As filed with the Securities and Exchange Commission on April 27, 2001 -
Registration No. _____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TOWER AUTOMOTIVE, INC.
(Exact name of registrant as specified in its charter)
Delaware 41-1746238
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5211 Cascade Road, SE, Grand Rapids, Michigan 49546
(Address of Principal Executive Offices Including Zip Code)
Tower Automotive, Inc. Long Term Incentive Plan
(Full Title of the Plan)
Anthony A. Barone, 5211 Cascade Road, SE, Grand Rapids, Michigan 49546
(Name and address of agent for service)
(616) 802-1600
(Telephone number, including area code, of agent for service)
Copies of Communications to:
Michael G. Wooldridge
Varnum, Riddering, Schmidt & Howlett LLP
Bridgewater Place, P.O. Box 352
Grand Rapids, Michigan 49501-0352
(616) 336-6000
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share (1) Offering Price(1) Fee
--------------------------------------------------------------------------------------------------------------------
Common Stock
($.001 value) 3,000,000 shares $ 9.675 $ 29,025,000 $ 7,256.25
====================================================================================================================
(1) For the purpose of computing the registration fee only, the price shown is
based upon the price of $9.675 per share, the average of the high and low
sale prices for the Common Stock of the Registrant on the New York Stock
Exchange on April 20, 2001, in accordance with Rule 457(h).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from this Registration Statement in accordance with Rule
428 of the Securities Act of 1933 and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(a) The Annual Report on Form 10-K for the Registrant for the year ended
December 31, 2000.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the end of the fiscal year covered by the Annual Report on Form
10-K referred to in (a) above.
(c) The description of the Registrant's common stock contained in the
Registrant's Registration Statement on Form 8-A (File No. 1-12733)
filed February 11, 1997, pursuant to Section 12(b) of the Exchange
Act, including any amendments or reports filed for the purpose of
updating such description.
All other reports or documents filed by the Registrant pursuant to the
requirements of Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
subsequent to the date hereof and prior to the termination of the offering of
the securities offered hereby shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such reports or
documents. Any statement contained in a document incorporated herein by
reference shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein 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 4. Description of Securities
The class of securities to be offered is registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel
Not applicable
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the General Corporation Law of the State of Delaware
permits a Delaware corporation to limit the personal liability of its directors
in accordance with the provisions set forth therein. The Amended and Restated
Certificate of Incorporation of the Registrant provides that the personal
liability of directors shall be limited to the fullest extent permitted by
applicable law.
Section 145 of the General Corporation Law of the State of Delaware
contains provisions permitting Delaware corporations organized thereunder to
indemnify directors, officers, employees or agents against expenses, including
attorneys' fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with any threatened, pending or completed
action, suit or 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 provided that (i) such person
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the corporation's best interests and (ii) in the case of a
criminal proceeding such person had no reasonable cause to believe his or her
conduct was unlawful. In the case of actions or suits by or in the right of the
corporation, no indemnification
S-2
shall be made in a case in which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses. Indemnification as described above shall be granted
in a specific case only upon a determination that indemnification is proper in
the circumstances because such person has met the applicable standard of
conduct. Such determination shall be made (a) by a majority of a quorum of the
directors who were not a parties to such proceeding, (b) if such a quorum cannot
be obtained or if a quorum of disinterested directors directs so, by independent
legal counsel in a written option; (c) by a committee of such directors
designated by majority vote of such directors, even though less than a quorum,
or (c) by the stockholders of the corporation. The Bylaws of the Registrant
provide for indemnification of its directors and officers to the fullest extent
permitted by applicable law.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Reference is made to the Exhibit Index which appears on page S-7.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represents 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)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934, and 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 that time shall be deemed to be the
initial bona fide offering thereof.
S-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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of 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 by the Act and will be governed by the final adjudication of
such issue.
S-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 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 Grand Rapids, State of Michigan, on the 27th day of
April, 2001.
TOWER AUTOMOTIVE, INC.
By: /s/ Dugald K. Campbell
Dugald K. Campbell, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Anthony A. Barone and Dugald K. Campbell, and
each of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his 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 all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing required and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on April 27, 2001, by the following
persons in the capacities indicated.
/s/ S. A. Johnson /s/ Anthony A. Barone
S.A. Johnson Anthony A. Barone, Vice President and
Chairman and Director Chief Financial Officer
(Principal Financial and Accounting
Officer)
/s/ Dugald K. Campbell /s/ Kim B. Clark
Dugald K. Campbell, President, Kim B. Clark, Director
Chief Executive Officer and Director
(Principal Executive Officer)
/s/ James R. Lozelle /s/ Enrique Zambrano
James R. Lozelle, Director Enrique Zambrano, Director
/s/ Scott D. Rued /s/ F. J. Loughrey
Scott D. Rued, Director F. J. Loughrey, Director
/s/ Jurgen M. Geissinger /s/ Ali Jenab
Jurgen M. Geissinger, Director Ali Jenab, Director
S-5
Exhibit 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated January 26,
2001, included in Tower Automotive, Inc.'s Form 10-K for the year ended December
31, 2000 and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
Minneapolis, Minnesota
April 27, 2001
s-6
EXHIBIT INDEX
The following exhibits are filed as a part of the Registration Statement:
Exhibit 4 Tower Automotive, Inc. Long Term Incentive Plan, as Amended
Exhibit 5 Opinion of Varnum, Riddering, Schmidt & Howlett LLP with respect
to the legality of the securities being registered
Exhibit 23.1 Consent of Arthur Andersen LLP included on page S-6 hereof
Exhibit 23.2 Consent of Varnum, Riddering, Schmidt & Howlett LLP (included
with the opinion filed as Exhibit 5)
Exhibit 24 Power of Attorney - included on page S-5 hereof
S-7
EXHIBIT 4
TOWER AUTOMOTIVE, INC.
