As filed with the Securities and Exchange Commission on July , 1995
Registration No. 33-
--
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
(Exact name of registrant as specified in its charter)
Indiana 35-0672570
(State of Incorporation) (I.R.S. Employer Identification No.)
20 N.W. Fourth Street
Evansville, Indiana 47741-0001
(812) 465-5300
(Address of principal executive offices)
Southern Indiana Gas and Electric Company 1994 Stock Option Plan
--------------------
A.E. Goebel
Senior Vice President, Chief Financial Officer, Secretary and Treasurer
Southern Indiana Gas and Electric Company
20 N.W. Fourth Street
Evansville, Indiana 47741-0001
(812) 465-5300
(Name and address of agent for service, including telephone number)
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Copy to:
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
(212) 858-1000
Attention: John H. Byington, Jr., Esq.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Amount Proposed maximum Proposed maximum Amount of
Title of securities to be offering price aggregate offering registration
to be registered registered per share <F1> price <F1> fee <F2>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, without par value <F3> 153,666 $27.625 $4,245,023.25 $1,470.00
====================================================================================================================================
- --------
<FN>
<F1> Determined pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"), based on the aggregate of the price at
which options may be exercised (the "Market Value").
<F2> The registration fee for the securities registered hereby has been
calculated pursuant to Rule 457(h) under the Securities Act.
<F3> This Registration Statement also pertains to rights to purchase No Par
Preferred Stock, Series 1986, of the Registrant (the "Rights"). Until the
occurrence of certain prescribed events the Rights are not exercisable,
are evidenced by the certificates for Southern Indiana Gas and Electric
Company Common Stock and will be transferred together with and only with
such securities. Thereafter, separate Rights certificates will be issued
representing one Right for each share of Southern Indiana Gas and
Electric Company Common Stock held subject to adjustment pursuant to
anti-dilution provisions.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN A SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Item 2. Registrant Information and Employee Plan Annual Information.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents which have heretofore been filed by Southern
Indiana Gas and Electric Company (the "Company") (File No. 1-3553) with the
Securities and Exchange Commission the ("Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), are incorporated by reference
herein and shall be deemed to be a part hereof:
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1994.
2. The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1995.
3. The Company's Current Report on Form 8-K dated February 13, 1995.
4. Description of the Company's capital stock contained in the Company's
registration statement under the 1934 Act, including any amendment of report
filed for the purpose of updating such description.
5. Description of the Company's Rights contained in the Company's
Registration Statement on Form 8-A, dated October 27, 1986, including any
amendment or report filed for the purpose of updating such description.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the filing of a
post-effective amendment to this Registration Statement 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 made a part hereof from their respective dates of
filing (such documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents"); provided, however, that the documents
enumerated above or subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act in each year during which the
offering made by this Registration Statement is in effect prior to the filing
with the Commission of the Company's Annual Report on Form 10-K covering such
year shall not be Incorporated Documents or be incorporated by reference in this
Registration Statement or be a part hereof from and after the filing of such
Annual Report on Form 10-K.
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
2
<PAGE>
Item 6. Indemnification of Directors and Officers.
The Registrant's By-Laws permits the indemnification of officers and
directors under certain circumstances to the full extent that such
indemnification may be permitted by law.
Such rights of indemnification are in addition to, and not in limitation
of, any rights to indemnification to which any officer or director of the
Company is entitled under The Indiana General Corporation Act, which provides
for indemnification by a corporation of its officers and directors under certain
circumstances and subject to specified limitations as set forth therein.
The Registrant also has an insurance policy covering its liabilities and
expenses which may arise in connection with its lawful indemnification of its
directors and officers for certain of their liabilities and expenses. Officers
and directors of the Registrant are covered under this policy for certain other
liabilities and expenses.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
4(a) - Amended Articles of Incorporation as amended March 26, 1985.
(Physically filed and designated in Form 10-K, for the fiscal year
1985, File No. 1-3553, as Exhibit 3-A.) Articles of Amendment of the
Amended Articles of Incorporation, dated March 24, 1987. Physically
filed and designated in Form 10-K for the fiscal year 1987, File
No. 1-3553, as Exhibit 3-A.) Articles of Amendment of the Amended
Articles of Incorporation, dated November 27, 1992. (Physically filed
and designated in Form 10-K for the fiscal year 1992, File No. 1-3553,
as Exhibit 3-A).
