<PAGE>
As filed with the Securities and Exchange Commission on July 15, 1998
Registration No. 33-____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
____________________
KOPPERS INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Pennsylvania 25-1588399
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
436 Seventh Avenue 15219-1800
Pittsburgh, Pennsylvania (Zip Code)
(Address of Principal
Executive Offices)
KOPPERS INDUSTRIES, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
____________________
Walter W. Turner
President and Chief Executive Officer Copy to:
Koppers Industries, Inc. Clayton A. Sweeney, Esquire
436 Seventh Avenue Sweeney Metz Fox McGrann & Schermer L.L.C.
Pittsburgh, Pennsylvania 15219-1800 11 Stanwix Street
(412) 227-2001 Pittsburgh, Pennsylvania 15222
(Name, address, and telephone (412) 918-1100
number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to To Be Offering Price Aggregate Registration
Be Registered(1) Registered Per Share(2) Offering Price(2) Fee(3)
==================================================================================================
<S> <C> <C> <C> <C>
Common Stock, $.01 par 250,000 $16.15 $4,037,500.00 $0.24
value..................
==================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the Koppers Industries, Inc. Employee Stock
Purchase Plan described herein.
(2) Provided solely for the purpose of calculating the registration fee.
(3) The book value per share is $ -.90 as of May 31, 1998, and there is
currently no public market for the shares. Pursuant to Rule 457(f)(2) and
communications with the Securities and Exchange Commission, Division of
Corporation Finance, Office of Information and Analysis, the Registration
Fee has been calculated by multiplying 250,000 shares to be registered by
$.0033 (one-third of par value), which equals $825.00. The Registration Fee
is further calculated based on $295.00 per $1,000,000 of the maximum
aggregate offering price, as required by Section 6(b) of the Securities Act
of 1933. $825.00 x (0.000295) equals $0.24, the Amount of Registration Fee.
The Registration Statement shall become effective upon filing in accordance with
Rule 462 under the Securities Act of 1933.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION. *
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. *
* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from the Registration Statement in accordance with Rule 428 under
the Securities Act of 1933 and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Koppers Industries, Inc. (the "Company")
with the Securities and Exchange Commission are incorporated by reference in
this Registration Statement.
(A) Company's Annual Report on Form 10-K (File No. 1-12716) for the
fiscal year ended December 31, 1997.
(B) Company's Quarterly Report on Form 10-Q (File No. 1-12716) for the
quarter ended March 31, 1998. Company's Report on Form 8-KA (File
No. 1-12716) dated January 28, 1998.
(C) Not applicable.
In addition, all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Pursuant to its Restated and Amended Articles of Incorporation, the
Company is authorized to issue up to 37,000,000 shares of voting common stock,
$.01 par value per share ("Voting Common Stock"), 3,000,000 shares of non-voting
common stock, $.01 par value per share ("Non-Voting Common Stock" together with
the Voting Common Stock, the "Common Stock") and 10,000,000 shares of preferred
stock, $.01 par value per share ("Preferred Stock"). As of June 30, 1998, an
aggregate of 1,523,942 shares of Common Stock was outstanding and held of record
by 158 stockholders. As of June 30, 1998, 2,288,481 shares of senior convertible
Preferred Stock were outstanding. Holders of Voting Common Stock are entitled
to one vote for each share held on all matters submitted to a vote of
stockholders. The election of directors is controlled by the terms of the
Stockholders' Agreement by and among Koppers Industries, Inc., Saratoga Partners
III, L.P., and the Management Investors dated as of December 1, 1997, or any
successor agreement entered into by the Company and a majority of its
shareholders (the "Stockholders' Agreement"). Holders of Common Stock are
entitled to receive ratably such dividends, if any, as may be declared by the
Board of Directors out of funds legally available therefor, subject to any
preferential dividend rights of outstanding preferred stock. Upon the
liquidation, dissolution or winding up of the Company, the holders of Common
Stock are entitled to receive ratably the net assets of the Company available
after the payment of all debts and other liabilities and subject to the prior
rights of any outstanding preferred stock. Holders of the Common Stock have no
preemptive, subscription, redemption or conversion rights other than as set
forth in the Stockholders' Agreement. The outstanding shares of Common Stock
are, and the Shares offered by the Company in the offerings will be, when issued
and paid for, fully paid and nonassessable. The rights, preferences and
privileges of holders of Common Stock are subject to, and may be adversely
affected by, the rights of the holders of shares of any series of Preferred
Stock which the Company may designate and issue in the future.