LONG-TERM INCENTIVE PLAN
AS AMENDED MAY 25, 1999
TABLE OF CONTENTS
Page
ARTICLE 1 ESTABLISHMENT AND PURPOSE OF THE PLAN............................. 1
1.1 Establishment of the Plan......................................... 1
1.2 Purpose of the Plan............................................... 1
1.3 Term of Plan...................................................... 1
ARTICLE 2 DEFINITIONS....................................................... 1
ARTICLE 3 ADMINISTRATION.................................................... 4
3.1 The Committee..................................................... 4
3.2 Committee Authority............................................... 4
ARTICLE 4 COMMON STOCK SUBJECT TO THE PLAN.................................. 5
ARTICLE 5 ELIGIBILITY....................................................... 6
ARTICLE 6 STOCK OPTIONS..................................................... 6
6.1 Options........................................................... 6
6.2 Grants............................................................ 6
6.3 Incentive Stock Options........................................... 6
6.4 Terms of Options.................................................. 6
ARTICLE 7 STOCK APPRECIATION RIGHTS......................................... 9
7.1 Grant of SARs..................................................... 9
7.2 Payment of SAR Amount............................................. 9
7.3 Nontransferability................................................10
ARTICLE 8 PERFORMANCE SHARES................................................10
8.1 Award of Performance Shares.......................................10
8.2 Terms and Conditions..............................................10
ARTICLE 9 OTHER STOCK-BASED AWARDS..........................................11
9.1 Other Awards......................................................11
9.2 Terms and Conditions..............................................11
ARTICLE 10 TERMINATION OR AMENDMENT OF THE PLAN..............................12
ARTICLE 11 UNFUNDED PLAN.....................................................12
ARTICLE 12 ADJUSTMENT PROVISIONS.............................................12
12.1 Antidilution......................................................12
12.2 Change in Control.................................................12
12.3 Adjustments by Administrator......................................13
ARTICLE 13 GENERAL PROVISIONS................................................13
13.1 Legend............................................................13
13.2 No Right to Employment............................................13
13.3 Withholding of Taxes..............................................13
13.4 No Assignment of Benefits.........................................14
13.5 Governing Law.....................................................14
13.6 Application of Funds..............................................14
13.7 Rights as a Shareholder...........................................14
i
TOWER AUTOMOTIVE, INC.
LONG-TERM INCENTIVE PLAN
ARTICLE 1
ESTABLISHMENT AND PURPOSE OF THE PLAN
1.1 Establishment of the Plan. Tower Automotive, Inc., a Delaware
corporation (the "Company"), hereby establishes an incentive compensation plan
to be known as the "Tower Automotive, Inc. Long-Term Incentive Plan" (the
"Plan"), as set forth in this document. The Plan permits the granting of stock
options, stock appreciation rights, and other stock-based awards to key
colleagues of the Company and its subsidiaries, Directors and Consultants. Upon
approval by the Board of Directors of the Company, subject to ratification by
the affirmative vote of holders of a majority of shares of the Company's Common
Stock present and entitled to vote at the 1999 Annual Meeting of Shareholders,
the Plan shall be effective as of March 1, 1999 (the "Effective Date").
1.2 Purpose of the Plan. The purpose of the Plan is to promote the
long-term success of the Company for the benefit of the Company's stockholders,
through stock-based compensation, by aligning the personal interests of Plan
Participants with those of its shareholders. The Plan is also designed to allow
Plan Participants to participate in the Company's future, as well as to enable
the Company to attract, retain and award such individuals.
1.3 Term of Plan. No Awards shall be granted pursuant to the Plan on or
after the tenth anniversary of the Effective Date ("Termination Date"), provided
that Awards granted prior to the Termination Date may extend beyond that date,
and Cash Payment Rights may be effected pursuant to the terms of Awards granted
prior to the Termination Date.
ARTICLE 2
DEFINITIONS
For purposes of this Plan, the following terms shall have the meanings set
forth below:
2.1 "Administrator" shall mean the Board or any of the Committees
designated to administer the Plan in accordance with Section 3.1 of the Plan.
2.2 "Award" shall mean any award under this Plan of any Options, Stock
Appreciation Rights, Performance Shares or Other Stock-Based Award.
2.3 "Award Agreement" shall mean an agreement evidencing the grant of an
Award under this Plan. Awards under the Plan shall be evidenced by Award
Agreements that set forth the details, conditions and limitations for each
Award, as established by the Administrator and shall be subject to the terms and
conditions of the Plan.
2.4 "Award Date" shall mean the date that an Award is made, as specified in
an Award Agreement.
1
2.5 "Board" shall mean the Board of Directors of the Company.