4(b) - By-Laws as amended through December 18, 1990. (Physically filed in
Form 10-K for the fiscal year 1990, File No. 1-3553, as Exhibit 3-B.)
By-Laws as amended through September 22, 1993. (Physically filed and
designated in Form 10-K for the fiscal year 1993, File No. 1-3553, as
Exhibit 3(b).)
5 - Opinion of Messrs. Bamberger, Foreman, Oswald and Hahn as to the
legality of securities offered under the Southern Indiana Gas and
Electric Company 1994 Stock Option Plan, including their consent.
23(a) - Consent of Arthur Andersen LLP.
23(b) - Consent of Counsel (contained in the Opinion of the Company's Counsel,
Exhibit 5 hereto).
99 - Southern Indiana Gas and Electric Company 1994 Stock Option Plan.
Item 9. Undertakings.
(1) The undersigned Registrant hereby undertakes:
(a) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
3
<PAGE>
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs
are contained in periodic reports filed by the Registrant pursuant to
Section 13(a) or Section 15(d) of the 1934 Act that are incorporated by
reference in the registration statement.
(b) 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.
(c) 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.
(2) The undersigned Registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each filing of the
issuer's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities offered
therein and the offering of such securities at the time shall be deemed to be
the initial bona fide offering hereof.
(3) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
EXPERTS
Unless otherwise indicated, the financial statements and schedules
incorporated by reference herein have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are incorporated by reference herein in reliance upon the authority
of said firm as experts in giving said reports.
4
<PAGE>
LEGAL OPINION
The legality of the Common Stock offered pursuant to the Registration
Statement has been passed upon for the Company by Bamberger, Foreman, Oswald &
Hahn, Evansville, Indiana.
SIGNATURES
The Registrant: Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Evansville, State of Indiana, on the 12th day of
July, 1995.
SOUTHERN INDIANA GAS AND ELECTRIC
COMPANY
/s/ Ronald G. Reherman
By: Ronald G. Reherman
Chairman, President and Chief Executive Officer
5
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated and on dates indicated.
Signatures: Title: Date:
/s/ Ronald G. Reherman
RONALD G. REHERMAN Chairman of the Board, July 12, 1995
President, Chief Executive
Officer and Director
(Principal Executive Officer)
/s/ Andrew E. Goebel
ANDREW E. GOEBEL Senior Vice President, July 12, 1995
Chief Financial Officer,
Secretary and Treasurer
(Principal Financial Officer)
/s/ S. Mark Kerney
S. MARK KERNEY Controller July 12, 1995
(Principal Accounting Officer)
/s/ Melvin H. Dodson
MELVIN H. DODSON Director July 12, 1995
/s/ Walter R. Emge
WALTER R. EMGE Director July 12, 1995
/s/ Robert L. Koch, II
ROBERT L. KOCH, II Director July 12, 1995
/s/ Jerry A. Lamb
JERRY A. LAMB Director July 12, 1995
/s/ Donald A. Rausch
DONALD A. RAUSCH Director July 12, 1995
/s/ Richard W. Shymanski
RICHARD W. SHYMANSKI Director July 12, 1995
6
<PAGE>
/s/ Donald E. Smith
DONALD E. SMITH Director July 12, 1995
/s/ James S. Vinson
JAMES S. VINSON Director July 12, 1995
/s/ Norman P. Wagner
NORMAN P. WAGNER Director July 12, 1995
7
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
EXHIBITS
filed with
Registration Statement
on
Form S-8
under
The Securities Act of 1933
-------------------
Southern Indiana Gas and Electric Company 1994 Stock Option Plan
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
(Exact name of registrant as specified in its charter)
8
<PAGE>
EXHIBIT INDEX
Southern Indiana Gas and Electric Company 1994 Stock Option Plan
Exhibit Sequential
Number Description Page Number
4(a) - Amended Articles of Incorporation as amended March 26, *
1985. (Physically filed and designated in Form 10-K,
for the fiscal year 1985, File No. 1-3553, as Exhibit
3-A.) Articles of Amendment of the Amended Articles
of Incorporation, dated March 24, 1987. (Physically
filed and designated in Form 10-K for the fiscal year
1987, File No. 1-3553, as Exhibit 3-A.) Articles of
Amendment of the Amended Articles of Incorporation,
dated November 27, 1992. (Physically filed and
designated in Form 10-K for the fiscal year 1992,
File No. 1-3553, as Exhibit 3-A).
