-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, N9eI4FWvjV1p3pojJZ00pZcB2ShrF8xQkJoa9yNv258RSydUHucWMJDu20pCCLkl VWetGGuEszMTGi/BbxUwTg== 0001072613-06-001036.txt : 20060505 0001072613-06-001036.hdr.sgml : 20060505 20060505160240 ACCESSION NUMBER: 0001072613-06-001036 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20060505 DATE AS OF CHANGE: 20060505 EFFECTIVENESS DATE: 20060505 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NORTH AMERICAN GALVANIZING & COATINGS INC CENTRAL INDEX KEY: 0000055805 STANDARD INDUSTRIAL CLASSIFICATION: COATING, ENGRAVING & ALLIED SERVICES [3470] IRS NUMBER: 710268502 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-133848 FILM NUMBER: 06813139 BUSINESS ADDRESS: STREET 1: 5314 S YALE AVENUE STREET 2: SUITE 1000 CITY: TULSA STATE: OK ZIP: 74135 BUSINESS PHONE: (918)494-0964 MAIL ADDRESS: STREET 1: 5314 S YALE AVENUE STREET 2: SUITE 1000 CITY: TULSA STATE: OK ZIP: 74135 FORMER COMPANY: FORMER CONFORMED NAME: KINARK CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: KIN ARK OIL CO DATE OF NAME CHANGE: 19690601 FORMER COMPANY: FORMER CONFORMED NAME: KIN ARK OIL & GAS CO DATE OF NAME CHANGE: 19680906 S-8 1 form-s8_14338.txt FORM S-8 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on May 5, 2006 Registration No.333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 _________________ FORM S-8 REGISTRATION STATEMENT under THE SECURITIES ACT OF 1933 _________________ NORTH AMERICAN GALVANIZING & COATINGS, INC. -------------------------------------------------- (Exact name of issuer as specified in its charter) _________________ Delaware 71-0268502 ------------------------------ ------------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) _________________ 5314 South Yale Avenue, Suite 1000 Tulsa, Oklahoma 74135 - ---------------------------------------- ---------- (Address of principal executive offices) (Zip Code) _________________ 2004 Incentive Stock Plan _________________ Beth B. Hood North American Galvanizing & Coatings, Inc. 5314 South Yale Avenue, Suite 1000 Tulsa, Oklahoma 74135 (918) 494-0964 (Name, address and telephone number, including area code, of agent for service) _________________ ================================================================================ CALCULATION OF REGISTRATION FEE ================================================================================ PROPOSED MAXIMUM TITLE OF AMOUNT MAXIMUM PROPOSED AMOUNT OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION BE REGISTERED REGISTERED PER SHARE* OFFERING PRICE* FEE* - -------------------------------------------------------------------------------- Common Stock ($.10 par value) [1,798,333**] [$5.84] [$10,502,264] [$1,124] ================================================================================ * Estimated pursuant to rule 457(c). **Includes an indeterminate number of shares of Common Stock that may become issuable pursuant to the antidilution provisions of such Plan. ================================================================================ PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS ITEM 1. PLAN INFORMATION. The documents containing the information required by Item I of Form S-8 will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). Such documents are not required to be and are not filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. Upon written or oral request, any of the documents incorporated by reference in Item 3 of Part II of this Registration Statement, any of the other documents required to be delivered to Plan participants pursuant to Rule 428(b), and any additional information about the Plan and its administrators are available without charge by contacting: North American Galvanizing & Coatings, Inc. 5314 South Yale Avenue, Suite 1000 Tulsa, Oklahoma 74135 (918) 494-0964 Beth B. Hood, Vice President and Chief Financial Officer 2 PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents previously filed with the Commission by the Company (Commission File No. 001-03920) for purposes of the information reporting requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act") are incorporated herein by reference: 1. The Company's Annual Report on Form 10-K for the year ended December 31, 2005. 2. The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2006. 3. The Company's Proxy Statement for its 2006 Annual Meeting of Shareholders as filed with the Commission on March 29, 2006. 4. The description of the Company's Common Stock contained in the Company's Registration Statement on Form S-3 filed with the Commission on October 4, 1996. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated herein by reference will be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated herein by reference 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 hereof. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL None. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 102(b)(7) of the Delaware General Corporation Law authorizes the inclusion of a provision in the certificate of incorporation of a Delaware corporation to eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision may not eliminate or limit the liability of a director: (i) for any breach of the director's duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) for willful or negligent conduct in paying dividends or repurchasing stock out of other than lawfully available funds; or (iv) for any transaction from which the director receives an improper personal benefit. This provision pertains only to breaches of duty by directors in their capacity as directors (and not in any other corporate capacity, such as officers). The Company's Restated Certificate of Incorporation, as amended (the "Certificate"), exonerates the Company's directors from monetary liability to the fullest extent permitted by this statutory provision. 3 Section 145 of the Delaware General Corporation Law authorizes a Delaware corporation to indemnify its officers, directors, employees or agents for attorneys' fees and other expenses as well as judgments or amounts paid in settlement in civil cases. The person seeking indemnification must have acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation in respect to the claim made against him or her. In criminal cases, the person seeking indemnification may be indemnified for fines and costs provided that, in addition to the foregoing standard of conduct, he or she did not have a reasonable cause to believe his or her conduct was unlawful. Section 145 also permits a Delaware corporation to indemnify its directors, officers, agents and employees for expenses and attorneys' fees (not judgments) in actions brought by or in the right of the corporation, except that it does not permit such indemnification for any claim as to which such person is adjudged to be liable to the corporation, unless the court determines otherwise. Section 145 requires a Delaware corporation to indemnify any director, officer, employee or agent of the corporation to the extent he or she has been successful on the merits or otherwise in defense of any action, lawsuit or proceeding, or in defense of any claim, issue or matter therein, for expenses, including attorneys' fees, actually and reasonably incurred in connection with that defense. In addition to such rights as they may be provided by law, the Certificate and the Company's Amended and Restated Bylaws (the "Bylaws") provide broad indemnification rights to directors, officers, employees and agents of the Company and its subsidiaries with respect to various civil and criminal liabilities and losses which may be incurred by such director, officer, agent or employee pursuant to any pending or threatened litigation or other proceedings, to the fullest extent permitted under the Delaware General Corporation Law. The Company is also obligated under the Certificate and the Bylaws to advance payment of expenses incurred by directors, officers, employees and agents of the Company or its subsidiaries which are incurred by any such person in defending a proceeding brought by reason of the fact that he or she is or was a director, officer, employee or agent of the Company or its subsidiaries, provided that he or she provides an undertaking to the Company to repay any such advances if it is ultimately determined that he or she is not entitled to indemnification. Any amendment or other modification to the Certificate or Bylaws which limits or otherwise adversely affects the rights to indemnification currently provided shall apply only to proceedings based upon actions and events occurring after such amendment and delivery of notice thereof to the indemnified parties. The Company has entered into separate indemnification agreements with each of its directors and certain of its officers and employees, whereby the Company has agreed, among other things, to provide for indemnification and advancement of expenses in a manner and subject to terms and conditions similar to those set forth in the Bylaws. These agreements may not be abrogated by action of the stockholders. The Company has a standard policy of directors' and officers' liability insurance covering directors, officers, employees and agents of the Company and its subsidiaries with respect to liabilities incurred as a result of their service in such capacities. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS Exhibit No. Title ----------- ----- 4.1 2004 Incentive Stock Plan (As Amended and Restated) 4.2 Director Stock Unit Program (As Amended and Restated) 5.1 Opinion of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C. 15 Awareness Letter 23.1 Consent of Deloitte & Touche LLP 23.2 Consent of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C. (included in Exhibit 5.1) 24.1 Power of Attorney (included in signatures) 4 ITEM 9. UNDERTAKINGS (a) 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 to; (i) include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) include any additional or changed 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 (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) or 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. (4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: (i) If the Registrant is relying on Rule 430B: (A) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this Registration Statement as of the date the filed prospectus was deemed part of and included in this Registration Statement; and (B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of this Registration Statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in this Registration Statement as of 5 the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of this Registration Statement relating to the securities in this Registration Statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. PROVIDED, HOWEVER, that no statement made in a document incorporated or deemed incorporated by reference into this Registration Statement or prospectus that is part of this Registration Statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in this Registration Statement or prospectus that was part of this Registration Statement or made in any such document immediately prior to such effective date; or (ii) If the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of this Registration Statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in this Registration Statement as of the date it is first used after effectiveness. PROVIDED, HOWEVER, that no statement made in this Registration Statement or prospectus that is part of this Registration Statement or made in a document incorporated or deemed incorporated by reference into this Registration Statement or prospectus that is part of this Registration Statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in this Registration Statement or prospectus that was part of this Registration Statement or made in any such document immediately prior to such date of first use. (5) That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this Registration Statement regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser. (i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; (ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant; (iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and (iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. (b) 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 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 that time shall be deemed to be the initial bona fide offering thereof. 