2.6 "Code" shall mean the Internal Revenue Code of 1986, as amended.
2.7 "Colleague" shall mean any person employed by the Company or a
Subsidiary. Neither service as a Director nor the payment of a Director's fee by
the Company shall be sufficient to constitute employment by the Company.
2.8 "Committee" shall mean one of the Committees, as specified in Article
3, appointed by the Board to administer the Plan.
2.9 "Common Stock" shall mean the Common Stock, $.01 par value per share,
of the Company.
2.10 "Consultant" shall mean any person or entity engaged by the Company or
a Subsidiary to render services to the Company or that Subsidiary.
2.11 "Director" shall mean a member of the Board.
2.12 "Disability" shall mean permanent and total disability as determined
under the rules and guidelines established by the Committee for purposes of the
Plan.
2.13 "Fair Market Value" shall be the closing sale price of the Company's
Common Stock on the New York Stock Exchange. If no sale of shares of Common
Stock is reflected on the New York Stock Exchange on a date, "Fair Market Value"
shall be determined according to the closing sale price on the next preceding
day on which there was a sale of shares of Common Stock reflected on New York
Stock Exchange.
2.14 "Incentive Stock Option" or "ISO" shall mean an option to purchase
shares of Common Stock granted under Article 6, which is designated as an
Incentive Stock Option and is intended to meet the requirements of Section 422
of the Code.
2.15 "Insider" shall mean a colleague who is an officer (as defined in Rule
16a-1(f) of the Exchange Act) or director of the Company, or holder of more than
ten percent (10%) of its outstanding shares of the Company's Common Stock.
2.16 "Noncolleague Director" shall mean a person who satisfies (1) the
definition of "Nonemployee Director" within the meaning set forth in Rule
16b-3(b)(3), as promulgated by the Securities and Exchange Commission (the
"SEC") under the Securities Exchange Act of 1934 (the "Exchange Act"), or any
successor definition adopted by the SEC, or (2) the definition of "outside
director" within the meaning of Section 162(m) of the Code.
2
2.17 "Nonqualified Stock Option" or "NQSO" shall mean an option to purchase
shares of Common Stock, granted under Article 6, which is not an Incentive Stock
Option.
2.18 "Option" means an Incentive Stock Option or a Nonqualified Stock
Option.
2.19 "Option Price" shall mean the price at which a share of Common Stock
may be purchased by a Participant pursuant to an Option, as determined by the
Committee.
2.20 "Other Stock-Based Award" shall mean an Award under Article 9 of this
Plan that is valued in whole or in part by reference to, or is payable in or
otherwise based on, Common Stock.
2.21 "Participant" shall mean a colleague of the Company or a Subsidiary, a
Director or Consultant who holds an outstanding Award granted under the Plan.
2.22 "Performance Shares" shall mean an Award granted under Article 8 of
this Plan evidencing the right to receive Common Stock or cash of an equivalent
value at the end of a specified performance period.
2.23 "Permitted Transferee" means (i) the spouse, children or grandchildren
of a Participant (each an "Immediate Family Member"), (ii) a trust or trusts for
the exclusive benefit of the Participant and/or one or more Immediate Family
Members, or (iii) a partnership or limited liability company whose only partners
or members are the Participant and/or one or more Immediate Family Members.
2.24 "Retirement" shall mean the termination of a Participant's employment
with the Company or a Subsidiary after the Participant attains the age of 55 and
the Participant has completed at least ten (10) years of employment with the
Company or a Subsidiary (including any predecessor to the Company or a
Subsidiary).
2.25 "Stock Appreciation Right" or "SAR" shall mean an Award granted to a
Participant under Article 7 of this Plan.
2.26 "Subsidiary" shall mean any corporation in which the Company owns
directly, or indirectly through subsidiaries, at least fifty percent (50%) of
the total combined voting power of all classes of stock, or any other entity
(including, but not limited to, partnerships and joint ventures) in which the
Company owns at least fifty percent (50%) of the combined equity thereof.
2.27 "Termination of Service" shall mean the termination of a Colleague's
employment with the Company or a Subsidiary. A Colleague employed by a
Subsidiary shall also be deemed to incur a Termination of Service if the
Subsidiary ceases to be a Subsidiary and the Participant does not immediately
thereafter become a colleague of the Company or another Subsidiary. With respect
to a Participant that is not a Colleague, Termination of Service shall mean the
termination of the person's service as a Director of the company or as a
Consultant to the Company or a Subsidiary.
3
ARTICLE 3
ADMINISTRATION
3.1 The Committee. The Plan may be administered by different Committees
with respect to different groups of Plan Participants. To the extent that the
Administrator determines it to be desirable to qualify Awards granted hereunder
as "performance-based compensation" within the meaning of Section 162(m) of the
Code, the Plan shall be administered by a committee of two or more Non-Colleague
Directors. To the extent desirable to qualify transactions hereunder as exempt
under Rule 16b-3, the transactions contemplated hereunder shall be structured to
satisfy the requirements for exemption under Rule 16b-3. Other than as provided
above, the Plan shall be administered by (a) the Board, or (b) a Committee,
which Committee shall be constituted to satisfy the foregoing conditions.