4(b) - By-Laws as amended through December 18, 1990. *
(Physically filed in Form 10-K for the fiscal year
1990, File No. 1-3553, as Exhibit 3-B.) By-Laws
as amended through September 22, 1993. (Physically
filed and designated in Form 10-K for the fiscal
year 1993, File No. 1-3553, as EX-3(b).)
5 - Opinion of Messrs. Bamberger, Foreman, Oswald and
Hahn as to the legality of securities offered under
the Southern Indiana Gas and Electric Company 1994
Stock Option Plan, including their consent.
23(a) - Consent of Arthur Andersen LLP.
23(b) - Consent of Counsel (contained in the Opinion of
the Company's Counsel, Exhibit 5 hereto).
99 - Southern Indiana Gas and Electric Company 1994
Stock Option Plan.
- ------------------------------------
* Incorporated by reference
9
EXHIBIT 5
[LETTERHEAD OF BAMBERGER,
FOREMAN, OSWALD AND HAHN,
EVANSVILLE, INDIANA]
July 10, 1995
Southern Indiana Gas and Electric Company
20 N.W. Fourth Street
Evansville, IN 47708
In Re: Southern Indiana Gas and Electric Company
Registration Statement on Form S-8 - Southern
Indiana Gas and Electric Company 1994 Stock
Option Plan (the "Plan")
Ladies and Gentlemen:
In connection with the proposed issuance by Southern Indiana Gas and Electric
Company, an Indiana corporation ("SIGECO"), of up to One Hundred Fifty-Three
Thousand Six Hundred Sixty-Six (153,666) shares of SIGECO's common stock without
par value (the "Shares") for purchase pursuant to options granted under the Plan
and with respect to which a Registration Statement on Form S-8 has been prepared
for filing with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), we have examined such
corporate records, other documents and questions of law as we considered
necessary for the purposes of this opinion.
We are of the opinion that when:
A. The applicable provisions of the Securities Act and of state securities or
blue sky laws shall have been complied with, and
B. SIGECO's Board of Directors shall have duly authorized the issuance of the
Shares, and the Shares shall have been duly issued and paid for in an
amount not less than the "Fair Market Value", as defined in the Plan,
and as set forth in the corporate action taken to authorize the issuance of
the Shares,
the Shares will be legally issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an Exhibit to the Registration
Statement on Form S-8 referred to above, filed in connection with the Plan.
Very truly yours,
BAMBERGER, FOREMAN, OSWALD AND HAHN
/s/ Robert M. Becker
Robert M. Becker
RMB\csk
10
EXHIBIT 23(A)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated January
23, 1995, included in the Southern Indiana Gas and Electric Company's Annual
Report on Form 10-K for the year ended December 31, 1994, and our report dated
January 23, 1995, included in Southern Indiana Gas and Electric Company's
Current Report on Form 8-K dated February 13, 1995, and to all references to our
Firm included under the heading "Experts".
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Chicago, Illinois
July 12, 1995
11
EXHIBIT 99
SOUTHERN INDIANA GAS & ELECTRIC COMPANY
1994 STOCK OPTION PLAN
I. Purpose
The purposes of Southern Indiana Gas & Electric Company's 1994 Stock Option
Plan (the "Plan") are to promote the long-term success of Southern Indiana Gas &
Electric Company (the "Company") and its subsidiaries, and to attract, retain,
and motivate key employees while creating a long-term mutuality of interest with
shareholders by encouraging and enabling stock ownership.
II. Administration
(a) The Plan shall be administered by the Compensation Committee (the
"Committee"), consisting of three or more non-employee members of the Board of
Directors of the Company (the "Board"), all of whom shall be "disinterested
persons" as such term is defined in the rules of the Securities and Exchange
Commission, as amended from time to time.
