<PAGE>
To Become Effective Upon
Filing Pursuant to Rule
462.
As filed with the Securities and Exchange Commission on May 22, 1997
Registration No. 333-_____
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
The Publishing Company of North America, Inc.
________________________________________________________________________________
(Exact name of registrant as specified in its charter)
Florida 59-3203301
__________________________________ _____________________________________
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
186 N. Industrial Park Drive, Lake Helen, Florida 32744
________________________________________________________________________________
(Address of Principal Executive Offices) (Zip Code)
1996 Stock Plan
_________________________
(Full title of the plan)
Michael D. Harris, Esq.
Cohen, Chernay, Norris, Weinberger & Harris
712 U.S. Highway One, Suite 400
North Palm Beach, Florida 33408
________________________________________________________________________________
(Name and address of agent of service)
(561) 844-3600
________________________________________________________________________________
(Telephone number, including area code, of agent for service)
Approximate Date of Commencement of Proposed Sales under the Plan:
as soon as practicable after this
Registration Statement becomes effective.
________________________________________________________________________________
<PAGE>
________________________________________________________________________________
Calculation of Registration Fee
________________________________________________________________________________
Title of Proposed Proposed
Securities Amount To Maximum Maximum Amount of
To be Be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price* Fee*
________________________________________________________________________________
Common Shares,
no par value
per share 500,000 $ 3.063 $1,531,500 $528.10
________________________________________________________________________________
* Calculated pursuant to Rule 457(c) based on the average of the bid and
asked price of the Company's stock on May 14, 1997.
<PAGE>
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are incorporated herein by reference the following documents:
1. The Publishing Company of North America, Inc. (the "Company") latest
annual report filed pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") which contains, either
directly or by incorporation by reference, certified financial
statements for the Company's latest fiscal year for which such
statements have been filed.
2. All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual
reports.
3. The description of the Company's common stock contained in the
Company's Registration Statement under Section 12 of the Exchange Act,
including any amendment or report filed for the purpose of updating
such description.
4. All reports subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
termination of the offering of the securities covered by this
Prospectus shall be deemed to be incorporated herein by reference and
to be part hereof from the date of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Two attorneys employed by the law firm representing the Company own
7,500 shares of the Company's common stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's by-laws, provide that the Company shall indemnify its
current and former officers, directors, employees and agents against
expenses (including attorney's fees), judgments, fines and amounts
paid in settlement arising out of his or her services on behalf of the
Company subject to the qualifications contained in Florida law as it
now exists. Florida law generally provides that a corporation shall
have such power to indemnify such persons to the extent they acted in
good
II-1
<PAGE>
faith in a manner reasonably believed to be in, or not opposed to, the
best interests of the Company and, with respect to any criminal action
or proceeding, had no reasonable cause to believe the conduct was
unlawful. In the event any such person shall be judged liable for
negligence or misconduct, in the performance of his or her duties such
indemnification shall apply only if approved by the Court of Chancery
or the Court in which the action was pending. Any other
indemnification shall be made only after the determination by the
board of directors (excluding any directors who were party to such
action), by independent legal counsel in a written opinion, or by a
majority vote of stockholders (including any stockholders who were
parties to such action).
INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE
SECURITIES ACT OF 1933 MAY BE PERMITTED TO DIRECTORS, OFFICERS OR
PERSONS CONTROLLING THE COMPANY PURSUANT TO THE FOREGOING PROVISIONS,
THE COMPANY HAS BEEN INFORMED 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.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Stock options have been issued to directors, executive officers and
employees of the Company and shares of restrictive stock have been
granted to directors and officers of and to the Company in reliance
upon the exemptions provided by Section 4(2) of the Securities Act of
1933 and Rule 506 thereunder. Each grantee was given access to the
same kind of information that would be contained in a registration
statement and agreed to acquire the securities for investment.
Item 8. EXHIBITS.
Exhibit 4 1996 Stock Plan
Exhibit 5 Opinion of Cohen, Chernay, Norris,
Weinberger & Harris
Exhibit 24 Consent of Ernst & Young, LLP
Exhibit 24.1 Consent of Cohen, Chernay, Norris,
Weinberger & Harris*
* Contained in the Opinion of Cohen, Chernay, Norris, Weinberger & Harris
II-2
<PAGE>
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 (the "Securities Act");
(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 (i) and (ii) do not
apply since the Registration Statement is on Form S-8 and the
information required to be included in post-effective amendment by
those paragraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 therein.
(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) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the Company's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (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
II-3
<PAGE>
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the 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 Securities Act and will be governed by
the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in Lake Helen, Florida, on this 20th day of May 1997.
THE PUBLISHING COMPANY OF NORTH
AMERICA, INC.
By: /s/ Peter S. Balise
---------------------------------
Peter S. Balise
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement of The Publishing Company of North America, Inc. has been
signed by the following persons in the capacities and on the dates indicated.