Moreover, as a condition to participating in and acquiring Shares of
Common Stock of the Company through the Employee Stock Purchase Plan, each
participant must: (i) agree in writing to be bound by the Stockholders'
Agreement, (ii)
<PAGE>
execute a proxy appointing Walter W. Turner and Clayton A. Sweeney as their
representatives for the term of the Stockholders' Agreement to vote on his or
her behalf as a stockholder on any matter coming before the stockholders of the
Company, and (iii) appoint Walter W. Turner and Clayton A. Sweeney as his or her
attorneys-in-fact to execute the Stockholders' Agreement on his or her behalf
and to sign, acknowledge, file and record any instrument under the laws of any
federal or state governmental agency, or which they deem advisable to file.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Sweeney Metz Fox McGrann & Schermer L.L.C. of Pittsburgh, Pennsylvania,
has been retained as outside counsel to the Company. Clayton A. Sweeney, a
shareholder and Director of the Company, is also President of, and a member of,
Sweeney Metz Fox McGrann & Schermer L.L.C. Mr. Sweeney is one of two
Representatives of the Management Investors (as such term is defined in the
Stockholders' Agreement) and, as such, was granted an irrevocable proxy for the
term of the Stockholders' Agreement to vote the shares of the Management
Investors.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 1741 and 1742 of the Pennsylvania Business Corporation Law
("BCL") provide that a business corporation shall have the power to indemnify
any person who was or is a party, or is threatened to be made a party, to any
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably believed to be in, or not opposed to, the
best interests of the corporation, and, with respect to any criminal proceeding,
had no reasonable cause to believe his conduct was unlawful. In the case of an
action by or in the right of the corporation, such indemnification is limited to
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action, except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person has been adjudged to be liable to the corporation unless, and
only to the extent that, a court determines upon application that, despite the
adjudication of liability but in view of all the circumstances, such person is
fairly and reasonably entitled to indemnity for the expenses that the court
deems proper.
BCL Section 1744 provides that, unless ordered by a court, any
indemnification referred to above shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct. Such determination shall be made:
(1) by the Board of Directors by a majority vote of a quorum consisting
of directors who were not parties to the proceeding; or
(2) if such a quorum is not obtainable, or if obtainable and a majority
vote of a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion; or
(3) by the shareholders.
Notwithstanding the above, BCL Section 1743 provides that to the extent
that a director, officer, employee or agent of a business corporation is
successful on the merits or otherwise in defense of any proceeding referred to
above, or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
BCL Section 1745 provides that expenses (including attorney's fees)
incurred by an officer, director, employee or agent of a business corporation in
defending any proceeding may be paid by the corporation in advance of the final
disposition of the proceeding upon receipt of an undertaking to repay the amount
advanced if it is ultimately determined that the indemnitee is not entitled to
be indemnified by the corporation.
BCL Section 1746 provides that the indemnification and advancement of
expenses provided by, or granted pursuant to, the foregoing provisions are not
exclusive of any other rights to which a person seeking indemnification may be
entitled under any bylaw, agreement, vote of shareholders or directors or
otherwise, and that indemnification may be granted under any bylaw, agreement,
vote of shareholders or disinterested directors or otherwise for any action
taken or any failure to take any action whether or not the corporation would
have the power to indemnify the person under any other provision of law and
2
<PAGE>
whether or not the indemnified liability arises or arose from any action by or
in the right of the corporation, provided, however, that no indemnification is
determined by a court to have constituted willful misconduct or recklessness.
BCL Section 1747 permits a Pennsylvania business corporation to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or other enterprise, against any liability asserted against such
person and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify the
person against such liability under the provisions described above.