(b) The Committee shall have all the powers vested in it by the terms of
the Plan, such powers to include exclusive authority (within the limitations
described herein) to select the employees to be granted options, to determine
the size and terms of the options to be granted to each employee selected, to
determine the time when options will be granted, the period during, and the
events upon which, options will be exercisable, and to prescribe the form of the
agreements embodying options granted under the Plan. The Committee shall be
authorized to interpret the Plan and the options granted under the Plan, to
establish, amend and rescind any rules and regulations relating to the Plan, and
to make any other determinations which it believes necessary or advisable for
the administration of the Plan. The Committee may correct any defect, supply any
omission or reconcile any inconsistency in the Plan or in any option in the
manner and to the extent the Committee deems necessary or desirable to place it
into effect.
(c) The Committee shall maintain a written record of its proceedings. Any
decision of the Committee in the administration of the Plan, as described
herein, shall be final and conclusive. The Committee may act only by a majority
of its members in office, except that the members thereof may authorize any one
or more of their number or any officer of the Company to execute and deliver
documents on behalf of the Committee.
III. Eligibility for Award
Key employees of the Company or any subsidiary of the Company are eligible
to receive options under the Plan.
IV. Allotment of Shares
Shares of common stock of the Company to be issued under the Plan shall be
made available, at the discretion of the Board and subject to any necessary
regulatory approval, either from authorized but unissued shares or from issued
shares reacquired by the Company. Subject to provisions of Section IX hereof,
the aggregate number of shares of common stock that may be issued under the Plan
shall not exceed 500,000 shares. Where options are for any reason cancelled, or
expire or terminate unexercised, the shares covered by
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<PAGE>
such option shall again be available for grant of options within the limits
provided by the preceding sentence. Options may be allotted to eligible
employees at such times and in such amounts as the Committee, in its sole
discretion, may determine, provided, however, that in the case of options which
are intended to be incentive stock options ("Incentive Stock Options") within
the meaning of Section 422 of the Internal Revenue Code of 1986 (the "Code"):
(i) the option holder, at the time the option is granted, shall not
own common stock equaling more than 10% of the total combined voting power
of all classes of stock of the Company, and
(ii) the aggregate Fair Market Value (determined at the time the
option is granted) of the stock with respect to which the options are
exercisable for the first time by an individual during any calendar
year (under all such plans of the Company and any parent or subsidiary
corporations) shall not exceed $100,000.
V. Granting of Options
All options granted under the Plan shall be in such form as the Committee
may from time to time approve. The Committee shall determine in each case
whether the options are Incentive Stock Options or Nonqualified Stock Options.
All options granted under the Plan shall be subject to the following terms and
conditions:
(a) Option Price. The Committee shall determine the option price
per share with respect to each option granted; provided, however, the
option price shall not be less than 100% of the Fair Market Value of the
common stock at the date the option is granted.
(b) Period of Option. Unless a shorter period is fixed by the
Committee or another provision of this Plan, each option may be
exercised during a period of ten years from the date the option was
granted.
(c) Payment. The option price shall be payable (i) in cash, (ii) by
tender to the Company of shares of Company stock owned by the option
holder, (iii) by delivery (in form approved by the Committee) of an
irrevocable direction to a securities broker acceptable to the Committee
to (x) sell shares subject to the option and to deliver all or a part of
the sales proceeds to the Company in payment of all or a part of the
purchase price and withholding taxes due or (y) pledge shares subject to
the option to the broker as security for a loan and to deliver all or a
part of the loan proceeds to the Company in payment of all or a part of the
purchase price and withholding taxes due, or (iv) by any combination of
the foregoing. No shares shall be issued until full payment has been
made or satisfactorily arranged for. A holder of an option shall have
none of the rights of a shareholder until the shares are issued.
(d) Exercise of Options. The shares covered by an option may be
be purchased in such installments and on such exercise dates as the
Committee may determine, provided, however, that no option shall become
exercisable until at least six months after grant unless disability of
the option holder occurs before the expiration of the six-month period.
Any shares not purchased on the applicable exercise date may be
purchased thereafter at any time prior to the final expiration of the
option. In no event shall any option be exercisable after the
expiration of ten years from the date upon which the option was granted.
Each option shall become exercisable according to terms set by the
Committee at the time of grant, except as specified in Section VII
(Acceleration of Exercisability on Change of Control). The Committee may
direct that an option become exercisable in installments, which need not
be annual installments, over a period which may be less than the term of
the option. At such time as an installment shall become exercisable, it
may be exercised at anytime thereafter in whole or in part until the
expiration or termination of the option. The Committee may, in its sole
discretion, prescribe shorter or longer time periods and additional
requirements with respect to exercise of an option.