Signatures Title Date
---------- ----- ----
/s/ Peter S. Balise Chairman of the Board May 20, 1997
- -------------------------
Peter S. Balise
/s/ James M. Koller Chief Financial Officer May 20, 1997
- ------------------------- (Principal Financial and
James M. Koller Accounting Officer)
/s/ D. Scott Plakon Director May 20, 1997
- -------------------------
D. Scott Plakon
/s/ Matt Butler Director May 22, 1997
- -------------------------
Matt Butler
Director May __, 1997
- -------------------------
Phillip S. Hofmann
/s/ John D. McKey, Jr. Director May 19, 1997
- -------------------------
John D. McKey, Jr.
<PAGE>
EXHIBIT INDEX
EXHIBIT NUMBER ITEM
- -------------- ----
4 1996 Stock Plan
5 Opinion of Cohen, Chernay, Norris, Weinberger & Harris
24 Consent of Ernst & Young, LLP
24.1 Consent of Cohen, Chernay, Norris, Weinberger & Harris*
* Contained in the Opinion of Cohen, Chernay, Norris, Weinberger & Harris
<PAGE>
Exhibit 4
THE PUBLISHING COMPANY OF NORTH AMERICA, INC.
1996 STOCK PLAN
---------------
1. PURPOSE AND ELIGIBILITY. This Stock Plan (the "Plan") is intended to
advance the interests of The Publishing Company of North America, Inc. (the
"Company") and its Related Corporations as defined below by enhancing the
ability of the Company to attract and retain qualified employees, consultants,
officers and directors by creating incentives and rewards for their
contributions to the success of the Company. This Plan will provide to (a)
officers and other employees of the company and its Related Corporations
opportunities to purchase common stock ("Common Stock") of the Company pursuant
to Options granted hereunder which qualify as incentive stock options ("ISOs")
under Section 422(b) of the Internal Revenue Code of 1986, as amended (the
"Code"), (b) directors, officers, employees and consultants of the Company and
Related Corporations opportunities to purchase Common Stock in the Company
pursuant to options granted hereunder which do not qualify as ISOs
("Non-Qualified Options"); (c) directors, officers, employees and consultants of
the Company and Related Corporations awards of Common Stock of the Company
("Awards"); (d) directors, officers, employees and consultants of the Company
and Related Corporations opportunities to make direct purchases of Common Stock
in the Company ("Purchases"); and (e) non-employee directors of the Company and
Related Corporations with the opportunities to purchase Common Stock in the
Company pursuant to options granted hereunder ("Non-Discretionary Options").
ISOs, Non-Discretionary Options and Non-Qualified Options are referred to
hereafter as "Options". Options, Awards and authorizations to make Purchases
are referred to hereafter collectively as "Stock Rights."
For purposes of the Plan, the term "Related Corporations" shall mean a
corporation which is a subsidiary corporation with respect to the Company within
the meaning of Section 425(f) of the Code.
This Plan is intended to comply in all respects with Rule 16b-3 and its
successor rules as promulgated under Section 16(b) of the Securities Exchange
Act of 1934 ("Rule 16b-3") for participants who are subject to Section 16 of the
Securities Exchange Act of 1934 (the "Exchange Act"). To the extent any
provision of the Plan or action by the Plan administrators fails to so comply,
it shall be deemed null and void to the extent permitted by law and deemed
advisable by the Plan administrators. Provided, however, such exercise of
discretion by the Plan administrators shall not interfere with the contract
rights of any participant. In the event that any interpretation or construction
of this Plan is required, it shall be interpreted and construed in order to
insure, to the maximum extent permissible by law, that such participant does not
violate the short-swing profit provisions of Section 16(b) of the Exchange Act
and that any exemption available under Rule 16b-3 is available.
<PAGE>
2. ADMINISTRATION OF THE PLAN.
a. The Plan may be administered by the entire board of directors of
the Company (the "Board") if all members of the Board are "disinterested
persons" as that term is defined in Rule 16b-3 adopted pursuant to the Exchange
Act or by a Committee as defined herein. If all members of the Board are not
"disinterested persons," then the Plan shall be administered by a committee of
two or more members (the "Committee"). Each of the members must be a
"disinterested person" as that term is defined in Rule 16b-3 adopted pursuant to
the Exchange Act. Once appointed, such Committee shall continue to serve until
otherwise directed by the Board. The Committee shall consist of not fewer than
two members. A majority of the members of any such Committee shall constitute a
quorum, and all determinations of the Committee shall be made by the majority of
its members present at a meeting. Any determination of the Committee under the
Plan may be made without notice or meeting of the Committee by a writing signed
by all of the Committee members. Subject to ratification of the grant of each
Option by the Board (but only if so required by applicable state law), and
subject to the terms of the Plan, the Committee shall have the authority to (i)
determine the employees of the Company and Related Corporations (from among the
class of employees eligible under Section 3 to receive ISOs) to whom ISOs may be
granted, and to determine (from among the class of individuals and entities
eligible under Section 3 to receive Non-Qualified Options, an Awards and
authorizations to make Purchases) to whom Non-Qualified Options, Awards and
authorizations to make Purchases may be granted or Purchases made; (ii)
determine the time or times at which Stock Rights may be granted; (iii)
determine the exercise price of shares subject to each Option and the purchase
price of shares subject to each Purchase which price shall not be less than the
fair market value defined by Section 7; (iv) determine whether each Option
granted shall be an ISO or a Non-Qualified Option; (v) except for
Non-Discretionary Options, determine (subject to Section 6) the time or times
when each Option shall become exercisable, the duration of the exercise period
and when each Option or Stock Right shall vest; (vi) determine whether
restrictions such as repurchase Options are to be imposed on shares subject to
Options, Awards and Purchases and the nature of such restrictions, if any, and
(vii) interpret the Plan and promulgate and rescind rules and regulations
relating to it. The interpretation and construction by the Committee of any
provisions of the Plan or of any Stock Right granted under it shall be final,
binding and conclusive unless otherwise determined by the Board. The Committee
may from time to time adopt such rules and regulations for carrying out the Plan
as it may deem best.