The Company's Articles of Incorporation and Bylaws provide for (i)
indemnification of directors, officers, employees and agents of the Company and
its subsidiaries and (ii) the elimination of a director's liability for monetary
damages, to the maximum extent permitted by the BCL. The Company also maintains
directors' and officers' liability insurance covering its directors and officers
with respect to liabilities, including liabilities under the Securities Act of
1933, as amended, which they may incur in connection with their serving as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits listed on the Index of Exhibits attached hereto are
incorporated by reference and are part of this Registration Statement.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (1)(i) and 1(ii) above do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Company hereby further undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Company's annual report pursuant to section 13(a) or section 15(d) of the
3
<PAGE>
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer, or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8, and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pittsburgh, Pennsylvania on July 15, 1998.
KOPPERS INDUSTRIES, INC.
By: /s/ Walter W. Turner
------------------------
Walter W. Turner
President and Chief Executive Officer
4
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Walter W. Turner and Clayton A. Sweeney, and each
of them, his or her true and lawful attorneys-in-fact and agents, each with full
power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any and all amendments,
including post-effective amendments, to this Registration Statement, and to file
the same, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission granting unto said attorneys-in-fact
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, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or his or her
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated as of July 15, 1998.
Name Title(s)
- ---- --------
/s/ Walter W. Turner President, Chief Executive
- -------------------- Officer and Director
Walter W. Turner
/s/ Donald E. Davis Vice President and
- ------------------- Chief Financial Officer
Donald E. Davis
/s/ Robert K. Wagner Chairman and Director
- --------------------
Robert K. Wagner
/s/ Clayton A. Sweeney Director
- ----------------------
Clayton A. Sweeney
/s/ Brooks C. Wilson Director
- --------------------
Brooks C. Wilson
/s/ N. H. Prater Director
- ----------------
N. H. Prater
/s/ Charles P. Durkin, Jr. Director
- --------------------------
Charles P. Durkin, Jr.
/s/ Christian L. Oberbeck Director
- -------------------------
Christian L. Oberbeck
5
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit Number Exhibit
- -------------- -------
4.1 Articles of Amendment of Koppers Industries, Inc. Restated
and Amended Articles of Incorporation of Koppers Industries,
Inc. (Incorporated by reference to respective exhibits to
the Company's Registration Statement on Form S-8 filed
December 22, 1997 in connection with the Company's Employee
Stock Redemption and Purchase Plan).
4.2 Restated and Amended Bylaws of Koppers Industries, Inc.
(Incorporated by reference to respective exhibits to the
Company's Registration Statement on Form S-8 filed December
22, 1997 in connection with the Company's Employee Stock
Redemption and Purchase Plan).
4.3 Stockholders' Agreement by and among Koppers Industries,
Inc., Saratoga Partners, III, L.P. and The Management
Investors (Incorporated by reference to respective exhibits
to the Company's Registration Statement on Form S-8 filed
December 22, 1997 in connection with the Company's Employee
Stock Redemption and Purchase Plan).
4.4 Koppers Industries, Inc. Employee Stock Purchase Plan
5.1 Opinion of Counsel regarding legality of securities to be
offered
15.1 Not applicable
23.1 Consent of Counsel
(included in Exhibit 5.1)
23.2 Consent of Ernst & Young, Sydney, Australia
23.3 Consent of Ernst & Young LLP, Pittsburgh, Pennsylvania
24.1 Power of Attorney (See page 5 of this Registration
Statement)
99.1 Not applicable
<PAGE>
EXHIBIT 4.4
KOPPERS INDUSTRIES, INC.
EMPLOYEE STOCK PURCHASE PLAN
July 15, 1998
This document constitutes part of a prospectus covering securities
that have been registered under the Securities Act of 1933.
<PAGE>
KOPPERS INDUSTRIES, INC.
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE ONE
Purpose
The Koppers Industries, Inc. Employee Stock Purchase Plan (the "Plan") is
designed to encourage and assist all employees of Koppers Industries, Inc., and
all employees of Koppers Australia Pty, Limited and its majority-owned
affiliates, where permitted by applicable law, to acquire an equity interest in
Koppers Industries, Inc. (the "Company") through the purchase of shares of
Common Stock. It is intended that the Plan shall constitute an "employee stock
purchase plan" within the meaning of Section 423 of the Internal Revenue Code of
1986, as amended (the "Code").
ARTICLE TWO
Definitions
The capitalized terms used herein shall have the meaning prescribed to them
in this Article Two:
"Board" shall mean the Board of Directors of the Company.
"Code" shall have the meaning set forth in Article One.
