As filed with the Securities and Exchange Commission on January 12, 1999.
File No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
JWGENESIS FINANCIAL CORP.
(Exact Name of Issuer as Specified in its Charter)
Florida 65-0811010
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
980 North Federal Highway, Suite 120
Boca Raton, Florida 33432
(561) 338-2600
(Address and Telephone Number of Issuer's Principal Executive Offices)
1998 Stock Option and Award Plan
(Full Title of the Plans)
Joel E. Marks
Executive Vice President and Chief Financial Officer
1117 Perimeter Center West, Suite 500E
Atlanta, GA 30338
(770) 399-8805
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Jan M. Davidson, Esq.
KILPATRICK STOCKTON LLP
1100 Peachtree Street, N.E.
Atlanta, Georgia 30309-4530
(404) 815-6500
<TABLE>
<CAPTION>
Calculation of Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered be Registered Per Share<F1> Offering Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,500,000 shares $6.06 $9,093,750.00 $2,528.06
<FN>
<F1> Determined in accordance with Rule 457(c) under the Securities Act of
1933, based on $6.06, the average of the high and low prices on the
American Stock Exchange on January 5, 1999.
</FN>
</TABLE>
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference
into this Registration Statement and are deemed to be a part hereof
from the date of the filing of such documents:
(1) The Registrant's Registration Statement on Form S-4,
Commission File No. 333-47693, including the final
prospectus included therein.
(2) The description of the Common Stock contained in the
Company's registration statement on Form 8-A, dated June 8,
1998 and reports filed for the purpose of updating such
description.
(3) The Form 10-Q for the quarters ended June 30, 1998 and
September 30, 1998.
(4) The Registrant's Proxy Statement filed pursuant to Section
14(a) of the Securities Exchange Act of 1934 (the
"Exchange Act").
(5) All other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered
pursuant to this Registration Statement have been sold or
which deregisters all securities that remain unsold.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Restated Articles of Incorporation provide for
indemnification of directors to the fullest extent permitted by
Florida law and, to the extent permitted by such law, eliminate or
limit the personal liability of directors to the Registrant and its
shareholders for monetary damages for certain breaches of fiduciary
duty and the duty of care. Insofar as indemnification for liabilities
under the Securities Act of 1933, as amended (the "Securities Act")
may be permitted to directors, officers, or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has
been informed that, in the opinion of the Commission, such
indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable. Pursuant to its
Bylaws, the Registrant may indemnify its officers, employees, agents,
and other persons to the fullest extent permitted by Florida law.
II-1
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The exhibits included as part of this Registration Statement
are as follows:
Exhibit Number Description
-------------- -----------
4 1998 Stock Option and Award Plan
5 Opinion and Consent of Kilpatrick
Stockton LLP, counsel to the Registrant
23(a) Consent of PricewaterhouseCoopers LLP
23(b) Consent of Lallman, Feltman, Shelton &
Peterson, P.A.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes: (1) to
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement, to 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; (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 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.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in
the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-2
<PAGE>
(c) 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 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Atlanta, State
of Georgia, on January 11, 1999.
JWGENESIS FINANCIAL CORP.
By: /s/ Joel E. Marks
Joel E. Marks
Executive Vice President and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Marshall T. Leeds and Joel E.
Marks as attorneys-in-fact, having the power of substitution, for them
in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8 and to file the same, with exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that said
attorneys-in-fact, or their substitute or substitutes, may do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities indicated on January 11, 1999.
/s/ Marshall T. Leeds President, Chief Executive Officer and
MARSHALL T. LEEDS Chairman of the Board of Directors
(Principal Executive Officer)
/s/ Joel E. Marks Executive Vice President, Chief Financial
JOEL E. MARKS Officer, Secretary and Director
Principal Financial and Accounting
Officer
__________________________ Vice Chairman and Director
WILL K. WEINSTEIN
/s/ Philip C. Stapleton Chief Operating Officer and Director
PHILIP C. STAPLETON
/s/ Wm. Dennis Ferguson Director
WM. DENNIS FERGUSON
II-4<PAGE>
/s/ Gregg S. Glaser Director
GREGG S. GLASER
/s/ Harvey R. Heller Director
HARVEY R. HELLER
/s/ Jeffrey H. Lehman Director
JEFFREY H. LEHMAN
/s/ Curtis Sykora Director
CURTIS SYKORA
II-5
<PAGE>
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Number Description
- -------------- -----------
4 1998 Stock Option and Award Plan.
