As filed with the Securities and Exchange Commission on September 25, 1997
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
FIRST SOUTH AFRICA CORP., LTD.
(Exact name of registrant as specified in its charter)
Bermuda Not Applicable
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Clarendon House, Church Street
Hamilton HM CX, Bermuda
(441) 295-1422
(Address of Principal Executive Offices)
1995 Stock Option Plan
of
First South Africa Corp., Ltd.
(Full title of the plan)
Clive Kabatznik, President
First South Africa Management Corp.
2665 South Bayshore, Suite 702
Coconut Grove, Florida 33133
(Name and address of agent for service)
(305) 857-5009
(Telephone number, including area code, of agent for service)
with a copy to:
Henry I. Rothman, Esq.
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, New York 10036
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) SHARE PRICE FEE
- --------------------------------------------------------------------------------
Common Stock, par
value $.01 per 225,000 shares $5.00(2) $1,125,000.00(2) $ 340.91
share 25,000 shares $3.75(2) $ 93,750.00(2) $ 28.41
100,000 shares $8.25(2) $ 825,000.00(2) $ 250.00
- --------------------------------------------------------------------------------
Total 350,000 shares $2,043,750.00 $ 619.32
- --------------------------------------------------------------------------------
<PAGE>
(1) Pursuant to Rule 416(b), there shall also be deemed covered hereby all
additional securities resulting from anti-dilution adjustments under the
1995 Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee on the
basis of, pursuant to Rule 457(h), the exercise price of presently
outstanding options.
<PAGE>
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by the registrant with the
Securities and Exchange Commission (Commission File No. 0-27494) pursuant to
Section 13(a) of the Securities Exchange Act of 1934 (the "1934 Act") are
incorporated herein by reference:
(a) The registrant's Annual Report on Form 10-K for the year
ended June 30, 1996;
(b) The registrant's Quarterly Reports on Form 10-Q for the
quarters ended September 30, 1996, December 31, 1996 and March 31, 1997; and
(c) The description of the registrant's Common Stock contained
in the registrant's Registration Statement on Form 8-A filed on January 4, 1996,
including any amendment or report filed for the purpose of updating such
descriptions.
All documents filed subsequent to the date of this Registration
Statement pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act and
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of the filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Bermuda law and the registrant's Memorandum of
Association and bye-laws, the directors, officers, liquidators and
auditors of the registrant and their heirs, executors and
administrators are indemnified and held harmless out of the assets of
the Company from and against all actions, costs, charges, losses and
expenses which they or any of them, their heirs, executors or
administrators, shall or may incur or sustain by or by reason of any
act done, concurred in or omitted in or about the execution of their
duty, or supposed duty, or in their respective offices or trusts, and
none of them shall be answerable for the acts, receipts, neglects or
defaults of the others of them or for joining in any receipts for the
sake of conformity or for any loss, misfortune or damage which may
happen in the execution of their respective offices or trusts, or in
relation thereto, provided that they are not entitled to
indemnification in respect of any willful negligence, willful
default, fraud or dishonesty which may attach to them.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
4.01 Memorandum of Association of the registrant. Incorporated by
reference to Registration Statement on Form S-1 filed on
November 9, 1995 (File No. 33-99180) as amended.
4.02 Bye-Laws of the registrant. Incorporated by reference to
Registration Statement on Form S-1 filed on November 9, 1995
(File No. 33-99180) as amended.
4.03 Form of Indenture dated April 25, 1997, executed by the
registrant and the American Stock Transfer and Trust Company,
as Trustee (incorporated by reference to the Company's Current
Report on Form 8-K filed on September 10, 1997 (Exhibit 4.1)).
4.04 Form of Debenture (incorporated by reference to the
registrant's Current Report on Form 8-K filed on September 10,
1997 (Exhibit 4.2)).
4.05 Form of Placement Warrant (incorporated by reference to the
registrant's Current Report on Form 8-K filed on September 10,
1997 (Exhibit 4.3)).
<PAGE>
4.06 Form of Stock Option Agreement (incorporated by reference to
the registrant's Registration Statement on Form S-1 (File No.
333-33561) filed on August 13, 1997 (Exhibit 4.7)).
*4.07 1995 Stock Option Plan.
*5.01 Opinion of Conyers Dill & Pearman, as to the legality of the
Common Stock being offered.
*23.01 Consent of Price Waterhouse.
*23.02 Consent of Conyers Dill & Pearman (contained in Exhibit 5.01).
*24.01 Power of attorney of certain officers and directors of the
registrant (contained in the signature page).