"Committee" shall mean the Company's Employee Stock Purchase Plan
Committee.
"Company" shall have the meaning set forth in Article One.
"Election Form" shall mean the form which an Employee completes and
delivers to the Committee to commence participation in the Plan or to modify the
terms of the Employee's participation in the Plan. The Committee shall
determine the form and substance of the Election Form.
"Employee" shall mean any employee of the Company and any employee of
Koppers Australia Pty Limited and its majority-owned affiliates, except for (i)
employees whose customary employment is 20 hours or less per week, (ii)
employees whose customary employment is less than five months in any calendar
year, and (iii) temporary employees who are hired without the expectation of
permanent employment and who have worked for the Company for 24 months or less.
"Fair Value" means the value as determined by the Board pursuant to
Schedule II of the Stockholders' Agreement.
"Grant Date" shall be the first date on which payroll deductions for U.S.
Participants (or bank account debits for non-U.S. Participants) are possible
under the Plan, specifically, August 7, 1998.
2
<PAGE>
"Participant" shall mean an employee who has elected to participate in the
Plan in accordance with its terms.
"Participant's Account" shall mean the account in which payroll deductions
or bank account debits for each Participant are credited and in which shares of
Common Stock purchased by the Participant hereunder shall be held.
"Plan" shall have the meaning set forth in Article One.
"Purchase Date" (exercise date) shall be the date on which the Company
transfers the Participant's payroll deduction or bank account debit to the
administrator to purchase stock, which date shall be the fifteenth day of the
month (or, if the fifteenth day is a weekend or holiday, then the next business
day) following the calendar month in which the Company deducts a specified
amount from the Participant's payroll check or debits a specified amount from a
Participant's bank account.
"Stockholders Agreement" shall have the meaning set forth in Section 8.3.
"Withdrawal Notice" shall have the meaning set forth in Section 9.1.
ARTICLE THREE
Administration
3.1 Authority of the Committee. The Plan shall be administered by the
--------------------------
Committee, subject to the direction of the Board. The Committee shall supervise
the administration and enforcement of the Plan and, subject to the provisions of
the Plan, shall have all powers necessary to discharge its duties hereunder,
including, but not limited to, the power to (i) employ and compensate agents of
the Committee for the purposes of administering the Participant's Account, (ii)
construe, interpret and enforce the provisions of the Plan, (iii) determine all
questions of eligibility under the Plan, and (iv) establish, amend or waive
rules and regulations for the administration of the Plan. All of the
determinations by the Committee and/or the Board under the Plan shall be in its
sole discretion, and shall be binding upon all Employees (including
Participants) and any person claiming by, under or through such Employees.
3.2 Committee Governance. The Board may from time to time increase the
--------------------
number of members of the Committee, remove and appoint members of the Committee,
and fill vacancies in the Committee however caused. The Board may select a
chairman of the Committee and it shall select a secretary. Meetings of the
Committee shall be held at such places and times and in such manner as the Board
or the Committee may determine. A majority of its members shall constitute a
quorum of any meeting of the Committee and, at any meeting where a quorum is
present, the affirmative vote of a majority of the members present shall
constitute action by the Committee. Any action consented to in writing by a
majority of the members of the Committee shall constitute action by the
Committee as if such action had been approved by the affirmative vote of a
majority of the members present at the duly constituted meeting. The Board may
adopt such other rules for the conduct of business of the Committee as it deems
appropriate in its sole discretion.
3
<PAGE>
ARTICLE FOUR
Common Stock
4.1 Available Shares. The shares of Common Stock which are issuable under
----------------
the Plan shall be previously issued shares which have been redeemed by the
Company and are available for re-sale pursuant to Section 4 of the Stockholders
Agreement. A total of 250,000 shares of Common Stock have been authorized and
are issuable under the Plan, with no more than 30,000 shares to be issued
annually in the first two years commencing on the Grant Date.
4.2 Adjustment. Subject to the provisions of Section 10.4, in the event
----------
of any reorganization, recapitalization, stock split, stock dividend, reverse
stock split, merger, consolidation, or other similar change in the capital
structure of the Company, the Committee may make such changes, if any, in the
maximum number of shares of Common Stock which may be issued under the Plan, as
it deems appropriate under the circumstances.