3.2 Committee Authority. Subject to the Company's Certificate of
Incorporation, Bylaws and the provisions of this Plan, the Administrator shall
have full authority to grant Awards to key Colleagues of the Company or a
Subsidiary, as well as Directors and Consultants. Awards may be granted singly,
in combination, or in tandem. The authority of the Administrator shall include
the following:
(a) To select the key colleagues of the Company or a Subsidiary,
Directors or Consultants to whom Awards may be granted under the Plan;
(b) To determine whether and to what extent Options, Stock
Appreciation Rights, Performance Shares and Other Stock-Based Awards, or
any combination thereof are to be granted under the Plan;
(c) To determine the number of shares of Common Stock to be covered by
each Award;
(d) To determine the terms and conditions of any Award Agreement,
including, but not limited to, the Option Price, any vesting restriction or
limitation, any vesting schedule or acceleration thereof, or any forfeiture
restrictions or waiver thereof, regarding any Award and the shares Common
Stock relating thereto, based on such factors as the Administrator shall
determine in its sole discretion;
(e) To determine whether, to what extent and under what circumstances
grants of Awards are to operate on a tandem basis and/or in conjunction
with or apart from other cash compensation arrangement made by Company
other than under the terms of this Plan;
(f) To determine under what circumstances an Award may be settled in
cash, Common Stock, or a combination thereof; and
(g) To determine to what extent and under what circumstances shares of
Common Stock and other amounts payable with respect to an Award shall be
deferred.
4
The Administrator shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall,
from time to time, deem advisable, to interpret the terms and provisions of the
Plan and any Award issued under the Plan (including any Award Agreement) and to
otherwise supervise the administration of the Plan. A majority of the any
Committee shall constitute a quorum, and the acts of a majority of a quorum at
any meeting, or acts reduced to or approved in writing by a majority of the
members of any Committee, shall be the valid acts of any Committee. The
interpretation and construction by any Committee of any provisions of the Plan
or any Award granted under the Plan shall be final and binding upon the Company,
the Board and Participants, including their respective heirs, executors and
assigns. No member of the Board or any Committee shall be liable for any action
or determination made in good faith with respect to the Plan or an Award granted
hereunder. Notwithstanding the foregoing, without the prior approval of the
Company's shareholders, neither the Committee nor the Board of Directors shall
have the authority to lower the option exercise price of previously granted
Awards, whether by means of the amendment of previously granted Awards or the
replacement or regrant, through cancellation, of previously granted Awards.
ARTICLE 4
COMMON STOCK SUBJECT TO THE PLAN
Subject to adjustment as provided in Section 12.1, the maximum aggregate
number of shares of Common Stock which may be issued under this Plan, which may
be either unauthorized and unissued Common Stock or issued Common Stock
reacquired by the Company ("Plan Shares") shall be three million (3,000,000)
Shares.
Determinations as to the number of Plan Shares that remain available for
issuance under the Plan shall be made in accordance with such rules and
procedures as the Administrator shall determine from time to time. If an Award
expires unexercised or is forfeited, cancelled, terminated or settled in cash in
lieu of Common Stock, the shares of Common Stock that were theretofore subject
(or potentially subject) to such Award may again be made subject to an Award
Agreement. In addition, Shares from the following sources shall be added to the
number of Plan Shares available for issuance under the Plan: (1) any Shares of
the Company's Common Stock surrendered in payment of the exercise price of
Options or to pay the tax withholding obligations incurred upon the exercise of
Options; and (2) Options withheld to pay the exercise price or tax withholding
obligations incurred upon the exercise of Options.
5
ARTICLE 5
ELIGIBILITY
The persons who shall be eligible to receive Awards under the Plan shall be
selected by the Administrator from time to time. In making such selections, the
Administrator shall consider the nature of the services rendered by such
persons, their present and potential contribution to the Company's success and
the success of the particular Subsidiary or division of the Company by which
they are employed or to whom they provide services, and such other factors as
the Administrator in its discretion shall deem relevant. Participants may hold
more than one Award, but only on the terms and subject to the restrictions set
forth in the Plan and their respective Award Agreements. No Participant may
receive Awards under the Plan covering more than twenty-five percent (25%) of
Plan Shares.
ARTICLE 6
STOCK OPTIONS
6.1 Options. Options may be granted alone or in addition to other Awards
granted under this Plan. Each Option granted under this Plan shall be either an
Incentive Stock Option (ISO) or a Nonqualified Stock Option (NQSO).
6.2 Grants. The Administrator shall have the authority to grant to any
Participant one or more Incentive Stock Options, Nonqualified Stock Options, or
both types of Options. To the extent that any Option does not qualify as an
Incentive Stock Option (whether because of its provisions or the time or manner
of its exercise or otherwise), such Option or the portion thereof which does not
qualify shall constitute a separate Nonqualified Stock Option.
6.3 Incentive Stock Options. Anything in the Plan to the contrary
notwithstanding, no term of this Plan relating to Incentive Stock Options shall
be interpreted, amended or altered, nor shall any discretion or authority
granted under the Plan be so exercised, so as to disqualify the Plan under
Section 422 of the Code, or, without the consent of the Participants affected,
to disqualify any Incentive Stock Option under such Section 422. An Incentive
Stock Option shall not be granted to an individual who, on the date of grant,
owns stock possessing more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company. The aggregate Fair Market Value,
determined on the Award Date of the shares of Common Stock with respect to which
one or more Incentive Stock Options (or other incentive stock options within the
meaning of Section 422 of the Code, under all other option plans of the Company)
granted on or after January 1, 1987, that are exercisable for the first time by
a Participant during any calendar year shall not exceed the $100,000 limitation
imposed by Section 422(d) of the Code.