No members of the Committee or the Board shall be liable for any action or
determination made in good faith with respect to the Plan or any Stock Right
granted under it. No member of the Committee or the Board shall be liable for
any act or omission of
2
<PAGE>
any other member of the Committee or the Board or for any act or omission on his
own part, including but not limited to the exercise of any power and discretion
given to him under the Plan, except those resulting from his own gross
negligence or willful misconduct.
b. The Committee may select one of its members as its chairman and
shall hold meetings at such time and places as it may determine. All references
in this Plan to the Committee shall mean the Board if no Committee has been
appointed. From time to time the Board may increase the size of the Committee
and appoint additional members thereof, remove members (with or without cause)
and appoint new members in substitution therefor, fill vacancies however caused
or remove all members of the Committee and thereafter directly administer the
Plan.
c. Stock Rights may be granted to members of the Board, whether such
grants are in their capacity as directors, officers or consultants, but no
discretionary Stock Rights shall be granted to any person who is, at the time of
the proposed grant, a member of the Committee as provided in Section 2d. All
grants of Stock Rights to members of the Board shall in all other respects be
made in accordance with the provisions of this Plan applicable to other eligible
persons. Members of the Board who are either (i) eligible for Stock Rights
pursuant to the Plan or (ii) have been granted Stock Rights may vote on any
matters affecting the administration of the Plan or the grant of any Stock
Rights pursuant to the Plan, except that no such member shall act upon the
granting to himself of discretionary Stock Rights but any such member may be
counted in determining the existence of a quorum at any meeting of the Board
during which action is taken with respect to the granting to him of Stock
Rights.
d. Notwithstanding any other provision of Section 2, discretionary
grants may not be made to Plan Administrators while they are serving in that
capacity.
e. In addition to such other rights of indemnification as he may
have as a member of the Board, and with respect to administration of the Plan
and the granting of Stock Rights under it, each member of the Board and of the
Committee shall be entitled without further act on his part to indemnification
from the Company for all expenses (including advances of litigation expenses,
the amount of judgment and the amount of approved settlements made with a view
to the curtailment of costs of litigation) reasonably incurred by him in
connection with or arising out of any action, suit or proceeding, including any
appeal thereof, with respect to the administration of the Plan or the granting
of Stock Rights under it in which he may be involved by reason of his being or
having been a member of the Board or the Committee, whether or not he continues
to be such member of the Board or the Committee at the time of the incurring of
such expenses; provided, however, that
3
<PAGE>
such indemnity shall not include any expenses incurred by such member of the
Board or the Committee (i) in respect of matters as to which he shall be finally
adjudged in such action, suit or proceeding to have been guilty of or liable for
gross negligence or willful misconduct in the performance of his duties as a
member of the Board or the Committee; or (ii) in respect of any matter in which
any settlement is effected to an amount in excess of the amount approved by the
Company on the advice of its legal counsel; and provided further that no right
of indemnification under the provisions set forth herein shall be available to
any such member of the Board or the Committee unless within 10 days after
institution of any such action, suit or proceeding he shall have offered the
Company in writing the opportunity to handle and defend such action, suit or
proceeding at its own expense. The foregoing right of indemnification shall
inure to the benefit of the heirs, executors or administrators of each such
member of the Board or the Committee and shall be in addition to all other
rights to which such member of the Board or the Committee would be entitled to
as a matter of law, contract or otherwise.
3. ELIGIBLE EMPLOYEES AND OTHERS.
a. ISOs may be granted to any employee of the Company or any Related
Corporation. Those officers and directors of the Company who are not employees
may not be granted ISOs under the Plan. Subject to compliance with Rule 16b-3
and other applicable securities laws, Non-Qualified Options, Awards and
authorizations to make Purchases may be granted to any director (whether or not
an employee), officer, employee or consultant of the Company or any Related
Corporation. The Committee may take into consideration a recipient's individual
circumstances in determining whether to grant an ISO, a Non-Qualified Option or
an authorization to make a Purchase. Granting of any Stock Right to any
individual or entity shall neither entitle that individual or entity to, nor
disqualify him from participation in any other grant of Stock Rights.
b. All directors of the Company who are not employees or 10%
shareholders of the Company or Related Corporations shall automatically receive
grants of 3,000 shares of the Company's Common Stock and 15,000 Non-Qualified
Options (i) upon election or appointment to the Board if not a member of the
Board at the time this Plan is adopted by the Board; and (ii) after all Common
Stock grants and Non-Qualified Options previously granted pursuant to this
Section have vested if vesting occurs during the term of office of such
directors.