4.3 Excess Payroll Deductions or Bank Account Debits. In the event that
------------------------------------------------
the total number of shares of Common Stock to be issued under the Plan on any
Purchase Date exceeds the number of shares of Common Stock available on such
Purchase Date, the Company shall make a pro rata allocation of the shares
available in as nearly a uniform manner as is practicable and as it determines
to be equitable. In such event, the balance of payroll deductions or bank
account debits credited to each Participant under the Plan shall be returned to
the Participant in a prompt manner.
ARTICLE FIVE
Eligibility
5.1 In General. Each Employee shall be eligible to participate in the
----------
Plan subject to the restrictions set forth in Section 5.2.
5.2 Restrictions on Five Percent Owners. An Employee shall not be
-----------------------------------
eligible to participate in and shall not be permitted to purchase shares under
the Plan if, immediately following the purchase of shares, the Employee would
own an aggregate of 5% or more of the total combined voting power or value
(determined as of the date of purchase of the shares) of all outstanding shares
of all classes of stock of the Company or of its parent or any subsidiary. The
rules of Section 424(d) of the Code shall apply for determining the stock
ownership of an Employee.
ARTICLE SIX
Participation and Payroll Deduction
6.1 Election to Participate. Eligible U.S. Employees may elect to
-----------------------
participate in the Plan by executing and delivering to the Committee an Election
Form indicating that the Employee desires to participate in the Plan and
authorizing the Company to deduct a specified amount from the Employee's payroll
check each pay period to be applied to the purchase of Common Stock in
accordance with the terms and conditions of the Plan. Eligible non-U.S.
Employees may elect to participate in the Plan by executing and delivering to
the Committee an Election Form indicating that the Employee desires to
participate in the Plan and authorizing the Company to debit a specified
4
<PAGE>
amount from the Employee's nominated bank account each month to be applied to
the purchase of Common Stock in accordance with the terms and conditions of the
Plan.
6.2 Commencement of Payroll Deductions or Bank Account Debits. For U.S.
---------------------------------------------------------
Participants, payroll deductions will commence with the first payroll check
issued in the first month which begins at least thirty days after the Committee
receives the Election Form which commences the Participant's participation in
the Plan. For non-U.S. Participants, bank account debits will commence in the
first month which begins at least thirty days after the Committee receives the
Election Form which commences the Participant's participation in the Plan.
6.3 Amount of Payroll Deductions or Bank Account Debits. The amount of
---------------------------------------------------
payroll deductions or bank account debits specified by a Participant in his
Election Form shall be in an amount not less than $25 per month . Any
Participant who is also a participant in the Company's Incentive Compensation
Plan shall be entitled to make a separate election to purchase Common Stock
under the Plan in an amount up to fifty percent (50%) of such participant's
Incentive Compensation for any period.
6.4 Changes in Participation. An Election Form shall remain in effect
------------------------
until the Participant withdraws from the Plan in accordance with Article Nine or
modifies his or her payroll deduction or bank account debit by submitting a new
Election Form to the Committee; provided, however, a Participant may submit only
one new Election Form during any consecutive twelve month period. A new
Election Form shall become effective in the first Quarter which begins at least
thirty days after the Committee receives the new Election Form.
6.5 Participant Accounts. All payroll deductions from a U.S.
--------------------
Participant's payroll check, or bank account debits in the case of non-U.S.
participants, shall be credited to the Participant's Account under the Plan as
soon as is feasible. Each Participant's Account shall be maintained by or under
the direction of the Committee. A Participant shall not be permitted to make
any contribution to his or her Participant's Account except for payroll
deductions or bank account debits made in accordance with the Election Form in
effect. The payroll deductions or bank account debits held in a Participants'
Account shall be used to purchase shares of Common Stock each Quarter as
provided in this Plan. No interest shall accrue on any Participant's Account.
ARTICLE SEVEN
Purchase Price of Shares
7.1 Purchase Price. The purchase price for each share of Common Stock
--------------
purchased under the Plan shall be 95% of the Fair Value on the Purchase Date.
7.2 Restrictions. Notwithstanding anything herein to the contrary, under
------------
no circumstances shall a Participant be permitted to purchase stock of any class
of the Company or its parent or any subsidiary of the Company under this Plan or
any other stock purchase plan of the Company or its parent or any subsidiary
which is qualified under Section 423 of the Code at a rate which exceeds $25,000
in Fair Value of the stock (determined as of the Grant Date of the share(s)) for
each calendar year.