5 Opinion and Consent of Kilpatrick Stockton LLP,
counsel to the Registrant
23(a) Consent of PricewaterhouseCoopers LLP
23(b) Consent of Lallman, Feltman, Shelton & Peterson,
P.A.
JWGENESIS FINANCIAL CORP.
1998 STOCK OPTION AND AWARD PLAN
<PAGE>
TABLE OF CONTENTS
ARTICLE 1. ESTABLISHMENT, PURPOSE, AND DURATION . . . . . . . 1
1.1 Establishment of the Plan . . . . . . . . . . . 1
1.2 Purpose of the Plan . . . . . . . . . . . . . . 1
1.3 Duration of the Plan . . . . . . . . . . . . . . 1
ARTICLE 2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 3. ADMINISTRATION . . . . . . . . . . . . . . . . . . 5
3.1 The Committee . . . . . . . . . . . . . . . . . 5
3.2 Authority of the Committee . . . . . . . . . . . 5
3.3 Decisions Binding . . . . . . . . . . . . . . . 5
ARTICLE 4. SHARES SUBJECT TO THE PLAN . . . . . . . . . . . . 5
4.1 Number of Shares . . . . . . . . . . . . . . . . 5
4.2 Lapsed Awards . . . . . . . . . . . . . . . . . 6
4.3 Adjustments In Authorized Shares . . . . . . . . 6
ARTICLE 5. ELIGIBILITY AND PARTICIPATION . . . . . . . . . . . 6
ARTICLE 6. STOCK OPTIONS . . . . . . . . . . . . . . . . . . . 6
6.1 Grant of Options . . . . . . . . . . . . . . . . 6
6.2 Agreement . . . . . . . . . . . . . . . . . . . 7
6.3 Option Price . . . . . . . . . . . . . . . . . . 7
6.4 Duration of Options . . . . . . . . . . . . . . 7
6.5 Exercise of Options . . . . . . . . . . . . . . 7
6.6 Payment . . . . . . . . . . . . . . . . . . . . 7
6.7 Limited Transferability . . . . . . . . . . . . 8
6.8 Shareholder Rights . . . . . . . . . . . . . . . 8
ARTICLE 7. STOCK APPRECIATION RIGHTS . . . . . . . . . . . . . 8
7.1 Grants of SARs . . . . . . . . . . . . . . . . . 8
7.2 Duration of SARs . . . . . . . . . . . . . . . . 9
7.3 Exercise of SAR . . . . . . . . . . . . . . . . 9
7.4 Determination of Payment of Cash and/or Common
Stock Upon Exercise of SAR . . . . . . . . . . . 9
7.5 Nontransferability . . . . . . . . . . . . . . . 9
7.6 Shareholder Rights . . . . . . . . . . . . . . . 9
ARTICLE 8. RESTRICTED STOCK; STOCK AWARDS . . . . . . . . . 10
8.1 Grants . . . . . . . . . . . . . . . . . . . . 10
8.2 Restricted Period; Lapse of Restrictions . . . 10
8.3 Rights of Holder; Limitations Thereon . . . . 10
8.4 Delivery of Unrestricted Shares . . . . . . . 11
8.5 Nonassignability of Restricted Stock . . . . . 11
i<PAGE>
ARTICLE 9. PERFORMANCE SHARE AWARDS . . . . . . . . . . . . 12
9.1 Award . . . . . . . . . . . . . . . . . . . . 12
9.2 Earning the Award . . . . . . . . . . . . . . 12
9.3 Payment . . . . . . . . . . . . . . . . . . . 12
9.4 Shareholder Rights . . . . . . . . . . . . . . 12
ARTICLE 10. BENEFICIARY DESIGNATION . . . . . . . . . . . . 13
ARTICLE 11. DEFERRALS . . . . . . . . . . . . . . . . . . . 13
ARTICLE 12. RIGHTS OF EMPLOYEES . . . . . . . . . . . . . . 13
12.1 Employment . . . . . . . . . . . . . . . . . 13
12.2 Participation . . . . . . . . . . . . . . . . 13
ARTICLE 13. CHANGE IN CONTROL . . . . . . . . . . . . . . . 13
13.1 Definition . . . . . . . . . . . . . . . . . 13
13.2 Limitation on Awards . . . . . . . . . . . . 14
ARTICLE 14. AMENDMENT, MODIFICATION AND TERMINATION . . . . 14
14.1 Amendment, Modification and Termination . . . 14
14.2 Awards Previously Granted . . . . . . . . . . 14
14.3 Compliance With Code Section 162(m) . . . . . 14
ARTICLE 15. WITHHOLDING . . . . . . . . . . . . . . . . . . 15
15.1 Tax Withholding . . . . . . . . . . . . . . . 15
15.2 Share Withholding . . . . . . . . . . . . . . 15
ARTICLE 16. INDEMNIFICATION . . . . . . . . . . . . . . . . 15
ARTICLE 17. SUCCESSORS . . . . . . . . . . . . . . . . . . . 15
ARTICLE 18. LEGAL CONSTRUCTION . . . . . . . . . . . . . . . 16
18.1 Gender and Number . . . . . . . . . . . . . . 16
18.2 Severability . . . . . . . . . . . . . . . . 16
18.3 Requirements of Law . . . . . . . . . . . . . 16
18.4 Regulatory Approvals and Listing . . . . . . 16
18.5 Securities Law Compliance . . . . . . . . . . 16
18.6 Governing Law . . . . . . . . . . . . . . . . 16
ii
<PAGE>
JWGENESIS FINANCIAL CORP.