6.4 Terms of Options. Options granted under the Plan shall be evidenced by
Award Agreements in such form as the Administrator shall, from time to time
approve, which Agreement shall comply with and be subject to the following terms
and conditions:
6
(a) Option Price. The Option Price per share of Common Stock
purchasable under an Option shall be determined by the Committee at the
time of grant but shall be not less than one hundred percent (100%) of the
Fair Market Value of the Common Stock at the Award Date.
(b) Option Term. The term of each Option shall be fixed by the
Administrator, provided that no Option that has been designated as an
Incentive Stock Option shall be exercisable more than ten (10) years after
the date the Option is granted.
(c) Exercisability. Except as provided in Section 12.2, no Option
shall be exercisable in either in whole or in part prior to the first
anniversary of the Award Date. Thereafter, an Option shall be exercisable
at such time or times and subject to such terms and conditions as shall be
determined by the Administrator and set forth in the Award Agreement. If
the Administrator provides that any Option is exercisable only in
installments, the Administrator may at any time waive such installment
exercise provisions, in whole or in part, based on such factors as the
Administrator may determine.
(d) Method of Exercise. Subject to whatever installment exercise and
waiting period provisions apply under subsection (c) above, Options may be
exercised in whole or in part at any time during the term of the Option, by
giving written notice of exercise to the Company specifying the number of
shares to be purchased. Such notice shall be accompanied by payment in full
of the purchase price in such form as the Administrator may accept.
Notwithstanding the foregoing, an Option shall not be exercisable with
respect to less than 100 shares of Common Stock unless the remaining shares
covered by an Option are fewer than 100 shares. If and to the extent
determined by the Administrator in its sole discretion at or after grant,
payment in full or in part may also be made in the form of Common Stock
owned by the Participant (and for which the Participant has good title free
and clear of any liens and encumbrances and with respect to any shares of
Common Stock acquired upon the exercise of an Option, has been held by the
Optionee for a period of at least six (6) consecutive months), or by
reduction in the number of shares issuable upon such exercise based, in
each case, on the Fair Market Value of the Common Stock on the last trading
date preceding payment as determined by the Administrator. No shares of
stock shall be issued until payment has been made. A Participant shall
generally have the rights to dividends or other rights of a shareholder
with respect to shares subject to the Option when the person exercising
such option has given written notice of exercise, has paid for such shares
as provided herein, and, if requested, has given the representation
described in Section 13.1 of the Plan.
(e) Transferability of Options. No Option may be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated, other than by
will or by the laws of descent and distribution, provided, however, the
Administrator may, in its discretion, authorize all or a portion of a
Nonqualified Stock Option to be granted to an optionee to be on terms which
permit transfer by such optionee to a Permitted Transferee, provided that
(i) there may be no consideration for any such transfer (other than the
receipt of or interest in a family
7
partnership or limited liability company), (ii) the stock option agreement
pursuant to which such options are granted must be approved by the
Administrator, and must expressly provide for transferability in a manner
consistent with this Section 6.4(e), and (iii) subsequent transfers of
transferred options shall be prohibited except those in accordance with
Section 6.4(h). Following transfer, any such options shall continue to be
subject to the same terms and conditions as were applicable immediately
prior to transfer. The events of termination of service of Sections 6.4(f),
(g) and (h) hereof, and the tax withholding obligations of Section 12.3
shall continue to be applied with respect to the original optionee,
following which the options shall be exercisable by the Permitted
Transferee only to the extent, and for the periods specified in Sections
6(f), (g), and (h). The Company shall not be obligated to notify Permitted
Transferee(s) of the expiration or termination of any option. Further, all
Options shall be exercisable during the Participant's lifetime only by such
Participant and, in the case of a Nonqualified Stock Option, by a Permitted
Transferee. The designation of a person entitled to exercise an Option
after a person's death will not be deemed a transfer.
(f) Termination of Service for Reasons other than Retirement,
Disability, or Death. Upon termination of Service for any reason other than
Retirement or on account of Disability or death, each Option held by the
Participant shall, to the extent rights to purchase shares under such
Option have accrued at the date of such Termination of Service and shall
not have been fully exercised, be exercisable, in whole or in part, at any
time for a period of no more than three (3) months following Termination of
Service, subject, however, to prior expiration of the term of such Options
and any other limitations on the exercise of such Options in effect at the
date of exercise. Whether an authorized leave of absence or absence because
of military or governmental service shall constitute Termination of Service
for such purposes shall be determined by the Administrator, which
determination shall be final and conclusive.
(g) Termination of Service for Retirement or Disability. Upon
Termination of Service by reason of Retirement or Disability, each Option
held by such Participant shall, to the extent rights to purchase shares
under the Option have accrued at the date of such Retirement or Disability
and shall not have been fully exercised, remain exercisable in whole or in
part, for a period of not greater than two (2) years following such
Termination of Service, subject, however, to prior expiration according to
its terms and other limitations imposed by the Plan. If the Participant
dies after such Retirement or Disability, the Participant's Options shall
be exercisable in accordance with Section 6.4(h) below.