5
<PAGE>
ARTICLE EIGHT
Purchase of Common Stock
8.1 Automatic Purchase. Each Participant shall be deemed to automatically
------------------
purchase the number of shares of Common Stock which may be purchased at the
Purchase Price determined pursuant to Section 7.1 with the accumulated payroll
deductions or bank account debits in the Participant's Account. The date of
such purchase shall be deemed the Purchase Date.
8.2 Administrative Matters. Administrative and commission costs on
----------------------
purchases of Common Stock made from payroll deductions or bank account debits
shall be paid by the Company. Shares of Common Stock purchased for a Participant
under this Plan will be issued to the Committee, as custodian for the
Participant, and the Committee shall maintain records of such purchases and
appropriate credit for such purchases shall be made to the Participant's
Account. The Committee will cause to be delivered to each Participant a
quarterly statement showing the number of shares in his account, the number of
shares purchased for him on the immediately preceding Purchase Date, his
aggregate payroll deductions or bank account debits for the preceding quarter,
and the average price per share paid for the shares purchased by him during the
preceding quarter. Any dividends paid on Common Stock held in a Participant's
Account will be added to the Participant's Account.
8.3 Stockholders' Agreement. As a condition to participation in the Plan,
-----------------------
each Participant must agree to be bound by the terms of the Stockholders'
Agreement by and among Koppers Industries, Inc., Saratoga Partners III, L.P.,
and the Management Investors dated as of December 1, 1997, or any successor
agreement entered into by the Company and a majority of its shareholders (the
"Stockholders' Agreement") and to the appointment of Walter W. Turner and
Clayton A. Sweeney as the Participant's representatives under the Stockholders'
Agreement, or any successor agreement entered into by the Company and a majority
of its shareholders. PURSUANT TO THE TERMS OF THE STOCKHOLDERS' AGREEMENT, THE
COMPANY IS UNDER NO OBLIGATION TO PURCHASE THE SHARES OF ANY PARTICIPANT FOR ANY
REASON, OTHER THAN PURSUANT TO SECTION 7 OF THE STOCKHOLDERS' AGREEMENT.
PARTICIPANTS SHOULD BE AWARE THAT THERE IS NO PUBLIC MARKET FOR THE SHARES
AVAILABLE UNDER THE PLAN. THERE CAN BE NO ASSURANCE THAT THE SHARES WILL EVER
BECOME PUBLICLY TRADED AS A RESULT OF A PUBLIC OFFERING, OR THAT, IF A PUBLIC
OFFERING IS CONSUMMATED, AN ACTIVE TRADING MARKET WILL DEVELOP OR WILL BE
SUSTAINED THEREAFTER.
ARTICLE NINE
Withdrawal and Termination
9.1 Voluntary Withdrawal. A Participant may withdraw from the Plan at any
--------------------
time by notifying the Committee in writing of his intent to withdraw (a
"Withdrawal Notice"). If a Withdrawal Notice is received by the Committee at
least thirty days prior to the next Purchase Date, such withdrawal shall become
effective immediately and all payroll deductions made on behalf of the
Participant during the month in which the withdrawal is made shall be paid to
the Participant within thirty days after the notice is received by the
Committee. If the Withdrawal Notice is not received by the Committee at least
thirty days prior to the next Purchase Date, such withdrawal shall
6
<PAGE>
become effective on the first day of the following month and the Company shall
continue to make payroll deductions on behalf of the Participant for the
remainder of the month in which such notice is delivered to the Committee and
the Participant shall be deemed to automatically purchase all shares on the next
Purchase Date in accordance with Section 8.1. The Committee shall deliver
certificates for all shares of Common Stock held in a Participant's Account to
the Participant as soon as is possible after the effective date of the
Participant's withdrawal from the Plan. If any Participant withdraws from the
Plan, no further payroll deductions or bank account debits will be made on his
or her behalf after the effective date of withdrawal except in accordance with a
new Election Form filed with the Committee as provided in Section 6.4 hereof.