6 (c) 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 in the Act and will be governed by the final adjudication of such issue. 7 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 Tulsa, State of Oklahoma on the 5th day of May, 2006. NORTH AMERICAN GALVANIZING & COATINGS, INC. By: /s/ Beth B. Hood --------------------------------------- Name: Beth B. Hood Title: Vice President and Chief Financial Officer POWER OF ATTORNEY Know all men by these presents, that each person whose signature appears below constitutes and appoints Beth B. Hood and Ronald J. Evans and each of them singly, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities (including his or her capacity as a director or officer of North American Galvanizing & Coatings, Inc.) 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, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. /s/ Ronald J. Evans President, Chief Executive Dated: May 5, 2006 - ------------------------- Officer (principal executive Ronald J. Evans officer) and Director /s/ Beth B. Hood Vice President, Chief Financial Dated: May 5, 2006 - ------------------------- Officer (principal financial and Beth B. Hood accounting officer) and Secretary /s/ Linwood J. Bundy Director Dated: May 5, 2006 - ------------------------- Linwood J. Bundy /s/ John H. Sununu Director Dated: May 5, 2006 - ------------------------- John H. Sununu /s/ Joseph J. Morrow Director Dated: May 5, 2006 - ------------------------- Joseph J. Morrow /s/ Patrick J. Lynch Director Dated: May 5, 2006 - ------------------------- Patrick J. Lynch /s/ Gilbert L. Kleman, II Director Dated: May 5, 2006 - ------------------------- Gilbert L. Kleman, II /s/ Frank H. Menaker, Jr. Director Dated: May 5, 2006 - ------------------------- Frank H. Menaker, Jr. /s/ T. Stephen Gregory Director Dated: May 5, 2006 - ------------------------- T. Stephen Gregory 8 EX-4.1 2 ex4-1_14338.txt 2004 INCENTIVE STOCK PLAN EXHIBIT 4.1 ----------- NORTH AMERICAN GALVANIZING & COATINGS, INC. 2004 INCENTIVE STOCK PLAN (As Amended and Restated) TABLE OF CONTENTS PAGE ss. 1 BACKGROUND AND PURPOSE................................................1 ss. 2 DEFINITIONS...........................................................1 2.1 Affiliate....................................................1 2.2 Board........................................................2 2.3 Change Effective Date........................................2 2.4 Change in Control............................................2 2.5 Code.........................................................4 2.6 Committee....................................................4 2.7 Company......................................................4 2.8 Director.....................................................4 2.9 Director Stock Unit Program..................................5 2.10 Eligible Employee............................................5 2.11 Fair Market Value............................................5 2.12 ISO..........................................................5 2.13 1933 Act.....................................................5 2.14 1934 Act.....................................................6 2.15 Non-ISO......................................................6 2.16 Option.......................................................6 2.17 Option Certificate...........................................6 2.18 Option Price.................................................6 2.19 Parent.......................................................6 2.20 Plan.........................................................6 2.21 Preexisting Plan.............................................6 2.22 Rule 16b-3...................................................6 2.23 SAR Value....................................................7 2.24 Stock........................................................7 2.25 Stock Appreciation Right.....................................7 2.26 Stock Appreciation Right Certificate.........................7 2.27 Stock Grant..................................................7 2.28 Stock Grant Certificate......................................8 2.29 Stock Unit Grant.............................................8 2.30 Subsidiary...................................................8 2.31 Ten Percent Shareholder......................................8 ss. 3 SHARES AND GRANT LIMITS...............................................8 3.1 Shares Reserved..............................................8 3.2 Source of Shares.............................................9 3.3 Use of Proceeds..............................................9 3.4 Grant Limits................................................10 3.5 Preexisting Plan............................................10 ss. 4 EFFECTIVE DATE.......................................................10 ss. 5 COMMITTEE............................................................10 ss. 6 ELIGIBILITY AND ANNUAL GRANT CAPS....................................11 ss. 7 OPTIONS..............................................................11 7.1 Committee Action............................................11 7.2 $100,000 Limit..............................................12 7.3 Option Price................................................12 7.4 Payment.....................................................13 7.5 Exercise....................................................13 7.6 Compliance With Section 409A of the Code....................14 ss. 8 STOCK APPRECIATION RIGHTS............................................15 8.1 Committee Action............................................15 8.2 Terms and Conditions........................................15 8.3 Exercise....................................................17 8.4 Compliance With Section 409A of the Code....................17 ss. 9 STOCK GRANTS.........................................................18 9.1 Committee Action............................................18 9.2 Conditions..................................................18 9.3 Dividends, Voting Rights and Creditor Status................20 9.4 Satisfaction of Forfeiture Conditions.......................22 9.5 Income Tax Deduction........................................22 9.6 Director Stock Unit Program.................................24 9.7 Compliance With Section 409A of the Code....................24 ss. 10 NON-TRANSFERABILITY..................................................26 ss. 11 SECURITIES REGISTRATION..............................................26 ss. 12 LIFE OF PLAN.........................................................27 ss. 13 ADJUSTMENT...........................................................28 13.1 Capital Structure...........................................28 13.2 Transactions Described in ss. 424...........................28 13.3 Fractional Shares...........................................29 13.4 Compliance With Section 409A of the Code....................29 ss. 14 CHANGE IN CONTROL....................................................30 ss. 15 AMENDMENT OR TERMINATION.............................................30 ss. 16 MISCELLANEOUS........................................................31 16.1 Shareholder Rights..........................................31 16.2 No Contract of Employment...................................31 16.3 Withholding.................................................32 16.4 Construction................................................32 16.5 Other Conditions............................................32 16.6 Rule 16b-3..................................................33 SS. 1 BACKGROUND AND PURPOSE The purpose of this Plan is to promote the interest of the Company by authorizing the Committee to grant Options and Stock Appreciation Rights and to make Stock Grants and Stock Unit Grants to Eligible Employees and Directors in order (1) to attract and retain Eligible Employees and Directors, (2) to provide an additional incentive to each Eligible Employee or Director to work to increase the value of Stock and (3) to provide each Eligible Employee or Director with a stake in the future of the Company which corresponds to the stake of each of the Company's shareholders. This document is an amendment and complete restatement of the plan effective as of January 1, 2006. Any grant of an Option or Stock Appreciation Right under this plan is intended to meet the requirements under Section 409A of the Code for a non-statutory stock option, an incentive stock option or a stock appreciation right that does not provide for a deferral of compensation. Any Stock Grant or Stock Unit Grant under this plan is intended to meet the requirements of Section 409A of the Code for a short-term deferral that does not provide for a deferral of compensation. The provisions of the Plan shall be construed to be consistent with the intent that the Plan not be treated as a plan providing for the deferral of compensation within the meaning of Section 409A. The amendments with respect to Section 409A are to be considered effective as of January 1, 2005. SS. 2 DEFINITIONS 2.1 Affiliate. - means any organization (other than a Subsidiary) that would be treated as under common control with the Company under ss. 414(c) of the Code if "50 percent" were substituted for "80 percent" in the income tax regulations under ss. 414(c) of the Code. 2.2 Board. - means the Board of Directors of the Company. - 1 - 2.3 Change Effective Date. - means either the date which includes the "closing" of the transaction which makes a Change in Control effective if the Change in Control is made effective through a transaction which has a "closing" or the date a Change in Control is reported in accordance with applicable law as effective to the Securities and Exchange Commission if the Change in Control is made effective other than through a transaction which has a "closing". 