(1) The exercise price of the Options shall be fair market value
as defined by Section 7.
(2) The stock grants and Options shall vest in three equal
increments of 1,000 shares of Common Stock and 5,000 Options per director on
each December 31, provided that the
4
<PAGE>
director is still serving as a director of the Company on the applicable vesting
date. To the extent that any shares of Common Stock do not vest, the shares
shall be forfeited. To the extent that any Options which have not been
exercised do not vest, the Options shall lapse.
c. The Options shall be exercisable for a period of 10 years from
the date of grant, except where a shorter period is required by the Code for
certain ISOs or where the Board or Committee selects a shorter period at the
time of any discretionary grant.
d. The "formula" grant contained in Section 3b above shall not be
amended more than once every six month, other than to comport with changes in
the Internal Revenue Code or ERISA.
4. COMMON STOCK. The Common Stock subject to Stock Rights shall be
authorized but unissued shares of Common Stock, no par value, or shares of
Common Stock reacquired by the Company in any manner, including purchase,
forfeiture or otherwise. The aggregate number of shares of Common Stock which
may be issued pursuant to the Plan is 500,000 subject to adjustment as provided
in Section 14. The maximum number of Stock Rights which can be granted to any
person are not more than 100,000 shares underlying Stock Rights subject to
adjustment. Any such shares may be issued as ISOs, Non-Qualified Options or
Awards, or to persons or entities making Purchases, so long as the number of
shares so issued does not exceed the limitations in this Section. If any Stock
Rights granted under the Plan shall expire or terminate for any reason without
having been exercised in full or shall cease for any reason to be exercisable in
whole or in part, or if the Company shall reacquire any unvested shares issued
pursuant to Awards or Purchases, the unpurchased shares subject to such Stock
Rights and any unvested shares so reacquired by the Company shall again be
available for grants of Stock Rights under the Plan.
5. GRANTING OF STOCK RIGHTS.
a. Stock Rights may be granted under the Plan at any time on and
after March 6, 1996, provided, however, that no ISO shall be granted more than
10 years after the effective date of this Plan. The date of grant of a Stock
Right under the Plan will be the date specified by the Committee at the time it
grants the Stock Right; provided, however, that such date shall not be prior to
the date on which the Committee acts to approve the grant. The Committee shall
have the right, with the consent of the optionee, to convert an ISO granted
under the Plan to a Non-Qualified Option pursuant to Section 17.
b. The Committee shall grant Stock Rights to participants that it,
in its sole discretion, selects. Stock Rights shall be granted on such terms as
the Committee shall
5
<PAGE>
determine except that ISOs shall be granted on terms that comply with the Code
and regulations thereunder.
c. Notwithstanding any provision of this Plan, the Committee may
impose conditions and restrictions on any grant of Stock Rights including
forfeiture of vested Options, cancellation of Common Stock acquired in
connection with any Stock Right and forfeiture of profits.
6. SALE OF SHARES. Any shares of the Company's Common Stock acquired
pursuant to Stock Rights granted hereunder shall not be sold by any officer, as
defined in this Plan, or director until at least six months elapse from the date
of acquisition. Nothing in this Section 6 shall be deemed to reduce the holding
period set forth under the applicable securities laws.
7. ISO MINIMUM OPTION PRICE AND OTHER LIMITATIONS.
a. The exercise price per share relating to all Options granted
under the Plan shall not be less than the fair market value per share of Common
Stock on the last trading day prior to the date of such grant. For purposes of
determining the exercise price, the date of the grant shall be the later of (i)
the date of approval by the Committee or the Board, or (ii) for ISOs, the date
the recipient becomes an employee of the Company. In the case of an ISO to be
granted to an employee owning Common Stock which represents more than 10 percent
of the total combined voting power of all classes of stock of the Company or any
Related Corporation, the price per share shall not be less than 110 percent of
the fair market value per share of Common Stock on the date of grant and such
ISO shall not be exercisable after the expiration of five years from the date of
grant.
b. In no event shall the aggregate fair market value (determined at
the time an ISO is granted) of Common Stock for which ISOs granted to any
employee are exercisable for the first time by such employee during any calendar
year (under all stock option plans of the Company and any Related Corporation)
exceed $100,000.
c. If, at the time an Option is granted under the Plan, the
Company's Common Stock is publicly traded, "fair market value" shall be
determined as of the last trading day prior to the date such Option is granted
and shall mean:
(1) the closing price of the Company's shares appearing on a
national securities exchange if such shares are listed on such an exchange or if
not listed, appearing on the National Association of Securities Dealers
Automated Quotation System ("NASDAQ");
6
<PAGE>
(2) if the Company's shares are not listed on NASDAQ, then the
average bid and asked price for its shares as listed on the National Association
of Securities Dealers, Inc.'s electronic bulletin board; or
(3) if the Company's shares are not listed on the National
Association of Securities Dealers, Inc.'s electronic bulletin board, then the
average bid and asked price for the Company's shares as listed in the National
Quotation Bureau's "pink sheets"; or
(4) if there are no listed bid and asked prices published in the
pink sheets, then the market value shall be based upon the average closing bid
and asked price as determined following a polling of all dealers making a market
in the Company's Common Stock.