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<PAGE>
(e) Nontransferability of Options. An option granted under the Plan
may not be transferred except by will or the laws of descent and
distribution and, during the lifetime of the employee to whom granted, may
be exercised only by such employee, or his or her guardian or legal
representative.
(f) Termination of Employment. Upon the termination of an option
holder's employment (for any reason other than retirement, disability,
death or termination for willful or gross misconduct), all rights under the
Plan will expire immediately on date of such termination. If an option
holder's employment is terminated for willful or gross misconduct, as
determined by the Board, all rights under the option shall expire upon
receipt by the option holder of the notice of such termination.
(g) Retirement or Disability of an Option Holder. In the event of an
option holder's disability (within the meaning of Section 22(e)(3) of
the Code) or retirement as an employee, option privileges shall apply to
those shares immediately purchasable at the date of separation from
service. The Committee, in its sole discretion, may provide that any
options outstanding but not yet exercisable upon date of such separation
from service of the option holder may become exercisable in accordance
with a schedule determined by the Committee; provided, however, that in
the event of retirement no options shall become exercisable until at least
six months after grant. Option privileges under Incentive Stock Options
shall expire unless exercised within three months from the date of
separation in the case of retirement, or within twelve months in the case
of disability, but no later than the date on which the option terminates.
Option privileges under Nonqualified Stock Options shall expire unless
exercised within five years from the date of separation, but no later than
the date on which the option terminates.
(h) Death of Option Holder. Upon the death of an option holder,
option privileges shall apply to those shares which were immediately
purchasable at the time of death. Option privileges shall expire unless
exercised by legal representatives or beneficiaries within one year after
the date of the employee's death, but no later than the date on which the
option terminates.
VI. Cash Payment
The Committee may, from time to time, grant or provide for the grant of
dividend equivalents in respect of options. In respect of any such option that
is outstanding on a dividend record date for shares covered by the option, the
optionee may be credited with an amount equal to the amount of cash or stock
dividends that would have been paid on the shares covered by the options if the
covered shares had been issued and outstanding on the dividend record date.
Subject to the terms of this plan and any applicable option agreements, the
Committee shall establish rules and procedures governing the crediting of
dividend equivalents, including the timing and payment contingencies that apply
to the dividend equivalents, as the Committee deems necessary or appropriate and
which shall comply with Rule 16b-3 under the Securities Exchange Act of 1934, as
amended, and other applicable law. Dividend equivalents shall be paid only in
cash.
VII. Acceleration of Exercisability on Change of Control
Upon a Change of Control of the Company, all options theretofore granted
and not previously exercisable shall become fully exercisable to the same extent
and in the same manner as if they had become exercisable by passage of time in
accordance with the provisions of the Plan relating to periods of exercisability
and to termination of employment.
A "Change of Control" shall be deemed to have occurred if:
(i) any individual, firm, trust, partnership, association,
corporation or other entity becomes the beneficial owner, directly
or indirectly, of 20% or more of the outstanding voting stock
of the Company, provided, however, that such an event shall
not constitute a Change of Control if such shareholder has
A-14
<PAGE>
established an agreement with the Company, approved by the Board, which
materially restricts the right of such shareholder to direct or
influence the management or policies of the Company; or
(ii) in any solicitation of proxies from the security holders of
the Company for the election of directors, proxies are solicited by or
on behalf of a person or entity other than the Board and, upon the
conclusion of such solicitation, nominees of such person or entity are
elected to one half or more of the then available positions on the Board.
The merger or consolidation of the Company with any other entity shall not,
as such, be regarded as a Change of Control for the purposes of this Plan. The
effect of such a merger or consolidation shall be determined by the provisions
of this Section.