- --------------
* Filed herewith.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, and the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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 described in Item
6 above, 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.
<PAGE>
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 Coconut Grove, State of Florida, on the 19th day of
September, 1997.
FIRST SOUTH AFRICA CORP., LTD.
By: /s/ Clive Kabatznik
-----------------------
Clive Kabatznik
President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
below constitutes and appoints each of Michael Levy and Clive Kabatznik his/her
true and lawful attorney-in-fact and agent, each with full power of substitution
and resubstitution, for him/her and in his/her name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or either of them or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 19th day of September, 1997.
SIGNATURE TITLE
By: /s/ Michael Levy Chairman of the Board
---------------------------
Michael Levy
By: /s/ Clive Kabatznik President, Vice Chairman, Chief
--------------------------- Executive Officer, Chief Financial
Clive Kabatznik Officer, Director and Controller
By: /s/ Charles S. Goodwin Director
---------------------------
Charles S. Goodwin
By: /s/ John Mackey Director
---------------------------
John Mackey
By: /s/ Cornelius J. Roodt Director
---------------------------
Cornelius J. Roodt
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
4.01 Memorandum of Association of the registrant. Incorporated by
reference to Registration Statement on Form S-1 filed on
November 9, 1995 (File No. 33-99180) as amended.
4.02 By-Laws of the registrant. Incorporated by reference to
Registration Statement on Form S-1 filed on November 9, 1995
(File No. 33-99180) as amended.
4.03 Form of Indenture dated April 25, 1997, executed by the
registrant and the American Stock Transfer and Trust Company,
as Trustee (incorporated by reference to the Company's Current
Report on Form 8-K filed on September 10, 1997 (Exhibit 4.1)).
4.04 Form of Debenture (incorporated by reference to the
registrant's Current Report on Form 8-K filed on September 10,
1997 (Exhibit 4.2)).
4.05 Form of Placement Warrant (incorporated by reference to the
registrant's Current Report on Form 8-K filed on September 10,
1997 (Exhibit 4.3)).
4.06 Form of Stock Option Agreement (incorporated by reference to
the registrant's Registration Statement on Form S-1 (File No.
333-33561) filed on August 13, 1997 (Exhibit 4.7)).
*4.07 1995 Stock Option Plan.
*5.01 Opinion of Conyers Dill & Pearman, as to the legality of the
Common Stock being offered.
*23.01 Consent of Price Waterhouse.
*23.02 Consent of Conyers Dill & Pearman (contained in Exhibit 5.01).
*24.01 Power of attorney of certain directors of the registrant
(contained in the signature page).
- --------------
* Filed herewith
EXHIBIT 4.07
------------
1995 STOCK OPTION PLAN
OF
FIRST SOUTH AFRICA CORP., LTD.
1. PURPOSES OF THE PLAN. This stock option plan (the "Plan") is
designed to provide an incentive to key employees (including directors and
officers who are key employees) and to consultants, and directors who are not
employees of First South Africa Corp., Ltd., a Bermuda corporation (the
"Company"), or any of its Subsidiaries (as defined in Paragraph 19) or a Parent
(as defined in Paragraph 19), and to offer an additional inducement in obtaining
the services of such persons. The Plan provides for the grant of "incentive
stock options" ("ISOs") within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), and nonqualified stock options
which do not qualify as ISOs ("NQSOs"), but the Company makes no representation
or warranty, express or implied, as to the qualification of any option as an
"incentive stock option" under the Code.
2. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Paragraph
12, the aggregate number of shares of common stock, $.01 par value per share, of
the Company ("Common Stock") for which options may be granted under the Plan
shall not exceed 350,000. Such shares of Common Stock shall consist of
authorized but unissued shares of Common Stock. Subject to the provisions of
Paragraph 13, any shares of Common Stock subject to an option which for any
reason expires, is canceled or is terminated unexercised or which ceases for any
reason to be exercisable shall again become available for the granting of
options under the Plan. The Company shall at all times during the term of the
Plan reserve and keep available such number of shares of Common Stock as will be
sufficient to satisfy the requirements of the Plan.
3. ADMINISTRATION OF THE PLAN. The Plan shall be administered by a
committee (the "Committee") of the Board of Directors of the Company (the "Board
of Directors") consisting of not less than two directors, each of whom shall be
a "non-employee director" within the meaning of Rule 16b-3 (or any successor
rule or regulation) promulgated under the Securities Exchange Act of 1934, as
amended (as the same may be in effect and interpreted from time to time, "Rule
16b-3"). A majority of the members of the Committee shall constitute a quorum,
and the acts of a majority of the members present at any meeting at which a
quorum is present, and any acts approved in writing by all members without a
meeting, shall be the acts of the Committee.