Upon withdrawal from the Plan a Participant will not be permitted to reenter the
Plan until twelve (12) months have elapsed from the date his or her withdrawal
becomes effective. Any restrictions on the transferability of shares set forth
in Section 10.2 hereof shall survive withdrawal from the Plan and termination of
the Participant's employment with the Company for any reason whatsoever.
9.2 Termination of Employment. Upon the termination of a Participant's
-------------------------
employment as an Employee for any reason whatsoever including, but not limited
to, retirement or disability, but excluding death which is covered in Section
9.3, the Participant's participation in the Plan shall cease immediately and the
amount of payroll deductions or bank account debits in his Participant's Account
shall be returned to him in a prompt manner.
9.3 Death. Upon a Participant ceasing to be an Employee because of the
-----
Participant's death, the Participant's beneficiary shall have the right to
elect, by giving written notice to the Committee within sixty (60) days after
the date of the Participant's death, either
(a) to withdraw all of the payroll deductions or bank account debits
remaining in the Participant's Account under the Plan, or
(b) to purchase shares of Common Stock on the fifth (5th) day of the
subsequent month during which the Participant's death occurred in accordance
with the provisions of this Plan, and have any excess payroll deductions or bank
account debits in such account returned to the beneficiary.
In the event that no such written notice is received by the Committee
within such sixty (60) day period, the beneficiary shall be deemed to have
elected to purchase shares pursuant to Section 9.3(b).
9.4 Obligation To Sell Shares. Upon a Participant ceasing to be an
-------------------------
Employee pursuant to Section 9.2 or 9.3 hereof, the Participant shall be
required to sell any Common Stock acquired pursuant to this Plan to the Company
pursuant to Section 7 of the Stockholders Agreement.
9.5 Termination of Plan. The Company may terminate the Plan at any time
-------------------
in its sole discretion by giving written notice of termination to each
Participant. Absent prior termination by the Company, the Plan shall terminate
automatically five (5) years after the Grant Date, unless the Board extends the
life of the Plan.
9.6 Effect of Termination. Upon the termination of the Plan, all accrued
---------------------
payroll deductions in each Participant's Account shall be returned to the
Participant and certificates
7
<PAGE>
representing shares of Common Stock held in each Participant's Account shall be
delivered to the Participant as soon as is possible following the effective date
of termination of the Plan.
ARTICLE TEN
Miscellaneous
10.1 Designation of Beneficiary. A Participant may file a written
--------------------------
designation of a beneficiary who is to receive any stock and/or cash pursuant to
Section 9.3. Such designation of beneficiary may be changed by the Participant
at any time by written notice to the Committee. Upon the death of a Participant
and upon receipt by the Committee of proof of identity and existence at the
Participant's death of a beneficiary validly designated by him under the Plan,
the Company shall deliver such stock and/or cash to such beneficiary. In the
event of the death of a Participant and in the absence of a beneficiary validly
designated under the Plan who is living at the time of such Participant's death,
the Company shall deliver such stock and/or cash to the executor or
administrator of the estate of the Participant, or if no such executor or
administrator has been appointed (to the knowledge of the Company), the Company,
in its discretion, may deliver such stock and/or cash to the spouse or to any
one or more dependents of the Participant as the Company may designate. No
beneficiary shall, prior to the death of the Participant by whom he has been
designated, acquire any interest in the stock or cash credited to the
Participant under the Plan.
10.2 Restrictions on Transfer. No funds credited to a Participant's
------------------------
Account nor any rights to receive Common Stock under the Plan may be assigned,
transferred, pledged, or otherwise disposed of in any way by the Participant
other than by will or the laws or descent and distribution. Any such attempted
assignment, transfer, pledge or other disposition shall be without effect,
except that the Company may treat such act as an election to withdraw funds in
accordance with Section 9.1.
10.3 Use of Funds. All payroll deductions or bank account debits received
------------
or held by the Company under this Plan may be used by the Company for any
corporate purpose and the Company shall not be obligated to segregate such
payroll deductions or bank account debits.
10.4 Amendment and Termination. The Board shall have complete power and
-------------------------
authority to amend the Plan; provided, however, that the Board shall not,
without the approval of the stockholders of the corporation (i) increase the
maximum number of shares which may be issued under any Offering (except pursuant
to Section 4.2); or (ii) amend the requirements as to the class of Employees
eligible to purchase Common Stock under the Plan.