(h) Termination of Service for Death. Upon Termination of Service due
to death, each Option held by such Participant or Permitted Transferee
shall, to the extent rights to purchase shares under the Options have
accrued at the date of death and shall not have been fully exercised, be
exercisable, in whole or in part, by the personal representative of the
estate of the Participant or Permitted Transferee or by any person or
persons who shall have acquired the Option directly from the Participant or
Permitted Transferee by bequest or inheritance only under the following
circumstances and during the following periods: (i) if
8
the Participant dies while providing service to the Company or a Subsidiary
as a Colleague, Director or Consultant, at any time within a period of not
greater than two (2) years after his death, or (ii) if the Participant dies
during the extended exercise period following Termination of Service
specified in Section 6.4(g), at any time within the longer of such extended
period or for a period of not more than twelve (12) months after death,
subject, however, in any case, to the prior expiration of the term of the
Option and any other limitation on the exercise of such Option in effect at
the date of exercise.
(i) Termination of Options. Any Option that is not exercised within
whichever of the exercise periods specified in Sections 6.4(f), (g) or (h)
is applicable shall terminate upon expiration of such exercise period.
(j) Purchase and Settlement Provisions. The Administrator may at any
time offer to purchase an Option previously granted, based on such terms
and conditions as the Administrator shall establish and communicate to the
Participant at the time that such offer is made. In addition, if an Award
Agreement so provides at the Award Date or is thereafter amended to so
provide, the Administrator may require that all or part of the shares of
Common Stock to be issued with respect to the exercise of an Option, in an
amount not greater than the Fair Market Value of the shares that is in
excess of the aggregate Option Price, take the form of Performance Shares,
which shall be valued on the date of exercise on the basis of the Fair
Market Value of such Performance Shares determined without regard to the
deferral limitations and/or forfeiture restrictions involved.
ARTICLE 7
STOCK APPRECIATION RIGHTS
7.1 Grant of SARs. The Administrator may approve the grant of Stock
Appreciation Rights ("SARs") that are related to Options only. A SAR may be
granted only at the time of grant of the related Option. A SAR will entitle the
holder of the related Option, upon exercise of the SAR, to surrender such
Option, or any portion thereof to the extent unexercised, with respect to the
number of shares as to which such SAR is exercised, and to receive payment of an
amount computed pursuant to Section 7.2. Such Option will, to the extent
surrendered, then cease to be exercisable. Subject to Section 7.4, a SAR granted
hereunder will be exercisable at such time or times, and only to the extent that
a related Option is exercisable, and will not be transferable except to the
extent that such related Option may be transferable.
7.2 Payment of SAR Amount. Upon the exercise of a SAR, a Participant shall
be entitled to receive payment from the Company in an amount determined by
multiplying (i) the difference between the Fair Market Value of a share of
Common Stock on the date of exercise over the Option Price, by (ii) the number
of shares of Common Stock with respect to which the SAR is exercised. At the
discretion of the Committee, the payment upon SAR exercise may be in cash, in
shares of Common Stock of equivalent value, or in some combination thereof.
9
7.3 Nontransferability. No SAR may be sold, transferred, pledged, assigned,
or otherwise alienated or hypothecated, other than by will or by the laws of
descent and distribution. Further, all SARs shall be exercisable, during the
Participant's lifetime, only by such Participant.
ARTICLE 8
PERFORMANCE SHARES
8.1 Award of Performance Shares. Performance Shares may be awarded either
alone or in addition to other Awards granted under this Plan. The Administrator
shall determine the eligible persons to whom and the time or times at which
Performance Shares shall be awarded, the number of Performance Shares to be
awarded to any person, the duration of the period (the "Performance Period")
during which, and the conditions under which, receipt of the Performance Shares
will be deferred, and the other terms and conditions of the Award in addition to
those set forth in Section 8.2, as specified in the Award Agreement. The
Administrator may condition the grant of Performance Shares upon the achievement
of specific business objectives, measurements of individual or business unit or
Company performance, or such other factors or criteria as the Administrator
shall determine. The provisions of the award of Performance Shares need not be
the same with respect to each Participant, and such Awards to individual
Participants need not be the same in subsequent years.
8.2 Terms and Conditions. Performance Shares awarded pursuant to this
Article 8 shall be subject to the following terms and conditions:
(a) Nontransferability. Subject to the provisions of this Plan and the
related Award Agreement, Performance Shares may not be sold, assigned,
transferred, pledged or otherwise encumbered during the Performance Period.
At the expiration of the Performance Period, share certificates or cash of
an equivalent value (as the Administrator may determine in its sole
discretion) shall be delivered to the Participant, or his legal
representative, in a number equal to the shares covered by the Award
Agreement.
(b) Dividends. Unless otherwise determined by the Administrator at the
time of Award, amounts equal to any cash dividends declared during the
Performance Period with respect to the number of shares of Common Stock
covered by a Performance Share Award will not be paid to the Participant.