Subject to the express provisions of the Plan, the Committee shall
have the authority, in its sole discretion, with respect to Employee Options and
Consultant Options (as defined in Paragraph 19): to determine the key employees
who shall be granted Employee
<PAGE>
Options and the consultants who shall be granted Consultant Options; the times
when options shall be granted; whether an Employee Option shall be an ISO or a
NQSO; the number of shares of Common Stock to be subject to each option; the
term of each option; the date each option shall become exercisable; whether an
option shall be exercisable in whole, in part or in installments and, if in
installments, the number of shares of Common Stock to be subject to each
installment, whether the installments shall be cumulative, the date each
installment shall become exercisable and the term of each installment; whether
to accelerate the date of exercise of any option or installment; whether shares
of Common Stock may be issued upon the exercise of an option as partly paid and,
if so, the dates when future installments of the exercise price shall become due
and the amounts of such installments; the exercise price of each option; the
form of payment of the exercise price; whether to restrict the sale or other
disposition of the shares of Common Stock acquired upon the exercise of an
option and, if so, whether to waive any such restriction; whether to subject the
exercise of all or any portion of an option to the fulfillment of contingencies
as specified in the contract referred to in Paragraph 11 (the "Contract"),
including without limitation, contingencies relating to entering into a covenant
not to compete with the Company, any of its Subsidiaries or a Parent, to
financial objectives for the Company, any of its Subsidiaries or a Parent, a
division of any of the foregoing, a product line or other category, and/or the
period of continued employment of the optionee with the Company, any of its
Subsidiaries or a Parent, and to determine whether such contingencies have been
met; whether an optionee is Disabled (as defined in Paragraph 19); and with
respect to Employee Options, Consultant Options and, subject to the limitations
with respect to formula plans under Rule 16b- 3, Non-Employee Director Options
(as defined in Paragraph 19): the amount, if any, necessary to satisfy the
Company's obligation to withhold taxes or other amounts; the fair market value
of a share of Common Stock; to construe the respective Contracts and the Plan;
with the consent of the optionee, to cancel or modify an option, PROVIDED that
the modified provision is permitted to be included in an option granted under
the Plan on the date of the modification, and FURTHER, PROVIDED, that in the
case of a modification within the meaning of Section 424(h) of the Code of an
ISO, such option as modified would be permitted to be granted on the date of
such modification under the terms of the Plan; to prescribe, amend and rescind
rules and regulations relating to the Plan; and to make all other determinations
necessary or advisable for administering the Plan. Any controversy or claim
arising out of or relating to the Plan, any option granted under the Plan or any
Contract shall be determined unilaterally by the Committee in its sole
discretion. The determinations of the Committee on the matters referred to in
this Paragraph 3 shall be conclusive and binding on the parties.
No member or former member of the Committee shall be liable for any
action, failure to act or determination made in good faith with respect to the
Plan or any option hereunder. In addition, the Company shall indemnify and hold
harmless each member and former member of the Committee and their respective
successors, assigns, heirs and personal representatives from and against any
liability, loss, claim, damage and expense (including without limitation
attorneys fees and expenses) incurred in connection therewith by reason of any
action, failure to act or determination made in good faith under or in
connection with the Plan or any option hereunder to the fullest extent permitted
with respect to directors under the Company's certificate of incorporation,
by-laws or applicable law.
<PAGE>
4. ELIGIBILITY; GRANTS. The Committee may from time to time, in its
sole discretion, consistent with the purposes of the Plan, grant Employee
Options to key employees (including officers and directors who are key
employees) of, and Consultant Options to consultants to, the Company or any of
its Subsidiaries or a Parent. Such options granted shall cover such number of
shares of Common Stock as the Committee may determine, in its sole discretion;
PROVIDED, HOWEVER, that the maximum number of shares subject to Employee Options
that may be granted to any individual during any fiscal year of the Company
under the Plan (the "162(m) Maximum") shall not exceed 210,000 shares; and
FURTHER, PROVIDED, that the aggregate market value (determined at the time the
option is granted in accordance with Paragraph 5) of the shares of Common Stock
for which any eligible employee may be granted ISOs under the Plan or any other
plan of the Company, or of a Parent or a Subsidiary of the Company, which are
exercisable for the first time by such optionee during any calendar year shall
not exceed $100,000. Such limitation shall be applied by taking ISOs into
account in the order in which they were granted. Any option (or the portion
thereof) granted in excess of such amount shall be treated as a NQSO.