2.4 Change in Control. - means a change in control of the Company of a nature that would be required to be reported in response to item 6(e) of Schedule 14A of Regulation 14A promulgated under the 1934 Act as in effect at the time of such "change in control", provided that such a change in control shall be deemed to have occurred at such time as (a) any "person" (as that term is used in Sections 13(d) and 14(d)(2)of the 1934 Act), is or becomes the beneficial owner (as defined in Rule 13d-3 under the 1934 Act) directly or indirectly, of securities representing 30% or more of the combined voting power for election of directors of the then outstanding securities of the Company or any successor to the Company; (b) during any period of two consecutive years or less, individuals who at the beginning of such period constitute the Board cease, for any reason, to constitute at least a majority of the Board, unless the election or nomination for election of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of the period; (c) the shareholders of the Company approve any reorganization, merger, consolidation or share exchange as a result of which the common stock of the Company shall be changed, converted or exchanged into or for securities of another corporation (other than a merger with a wholly-owned subsidiary of the - 2 - Company) or any dissolution or liquidation of the Company or any sale or the disposition of 50% or more of the assets or business of the Company; or (d) shareholders of the Company approve any reorganization, merger, consolidation or share exchange unless (A) the persons who were the beneficial owners of the outstanding shares of the common stock of the Company immediately before the consummation of such transaction beneficially own more than 60% of the outstanding shares of the common stock of the successor or survivor corporation in such transaction immediately following the consummation of such transaction and (B) the number of shares of the common stock of such successor or survivor corporation beneficially owned by the persons described in ss. 2.4(d)(A) immediately following the consummation of such transaction is beneficially owned by each such person in substantially the same proportion that each such person had beneficially owned shares of the Company common stock immediately before the consummation of such transaction, provided (C) the percentage described in ss. 2.4(d)(A) of the beneficially owned shares of the successor or survivor corporation and the number described in ss. 2.4 (d)(B) of the beneficially owned shares of the successor or survivor corporation shall be determined exclusively by reference to the shares of the successor or survivor corporation which result from the beneficial ownership of shares of common stock of the Company by the persons described in ss. 2.4(d)(A) immediately before the consummation of such transaction. 2.5 Code. - means the Internal Revenue Code of 1986, as amended. 2.6 Committee. - means a committee of the Board which shall have at least 2 members, each of whom shall be appointed by and shall serve at the pleasure of the Board and - 3 - shall come within the definition of a "non-employee director" under Rule 16b-3 and an "outside director" under ss. 162(m) of the Code. 2.7 Company. - means North American Galvanizing & Coatings, Inc. and any successor to North American Galvanizing & Coatings, Inc. 2.8 Director. - means any member of the Board who is not an employee of the Company or a Parent or Subsidiary or affiliate (as such term is defined in Rule 405 of the 1933 Act) of the Company. 2.9 Director Stock Unit Program. - means the North American Galvanizing & Coatings, Inc. Director Stock Unit Program as effective as of the date approved by the shareholders of the Company and as amended from time to time thereafter. 2.10 Eligible Employee. - means an employee of the Company or any Subsidiary or Parent or Affiliate to whom the Committee decides for reasons sufficient to the Committee to make a grant under this Plan. 2.11 Fair Market Value. - means either (a) the closing price on any date for a share of Stock as reported by The Wall Street Journal or, if The Wall Street Journal no longer reports such closing price, such closing price as reported by a newspaper or trade journal selected by the Committee or, if no such closing price is available on such date, (b) such closing price as so reported in accordance with ss. 2.10(a) for the immediately preceding business day, or, if no newspaper or trade journal reports such closing price or if no such price quotation is available, (c) the price which the Committee acting in good faith determines through any reasonable valuation method that a share of Stock might change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of the relevant facts. Such valuations shall always be determined in a manner consistent with the requirements of Section 409A of the Code. - 4 - 2.12 ISO. - means an option granted under this Plan to purchase Stock which is intended to satisfy the requirements of ss. 422 of the Code. 2.13 1933 Act. - means the Securities Act of 1933, as amended. 2.14 1934 Act. - means the Securities Exchange Act of 1934, as amended. 2.15 Non-ISO. - means an option granted under this Plan to purchase Stock which is intended to fail to satisfy the requirements of ss. 422 of the Code. 2.16 Option. - means an ISO or a Non-ISO which is granted under ss. 7. 2.17 Option Certificate. - means the certificate (whether in electronic or written form) which sets forth the terms and conditions of an Option granted under this Plan. 2.18 Option Price. - means the price which shall be paid to purchase one share of Stock upon the exercise of an Option granted under this Plan. 2.19 Parent. - means any corporation which is a parent corporation (within the meaning of 424(e) of the Code) of the Company. 2.20 Plan. - means this North American Galvanizing & Coatings, Inc. 2004 Incentive Stock Plan as effective as of the date approved by the shareholders of the Company and as amended from time to time thereafter. 2.21 Preexisting Plan. - means each of the following plans, as each such plan has been amended from time to time up to the date this Plan is effective: (1) the North American Galvanizing & Coatings, Inc. 1996 Stock Option Plan and (2) the North American Galvanizing & Coatings, Inc. 1988 Stock Option Plan. - 5 - 2.22 Rule 16b-3. - means the exemption under Rule 16b-3 to Section 16(b) of the 1934 Act or any successor to such rule. 2.23 SAR Value. - means the value assigned by the Committee to a share of Stock in connection with the grant of a Stock Appreciation Right under ss. 8. 2.24 Stock. - means the $0.10 par value common stock of the Company that is readily tradable on an established securities market, or if none, that class of common stock having the greatest aggregate value of common stock issued and outstanding. Under no circumstances shall Stock include stock that is subject to a mandatory repurchase obligation or a put or call right that is not a lapse restriction as defined in the regulations under Section 83 of the Code and that is based on a measure other the Fair Market Value of the equity interest in the corporation represented by the stock. 2.25 Stock Appreciation Right. - means a right which is granted under ss. 8 to receive the appreciation in a share of Stock. 2.26 Stock Appreciation Right Certificate. - means the certificate (whether in electronic or written form) which sets forth the terms and conditions of a Stock Appreciation Right which is not granted as part of an Option. 2.27 Stock Grant. - means a grant under Section 9 which is designed to result in the issuance of the number of shares of Stock described in the grant (and cash in lieu of any fractional share) after conditions stated in the Stock Grant Certificate are satisfied. The stock described in the grant may, in the discretion of the Committee, be issued to the Eligible Employee or Director before the stock grant becomes non-forfeitable under the terms of the grant. 2.28 Stock Grant Certificate. - means the certificate (whether in electronic or written form) which sets forth the terms and conditions of a Stock Grant or a Stock Unit Grant. - 6 - 2.29 Stock Unit Grant. - means a grant under Section 9 which is designed to result in the payment of shares of Stock described in the grant (and cash in lieu of any fractional share) after any conditions stated in the Stock Grant Certificate are satisfied. 2.30 Subsidiary. - means a corporation which is a subsidiary corporation (within the meaning of ss. 424(f) of the Code) of the Company. 2.31 Ten Percent Shareholder. - means a person who owns (after taking into account the attribution rules of ss. 424(d) of the Code) more than ten percent of the total combined voting power of all classes of stock of either the Company, a Subsidiary or Parent. SS. 3 SHARES AND GRANT LIMITS 3.1 Shares Reserved. There shall (subject to ss. 13) be reserved for issuance under this Plan (a) 1,250,000 shares of Stock, 489,667 of which were authorized for issuance under the North American Galvanizing & Coatings, Inc. 1996 Stock Option Plan and would have remained authorized and available for issuance under such plan if shares were issued under such plan on the effective date of this Plan sufficient to satisfy all then outstanding grants under such plan plus (b) the number of shares of Stock subject to grants under each Preexisting Plan which are outstanding on the effective date of this Plan and which are forfeited or expire on or after such effective date in accordance with the terms of such grants; provided, however, only the shares of Stock described in ss. 3.1(a) shall be issued in connection with the exercise of ISOs and nothing in this Plan shall affect any grants under a Preexisting Plan which are outstanding on the effective date of this Plan until such time, if any, that any shares of Stock subject to such grants are forfeited or grants respecting any shares of Stock expire on or after such effective date in accordance with the terms of such grants. - 7 - 3.2 Source of Shares. The shares of Stock described in ss. 3.1 shall be reserved to the extent that the Company deems appropriate from authorized but unissued shares of Stock and from shares of Stock which have been reacquired by the Company. All shares of Stock described in ss. 3.1 shall remain available for issuance under this Plan until issued pursuant to the exercise of an Option or a Stock Appreciation Right or issued pursuant to a Stock Grant, and any such shares of stock which are issued pursuant to an Option, a Stock Appreciation Right or a Stock Grant which are forfeited thereafter shall again become available for issuance under this Plan. Finally, if the Option Price under an Option is paid in whole or in part in shares of Stock or if shares of Stock are tendered to the Company in satisfaction of any condition to a Stock Grant, such shares thereafter shall become available for issuance under this Plan and shall be treated the same as any other shares available for issuance under this Plan. 3.3 Use of Proceeds. The proceeds which the Company receives from the sale of any shares of Stock under this Plan shall be used for general corporate purposes and shall be added to the general funds of the Company. 3.4 Grant Limits. No Eligible Employee or Director in any calendar year shall be granted an Option to purchase (subject to ss. 13) more than 100,000 shares of Stock or a Stock Appreciation Right based on the appreciation with respect to (subject to ss. 13) more than 100,000 shares of Stock, and no Stock Grant or Stock Unit Grant shall be made to any Eligible Employee or Director in any calendar year where the Fair Market Value of the Stock subject to such grant on the date of the grant exceeds $100,000; provided, however, that this limit shall not apply to a Stock Unit Grant made pursuant to the Director Stock Unit Program. No more than 100,000 non-forfeitable shares of Stock shall (subject to ss. 13) be issued pursuant to Stock Grants or Stock Unit Grants under ss. 9; provided, however, that no non-forfeitable shares of Stock issued pursuant to Stock Unit Grants under the Director Stock Unit Program shall be counted in determining whether this 100,000 share limitation has been reached. - 8 - 3.5 Preexisting Plan. No grants shall be made under any Preexisting Plan on or after the date this Plan becomes effective. SS. 4 EFFECTIVE DATE The effective date of this Plan shall be the date the shareholders of the Company (acting at a duly called meeting of such shareholders) approve the adoption of this Plan. SS. 5 COMMITTEE This Plan shall be administered by the Committee. The Committee acting in its absolute discretion shall exercise such powers and take such action as expressly called for under this Plan and, further, the Committee shall have the power to interpret this Plan and (subject to ss. 14 and ss. 15 and Rule 16b-3) to take such other action in the administration and operation of this Plan as the Committee deems equitable under the circumstances, which action shall be binding on