10.5 Commencement Date. The Plan shall commence as of the date of Board
-----------------
approval, subject to approval by the holders of the majority of the Common Stock
present and represented at the next meeting of shareholders occurring after
Board approval. If the Plan is not so approved, the Plan shall not become
effective. Notwithstanding the foregoing, the Grant Date of the Plan shall be
as defined in Article II.
10.6 No Employment Rights. The Plan does not, directly or indirectly,
--------------------
create any right for the benefit of any Employee or class of Employees to
purchase any shares under the Plan, or create in any Employee or class of
Employees any right with respect to continuation of employment
8
<PAGE>
by the Company, and it shall not be deemed to interfere in any way with the
Company's right to terminate, or otherwise modify, an Employee's employment at
any time.
10.7 Effect of Plan. The provisions of the Plan shall, in accordance with
--------------
its terms, be binding upon, and inure to the benefit of, each Employee
participating in the Plan and such Employee's estate, the executors,
administrators or trustees thereof, heirs and legatees, and any receiver,
trustee in bankruptcy or representative of creditors of such Employee.
10.8 Governing Law. The laws of the Commonwealth of Pennsylvania will
-------------
govern all matters relating to this Plan except to the extent they are
superseded by the laws of the United States.
9
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[LETTERHEAD OF SWEENEY METZ FOX MCGRANN & SCHERMER L.L.C.]
11 Stanwix Street Pittsburgh, Pennsylvania 15222 EXHIBIT 5.1
Phone 412.918.1100 Fax 412.918.1199
July 10, 1998
LOGO SWEENEY METZ
ATTORNEYS AT LAW
Koppers Industries, Inc.
436 Seventh Avenue
Pittsburgh, PA 15219
Gentlemen:
We have acted as counsel for Koppers Industries, Inc., a Pennsylvania
corporation (the "Company"), with respect to the preparation of a Prospectus and
related Registration Statement on Form S-8 (the "Registration Statement"), to be
filed by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to the
registration of an aggregate of 250,000 shares of the Company's Common Stock
(the "Common Stock") pursuant to the Company's Employee Stock Purchase Plan (the
"Plan").
In connection with our representation, we have examined: (a) the
Registration Statement; (b) the Articles of Incorporation and By-laws of the
Company, as amended to date; (c) the Plan; and (d) such other minutes of
corporate proceedings, documents and records as we have deemed necessary to
enable us to render this opinion.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the laws of the
Commonwealth of Pennsylvania.
2. The shares of Common Stock offered by the Company as contemplated in
the Registration Statement are validly issued, fully paid and nonassessable.
We are admitted to the Bar of the Commonwealth of Pennsylvania and we
express no opinion herein as to the laws of any jurisdiction other than the laws
of the Commonwealth of Pennsylvania and the federal laws of the United States of
America.
We assume no obligation to supplement this opinion letter if any applicable
laws change after the date hereof or if we become aware of any facts that might
<PAGE>
Koppers Industries, Inc.
July 10, 1998
Page 2
- -------------------------
change the opinion expressed herein after the date hereof. This opinion letter
is rendered solely for your benefit in connection with the transactions
described above. This opinion letter may not be used or relied upon by any
other person and may not be disclosed, quoted, filed with a governmental agency
or otherwise referred to without our prior written consent. The opinions
expressed in this letter are limited to the matters set forth in this letter,
and no other opinion or opinions should be inferred beyond the matters expressly
stated.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
SWEENEY METZ FOX McGRANN & SCHERMER L.L.C.
Sweeney Metz Fox McGrann &
/s/ Schermer L.L.C.
---------------------------------------------
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITOR
We consent to the incorporation by reference in the Registration Statement
(Form S-8) of our report dated August 25, 1997 with respect to the Consolidated
Financial Statements of Koppers Australia Pty. Ltd. included in the 1997 Koppers
Industries, Inc. Annual Report (Form 10-K) filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG
Sydney, Australia
July 15, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITOR
We consent to the incorporation by reference in the Registration Statement
(Form S-8) of our report dated January 30, 1998 with respect to the Consolidated
Financial Statements and Schedule of Koppers Industries, Inc. included in its
1997 Annual Report (Form 10-K) filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG, LLP
Pittsburgh, Pennsylvania
July 15, 1998