Every individual (other than Graham B.R. Collis and Anthony Whaley)
who, upon the effective date of the Company's Registration Statement with
respect to its initial public offering, is a Non-Employee Director (as defined
in Paragraph 19) shall be granted on such date a Non-Employee Director Option to
purchase 5,000 shares of Common Stock. Thereafter, on the date an individual
first becomes a Non-Employee Director, he shall be granted an option to purchase
5,000 shares of Common Stock. In addition, immediately following each annual
meeting of stockholders at which directors are elected, every individual who, at
such time, is a Non-Employee Director (whether or not elected at such meeting)
shall, at such time, be granted a Non-Employee Director Option to purchase 5,000
shares of Common Stock. In the event the remaining shares available for grant
under the Plan are not sufficient to grant the Non-Employee Director Options to
each such Non-Employee Director at any time, the number of shares subject to the
Non-Employee Director Options to be granted at such time shall be reduced
proportionately. The Committee shall not have any discretion with respect to the
selection of directors to receive Non-Employee Director Options or the amount,
the price or the timing with respect thereto. A Non-Employee Director shall not
be entitled to receive any options under the Plan other than Non-Employee
Director Options.
5. EXERCISE PRICE. The exercise price of the shares of Common Stock
under each Employee Option and Consultant Option shall be determined by the
Committee in its sole discretion; PROVIDED, HOWEVER, that the exercise price of
an ISO shall not be less than the fair market value of the Common Stock subject
to such option on the date of grant; and FURTHER PROVIDED, that if, at the time
an ISO is granted, the optionee owns (or is deemed to own under Section 424(d)
of the Code) stock possessing more than 10% of the total combined voting power
of all classes of stock of the Company, of any of its Subsidiaries or of a
Parent, the exercise price of such ISO shall not be less than 110% of the fair
market value of the Common Stock subject to such ISO on the date of grant. The
exercise price of the shares of Common Stock under each Non-Employee Director
Option shall be equal to the fair market value of the Common Stock subject to
such option on the date of grant.
<PAGE>
The fair market value of a share of Common Stock on any day shall be
(a) if the principal market for the Common Stock is a national securities
exchange, the average of the highest and lowest sales prices per share of Common
Stock on such day as reported by such exchange or on a composite tape reflecting
transactions on such exchange, (b) if the principal market for the Common Stock
is not a national securities exchange and the Common Stock is quoted on The
Nasdaq Stock Market ("Nasdaq"), and (i) if actual sales price information is
avail able with respect to the Common Stock, the average of the highest and
lowest sales prices per share of Common Stock on such day on Nasdaq, or (ii) if
such information is not available, the average of the highest bid and lowest
asked prices per share of Common Stock on such day on Nasdaq, or (c) if the
principal market for the Common Stock is not a national securities exchange and
the Common Stock is not quoted on Nasdaq, the average of the highest bid and
lowest asked prices per share of Common Stock on such day as reported on the OTC
Bulletin Board Service or by National Quotation Bureau, Incorporated or a
comparable service; PROVIDED, HOWEVER, that if clauses (a), (b) and (c) of this
Paragraph are all inapplicable, or if no trades have been made or no quotes are
available for such day, the fair market value of the Common Stock shall be
determined by the Board by any method consistent with applicable regulations
adopted by the Treasury Department relating to stock options.
6. TERM. The term of each Employee Option and Consultant Option
granted pursuant to the Plan shall be such term as is established by the
Committee, in its sole discretion; PROVIDED, HOWEVER, that the term of each ISO
granted pursuant to the Plan shall be for a period not exceeding 10 years from
the date of grant thereof; and FURTHER, PROVIDED, that if, at the time an ISO is
granted, the optionee owns (or is deemed to own under Section 424(d) of the
Code) stock possessing more than 10% of the total combined voting power of all
classes of stock of the Company, of any of its Subsidiaries or of a Parent, the
term of the ISO shall be for a period not exceeding five years from the date of
grant. Employee Options and Consultant Options shall be subject to earlier
termination as hereinafter provided. Subject to earlier termination as
hereinafter provided, each Non-Employee Director Option shall be exercisable for
a term of five years commencing on the date of grant.