(c) Termination of Employment. Subject to the provisions of the Award
Agreement and this Article 8, upon Termination of Service for any reason
during the Performance Period for a given Award, the Performance Shares in
question will vest or be forfeited in accordance with the terms and
conditions established by the Administrator at or after grant.
(d) Accelerated Vesting. Based on service, performance and/or such
other factors or criteria as the Administrator may determine and set forth
in the Award Agreement, the
10
Administrator may, at or after grant, accelerate the vesting of all or any
part of any award of Performance Shares and/or waive the deferral
limitations for all or any part of such Award.
ARTICLE 9
OTHER STOCK-BASED AWARDS
9.1 Other Awards. Other Awards of Common Stock and other Awards that are
valued in whole or in part by reference to, or are payable in or otherwise based
on, Common Stock ("Other Stock-Based Awards"), may be granted either alone or in
addition to or in tandem with Options, SARs, or Performance Shares. Subject to
the provisions of this Plan, the Administrator shall have authority to determine
the persons to whom and the time or times at which such Awards shall be made,
the number of shares of Common Stock to be awarded pursuant to such awards, and
all other conditions of the Awards. The Administrator may also provide for the
grant of Common Stock under such Awards upon the completion of a specified
performance period. The provisions of Other Stock-Based Awards need not be the
same with respect to each Participant and such Awards to individual Participants
need not be the same in subsequent years.
9.2 Terms and Conditions. Other Stock-Based Awards made pursuant to this
Article 9 shall be set forth in an Award Agreement and shall be subject to the
following terms and conditions:
(a) Nontransferability. Subject to the provisions of this Plan and the
Award Agreement, shares of Common Stock subject to Awards made under this
Article 9 may not be sold, assigned, transferred, pledged, or otherwise
encumbered prior to the date on which the shares are issued, or, if later,
the date on which any applicable restriction, performance or deferral
period lapses.
(b) Dividends. Unless otherwise determined by the Administrator at the
time of Award, subject to the provisions of this Plan and the Award
Agreement, the recipient of an Award under this Article 9 shall be entitled
to receive, currently or on a deferred stock basis, dividends or other
distributions with respect to the number of shares of Common Stock covered
by the Award.
(c) Vesting. Any Award under this Article 9 and any Common Stock
covered by any such Award shall vest or be forfeited to the extent so
provided in the Award Agreement, as determined by the Administrator, in its
sole discretion.
(d) Waiver of Limitation. In the event of the Participant's
Retirement, Disability or death, or in cases of special circumstances, the
Administrator may, in its sole discretion, waive in whole or in part any or
all of the limitations imposed hereunder (if any) with respect to any or
all of an Award under this Article 9.
(e) Price. Common Stock issued or sold under this Article 9 may be
issued or sold for no cash consideration or such consideration as the
Administrator shall determine and specify in the Award Agreement.
11
ARTICLE 10
TERMINATION OR AMENDMENT OF THE PLAN
The Board may at any time amend, discontinue or terminate this Plan or any
part thereof (including any amendment deemed necessary to ensure that the
Company may comply with any applicable regulatory requirement); provided,
however, that, unless otherwise required by law, the rights of a Participant
with respect to Awards granted prior to such amendment, discontinuance or
termination, may not be impaired without the consent of such Participant and,
provided further, without the approval of the Company's shareholders, no
amendment may be made which would (i) increase the aggregate number of shares of
Common Stock that may be issued under this Plan (except by operation of Article
4 or of Section 12.1); (ii) decrease the option price of any Option to less than
one hundred percent (100%) of the Fair Market Value on the date of grant for an
Option; or (iii) extend the maximum option period under Section 6.4(b) of the
Plan. The Administrator may amend the terms of any Award theretofore granted,
prospectively or retroactively, but, subject to Section 12.2, no such amendment
or other action by the Administrator shall impair the rights of any Participant
without the Participant's consent. Awards may not be granted under the Plan
after the Termination Date, but Awards granted prior to such date shall remain
in effect or become exercisable pursuant to their respective terms and the terms
of this Plan.
ARTICLE 11
UNFUNDED PLAN
This Plan is intended to constitute an "unfunded" plan for incentive and
deferred compensation. With respect to any payment not yet made to a Participant
by the Company, nothing contained herein shall give any such Participant any
rights that are greater than those of a general creditor of the Company.
ARTICLE 12
ADJUSTMENT PROVISIONS
12.1 Antidilution. Subject to the provisions of this Article 12, if the
outstanding shares of Common Stock are increased, decreased, or exchanged for a
different number or kind of shares or other securities, or if additional shares
or new or different shares or other securities are distributed with respect to
such shares of Common Stock or other securities, through merger, consolidation,
sale of all or substantially all of the assets of the Company, reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split or other distribution with respect to such shares of Common Stock or other
securities, an appropriate and proportionate adjustment may be made in (i) the
maximum number and kind of shares provided in Article 4 of the Plan, (ii) the
number and kind of shares or other securities subject to the then outstanding
Awards, and (iii) the price for each share or other unit of any other securities
subject to the then outstanding Awards.