the Company, on each affected Eligible Employee or Director and on each other person directly or indirectly affected by such action. Furthermore, the Committee as a condition to making any grant under this Plan to any Eligible Employee or Director shall have the right to require him or her to execute an agreement which makes the Eligible Employee or Director subject to non-competition provisions and other restrictive covenants which run in favor of the Company. SS. 6 ELIGIBILITY AND ANNUAL GRANT CAPS Only Eligible Employees who are employed by the Company or a Subsidiary or Parent shall be eligible for the grant of ISOs under this Plan. All Eligible Employees and Directors shall be eligible for the grant of Non-ISOs and Stock Appreciation Rights and for Stock Grants and Stock Unit Grants under this Plan. SS. 7 OPTIONS 7.1 Committee Action. The Committee acting in its absolute discretion shall have the right to grant Options to Eligible Employees and to Directors under this Plan from time to time to purchase shares of Stock, but the Committee shall not, absent the approval of the Company's shareholders, take any action, whether through amendment, cancellation, replacement grants, or any other means, to reduce the Option Price of any outstanding Options. Each grant of an Option to a Eligible Employee or Director shall be evidenced by an Option Certificate, and each Option - 9 - Certificate shall set forth whether the Option is an ISO or a Non-ISO and shall set forth such other terms and conditions of such grant as the Committee acting in its absolute discretion deems consistent with the terms of this Plan; however, (a) if the Committee grants an ISO and a Non-ISO to a Eligible Employee on the same date, the right of the Eligible Employee to exercise the ISO shall not be conditioned on his or her failure to exercise the Non-ISO and (b) if the only condition to exercise of the Option is the completion of a period of service, such period of service shall be no less than the one (1) year period which starts on the date as of which the Option is granted, unless the Committee determines that a shorter period of service (or no period of service) better serves the Company's interest. 7.2 $100,000 Limit. No Option shall be treated as an ISO to the extent that the aggregate Fair Market Value of the Stock subject to the Option which would first become exercisable in any calendar year exceeds $100,000. Any such excess shall instead automatically be treated as a Non-ISO. The Committee shall interpret and administer the ISO limitation set forth in this ss. 7.2 in accordance with ss. 422(d) of the Code, and the Committee shall treat this ss. 7.2 as in effect only for those periods for which ss. 422(d) of the Code is in effect. 7.3 Option Price. The Option Price for each share of Stock subject to an Option shall be no less than the Fair Market Value of a share of Stock on the date the Option is granted; provided, however, if the Option is an ISO granted to an Eligible Employee who is a Ten Percent Shareholder, the Option Price for each share of Stock subject to such ISO shall be no less than 110% of the Fair Market Value of a share of Stock on the date such ISO is granted. 7.4 Payment. The Option Price shall be payable in full upon the exercise of any Option and, at the discretion of the Committee, an Option Certificate can provide for the payment of the Option Price either in cash, by check or in Stock which has been held for at least 6 months and which is acceptable to the Committee, or through any cashless exercise procedure which is effected by an unrelated broker through a sale of Stock in the open market and which is acceptable - 10 - to the Committee, or in any combination of such forms of payment. Any payment made in Stock shall be treated as equal to the Fair Market Value of such Stock on the date the certificate for such Stock (or proper evidence of such certificate) is presented to the Committee or its delegate in such form as acceptable to the Committee. 7.5 Exercise. (a) Exercise Period. Each Option granted under this Plan shall be exercisable in whole or in part at such time or times as set forth in the related Option Certificate, but no Option Certificate shall make an Option exercisable on or after the earlier of (1) the date which is the fifth anniversary of the date the Option is granted, if the Option is an ISO and the Eligible Employee is a Ten Percent Shareholder on the date the Option is granted, or (2) the date which is the tenth anniversary of the date the Option is granted, if the Option is (a) a Non-ISO or (b) an ISO which is granted to an Eligible Employee who is not a Ten Percent Shareholder on the date the Option is granted. (b) Termination of Status as Eligible Employee or Director. Subject to ss. 7.5(a), an Option Certificate may provide for the exercise of an Option after an Eligible Employee's or a Director's status as such has terminated for any reason whatsoever, including death or disability. 7.6 Compliance With Section 409A of the Code. The Options granted under this Plan are intended to be non-statutory stock options or incentive stock options that do not provide for a deferral of compensation within the meaning of Section 409A of the Code, and all the provisions of - 11 - this Plan shall be construed accordingly. As provided in Section 7.3, the Option Price shall never be less than the Fair Market Value of a share of Stock on the date the Option is granted. The transfer or exercise of non-statutory options will be subject to taxation under Section 83 of the Code. The Option will not include any feature for the deferral of compensation beyond the date the Option is exercised or disposed of or the date the Stock acquired pursuant to the exercise of the Option first becomes substantially vested within the meaning of Section 83 of the Code. Upon exercising the Option, the Option holder will receive the Stock subject to the Option or payment for the stock as soon as practicable but in any event on or before the end of the taxable year in which the Option is exercised or on or before the 15th day of the third month following the date of exercise, if later. No modification of the Option shall be allowed if the resulting Option would provide for a deferral of compensation within the meaning of Section 409A of the Code. No Option holder will be entitled to received dividends on the Stock subject to an Option unless the right to dividends is explicitly set forth in a separate agreement. SS. 8 STOCK APPRECIATION RIGHTS 8.1 Committee Action. The Committee acting in its absolute discretion shall have the right to grant Stock Appreciation Rights to Eligible Employees and to Directors under this Plan from time to time, and each Stock Appreciation Right grant shall be evidenced by a Stock Appreciation Right Certificate or, if such Stock Appreciation Right is granted as part of an Option, shall be evidenced by the Option Certificate for the related Option. 8.2 Terms and Conditions. (a) Stock Appreciation Right Certificate. If a Stock Appreciation Right is granted independent of an Option, such Stock Appreciation Right shall be evidenced by a Stock Appreciation Right Certificate, and such certificate shall set forth the number of shares of Stock on which the Eligible Employee's or Director's right - 12 - to appreciation shall be based and the SAR Value of each share of Stock. Such SAR Value shall be no less than the Fair Market Value of a share of Stock on the date that the Stock Appreciation Right is granted. The Stock Appreciation Right Certificate shall set forth such other terms and conditions for the exercise of the Stock Appreciation Right as the Committee deems appropriate under the circumstances, but no Stock Appreciation Right Certificate shall make a Stock Appreciation Right exercisable on or after the date which is the tenth anniversary of the date such Stock Appreciation Right is granted. (b) Option Certificate. If a Stock Appreciation Right is granted together with an Option, such Stock Appreciation Right shall be evidenced by an Option Certificate, the number of shares of Stock on which the Eligible Employee's or Director's right to appreciation shall be based shall be the same as the number of shares of Stock subject to the related Option, and the SAR Value for each such share of Stock shall be no less than the Option Price under the related Option. Each such Option Certificate shall provide that the exercise of the Stock Appreciation Right with respect to any share of Stock shall cancel the Eligible Employee's or Director's right to exercise his or her Option with respect to such share and, conversely, that the exercise of the Option with respect to any share of Stock shall cancel the Eligible Employee's or Director's right to exercise his or her Stock Appreciation Right with respect to such share. A Stock Appreciation Right which is granted as part of an Option shall be exercisable only while the related Option is exercisable. The Option Certificate shall set forth such other terms and conditions for the exercise of the Stock Appreciation Right as the Committee deems appropriate under the circumstances. - 13 - (c) Minimum Period of Service. If the only condition to exercise of a Stock Appreciation Right is the completion of a period of service, such period of service shall be no less than the one (1) year period which starts on the date as of which the Stock Appreciation Right is granted, unless the Committee determines that a shorter period of service (or no period of service) better serves the Company's interest. 8.3 Exercise. A Stock Appreciation Right shall be exercisable only when the Fair Market Value of a share of Stock on which the right to appreciation is based exceeds the SAR Value for such share, and the payment due on exercise shall be based on such excess with respect to the number of shares of Stock to which the exercise relates. An Eligible Employee or Director upon the exercise of his or her Stock Appreciation Right shall receive a payment from the Company in cash or in Stock issued under this Plan, or in a combination of cash and Stock, and the number of shares of Stock issued shall be based on the Fair Market Value of a share of Stock on the date the Stock Appreciation Right is exercised. The Committee acting in its absolute discretion shall have the right to determine the form and time of any payment under this ss. 8.3. 8.4 Compliance With Section 409A of the Code. The Stock Appreciation Rights granted under this Plan are intended to be stock appreciation rights that do not provide for a deferral of compensation within the meaning of Section 409A of the Code, and all the provisions of this Plan shall be construed accordingly. Compensation payable under the Stock Appreciation Right cannot, therefore, be greater than the difference between the Fair Market Value of the Stock on the date of grant and the Fair Market Value of the Stock on the date the Stock Appreciation Right is exercised with respect to a number of shares of Stock fixed on or before the date the Stock Appreciation right is granted. As provided in Section 8.2, the SAR Value of each share of Stock subject to a Stock Appreciation Right shall never be less than the Fair Market Value of a share of Stock on the date the Stock Appreciation Right is granted. The Stock Appreciation Right will not - 14 - include any feature for the deferral of compensation beyond the date the Stock Appreciation Right is exercised. Upon exercising the Stock Appreciation Right, the holder will receive payment pursuant to the right as soon as practicable but in any event on or before the end of the taxable year in which the Stock Appreciation Right is exercised or on or before the 15th day of the third month following the date of exercise, if later. No modification of the Stock Appreciation Right shall be allowed if the resulting Stock Appreciation Right would provide for a deferral of compensation within the meaning of Section 409A of the Code. No Stock Appreciation Right holder will be entitled to receive dividends on the Stock subject to a Stock Appreciation Right unless the right to dividends is explicitly set forth in a separate arrangement. SS. 9 STOCK GRANTS 9.1 Committee Action. The Committee acting in its absolute discretion shall have the right to make Stock Grants and Stock Unit Grants to Eligible Employees and to Directors. Each Stock Grant and each Stock Unit Grant shall be evidenced by a Stock Grant Certificate, and each Stock Grant Certificate shall set forth the conditions, if any, under which Stock will be issued under the Stock Grant or the Stock Unit Grant and the conditions under which the Eligible Employee's or Director's interest in any Stock which has been or may be issued under a Stock Grant will become non-forfeitable. 