8. DURATION OF STOCK RIGHTS. Subject to earlier termination as provided
in Sections 5, 9, 10 and 11, each Stock Right shall expire on the date specified
in the original instrument granting such Stock Right (except with respect to any
part of an ISO that is converted into a Non-Qualified Option pursuant to Section
17), provided, however, that such instrument must comply with Section 422 of the
Code with regard to ISOs and Rule 16b-3 with regard to all Stock Rights granted
pursuant to this Plan to officers, directors and 10% shareholders of the
Company. For the purpose of this Plan, the term "officer" shall have the same
meaning as defined in Rule 16a-1(f) promulgated under the Exchange Act.
9. EXERCISE OF OPTIONS. Subject to the provisions of Sections 3b and 9
through 13, each Option granted under the Plan shall be exercisable as follows:
a. The Options shall either be fully vested and exercisable from the
date of grant or shall vest and become exercisable in such installments as the
Committee may specify.
b. Once an installment becomes exercisable it shall remain
exercisable until expiration or termination of the Option, unless otherwise
specified by the Committee.
c. Each Option or installment, once it becomes exercisable, may be
exercised at any time or from time to time, in whole or in part, for up to the
total number of shares with respect to which it is then exercisable.
d. The Committee shall have the right to accelerate the vesting date
of any installment of any Stock Right; provided that the Committee shall not
accelerate the exercise date of any installment of any Option granted to any
employee as an ISO (and not previously converted into a Non-Qualified Option
pursuant to Paragraph 17) if such acceleration would violate the annual vesting
7
<PAGE>
limitation contained in Section 422(d) of the Code as described in Section 7b.
The vesting date of all Stock Rights shall accelerate in the event of any of the
following: (i) the Company is to merge or consolidate with or into any other
corporation or entity except a transaction where the Company is the surviving
corporation or a change of domicile merger or similar transaction exempt from
registration under the Securities Act of 1933, (ii) the sale of all or
substantially all of the Company's assets, (iii) the sale of at least 90% of the
outstanding Common Stock of the Company to a third party (subsections (i), (ii)
and (iii) collectively referred to as an "Acquisition"); or (iv) the Company is
dissolved. Upon a minimum of 20 days prior written notice to the optionees, the
exercisability of such Stock Rights shall commence two business days prior to
the earlier of the scheduled closing of an Acquisition or proposed dissolution
or the actual closing of an Acquisition or proposed dissolution.
e. All Stock Rights shall be subject to any vesting requirements
imposed by the Committee. In the event of an Acquisition or dissolution of the
Company, all unvested Stock Rights shall immediately vest two business days
prior to the earlier of the scheduled closing of the Acquisition or proposed
dissolution or the actual closing of the Acquisition or proposed dissolution and
a minimum of 20 days notice of such vesting shall be given to the holders of
such Stock Rights.
10. TERMINATION OF EMPLOYMENT. Subject to any greater restrictions or
limitations as may be imposed by the Committee upon the granting of any Option,
if an ISO optionee ceases to be employed by the Company and all Related
Corporations other than by reason of death or disability as defined in Section
11, no further installments of his ISOs shall become exercisable, and his ISOs
shall terminate as provided for in the grant or on the day three months after
the day of the termination of his employment, whichever is earlier, but in no
event later than on their specified expiration dates, except to the extent that
such ISOs (or unexercised installments thereof) have been converted into
Non-Qualified Options pursuant to Section 17. Employment shall be considered as
continuing uninterrupted during any bona fide leave of absence (such as those
attributable to illness, military obligations or governmental service) provided
that the period of such leave does not exceed 90 days or, if longer, any period
during which such optionee's right to re-employment is guaranteed by statute. A
leave of absence with the written approval of the Company's Board shall not be
considered an interruption of employment under the Plan, provided that such
written approval contractually obligates the Company or any Related Corporation
to continue the employment of the optionee after the approved period of absence.
ISOs granted under the Plan shall not be affected by any change of employment
within or among the Company and Related Corporations so long as the optionee
continues to be an employee of the Company or any Related Corporation.
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11. DEATH; DISABILITY. Subject to any greater restrictions or limitations
as may be imposed by the Committee upon the granting of any Option:
a. If an ISO optionee ceases to be employed by the Company and all
Related Corporations by reason of his death, any ISO of such employee may be
exercised to the extent of the number of shares with respect to which he could
have exercised it on the date of his death, by his estate, personal
representative or beneficiary who has acquired the ISO by will or by the laws of
descent and distribution, at any time prior to the earlier of the ISO's
specified expiration date or three months from the date of the optionee's death.
b. If an ISO optionee ceases to be employed by the Company and all
Related Corporations by reason of his disability, he shall have the right to
exercise any ISO held by him on the date of termination of employment until the
earlier of (i) the ISOs specified expiration date or (ii) one year from the date
of the termination of the optionee's employment. For the purposes of the Plan,
the term "disability" shall mean "permanent and total disability" as defined in
Section 22(e)(3) of the Code or successor statute.