12.2 Change in Control. Notwithstanding Section 12.1, upon dissolution or
liquidation of the Company, or upon a reorganization, merger, or consolidation
of the Company with one or
12
more corporations as a result of which the Company is not the surviving
corporation, or upon the sale of all or substantially all the assets of the
Company, all Awards then outstanding under the Plan will be fully vested and
exercisable and all restrictions will immediately cease, unless provisions are
made in connection with such transaction for the continuance of the Plan and the
assumption of or the substitution for such Awards of new Awards covering the
stock of a successor employer corporation, or a parent or subsidiary thereof,
with appropriate adjustments as to the number and kind of shares and prices.
12.3 Adjustments by Administrator. Any adjustments pursuant to this Article
12 will be made by the Administrator, whose determination as to what adjustments
will be made and the extent thereof will be final, binding, and conclusive. No
fractional interest will be issued under the Plan on account of any such
adjustments. Only cash payments will be made in lieu of fractional shares.
ARTICLE 13
GENERAL PROVISIONS
13.1 Legend. The Administrator may require each person purchasing shares
pursuant to an Award under the Plan to represent to and agree with the Company
in writing that the Participant is acquiring the shares without a view to
distribution thereof. In addition to any legend required by this Plan, the
certificates for such shares may include any legend which the Administrator
deems appropriate to reflect any restrictions on transfer.
All certificates for shares of Common Stock delivered under the Plan shall
be subject to such stock transfer orders and other restrictions as the
Administrator may deem advisable under the rules, regulations and other
requirements of the Securities and Exchange Commission, any stock exchange upon
which the Stock is then listed, any applicable Federal or state securities law,
and any applicable corporate law, and the Administrator may cause a legend or
legends to be put on any such certificates to make appropriate reference to such
restrictions.
13.2 No Right to Employment. Neither this Plan nor the grant of any Award
hereunder shall give any Participant or other colleague any right with respect
to continuance of employment by the Company or any Subsidiary, nor shall there
be a limitation in any way on the right of the Company or any Subsidiary by
which a colleague is employed to terminate his or her employment at any time.
13.3 Withholding of Taxes. The Company shall have the right to deduct from
any payment to be made pursuant to this Plan, or to otherwise require, prior to
the issuance or delivery of any shares of Common Stock or the payment of any
cash hereunder, payment by the Participant of, any Federal, state or local taxes
required by law to be withheld. Unless otherwise prohibited by the
Administrator, each Participant may satisfy any such withholding tax obligation
by any of the following means or by a combination of such means: (a) tendering a
cash payment; (b) authorizing the Company to withhold from the shares otherwise
issuable to the Participant a number of shares having a Fair Market Value as of
the "Tax Date," less than or equal to the amount of the withholding tax
obligation; or (c) delivering to the Company unencumbered shares owned by the
Participant
13
having a Fair Market Value, as of the Tax Date, less than or equal to the amount
of the withholding tax obligation. The "Tax Date" shall be the date that the
amount of tax to be withheld is determined.
13.4 No Assignment of Benefits. No Award or other benefit payable under
this Plan shall, except as otherwise specifically transfer, provided by law, be
subject in any manner to anticipation, alienation, attachment, sale, transfer,
assignment, pledge, encumbrance or charge, and any attempt to anticipate,
alienate, attach, sell, transfer, assign, pledge, encumber or charge, any such
benefits shall be void, and any such benefit shall not in any manner be liable
for or subject to the debts, contracts, liabilities, engagements or torts of any
person who shall be entitled to such benefit, nor shall it be subject to
attachment or legal process for or against such person.
13.5 Governing Law. This Plan and actions taken in connection herewith
shall be governed and construed in accordance with the laws and in the courts of
the state of Delaware.
13.6 Application of Funds. The proceeds received by the Company from the
sale of shares of Common Stock pursuant to Awards granted under this Plan will
be used for general corporate purposes.
13.7 Rights as a Shareholder. Except as otherwise provided in an Award
Agreement, a Participant shall have no rights as a shareholder of the Company
until he or she becomes the holder of record of Common Stock.
::ODMA\PCDOCS\GRR\250356\2
14
EXHIBIT 5
April 27, 2001
Tower Automotive, Inc.
5211 Cascade Road, SE
Grand Rapids, Michigan 49546
Re: Registration Statement on Form S-8 Relating to the Tower Automotive, Inc.
Long Term Incentive Plan, as Amended (the "Plan")
Gentlemen:
With respect to the Registration Statement on Form S-8 (the "Registration
Statement") filed by Tower Automotive, Inc., a Delaware corporation (the
"Company") with the Securities and Exchange Commission, for the purpose of
registering under the Securities Act of 1933, as amended, 3,000,000 shares of
the Company's common stock, par value $.01 per share, for issuance pursuant to
the Plan, we have examined such documents and questions of law we consider
necessary or appropriate for the purpose of giving this opinion. On the basis of
such evaluation, we advise you that in our opinion the 3,000,000 shares covered
by the Registration Statement, when issued pursuant to the Plan, at the prices
described in the Registration Statement but not less than the par value thereof,
and upon delivery of such shares and payment therefor in accordance with the
terms stated in the Plans and the Registration Statement, will be duly and
legally authorized, issued and outstanding, and will be fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or under the rules and regulations of
the Securities and Exchange Commission relating thereto.
Sincerely,
VARNUM, RIDDERING, SCHMIDT & HOWLETTLLP
/s/ Varnum, Riddering, Schmidt & HowlettLLP