9.2 Conditions. (a) Conditions to Issuance of Stock. The Committee acting in its absolute discretion may make the issuance of Stock under a Stock Grant or Stock Unit Grant subject to the satisfaction of one, or more than one, condition which the Committee deems appropriate under the circumstances for Eligible Employees or Directors generally or for an Eligible Employee or a Director in particular, and the related Stock Grant Certificate shall set forth each such condition and the deadline for - 15 - satisfying each such condition. Stock subject to a Stock Grant or Stock Unit Grant shall be issued in the name of an Eligible Employee or Director only after each such condition, if any, has been timely satisfied, and any Stock which is issued under a Stock Grant shall be held by the Company pending the satisfaction of the forfeiture conditions, if any, under ss. 9.2(b) for the related Stock Grant. (b) Conditions on Forfeiture of Stock. The Committee acting in its absolute discretion may make any Stock issued in the name of an Eligible Employee or Director under a Stock Grant non-forfeitable subject to the satisfaction of one, or more than one, objective employment, performance or other condition that the Committee acting in its absolute discretion deems appropriate under the circumstances for Eligible Employees or Directors generally or for an Eligible Employee or a Director in particular, and the related Stock Grant Certificate shall set forth each such condition, if any, and the deadline, if any, for satisfying each such condition. An Eligible Employee's or a Director's non-forfeitable interest in the shares of Stock underlying a Stock Grant shall depend on the extent to which he or she timely satisfies each such condition. Each share of Stock underlying a Stock Grant shall not be available under ss. 3 after such grant is effective until such time, if any, as such share thereafter is forfeited as a result of a failure to timely satisfy a forfeiture condition, in which event such share of Stock shall again become available under ss. 3 as of the date of such forfeiture. Finally, the Company shall have the right to require an Eligible Employee or Director to sign an irrevocable stock power in favor of the Company with respect to forfeitable shares of Stock issued under this ss. 9.2(b) in order for the Company to effect a forfeiture in accordance with this ss. 9.2(b). - 16 - (c) Minimum Period of Service. If the only condition to the forfeiture of a Stock Grant or a Stock Unit Grant is the completion of a period of service, such period of service shall be no less than the three (3) year period which starts on the date as of which the Stock Grant or Stock Unit Grant is made, unless the Committee determines that a shorter period of service (or no period of service) better serves the Company's interest. 9.3 Dividends, Voting Rights and Creditor Status. (a) Cash Dividends. Except as otherwise set forth in a Stock Grant, if a dividend is paid in cash on a share of Stock after such Stock has been issued under a Stock Grant but before the first date that an Eligible Employee's or a Director's interest in such Stock (1) is forfeited completely or (2) becomes completely non-forfeitable, the Company shall pay such cash dividend directly to such Eligible Employee or Director. (b) Stock Dividends. If a dividend is paid on a share of Stock in Stock after such Stock has been issued under a Stock Grant but before the first date that an Eligible Employee's or a Director's interest in such Stock (1) is forfeited completely or (2) becomes completely non-forfeitable, the Company shall hold such dividend Stock subject to the same conditions under ss. 9.2(b) as the related Stock Grant. (c) Other. If a dividend (other than a dividend described in ss. 9.3(a) or ss. 9.3(b)) is paid with respect to a share of Stock after such Stock has been issued under a Stock Grant but before the first date that an Eligible Employee's or a Director's interest in such Stock (1) is forfeited completely or (2) becomes completely non- - 17 - forfeitable, the Company shall distribute or hold such dividend in accordance with such rules as the Committee shall adopt with respect to each such dividend. (d) Voting. Except as otherwise set forth in a Stock Grant, an Eligible Employee or a Director shall have the right to vote the Stock issued under his or her Stock Grant during the period which comes after such Stock has been issued under a Stock Grant but before the first date that an Eligible Employee's or Director's interest in such Stock (1) is forfeited completely or (2) becomes completely non-forfeitable. (e) General Creditor Status. An Eligible Employee and a Director to whom a Stock Unit grant is made shall be no more than a general and unsecured creditor of the Company with respect to any cash payable under such Stock Unit Grant. 9.4 Satisfaction of Forfeiture Conditions. A share of Stock shall cease to be subject to a Stock Grant at such time as an Eligible Employee's or a Director's interest in such Stock becomes non-forfeitable under this Plan, and the certificate or other evidence of ownership representing such share shall be transferred to the Eligible Employee or Director as soon as practicable thereafter. 9.5 Income Tax Deduction. (a) General. The Committee shall (where the Committee under the circumstances deems in the Company's best interest) make Stock Grants and Stock Unit Grants to Eligible Employees either (1) subject to at least one condition related to one, or more than one, performance goal based on the performance goals described in ss. 9.5(b) which seems likely to result in the Stock Grant or Stock Unit Grant qualifying as "performance-based compensation" under ss. 162(m) of the Code or (2) under such other circumstances as the Committee deems likely to result in an - 18 - income tax deduction for the Company with respect such Stock Grant or Stock Unit Grant. A performance goal may be set in any manner determined by the Committee, including looking to achievement on an absolute or relative basis in relation to peer groups or indexes. (b) Performance Goals. A performance goal is described in this ss. 9.5(b) if such goal relates to (1) the Company's return over capital costs or increases in return over capital costs, (2) the Company's total earnings or the growth in such earnings, (3) the Company's consolidated earnings or the growth in such earnings, (4) the Company's earnings per share or the growth in such earnings, (5) the Company's net earnings or the growth in such earnings, (6) the Company's earnings before interest expense, taxes, depreciation, amortization and other non-cash items or the growth in such earnings, (7) the Company's earnings before interest and taxes or the growth in such earnings, (8) the Company's consolidated net income or the growth in such income, (9) the value of the Company's common stock or the growth in such value, (10) the Company's stock price or the growth in such price, (11) the Company's return on assets or the growth on such return, (12) the Company's cash flow or the growth in such cash flow, (13) the Company's total shareholder return or the growth in such return, (14) the Company's expenses or the reduction of such expenses, (15) the Company's sales growth, (16) the Company's overhead ratios or changes in such ratios, (17) the Company's expense-to-sales ratios or the changes in such ratios, or (18) the Company's economic value added or changes in such value added. (c) Adjustments. In setting performance goals, the Committee may exclude from consideration before the performance period begins any or all "extraordinary items" as determined under U.S. generally accepted accounting principles and - 19 - any other unusual or non-recurring items, including, without limitation, the charges or costs associated with restructurings of the Company, discontinued operations, and the cumulative effects of accounting changes. Payment of a Stock Grant or a Stock Unit Grant shall not be conditioned upon the attainment of a performance goal unless the failure to obtain the goal presents a substantial risk of forfeiture within the meaning of the regulations under Section 409A of the Code. 9.6 Director Stock Unit Program. The Company at the direction of the Committee may establish a revocable "rabbi trust" which is a part of this Plan and the Director Stock Unit Program and transfer a number of shares of Stock to the trustee of such trust which matches the number of Stock Unit Grants made pursuant to the Director Stock Unit Program if a determination is made that such transfers will minimize or eliminate the adverse financial accounting consequences, if any, to the Company as a result of Stock Unit Grants made pursuant to the Director Stock Unit Program. 9.7 Compliance with Section 409A of the Code. It is intended that the Stock Grants and Stock Units Grants under this Plan shall not provide for a deferral of compensation within the meaning of Section 409A of the Code, and all the provisions of this Plan shall be construed accordingly. If the Stock Grant or Stock Unit Grant is not subject to a substantial risk of forfeiture, as that term is defined in the regulations under Section 409A, the Stock or cash shall be paid as soon as practicable after the grant is made but in any event on or before March 15th of the year following the year in which the grant is made. If the Stock Grant or Stock Unit Grant is subject to a substantial risk of forfeiture, as that term is defined in the regulations under section 409A, the Stock or cash shall be paid as soon as practicable after the forfeiture conditions are satisfied but in any event on or before March 15 of the following year. Notwithstanding the foregoing, a payment of Stock or cash will be delayed if the Company reasonably anticipates that the Company's income - 20 - tax deductions with respect to the payment will be limited by Section 162(m) of the Code. Any payment so delayed will be made at the earliest date at which the Company reasonably anticipates the deduction of the payment will not be limited or the calendar year in which the Eligible Employee or Director separates from service. In addition, a payment of Stock or cash will be delayed if the Company reasonably anticipates that the making of the payment will violate a term of a loan agreement to which the Company is a party, or other similar contract to which the Company is a party if such violation will cause material harm to the Company. Any payment so delayed will be made at the earliest date at which the Company reasonably anticipates that the payment will not cause such violation or that the violation will not cause material harm to the Company. In addition, a payment of Stock or cash will be delayed if the Company reasonably anticipates that the payment will violate Federal securities