or make other arrangements, to meet the Company's
obligations under the Plan. Such trusts or other arrangements shall be
consistent with the "unfunded" status of the Plan unless the Committee
otherwise determines with the consent of each affected Participant.
The trustee of the trust may be authorized to dispose of trust assets
and reinvest the proceeds in alternative investments, subject to such
terms and conditions as the Committee may specify and in accordance
with applicable law.
(h) Nonexclusivity of the Plan. Neither the adoption of
the Plan by the Board nor
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its submission to the stockholders of the Company for approval shall
be construed as creating any limitations on the power of the Board to
adopt such other incentive arrangements as it may deem desirable.
(i) Payments In the Event of Forfeitures; Fractional
Shares. In the event of a forfeiture of an Award with respect to which
a Participant paid cash or other consideration in order to satisfy
requirements of the Delaware General Corporation Law, the Participant
shall be repaid the amount of such cash or other consideration. No
fractional shares of Stock shall be issued or delivered pursuant to
the Plan or any Award. The Committee shall determine whether cash,
other Awards, or other property shall be issued or paid in lieu of
such fractional shares or whether such fractional shares or any rights
thereto shall be forfeited or otherwise eliminated.
(j) Governing Law; Arbitration. The validity,
construction, and effect of the Plan, any rules and regulations
relating to the Plan, and any Award agreement shall be determined in
accordance with the Delaware General Corporation Law, to the extent
applicable, other laws (including those governing contracts) of the
State of Delaware, without giving effect to principles of conflicts of
laws, and applicable federal law. If any provision hereof shall be
held by a court of competent jurisdiction to be invalid and
unenforceable, the remaining provisions shall continue to be fully
effective. Any dispute or controversy arising under or in connection
with this Plan shall be settled exclusively by arbitration in Atlanta,
Georgia by three arbitrators in accordance with the rules of the
American Arbitration Association in effect at the time of submission
to arbitration. Judgement may be entered on the arbitrators' award in
any court having jurisdiction. For purposes of settling any dispute or
controversy arising hereunder or for the purpose of entering any
judgement upon an award rendered by the arbitrators, the Company and
the Participant hereby consent to the jurisdiction of any or all of
the following courts: (i) the United States District Court for the
Northern District of Georgia, (ii) any of the courts of the State of
Georgia, or (iii) any other court having jurisdiction. The Company and
the Participant hereby waive, to the fullest extent permitted by
applicable law, any objection which it may now or hereafter have to
such jurisdiction and any defense of inconvenient forum. The Company
and the Participant hereby agree that a judgement upon an award
rendered by the arbitrators may be enforced in other jurisdictions by
suit on the judgement or in any other manner provided by law.
(k) Effective Date; Plan Termination. The Plan became
effective upon its approval by stockholders of the Company on October
28, 1993. The amendment and restatement of the Plan shall become
effective upon its approval by the stockholders of the Company at the
1995 Annual Meeting. The Plan shall terminate at such time as no Stock
remains available for issuance pursuant to Section 4 and the Company
has no further obligations with respect to any Award granted under the
Plan.
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