VIII. Fair Market Value
"Fair Market Value" shall mean the value of a share of common stock on a
particular date, determined as follows: (i) if the common stock is not listed on
such date on any national securities exchange, the average between the highest
"bid" and lowest "offered" quotations of a share on such date (or, if none, on
the most recent date on which there were bid and offered quotations of a share,
as reported by the National Association of Securities Dealers Automated
Quotations System, or other similar service selected by the Committee); (ii) if
the common stock is neither listed on such date on a national securities
exchange nor traded in the over-the-counter market, the fair market value of a
share on such date as determined in good faith by the Committee; or (iii) if the
common stock is listed on such date on one or more national securities
exchanges, the last reported sale price of a share on such date as recorded on
the composite tape system, or, if such system does not cover the common stock,
the last reported sale price of a share on such date on the principal national
securities exchange on which the common stock is listed or, if no sale of common
stock took place on such date, the last reported sale price of a share on the
most recent day on which a sale of a share took place as recorded by such system
or on such exchange, as the case may be.
IX. Adjustment in the Event of Recapitalization
In the event of a reorganization, recapitalization, stock split, stock
dividend, combination of shares, merger, consolidation, rights offering, or any
other change in the corporate structure of the Company, the Committee shall make
such adjustments, if any, as are appropriate in the number and kind of shares
that may be issued under the Plan, in the number and kind of shares covered by
the options granted and in the option price.
X. Amendments and Discontinuance
The Board may discontinue the Plan at any time and may from time to time
amend or revise the terms of the Plan as permitted by applicable statutes,
except that it may not revoke or alter, in a manner unfavorable to the holders,
any options then outstanding, or amend the Plan without shareholder approval so
as to materially: (i) increase the benefits accruing to participants under the
Plan; (ii) increase the number of securities which may be issued under the Plan;
(iii) modify the requirements as to eligibility for participation in the Plan;
or (iv) increase the cost of the Plan to the Company.
XI. Compliance With Rule 16b-3
With respect to persons subject to Section 16 of the Securities Exchange
Act of 1934 (the "1934 Act"), transactions under the Plan are intended to comply
with all applicable conditions of Rule 16b-3 or its successors under the 1934
Act. To the extent any provisions of the Plan or action by the Committee fails
to so comply, it shall be deemed null and void, if permitted by law and deemed
advisable by the Committee.
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XII. Miscellaneous
By accepting any benefits under the Plan, each option holder and each
person claiming under or through such optionee shall be conclusively deemed to
have indicated acceptance and ratification of, and consent to, any action taken
or made or to be taken or made under the Plan by the Company, the Board, the
Committee or any other committee appointed by the Board. No option holder or any
person claiming under or through him or her shall have any right or interest,
whether vested or otherwise, in the Plan or in any option, unless and until all
of the terms, conditions and provisions of the Plan and the related option
agreement that affect such option holder or such other person shall have been
complied with. Nothing contained in the Plan or in any agreement shall require
the Company to segregate or earmark any cash or other property. Neither the
adoption of the Plan nor its operation shall in any way affect the rights and
powers of the Company or any of its subsidiaries to dismiss and/or discharge any
employee at any time.
The provisions of the Plan shall take precedence over any conflicting
provision contained in an option. The Plan shall be governed by and construed in
accordance with the internal substantive laws, and not the choice of law rules,
of the State of Indiana. If any term or provision of the Plan is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms and provisions will remain in full force and effect and will in no way
be affected, impaired or invalidated.
XIII. Withholding Obligations
(a) As a condition to the delivery of any shares pursuant to the
exercise of an option, the Committee may require that the optionee, at the
time of such exercise, pay to the Company an amount sufficient to satisfy
any applicable tax withholding obligations.
(b) The Committee, in its sole discretion, may permit an optionee
to satisfy all or a part of the withholding tax obligations incident to the
exercise of an option by having the Committee withhold a portion of the
shares that would otherwise be issuable to the optionee. Such shares
shall be valued based on their fair market value on the date the tax
withholding is required to be made. Any such share withholding with respect
to an optionee subject to Section 16(a) of the Exchange Act shall be
subject to such limitations as the Committee may impose to comply with the
requirements of Section 16 of the Exchange Act.
XIV. Securities Law Compliance
No shares shall be issued hereunder unless counsel for the Company shall be
satisfied that such issuance will be in compliance with applicable Federal and
state securities laws.
XV. Effective Date and Term of The Plan
The 1994 Stock Option Plan shall become effective on January 1, 1994
subject to prior approval of the shareholders. No option shall be granted
pursuant to this Plan after December 20, 2003. However, options theretofore
granted may extend beyond that date in accordance with their terms and the
provisions of the Plan.
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