laws or other applicable law. Any payment so delayed will be paid at the earliest date at which the Company reasonably anticipates that the payment will not cause such a violation. Finally, the Company may delay a payment upon such other events and conditions as the Internal Revenue Service may prescribe in generally applicable guidance. No modification of the Stock Grant or Stock Unit Grant shall be allowed if the resulting Stock Grant or Stock Unit Grant would provide for a deferral of compensation within the meaning of Section 409A of the Code. SS. 10 NON-TRANSFERABILITY No Option, Stock Grant, Stock Unit Grant or Stock Appreciation Right shall (absent the Committee's consent) be transferable by an Eligible Employee or a Director other than by will or by the laws of descent and distribution, and any Option or Stock Appreciation Right shall (absent the Committee's consent) be exercisable during a Eligible Employee's or Director's lifetime only by the Eligible Employee or Director. The person or persons to whom an Option or Stock Grant or Stock Unit Grant or Stock Appreciation Right is transferred by will or by the laws of descent and distribution (or with the Committee's consent) thereafter shall be treated as the Eligible Employee or Director. SS. 11 SECURITIES REGISTRATION As a condition to the receipt of shares of Stock under this Plan, the Eligible Employee or Director shall, if so requested by the Company, agree to hold such shares of Stock for investment and not with a view of - 21 - resale or distribution to the public and, if so requested by the Company, shall deliver to the Company a written statement satisfactory to the Company to that effect. Furthermore, if so requested by the Company, the Eligible Employee or Director shall make a written representation to the Company that he or she will not sell or offer for sale any of such Stock unless a registration statement shall be in effect with respect to such Stock under the 1933 Act and any applicable state securities law or he or she shall have furnished to the Company an opinion in form and substance satisfactory to the Company of legal counsel satisfactory to the Company that such registration is not required. Certificates or other evidence of ownership representing the Stock transferred upon the exercise of an Option or Stock Appreciation Right or upon the lapse of the forfeiture conditions, if any, on any Stock Grant may at the discretion of the Company bear a legend to the effect that such Stock has not been registered under the 1933 Act or any applicable state securities law and that such Stock cannot be sold or offered for sale in the absence of an effective registration statement as to such Stock under the 1933 Act and any applicable state securities law or an opinion in form and substance satisfactory to the Company of legal counsel satisfactory to the Company that such registration is not required. SS. 12 LIFE OF PLAN No Option or Stock Appreciation Right shall be granted or Stock Grant or Stock Unit Grant made under this Plan on or after the earlier of: (1) the tenth anniversary of the effective date of this Plan (as determined under ss. 4), in which event this Plan otherwise thereafter shall continue in effect until all outstanding Options and Stock Appreciation Rights have been exercised in full or no longer are exercisable and all Stock issued under any Stock Grants under this Plan have been forfeited or have become non-forfeitable, or (2) the date on which all of the Stock reserved under ss. 3 has (as a result of the exercise of Options or Stock Appreciation Rights granted under this Plan or the satisfaction of the forfeiture conditions, if any, on Stock Grants) been issued or no longer is available for use under this Plan, in which event this Plan also shall terminate on such date. SS. 13 ADJUSTMENT 13.1 Capital Structure. The number, kind or class (or any combination thereof) of shares of Stock reserved under ss. 3, the grant caps described in ss. 3, the number, kind or class (or - 22 - any combination thereof) of shares of Stock subject to Options or Stock Appreciation Rights granted under this Plan and the Option Price of such Options and the SAR Value of such Stock Appreciation Rights as well as the number, kind or class (or any combination thereof) of shares of Stock subject to Stock Grants or Stock Unit Grants made under this Plan shall be adjusted by the Committee in an equitable manner to reflect any equity restructuring or change in the capitalization of the Company, including, but not limited to, spin offs, stock dividends, large non-reoccurring dividends, rights offerings or stock splits. 13.2 Transactions Described in ss. 424. The Committee as part of any corporate transaction described in ss. 424(a) of the Code shall have the right to adjust (in any manner which the Committee in its discretion deems consistent with ss. 424(a) of the Code) the number, kind or class (or any combination thereof) of shares of Stock reserved under ss. 3 and the annual grant caps described in ss. 3. Furthermore, the Committee as part of any corporate transaction described in ss. 424(a) of the Code shall have the right to adjust (in any manner which the Committee in its discretion deems consistent with ss. 424(a) of the Code) the number, kind or class (or any combination thereof) of shares of Stock subject to any outstanding Stock Grants or Stock Unit Grants under this Plan and any related grant conditions and forfeiture conditions, and the number, kind or class (or any combination thereof) of shares subject to Option and Stock Appreciation Right grants previously made under this Plan and the related Option Price and SAR Value for each such Option and Stock Appreciation Right, and, further, shall have the right (in any manner which the Committee in its discretion deems consistent with ss. 424(a) of the Code and without regard to the annual grant caps described in ss. 3 of this Plan) to make any Stock Grants and Option and Stock Appreciation Right grants to effect the assumption of, or the substitution for, stock grants, stock unit grants and option and stock appreciation right grants previously made by any other corporation to the extent that such corporate transaction calls for s such substitution or assumption of such stock grants, stock unit grants and stock option and stock appreciation right grants. - 23 - 13.3 Fractional Shares. If any adjustment under this ss. 13 would create a fractional share of Stock or a right to acquire a fractional share of Stock under any Option, Stock Appreciation Right or Stock Grant, such fractional share shall be disregarded and the number of shares of Stock reserved under this Plan and the number subject to any Options or Stock Appreciation Right grants and Stock Grants shall be the next lower number of shares of Stock, rounding all fractions downward. An adjustment made under this ss. 13 by the Committee shall be conclusive and binding on all affected persons. 13.4 Compliance With Section 409A of the Code. Notwithstanding any other provision in this Section 13, no adjustments shall be made in the provisions of any award under this plan if the adjustment would cause the award to be subject to the compensation deferral rules of Section 409A. SS. 14 CHANGE IN CONTROL If there is a Change in Control of the Company, then as of the Change Effective Date for such Change in Control any and all conditions to the exercise of all outstanding Options and Stock Appreciation Rights on such date and any and all outstanding issuance and forfeiture conditions on any Stock Grants and Stock Unit Grants on such date automatically shall be deemed 100% satisfied as of such Change Effective Date, and the Board shall have the right (to the extent expressly required as part of such transaction) to cancel such Options, Stock Appreciation Rights, Stock Grants and Stock Unit Grants after providing each Eligible Employee and Director a reasonable period to exercise his or her Options and Stock Appreciation Rights and to take such other action as necessary or appropriate to receive the Stock subject to any Stock Grants and the cash payable under any Stock Unit Grants; provided, if any issuance or forfeiture condition described in this ss. 14 relates to satisfying any performance goal and there is a target for such goal, such issuance or forfeiture condition shall be deemed satisfied under this ss. 14 only to the extent of such target unless such target has been exceeded before the Change Effective Date, in which event such issuance or forfeiture condition shall be deemed satisfied to the extent such target had been so exceeded. SS. 15 AMENDMENT OR TERMINATION This Plan may be amended by the Board from time to time to the extent that the Board deems necessary or appropriate; provided, however, (a) no amendment shall be made absent the approval of the shareholders of the Company to the extent such approval is required under applicable law or the rules of the stock exchange on which shares of Stock are listed and (b) no amendment shall be made to ss. 14 on or after the date of any Change in Control which might adversely affect any rights which otherwise would vest on the related Change Effective Date. The Board also may suspend granting Options or Stock Appreciation Rights or making Stock Grants or Stock Unit Grants under this Plan at any time and may - 24 - terminate this Plan at any time; provided, however, the Board shall not have the right unilaterally to modify, amend or cancel any Option or Stock Appreciation Right granted or Stock Grant made before such suspension or termination unless (1) the Eligible Employee or Director consents in writing to such modification, amendment or cancellation or (2) there is a dissolution or liquidation of the Company or a transaction described in ss. 13.2 or ss. 14. SS. 16 MISCELLANEOUS 16.1 Shareholder Rights. No Eligible Employee or Director shall have any rights as a shareholder of the Company as a result of the grant of an Option or a Stock Appreciation Right pending the actual delivery of the Stock subject to such Option or Stock Appreciation Right to such Eligible Employee or Director. Subject to ss. 9.3, an Eligible Employee's or a Director's rights as a shareholder in the shares of Stock underlying a Stock Grant which is effective shall be set forth in the related Stock Grant Certificate. 16.2 No Contract of Employment. The grant of an Option or a Stock Appreciation Right or a Stock Grant or Stock Unit Grant to an Eligible Employee or Director under this Plan shall not constitute a contract of employment or a right to continue to serve on the Board and shall not confer on an Eligible Employee or Director any rights upon his or her termination of employment or service in addition to those rights, if any, expressly set forth in this Plan or the related Option Certificate, Stock Appreciation Right Certificate, or Stock Grant Certificate. 16.3 Withholding. Each Option, Stock Appreciation Right, Stock Grant and Stock Unit Grant shall be made subject to the condition that the Eligible Employee or Director consents to whatever action the Committee directs to satisfy the minimum statutory federal and state tax withholding requirements, if any, which the Company determines are applicable to the exercise of such Option or Stock Appreciation Right or to the satisfaction of any forfeiture conditions with respect to Stock subject to a Stock Grant or Stock Unit Grant issued in the name of the Eligible Employee or Director. No withholding shall be effected under this Plan which exceeds the minimum statutory federal and state withholding requirements. - 25 - 16.4 Construction. All references to sections (ss.) are to sections (ss.) of this Plan unless otherwise indicated. This Plan shall be construed under the laws of the State of Delaware. Each term set forth in ss. 2 shall, unless otherwise stated, have the meaning set forth opposite such term for purposes of this Plan and, for purposes of such definitions, the singular shall include the plural and the plural shall include the singular. Finally, if there is any conflict between the terms of this Plan and the terms of any Option Certificate, Stock Appreciation Right Certificate or Stock Grant Certificate, the terms of this Plan shall control. 