12. ASSIGNMENT, TRANSFER OR SALE.
a. No Option granted to an employee who is an officer, director or
beneficial owner of 10% or more of the Company's securities registered under
Section 12 of the Exchange Act ("10% Owner"), shall be assignable or
transferable by the grantee except by will or by the laws of descent and
distribution, and during the lifetime of the grantee, each Option shall be
exercisable only by him, his guardian or legal representative. The shares
underlying ISOs granted to the above persons cannot be assigned, transferred or
sold until at least two years from the date of the granting of the ISO and one
year after the transfer of such shares to the participant.
b. The shares underlying such Stock Rights granted to any officer,
director or 10% Owner of the Company's securities shall not be sold, assigned or
transferred by the grantee until at least six months elapse from the date of the
Option grant.
c. Provided however, any officer, director or 10% Owner may transfer
Options to members of his or her immediate family (I.E. children, grandchildren
or spouse), to trusts for the immediate benefit of such family members and to
partnerships in which such family members are the only partners, upon approval
of the Committee so long as no consideration is received for the transfer.
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13. TERMS AND CONDITIONS OF STOCK RIGHTS. Stock Rights shall be evidenced
by instruments (which need not be identical) in such forms as the Committee may
from time to time approve. Such instruments shall conform to the terms and
conditions set forth in Sections 5 through 12 hereof and may contain such other
provisions as the Committee deems advisable which are not inconsistent with the
Plan. In granting any Non-Qualified Option, the Committee may specify that such
Non-Qualified Option shall be subject to the restrictions set forth herein with
respect to ISOs, or to such other termination and cancellation provisions as the
Committee may determine. The Committee may from time to time confer authority
and responsibility on one or more of its own members and/or one or more officers
of the Company to execute and deliver such instruments. The proper officers of
the Company are authorized and directed to take any and all action necessary or
advisable from time to time to carry out the terms of such instruments.
14. ADJUSTMENTS. Upon the occurrence of any of the following events, a
grantee's right with respect to Stock Rights granted to him hereunder shall be
adjusted as hereinafter provided unless otherwise specifically provided in the
written agreement between the grantee and the Company relating to such Stock
Rights:
a. If the shares of Common Stock shall be subdivided or combined
into a greater or smaller number of shares or if the Company shall issue any
shares of Common Stock as a stock dividend on its outstanding Common Stock, the
number of shares of Common Stock deliverable upon the exercise of Options shall
be appropriately increased or decreased proportionately, and appropriate
adjustments shall be made in the purchase price per share to reflect such
subdivision, combination or stock dividend.
b. If the Company is to be consolidated with or acquired by another
entity pursuant to an Acquisition, the Committee or the board of directors of
any entity assuming the obligations of the Company hereunder (the "Successor
Board") shall, as to outstanding Options not exercised pursuant to Section 10,
either (i) make appropriate provision for the continuation of such Options by
substituting on an equitable basis for the shares then subject to such Options
the consideration payable with respect to the outstanding shares of common stock
in connection with the Acquisition; or (ii) terminate all Options in exchange
for a cash payment equal to the excess of the fair market value of the shares
subject to such Options over the exercise price thereof.
c. In the event of a recapitalization or reorganization of the
Company (other than a transaction described in Section 14b above) pursuant to
which securities of the Company or of another corporation are issued with
respect to the outstanding shares of Common Stock, an optionee upon exercising
an Option shall be entitled to receive for the purchase price paid upon such
exercise
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the securities he would have received if he had exercised his Option prior to
such recapitalization or reorganization.
d. Notwithstanding the foregoing, any adjustments made pursuant to
Section 14a, b or c with respect to ISOs shall be made only after the Committee,
after consulting with counsel for the Company, determines whether such
adjustments would constitute a "modification" of such ISOs (as that term is
defined in Section 425(h) of the Code) or would cause any adverse tax
consequences for the holders of such ISOs. If the Committee determines that
such adjustments made with respect to ISOs would constitute a modification of
such ISOs it may refrain from making such adjustments.
e. Except as expressly provided herein, no issuance by the Company
of shares of Common Stock of any class or securities convertible into shares of
Common Stock of any class shall affect, and no adjustment by reason thereof
shall be made with respect to, the number or price of shares subject to Options.
No adjustments shall be made for dividends or other distributions paid in cash
or in property other than securities of the Company.
f. No fractional shares shall be issued under the Plan and the
optionee shall receive from the Company cash in lieu of such fractional shares.
g. Upon the happening of any of the foregoing events described in
Section 14a, b or c above, the class and aggregate number of shares set forth in
Section 14 hereof that are subject to Stock Rights which previously have been or
subsequently may be granted under the Plan shall also be appropriately adjusted
to reflect the events described in such subsections. The Committee or the
Successor Board shall determine the specific adjustments to be made under this
Section 14 and, subject to Section 2, its determination shall be conclusive. If
any person or entity owning restricted Common Stock obtained by exercise of a
Stock Right made hereunder receives shares or securities or cash in connection
with a corporate transaction described in Section 14a, b or c above as a result
of owning such restricted Common Stock, such shares or securities or cash shall
be subject to all of the conditions and restrictions applicable to the
restricted Common Stock with respect to which such shares or securities or cash
were issued, unless otherwise determined by the Committee or the Successor
Board.