7. EXERCISE. An option (or any part or installment thereof), to the
extent then exercisable, shall be exercised by giving written notice to the
Company at its principal office stating which option is being exercised,
specifying the number of shares of Common Stock as to which such option is being
exercised and accompanied by payment in full of the aggregate exercise price
therefor (or the amount due on exercise if the Contract with respect to an
Employee Option permits installment payments) (a) in cash or by certified check
or (b) in the case of an Employee Option or a Consultant Option, if the
applicable Contract permits, with previously acquired shares of Common Stock
having an aggregate fair market value on the date of exercise (determined in
accordance with Paragraph 5) equal to the aggregate exercise price of all
options being exercised, or with any combination of cash, certified check or
shares of Common Stock
The Committee may, in its sole discretion, permit payment of the
exercise price of an option by delivery by the optionee of a properly executed
notice, together with a copy
<PAGE>
of his irrevocable instructions to a broker acceptable to the Committee to
deliver promptly to the Company the amount of sale or loan proceeds sufficient
to pay such exercise price. In connection therewith, the Company may enter into
agreements for coordinated procedures with one or more brokerage firms.
A person entitled to receive Common Stock upon the exercise of an
option shall not have the rights of a stockholder with respect to such shares of
Common Stock until the date of issuance of a stock certificate to him for such
shares; PROVIDED, HOWEVER, that until such stock certificate is issued, any
optionee using previously acquired shares of Common Stock in payment of an
option exercise price shall continue to have the rights of a stockholder with
respect to such previously acquired shares.
In no case may a fraction of a share of Common Stock be purchased or
issued under the Plan.
8. TERMINATION OF RELATIONSHIP. Except as may otherwise be expressly
provided in the applicable Contract, any holder of an Employee Option or
Consultant Option whose relationship with the Company, its Parent and
Subsidiaries as an employee or a consultant has terminated for any reason (other
than his death or Disability) may exercise such option, to the extent
exercisable on the date of such termination, at any time within three months
after the date of termination, but not thereafter and in no event after the date
the option would otherwise have expired; PROVIDED, HOWEVER, that if such
relationship is terminated either (a) for cause, or (b) without the consent of
the Company, such option shall terminate immediately.
For the purposes of the Plan, an employment relationship shall be
deemed to exist between an individual and a corporation if, at the time of the
determination, the individual was an employee of such corporation for purposes
of Section 422(a) of the Code. As a result, an individual on military, sick
leave or other bona fide leave of absence shall continue to be considered an
employee for purposes of the Plan during such leave if the period of the leave
does not exceed 90 days, or, if longer, so long as the individual's right to
reemployment with the Company (or a related corporation) is guaranteed either by
statute or by contract. If the period of leave exceeds 90 days and the
individual's right to reemployment is not guaranteed by statute or by contract,
the employment relationship shall be deemed to have terminated on the 91st day
of such leave.
Except as may otherwise be expressly provided in the applicable
Contract, Employee Options and Consultant Options granted under the Plan shall
not be affected by any change in the status of the optionee so long as the
optionee continues to be an employee of, or a consultant to, the Company, or any
of the Subsidiaries or a Parent (regardless of having changed from one to the
other or having been transferred from one corporation to another.
Except as provided below, a Non-Employee Director Option may be
exercised at any time during its five year term. The Non-Employee Director
Option shall not be
<PAGE>
affected by the optionee ceasing to be a director of the Company or becoming an
employee of, or consultant to, the Company, any of its Subsidiaries or a Parent;
PROVIDED, HOWEVER, that if he is terminated for cause, such option shall
terminate immediately.
Nothing in the Plan or in any option granted under the Plan shall
confer on any optionee any right to continue in the employ of, or as a
consultant to, the Company, any of its Subsidiaries or a Parent, or as a
director of the Company, or interfere in any way with any right of the Company,
any of its Subsidiaries or a Parent to terminate the optionee's relationship at
any time for any reason whatsoever without liability to the Company, any of its
Subsidiaries or a Parent.
9. DEATH OR DISABILITY OF AN OPTIONEE. Except as may otherwise be
expressly provided in the applicable Contract, if an optionee dies (a) while he
is an employee of, or consultant to, the Company, any of its Subsidiaries or a
Parent, (b) within three months after the termination of such relationship
(unless such termination was for cause or without the consent of the Company) or
(c) within one year following the termination of such relationship by reason of
his Disability, his Employee Option or Consultant Option may be exercised, to
the extent exercisable on the date of his death, by his Legal Representative (as
defined in Paragraph 19) at any time within one year after death, but not
thereafter and in no event after the date the option would otherwise have
expired.
Except as may otherwise be expressly provided in the applicable
Contract, any optionee whose relationship as an employee of, or consultant to,
the Company, its Parent and Subsidiaries has terminated by reason of such
optionee's Disability may exercise his Employee Option or Consultant Option, to
the extent exercisable upon the effective date of such termi nation, at any time
within one year after such date, but not thereafter and in no event after the
date the option would otherwise have expired.