16.5 Other Conditions. Each Option Certificate, Stock Appreciation Right Certificate or Stock Grant Certificate may require that an Eligible Employee or a Director (as a condition to the exercise of an Option or a Stock Appreciation Right or the issuance of Stock subject to a Stock Grant) enter into any agreement or make such representations prepared by the Company, including (without limitation) any agreement which restricts the transfer of Stock acquired pursuant to the exercise of an Option or a Stock Appreciation Right or a Stock Grant or provides for the repurchase of such Stock by the Company. 16.6 Rule 16b-3. The Committee shall have the right to amend any Option, Stock Grant or Stock Appreciation Right to withhold or otherwise restrict the transfer of any Stock or cash under this Plan to an Eligible Employee or Director as the Committee deems appropriate in order to satisfy any condition or requirement under Rule 16b-3 to the extent Rule 16 of the 1934 Act might be applicable to such grant or transfer. IN WITNESS WHEREOF, the Company has caused its duly authorized officer to execute this Plan to evidence its adoption of this Plan. North American Galvanizing & Coatings, Inc. By: /s/ Beth B. Hood, Secretary --------------------------- Date: February 17, 2006 - 26 - EX-4.2 3 ex4-2_14338.txt DIRECTOR STOCK UNIT PROGRAM EXHIBIT 4.2 ----------- NORTH AMERICAN GALVANIZING & COATINGS, INC. DIRECTOR STOCK UNIT PROGRAM (As Amended and Restated) ss. 1 PURPOSE AND EFFECTIVE DATE The purpose of this Program is to tie a percentage of each Director's compensation to the long-term value of Stock. This Program was adopted in connection with the adoption of the 2004 Incentive Stock Plan by the NAGALV shareholders July 21, 2004 and was amended by unanimous vote of the Board May 25, 2005. This complete amendment and restatement of the Program reflects additional amendments intended to bring the Program into compliance with Section 409A of the Internal Revenue Code of 1986, as amended. This amended and restated Program is effective as of the date it is approved by the Board. ss. 2 DEFINITIONS 2.1. Account for purposes of this Program shall mean the bookkeeping account maintained by the Committee to show for each Director as of any date all Stock Unit Grant credits made for such Director under this Program, the adjustments to such credits and any distributions to such Director. 2.2. Automatic Deferral Period for purposes of this Program shall mean the period described in ss. 3.4 (b). 2.3. Beneficiary for purposes of this Program shall mean for each Director the person designated as such by the Director on the form provided for this purpose or, if no such person is so designated or if no such person survives the Director, the Director's estate. 2.4. Board for purposes of this Program shall mean the Board of Directors of NAGALV. 2.5. Committee for purposes of this Program shall mean the Committee under the 2004 Incentive Stock Plan. 2.6. Deferral Period for purposes of this Program shall mean the period described in ss. 3.4(b) and the period described in ss. 3.4(c). 2.7. Director for purposes of this Program shall mean a member of the Board. 2.8. Elective Deferral Period for purposes of this Program shall mean the period described in ss. 3.4(c). 2.9. Inside Director for purposes of this Program shall mean a member of the Board who is an employee of NAGALV. - 1 - 2.10. NAGALV for purposes of this Program shall mean North American Galvanizing & Coatings, Inc. and any successor to such corporation. 2.11. Outside Director for purposes of this Program shall mean a member of NAGALV's Board of Directors who is not an employee of NAGALV. 2.12. Program for purposes of this Program shall mean this North American Galvanizing & Coatings, Inc. Director Stock Unit Program, as amended from time to time. 2.13. Stock for purposes of this Program shall mean Stock under the 2004 Incentive Stock Plan. 2.14. Stock Unit Grant for purposes of this Program shall mean a Stock Unit Grant under the 2004 Incentive Stock Plan. 2.15. 2004 Stock Incentive Plan for purposes of this Program shall mean the North American Galvanizing & Coatings, Inc. 2004 Stock Incentive Plan, as amended from time to time. 2.16 Section 409A for purposes of this Program shall mean Section 409A of the Internal Revenue Code of 1986, as amended. ss. 3 STOCK UNIT GRANT 3.1. Outside Directors. Each Outside Director shall be required to defer at least 50% of his or her director fees each calendar year and shall have the right under ss. 3.3 to elect to defer 75% or 100% of such fees each calendar year. The deferrals for each Outside Director will be deducted (if he or she elects less than a 100% deferral) on a pro-rata basis from his or her director fees when such fees are otherwise payable in cash, and the deferrals shall be converted into a Stock Unit Grant at the average of the closing prices for a share of Stock for the 10 trading days before the date the director fees for Outside Directors otherwise would have been payable in cash. 3.2. Inside Directors. NAGALV automatically shall defer for each Inside Director a dollar amount equal to 50% of the director fees for Outside Directors. Inside Directors shall have the right to elect additional deferrals which will correspond to an Outside Director's right to elect to defer 75% or 100% of such fees each calendar year. Any automatic deferrals by Inside Directors shall be matched by the Committee at the same rate that applies to required deferrals by Outside Directors under Section 3.3, and any additional deferrals by Inside Directors shall be matched by the Committee at the same rate that applies to additional deferrals by Outside Directors under ss. 3.3. Inside Directors wishing to elect any additional deferral shall do so in accordance with the deferral election procedures described in ss. 3.3(d). The deferrals for each Inside Director shall be effected to coincide with the deferrals for Outside Directors, and the deferrals for Inside Directors shall be converted into a Stock Unit Grant at the same time and in accordance with the same procedure followed for Outside Directors. 3.3. Matching Units and Deferral Elections. (a) Fifty Percent. If an Outside Director does not elect to defer more than the required deferral under ss. 3.1, the Committee shall match 25% of his or her deferral in an additional Stock Unit Grant (b) Seventy Five Percent. If an Outside Director elects in accordance with ss. 3.3(d) - 2 - to defer 75% of his or her director fees, the Committee shall match 50% of his or her deferral in an additional Stock Unit Grant. (c) One Hundred Percent. If an Outside Director elects in accordance with ss. 3.3(d) to defer 100% of his or her director fees, the Committee shall match 75% of his or her deferral in an additional Stock Unit Grant. (d) Deferral Election Rules for Outside Directors. (1) General Rule. A deferral election under ss. 3.3(b) or ss. 3.3(c) shall be effective for fees for services performed in any calendar year only if the election is delivered to NAGALV before the beginning of the calendar year in which the services are performed, and an election shall be effective only if made on the form provided for this purpose. (2) Special Rules. Each Outside Director may make an election under ss. 3.3(b) or ss. 3.3(c) with respect to director fees payable for services performed in the calendar year in which he or she is first elected an Outside Director if such election is delivered to NAGALV before the end of the 30 day period which starts on the date he or she is first elected an Outside Director. An election under this ss. 3.3(d)(2) shall be effective for directors' fees for services rendered starting with the first full month after such election is delivered to NAGALV. (3) Irrevocable. An election under this ss. 3.3(d) shall be irrevocable for the calendar year for which the election is made on the last date specified in this Program for making the election. (e) Conversion to a Stock Unit Grant. A Director's match under this ss. 3.3 will be converted into a Stock Unit Grant at the same time and under the same procedure as his or her deferrals are converted into a Stock Unit Grant. 3.4. Deferral Periods. (a) General. All deferrals under this Program shall be paid in the calendar year immediately following, and within 30 days after the end of, an Automatic Deferral Period or, if a Director so elects in accordance with this ss. 3.4, the end of an additional Elective Deferral Period. (b) Automatic Deferral Period. The Automatic Deferral Period for a Director for deferrals effected in any calendar year shall be the five calendar year period starting on the immediately following January 1. There will be separate Automatic Deferral Period for deferrals effected in each calendar year. (c) Elective Deferral Period. If a Director delivers an election on the form provided for this purpose to NAGALV at least one full year before the end of any Automatic Deferral Period, the payment of the deferrals subject to such Automatic Deferral Period shall be deferred for an additional five calendar years. Any such election shall be irrevocable when delivered to NAGALV. (d) Special Payment Rules. - 3 - (1) Termination. All deferrals (whether subject to an Automatic Deferral Period or an Elective Deferral Period) shall be payable as of the date a Director's service as such ends or the date his or her employment with NAGALV ends, whichever comes last. No payment shall be made under this paragraph unless the Director has "separated from service", by death or otherwise, as that term is defined for purposes of Section 409A. If the Director is also a "key employee", as defined for purposes of Section 409A, and if the stock of NAGALV is publicly traded on an established securities market or otherwise at the time of the Director's separation from service, the distribution on account of the Director's separation from service shall be made as soon as is practical six months after the date of the Director's separation from service. If separation from service occurs as a result of the Director's death, however, the distribution shall be made as soon as is practical after the Director's death. (2) Unforseeable Emergency. If a Director can demonstrate to a majority of the other members of the Board that he or she has an extreme financial hardship as a result of an unforeseeable emergency and that access to his or her deferrals under this Program is more appropriate under the circumstances than using any of his or her other assets to meet the emergency, the Board (acting by a majority vote with the affected Director not voting) may authorize the payment of all or a portion of his or her deferrals to meet the emergency. The term "unforeseeable emergency" means a severe financial hardship resulting from an illness or accident of the Director, the Director's spouse, or a dependent of the Director, loss of the Director's property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Director. The amounts distributed under this paragraph may not exceed the amount necessary to meet the emergency plus the amount necessary to pay taxes reasonably anticipated to result from the distribution and, in any event, may not exceed the amount allowable under Section 409A. (e) Accelerated Payments. In general, a scheduled payment may not be accelerated, but the Committee