15. MEANS OF EXERCISING STOCK RIGHTS.
a. A Stock Right (or any part or installment thereof) shall be
exercised by giving written notice to the Company at its principal office
address. Such notice shall identify the Stock Right being exercised and specify
the number of shares as to which such Stock Right is being exercised,
accompanied by full payment of the exercise price therefor either (i) in United
States dollars by
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check or wire transfer; or (ii) at the discretion of the Committee, through
delivery of shares of Common Stock having a fair market value equal as of the
date of the exercise to the cash exercise price of the Stock Right; or (iii) at
the discretion of the Committee, by delivery of the grantee's personal recourse
note bearing interest payable not less than annually at no less than 100% of the
lowest applicable federal rate, as defined in Section 1274(d) of the Code, or
(iv) at the discretion of the Committee, by any combination of (i), (ii) and
(iii) above. If the Committee exercises its discretion to permit payment of the
exercise price of an ISO by means of the methods set forth in clauses (ii),
(iii) or (iv) of the preceding sentence, such discretion shall be exercised in
writing at the time of the grant of the ISO in question. The holder of a Stock
Right shall not have the rights of a shareholder with respect to the shares
covered by his Stock Right until the date of issuance of a stock certificate to
him for such shares. Except as expressly provided above in Section 14 with
respect to changes in capitalization and stock dividends, no adjustment shall be
made for dividends or similar rights for which the record date is before the
date such stock certificate is issued.
b. Each notice of exercise shall, unless the shares of Common Stock
are covered by a then current registration statement under the Securities Act of
1933, as amended, contain the holder's acknowledgment in form and substance
satisfactory to the Company that (i) such shares are being purchased for
investment and not for distribution or resale (other than a distribution or
resale which, in the opinion of counsel satisfactory to the Company, may be made
without violating the registration provisions of the Act), (ii) the holder has
been advised and understands that (1) the shares have not been registered under
the Act and are "restricted securities" within the meaning of Rule 144 under the
Act and are subject to restrictions on transfer and (2) the Company is under no
obligation to register the shares under the Act or to take any action which
would make available to the holder any exemption from such registration, and
(iii) such shares may not be transferred without compliance with all applicable
federal and state securities laws. Notwithstanding the above, should the
Company be advised by counsel that issuance of shares should be delayed pending
registration under federal or state securities laws or the receipt of an opinion
that an appropriate exemption therefrom is available, the Company may defer
exercise of any Stock Right granted hereunder until either such event has
occurred.
16. TERM AND AMENDMENT OF PLAN. This Plan was adopted by the shareholders
on March 6, 1996, and is subject to approval by the Board. This Plan shall have
no expiration date, provided however that no ISOs shall be granted more than 10
years after the Plan's effective date. The Board may terminate or amend the
Plan in any respect at any time; however, approval of the shareholders must be
obtained within 12 months before or after the Board adopts a resolution
authorizing any of the following actions: (a) increase
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of the total number of shares that may be issued under the Plan (except by
adjustment pursuant to Section 14) unless otherwise not required by law or the
Rules of the Securities and Exchange Commission; (b) modification of the
provisions of Section 3 regarding eligibility for grants of ISOs; and (c) any
other act requiring shareholder approval under Rule 16b-3 (or successor rule)
promulgated under the Exchange Act. Except as provided herein or as specified
in the original instrument granting such Stock Right, no action of the Board or
shareholders may alter or impair the rights of a grantee, without his consent,
under any Stock Right previously granted to him.
17. CONVERSION OF ISOS INTO NON-QUALIFIED OPTIONS; TERMINATION OF ISOS.
The Committee, at the written request of any optionee, may in its discretion
take such actions as may be necessary to convert such optionee's ISOs (or any
installments or portions of installments thereof) that have not been exercised
on the date of conversion into Non-Qualified Options at any time prior to the
expiration of such ISOs, regardless of whether the optionee is an employee of
the Company or a Related Corporation at the time of such conversion. Such
actions may include, but not be limited to, extending the exercise period or
reducing the exercise price of the appropriate installments of such Options. At
the time of such conversion, the Committee (with the consent of the optionee)
may impose such conditions on the exercise of the resulting Non-Qualified
Options as the Committee in its discretion may determine, provided that such
conditions shall not be inconsistent with this Plan. Nothing in the Plan shall
be deemed to give any optionee the right to have such optionee's ISOs converted
into Non-Qualified Options, and no such conversion shall occur until and unless
the Committee takes appropriate action. The Committee, with the consent of the
optionee, may also terminate any portion of any ISO that has not been exercised
at the time of such termination.
18. APPLICATION OF FUNDS. The proceeds received by the Company from the
sale of shares pursuant to Stock Rights granted under the Plan shall be used for
general corporate purposes.
19. GOVERNMENTAL REGULATIONS. The Company's obligation to sell and
deliver shares of the Common Stock under this Plan is subject to the approval of
any governmental authority required in connection with the authorization,
issuance or sale of such shares.