The term of a Non-Employee Director Option shall not be affected by
the death or Disability of the optionee. If an optionee holding a Non-Employee
Director Option dies during the term of such option, the option may be exercised
at any time during its term by his Legal Representative.
10. COMPLIANCE WITH SECURITIES LAWS. The Committee may require, in
its sole discretion, as a condition to the exercise of any option that either
(a) a Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the shares of Common Stock to be issued upon
such exercise shall be effective and current at the time of exercise, or (b)
there is an exemption from registration under the Securities Act for the
issuance of the shares of Common Stock upon such exercise. Nothing herein shall
be construed as requiring the Company to register shares subject to any option
under the Securities Act or to keep any Registration Statement effective or
current.
The Committee may require, in its sole discretion, as a condition to
the exercise of any option that the optionee execute and deliver to the Company
his representations
<PAGE>
and warranties, in form, substance and scope satisfactory to the Committee,
which the Committee determines are necessary or convenient to facilitate the
perfection of an exemption from the registration requirements of the Securities
Act, applicable state securities laws or other legal requirement, including
without limitation that (a) the shares of Common Stock to be issued upon the
exercise of the option are being acquired by the optionee for his own account,
for investment only and not with a view to the resale or distribution thereof,
and (b) any subsequent resale or distribution of shares of Common Stock by such
optionee will be made only pursuant to (i) a Registration Statement under the
Securities Act which is effective and current with respect to the shares of
Common Stock being sold, or (ii) a specific exemption from the registration
requirements of the Securities Act, but in claiming such exemption, the optionee
shall, prior to any offer of sale or sale of such shares of Common Stock,
provide the Company with a favorable written opinion of counsel satisfactory to
the Company, in form, substance and scope satisfactory to the Company, as to the
applicability of such exemption to the proposed sale or distribution.
In addition, if at any time the Committee shall determine, in its
sole discretion, that the listing or qualification of the shares of Common Stock
subject to such option on any securities exchange, Nasdaq or under any
applicable law, or the consent or approval of any governmental regulatory body,
is necessary or desirable as a condition to, or in connection with, the granting
of an option or the issue of shares of Common Stock thereunder, such option may
not be exercised in whole or in part unless such listing, qualification, consent
or approval shall have been effected or obtained free of any conditions not
acceptable to the Committee.
11. STOCK OPTION CONTRACTS. Each option shall be evidenced by an
appropriate Contract which shall be duly executed by the Company and the
optionee, and shall contain such terms, provisions and conditions not
inconsistent herewith as may be deter mined by the Committee.
12. ADJUSTMENTS UPON CHANGES IN COMMON STOCK. Notwithstanding any
other provision of the Plan, in the event of a stock dividend, split-up,
combination, reclassification, recapitalization, merger in which the Company is
the surviving corporation, or exchange of shares or the like which results in a
change in the number or kind of shares of Common Stock which are outstanding
immediately prior to such event, the aggregate number and kind of shares subject
to the Plan, the aggregate number and kind of shares subject to each outstanding
option and the exercise price thereof, and the number and kind of shares subject
to future Non-Employee Director Options and the 162(m) Maximum shall be
appropriately adjusted by the Board of Directors, whose determination shall be
conclusive and binding on all parties. Such adjustments may provide for the
elimination of fractional shares which might otherwise be subject to an option
without payment therefor.
In the event of (a) the liquidation or dissolution of the Company, or
(b) a merger in which the Company is not the surviving corporation or a
consolidation, any outstanding options shall terminate upon the earliest of any
such event, unless other provision is made therefor in the transaction.
<PAGE>
13. AMENDMENTS AND TERMINATION OF THE PLAN. The Plan was adopted by
the Board of Directors on December 20, 1995. No option may be granted under the
Plan after December 19, 2005. The Board of Directors, without further approval
of the Company's stockholders, may at any time suspend or terminate the Plan, in
whole or in part, or amend it from time to time in such respects as it may deem
advisable, including, without limitation, in order that ISOs granted hereunder
meet the requirements for "incentive stock options" under the Code, to comply
with the provisions of Rule 16b-3, Section 162(m) of the Code, or any change in
applicable law, regulations, rulings or interpretations of administrative
agencies; PROVIDED, HOWEVER, that no amendment shall be effective without the
requisite prior or subsequent stockholder approval which would (a) except as
contemplated in Paragraph 12, increase the maximum number of shares of Common
Stock for which options may be granted under the Plan or the 162(m) Maximum, (b)
materially increase the benefits accruing to participants under the Plan or (c)
change the eligibility requirements to receive options hereunder.