may permit the following accelerated payments to the extent allowed under Section 1.409A-3 of the regulations under Section 409A: (1) Divestiture. Payments necessary to comply with a certificate of divestiture; (2) FICA Payments. Payments necessary to pay the FICA Amount, as defined in Section 1.409A-3 of the regulations under Section 409A of the Code and the income tax withholding related to the FICA Amount; (3) 409A Tax Payments. Payments of deferred amounts that are currently included in income as a result of a failure to comply with the requirements of Section 409A of the Code. (4) Domestic Relations Orders. Payments necessary to comply with domestic relations orders, but this provision is not intended to override or diminish the prohibitions and restrictions on alienation of benefits contained elsewhere in this Program. - 4 - (f) Delayed Payments. In general, a scheduled payment may not be delayed, but the payment will be delayed pursuant to Section 1.409A-2(b)(5) of the regulations under Section 409A under the following circumstances: (1) Million Dollar Pay Cap. Payments will be delayed if NAGALV's tax deduction for the payment would be limited or eliminated by the application of Section 162(m) of the Code, provided that payment of the deferred amount shall be made at the earliest date when the tax deduction will not be limited or eliminated or, if earlier, in the calendar year in which the Participant separates from service. (2) Loan Agreements. Payments will be delayed if the payment would violate a term of a loan agreement or similar contract, and the violation would cause material harm to NAGALV, provided that the payment shall be made as soon as the payment would not result in such a violation or cause such harm. (3) Securities Laws. Payments will be delayed if the payment would violate Federal securities law or other applicable law, provided that the payment shall be made as soon as the payment would not result in such a violation. 3.5. Payment. When any deferrals become payable at the end of a Deferral Period or become payable under ss. 3.4(d), payment shall be made (subject to applicable withholdings) in whole shares of Stock (and cash, in lieu of a fractional share, based on the average of the closing prices for a share of Stock for the 10 trading days before the date as of which payment is made). NAGALV shall make a payment as soon as practicable after a deferral becomes payable. 3.6. Non-Forfeitable Account and Account Adjustments. A Director's interest in his or her Account shall be non-forfeitable. The number of shares described in a Stock Unit Grant credited to a Director's Account shall be adjusted at the same time and in the same manner as other Stock Unit Grants made under the 2004 Incentive Stock Plan, and such number shall be reduced to reflect any cash payments made or shares of Stock issued to a Director. ss. 4 ADMINISTRATION 4.1. Powers. This Program shall be administered by the Committee, and the Committee shall have the absolute and complete authority, duty and power to interpret and construe the provisions of this Program as the Committee deems appropriate, including the final authority to determine a Director's benefits under this Program, and to take any other action in connection with the operation or administration of this Program which the Committee deems fair and appropriate under the circumstances. All interpretations, determinations, regulations and calculations shall be final and binding on all affected persons. 4.2. Statements. NAGALV shall furnish individual statements of Account balances to each Director in such form and as of such dates as determined by the Committee. 4.3. Information Reporting. All deferrals under this Program shall be separately reported on a Form 1099 or Form W-2 as required by Section 6041(g)(1) and Section 6051(a)(13) of the - 5 - Internal Revenue Code of 1986, as amended, regardless of whether the related compensation income is includible in gross income for the year. 4.4. Withholding. Appropriate amounts shall be withheld from the deferred amounts to satisfy the tax withholding requirements of the Internal Revenue Code of 1986, as amended. ss. 5 AMENDMENT AND TERMINATION 5.1 In General. NAGALV reserves the right to amend or terminate this Program at any time by action of the Board. No amendment or termination shall directly or indirectly reduce the balance of any Account as of the effective date of such amendment or termination. Except as otherwise permitted in this Section 5 or Section 3.4(e) or as permitted by Section 409A and the regulations or other IRS guidance, no amendment or termination of the Program shall cause the payment of a deferred amount to be accelerated or further deferred in violation of Section 409A. 5.2. Termination After Change in Control. The Committee may terminate the Program within 30 days preceding or 12 months following a Change of Control as defined under any of the definitions of a Change of Control in Section 409A or the regulations or other IRS guidance issued pursuant to Section 409A. In the event of a termination associated with a Change of Control, Participant accounts in this Program and all similar NAGALV programs shall be distributed in a lump sum within 12 months following the termination. 5.3 Termination After Corporate Dissolution. The Committee may terminate the Program within 12 months of a corporate dissolution taxed under Section 331 of the Code, or with the approval of a bankruptcy court pursuant to 11 U.S.C. Section 503(b)(1)(A), provided that the amounts deferred under the Program are distributed to the Program Participants and included in their taxable income within the time limits specified for such terminations in the regulations under Section 409A. 5.4. Termination of All Deferral Arrangements. NAGALV may terminate the Program provided that all the following conditions are met: (a) NAGALV terminates all of its deferral arrangements that would be aggregated with this Program pursuant to Section 409A of the Code. (b) No payments of deferred amounts are made within 12 months of the termination other than payments that would otherwise be payable under the Program if the Program had not been terminated. (c) Payments of all remaining Deferred Amounts are made within 24 months of the termination. (d) NAGALV does not adopt any new deferral arrangement that would be aggregated with any terminated arrangement at any time within five years following the date of termination. ss. 6 MISCELLANEOUS 6.1. General Assets. All cash distributions to, or on behalf of, a Director under this Program shall be made from NAGALV's general assets and all shares of Common Stock issued shall be issued under the 2004 Stock Incentive Plan, and any claim by a Director or by his or her Beneficiary against NAGALV for any cash distribution or stock issuance under this Program shall be treated the same as a claim of any general and unsecured creditor of NAGALV. 6.2. No Liability. No Director and no Beneficiary shall have the right to look to, or - 6 - have any claim whatsoever against, any officer, director, employee or agent of NAGALV in his or her individual capacity for the distribution of any Account. 6.3. No Assignment; Binding Effect. No Director or Beneficiary shall have the right to alienate, assign, commute or otherwise encumber an Account for any purpose whatsoever, whether through a domestic relations order or otherwise, and any attempt to do so shall be disregarded as completely null and void. The provisions of this Program shall be binding on each Director and Beneficiary and on NAGALV. 6.4. Construction. This Program shall be construed in accordance with the laws of the State of Delaware except to the extent such laws are preempted by federal law. Headings and subheadings have been added only for convenience of reference and shall have no substantive effect whatsoever. All references to sections (ss.) shall be to sections (ss.) in this Program. All references to the singular shall include the plural and all references to the plural shall include the singular. All definitions in this Program shall apply exclusively to this Program. 6.5. No Contract of Employment. A Director's participation in this Program shall not constitute a contract of employment by NAGALV or a right to be nominated to serve on, or serve on, the Board. 6.6. 2004 Incentive Stock Plan. The terms of the 2004 Incentive Stock Plan are incorporated by this ss. 6.6 in the Program, and the Program is subject to the terms of such plan. This Program shall not confer on any Director any rights with respect to a Stock Unit Grant which are superior to his or her rights under the 2004 Incentive Stock Plan with respect to such Stock Unit Grant. IN WITNESS WHEREOF, NAGALV has caused its duly authorized officer to execute this Program to evidence its adoption of this Program. North American Galvanizing & Coatings, Inc. By: /s/ Beth B. Hood ------------------------ Date: February 17, 2006 - 7 - EX-5.1 4 ex5-1_14338.txt OPINION OF HALL, ESTILL, HARDWICK, GABLE EXHIBIT 5.1 ----------- Opinion of Hall, Estill, Hardwick, Gable, Golden & Nelson May 5, 2006 North American Galvanizing & Coatings, Inc. 5314 South Yale Avenue, Suite 1000 Tulsa, Oklahoma 74136-0964 RE: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We have examined the Registration Statement on Form S-8, to be filed by you with the Securities and Exchange Commission in connection with the registration under the Securities Act of 1933, as amended, of shares of your Common Stock (the "Shares") issued or issuable upon the exercise of options granted under the 2004 Incentive Stock Plan ("Plan") referred to therein. As your counsel in connection with this transaction, we have examined the proceedings taken and proposed to be taken by you in connection with the issuance of the Shares. It is our opinion that the Shares, when issued and paid for in accordance with the terms of the Plan, will be legally and validly issued, fully paid, and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement, including the prospectus constituting a part thereof, and any amendment thereto. Very truly yours, /s/ HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C. EX-15 5 ex15_14338.txt AWARENESS LETTER EXHIBIT 15 ---------- AWARENESS LETTER May 5, 2006 North American Galvanizing & Coatings, Inc. 5314 S. Yale Ave, Suite 1000 Tulsa, Oklahoma 74135 We have made a review, in accordance with the standards of the Public Company Accounting Oversight Board (United States), of the unaudited interim financial information of North American Galvanizing & Coatings, Inc. and subsidiary for the three-month periods ended March 31, 2006 and 2005, and have issued our report dated April 27, 2006. As indicated in such report, because we did not perform an audit, we expressed no opinion on that information. We are aware that our report referred to above, which was included in your Quarterly Report on Form 10-Q for the quarter ended March 31, 2006, is being incorporated by reference in this Registration Statement. We also are aware that the aforementioned report, pursuant to Rule 436(c) under the Securities Act of 1933, is not considered a part of the Registration Statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act. /s/ DELOITTE & TOUCHE LLP Tulsa, Oklahoma EX-23.1 6 ex23-1_14338.txt CONSENT OF DELOITTE & TOUCHE LLP EXHIBIT 23.1 ------------ CONSENT OF DELOITTE & TOUCHE LLP CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 10, 2006, relating to the financial statements and financial statement schedule of North American Galvanizing & Coatings, Inc. appearing in the Annual Report on Form 10-K of North American Galvanizing & Coatings, Inc. for the year ended December 31, 2005. /s/ DELOITTE & TOUCHE LLP Tulsa, Oklahoma May 5, 2006 -----END PRIVACY-ENHANCED MESSAGE-----