20. WITHHOLDING OF ADDITIONAL INCOME TAXES. Upon the exercise of a
Non-Qualified Option or the making of a Disqualifying Disposition (as defined in
Section 21) the Company, in accordance with Section 3402(a) of the Code may
require the optionee to pay additional withholding taxes in respect of the
amount that is considered compensation includable in such person's gross income.
The Committee in its discretion may condition the exercise of an Option on the
payment of such withholding taxes.
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To the extent that the Company is required to withhold taxes for federal
income tax purposes in connection with the exercise of any Option, the Company
shall have the discretion to determine if any optionee may elect to satisfy such
withholding requirement by (i) paying the amount of the required withholding tax
to the Company; (ii) delivering to the Company shares of its Common Stock
previously owned by the optionee; or (iii) having the Company retain a portion
of the shares covered by the Option exercise. If permitted by the Company, the
number of shares to be delivered to or withheld by the Company times the fair
market value of such shares shall equal the cash required to be withheld. To
the extent that the participant is authorized to either deliver or have withheld
shares of the Company's Common Stock, the Board, or the Committee, may require
him to make such election only during a certain period of time as may be
necessary to comply with appropriate exemptive procedures regarding the
"short-swing" profit provisions of Section 16(b) of the Exchange Act or to meet
certain Code requirements.
21. NOTICE TO COMPANY OF DISQUALIFYING DISPOSITION. Each employee who
receives an ISO must agree to notify the Company in writing immediately after
the employee makes a Disqualifying Disposition of any Common Stock acquired
pursuant to the exercise of an ISO. A Disqualifying Disposition is any
disposition (including any sale) of such Common Stock before the later of (i)
two years after the date of employee was granted the ISO or (ii) one year after
the date the employee acquired Common Stock by exercising the ISO. If the
employee has died before such stock is sold, these holding period requirements
do not apply and no Disqualifying Disposition can occur thereafter.
22. CONTINUED EMPLOYMENT. The grant of a Stock Right pursuant to the Plan
shall not be construed to imply or to constitute evidence of any agreement,
express or implied, on the part of the Company or any Related Corporation to
retain the grantee in the employ of the Company or a Related Corporation, as a
member of the Company's Board or in any other capacity, whichever the case may
be.
23. BONUSES OR LOANS TO EXERCISE OPTIONS. If requested by any person to
whom a grant of a Stock Right has been made, the Company or any Related
Corporation may loan such person or guarantee a bank loan to such person for the
purpose of paying for the shares of the Common Stock. If requested by any
person to whom a grant of a Stock Right has been made, the Company or any
Related Corporation may loan such person, guarantee a bank loan to such person,
or pay such person additional compensation equal to the amount of money
necessary to pay the federal income taxes incurred as a result of the grant of
the Stock Rights or the exercise of any Options, assuming that such person is in
the maximum federal income tax bracket six months from the time of grant or
exercise and assuming that such person has no deductions which would reduce the
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amount of such tax owed. The tax loan shall be made or tax offset bonus paid on
or after April 15th of the year following the year in which the amount of tax is
determined, and any loan shall be made on such terms as the Company or lending
bank determines.
24. GOVERNING LAW; CONSTRUCTION. The validity and construction of the
Plan and the instruments evidencing Stock Rights shall be governed by the laws
of the State of Florida. In construing this Plan, the singular shall include
the plural and the masculine gender shall include the feminine and neuter,
unless the context otherwise requires.
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Exhibit 5
May 22, 1997
The Publishing Company of North America, Inc.
186 N. Industrial Park Drive
Lake Helen, FL 32744-0280
RE: THE PUBLISHING COMPANY OF NORTH AMERICA, INC./FORM S-8
Dear Sirs:
You have advised us that The Publishing Company of North America, Inc. (the
"Company") is filing with the Securities and Exchange Commission a Registration
Statement on Form S-8 (the "Registration Statement") with respect to 500,000
shares of common stock, no par value per share.
In connection with the filing of this Registration Statement, you have
requested us to furnish you with our opinion as to the legality of (i) such of
the Company's shares as are presently outstanding; and (ii) such securities as
shall be offered by the Company itself pursuant to the Prospectus which is part
of the Registration Statement.
You have advised us that as of May 20, 1997 the Company's authorized
capital consists of 15,000,000 shares of common stock, no par value, of which
4,117,900 shares have been issued. You have further advised us that the Company
has received valid consideration for the issuance of these shares.
After having examined the Company's articles of incorporation, as amended,
bylaws, minutes and the 1996 Stock Plan of the Company and financial statements
incorporated by reference into the Registration Statement, we are of the opinion
that the issued and outstanding shares of common stock (numbering 4,117,900)
are, and the unissued securities to be offered by the Company itself pursuant to
the Registration Statement will be, when offered and sold fully paid and
nonassessable, duly authorized and validly issued.
Very truly yours,
/s/ COHEN, CHERNAY, NORRIS,
WEINBERGER & HARRIS
<PAGE>
Exhibit 24
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-_____) pertaining to The Publishing Company of North America, Inc.
1996 Stock Plan of our report dated February 21, 1997, with respect to the
financial statements of The Publishing Company of North America, Inc. included
in its Annual Report (Form 10-KSB) for the year ended December 31, 1996, filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
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Orlando, Florida
May 20, 1997