Notwithstanding the foregoing, the provisions regarding the selection of
directors for participation in, and the amount, the price or the timing of,
Non-Employee Director Options shall not be amended more than once every six
months, other than to comport with changes in the Code, the Employee Retirement
Income Security Act or the rules thereunder. No termination, suspension or
amendment of the Plan shall, without the consent of the holder of an existing
and outstanding option affected thereby, adversely affect his rights under such
option. The power of the Committee to construe and administer any options
granted under the Plan prior to the termination or suspension of the Plan
nevertheless shall continue after such termination or during such suspension.
14. NON-TRANSFERABILITY OF OPTIONS. No option granted under the Plan
shall be transferable otherwise than by will or the laws of descent and
distribution, and options may be exercised, during the lifetime of the optionee,
only by the optionee or his Legal Representatives. Except to the extent provided
above, options may not be assigned, transferred, pledged, hypothecated or
disposed of in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment or similar process, and any such attempted
assignment, transfer, pledge, hypothecation or disposition shall be null and
void AB INITIO and of no force or effect.
15. WITHHOLDING TAXES. The Company may withhold (a) cash, (b) subject
to any limitations under Rule 16b-3, shares of Common Stock to be issued with
respect thereto having an aggregate fair market value on the exercise date
(determined in accordance with Paragraph 5), or (c) any combination thereof, in
an amount equal to the amount which the Committee determines is necessary to
satisfy the Company's obligation to withhold Federal, state and local income
taxes or other amounts incurred by reason of the grant or exercise of an option,
its disposition, or the disposition of the underlying shares of Common Stock.
Alternatively, the Company may require the holder to pay to the Company such
amount, in cash, promptly upon demand. The Company shall not be required to
issue any shares of Common Stock pursuant to any such option until all required
payments have been made.
<PAGE>
16. LEGENDS; PAYMENT OF EXPENSES. The Company may endorse such legend
or legends upon the certificates for shares of Common Stock issued upon exercise
of an option under the Plan and may issue such "stop transfer" instructions to
its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to (a) prevent a violation of, or to
perfect an exemption from, the registration requirements of the Securities Act
and any applicable state securities laws, (b) implement the provisions of the
Plan or any agreement between the Company and the optionee with respect to such
shares of Common Stock, or (c) permit the Company to determine the occurrence of
a "disqualifying disposition," as described in Section 421(b) of the Code, of
the shares of Common Stock issued or transferred upon the exercise of an ISO
granted under the Plan.
The Company shall pay all issuance taxes with respect to the issuance
of shares of Common Stock upon the exercise of an option granted under the Plan,
as well as all fees and expenses incurred by the Company in connection with such
issuance.
17. USE OF PROCEEDS. The cash proceeds from the sale of shares of
Common Stock pursuant to the exercise of options under the Plan shall be added
to the general funds of the Company and used for such corporate purposes as the
Board of Directors may determine.
18. SUBSTITUTIONS AND ASSUMPTIONS OF OPTIONS OF CERTAIN CONSTITUENT
CORPORATIONS. Anything in this Plan to the contrary notwithstanding, the Board
of Directors may, without further approval by the stockholders, substitute new
options for prior options of a Constituent Corporation (as defined in Paragraph
19) or assume the prior options of such Constituent Corporation.
19. DEFINITIONS. For purposes of the Plan, the following terms shall
be defined as set forth below:
(a) Constituent Corporation. The term "Constituent
Corporation" shall mean any corporation which engages with the Company, any of
its Subsidiaries or a Parent in a transaction to which Section 424(a) of the
Code applies (or would apply if the option assumed or substituted were an ISO),
or any Parent or any Subsidiary of such corporation.
(b) Consultant Option. The term "Consultant Option" shall
mean a NQSO granted pursuant to the Plan to a person who, at the time of grant,
is a consultant to the Company or a Subsidiary of the Company, and at such time
is neither a common law employee of the Company or any of its Subsidiaries nor a
director of the Company.
(c) Disability. The term "Disability" shall mean a
permanent and total disability within the meaning of Section 22(e)(3) of the
Code.
<PAGE>
(d) Employee Option. The term "Employee Option" shall mean
an option granted pursuant to the Plan to an individual who, at the time of
grant, is a key employee of the Company, or any of its Subsidiaries or a Parent.
(e) Legal Representative. The term "Legal Representative"
shall mean the executor, administrator or other person who at the time is
entitled by law to exercise the rights of a deceased or incapacitated optionee
with respect to an option granted under the Plan.
(f) Non-Employee Director. The term "Non-Employee
Director" shall mean a person who is a director of the Company, but is not a
common law employee of the Company, any of its Subsidiaries or a Parent.
(g) Non-Employee Director Option. The term "Non-Employee
Director Option" shall mean a NQSO granted pursuant to the Plan to a person who,
at the time of the grant, is a Non-Employee Director.
(h) Parent. The term "Parent" shall have the same
definition as "parent corporation" in Section 424(e) of the Code.
(i) Subsidiary. The term "Subsidiary" shall have the same
definition as "subsidiary corporation" in Section 424(f) of the Code.
20. GOVERNING LAW; CONSTRUCTION. The Plan, such options as may be
granted hereunder and all related matters shall be governed by, and construed in
accordance with, the laws of Bermuda, without regard to conflict of law
provisions.
Neither the Plan nor any Contract shall be construed or interpreted
with any presumption against the Company by reason of the Company causing the
Plan or Contract to be drafted. Whenever from the context it appears
appropriate, any term stated in either the singular or plural shall include the
singular and plural, and any term stated in the masculine, feminine or neuter
gender shall include the masculine, feminine and neuter.
21. PARTIAL INVALIDITY. The invalidity, illegality or
unenforceability of any provision in the Plan or any Contract shall not affect
the validity, legality or enforceability of any other provision, all of which
shall be valid, legal and enforceable to the fullest extent permitted by
applicable law.
22. STOCKHOLDER APPROVAL. The Plan shall be subject to approval by a
majority of the votes present in person or by proxy at the next duly held
meeting of the Company's stockholders at which a quorum is present. No options
granted hereunder may be exercised prior to such approval; PROVIDED, HOWEVER,
that the date of grant of any option shall be determined as if the Plan had not
been subject to such approval. Notwithstanding the foregoing, if the Plan is not
approved by a vote of the stockholders of the Company on or before December 19,
1996, the Plan and any options granted hereunder shall terminate.
EXHIBIT 5.01
------------
[LETTERHEAD OF CONYERS DILL & PEARMAN]
September 18, 1997
First South Africa Corp., Ltd.
Clarendon House, Church Street
Hamilton HM CX, Bermuda
Gentlemen:
We have acted as counsel to First South Africa Corp., Ltd. (the "Registrant") in
connection with its Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission relating to
350,000 shares of Common Stock, par value $0.01 per share, of the Registrant
(the "Shares"), issuable upon exercise of options granted or to be granted under
the Registrant's 1995 Stock Option Plan (the "Plan").
In connection with the foregoing, we have examined, among other things, the
Plan, the Registration Statement and originals or copies, satisfactory to us, of
all such corporate records and of all such agreements, certificates and other
documents (including the confirmation of the President of the Registrant that no
options under the Plan have been or will be granted on terms that the Shares
issuable upon exercise of such options will be nil paid or partly paid Shares)
as we have deemed relevant and necessary as a basis for the opinion hereinafter
expressed. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with the original documents of documents submitted to us as
copies. As to any facts material to such opinion, we have, to the extent that
relevant facts were not independently established by us, relied on certificates
of public officials and certificates, oaths and declarations of officers or
other representatives of the Registrant.
Based upon and subject to the foregoing, we are of the opinion that the Shares
to be issued pursuant to the exercise of options granted or to be granted under
the Plan will be, when issued pursuant to the provisions of the Plan, validly
issued, fully paid and non-assessable.
<PAGE>
First South Africa Corp., Ltd.
September 18, 1997
Page 2
We are members of the bar of Bermuda and we have made no investigation of an
express no opinion in relation to the laws of any jurisdiction other than
Bermuda. This opinion is to be governed by and construed in accordance with the
laws of Bermuda and is limited to and is given on the basis of the current law
and practice in Bermuda.
We hereby consent to the filing of a copy of this opinion as an exhibit to the
Registration Statement.
Yours faithfully,
/S/ CONYEARS DILL & PEARMAN
Conyers Dill & Pearman
EXHIBIT 23.01
-------------
INDEPENDENT AUDITORS' CONSENT
We consent to use in this Registration Statement on Form S-8 relating to the
1995 Stock Option Plan of First South Africa Corp., Ltd. of our report dated
September 27, 1996 appearing in the Annual Report on Form 10-K of First South
Africa Corp., Ltd.
Price Waterhouse
Sandton, South Africa
September 23, 1997