1998 STOCK OPTION AND AWARD PLAN
ARTICLE 1. ESTABLISHMENT, PURPOSE, AND DURATION
1.1 Establishment of the Plan. JWGenesis Financial Corp., a
Florida corporation (hereinafter referred to as the "Company"), hereby
establishes a stock option and incentive award plan known as the
"JWGenesis Financial Corp. 1998 Stock Option and Award Plan" (the
"Plan"), as set forth in this document. The Plan permits the grant of
Incentive Stock Options, Nonqualified Stock Options, Restricted Stock,
Stock Awards, Performance Share Awards and Stock Appreciation Rights.
The Plan shall become effective on the date it is approved by the
Board of Directors (the "Effective Date"), subject to approval of the
Plan by the Company's stockholders within the 12-month period
immediately thereafter, and shall remain in effect as provided in
Section 1.3.
1.2 Purpose of the Plan. The purpose of the Plan is to secure
for the Company and its shareholders the benefits of the incentive
inherent in stock ownership in the Company by employees, directors,
and other persons who perform services for the Company, who are
responsible for its future growth and continued success. The Plan
promotes the success and enhances the value of the Company by linking
the personal interests of Participants (as defined below) to those of
the Company's shareholders, and by providing Participants with an
incentive for outstanding performance.
The Plan is further intended to provide flexibility to the
Company in its ability to motivate, attract and retain the services of
Participants upon whose judgment, interest and special effort the
successful conduct of its operation largely depends.
1.3 Duration of the Plan. The Plan shall commence on the
Effective Date, and shall remain in effect, subject to the right of
the Board of Directors to amend or terminate the Plan at any time
pursuant to Article 14, until the day prior to the tenth (10th)
anniversary of the Effective Date.
ARTICLE 2. DEFINITIONS
Whenever used in the Plan, the following terms shall have the
meanings set forth below:
(a) "Agreement" means an agreement entered into by each
Participant and the Company, setting forth the terms and
provisions applicable to Awards granted to Participants
under this Plan.
(b) "Award" means, individually or collectively, a grant under
this Plan of Incentive Stock Options, Nonqualified Stock
Options, Restricted Stock, Stock Awards, Performance Share
Awards or Stock Appreciation Rights.
-1-<PAGE>
(c) "Beneficial Owner" or "Beneficial Ownership" shall have the
meaning ascribed to such term in Rule 13d-3 of the Exchange
Act.
(d) "Board" or "Board of Directors" means the Board of Directors
of the Company.
(e) "Cause" means: (i) willful misconduct on the part of a
Participant that is materially detrimental to the Company;
or (ii) the conviction of a Participant for the commission
of a felony. The existence of "Cause" under either (i) or
(ii) shall be determined by the Committee. Notwithstanding
the foregoing, if the Participant has entered into an
employment agreement that is binding as of the date of
employment termination, and if such employment agreement
defines "Cause," and/or provides a means of determining
whether "Cause" exists, such definition of "Cause" and means
of determining its existence shall supersede this provision.
(f) "Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor act thereto.
(g) "Committee" means the committee appointed to administer the
Plan with respect to grants of Awards, as specified in
Article 3, and to perform the functions set forth therein.
(h) "Common Stock" means the common stock of the Company, par
value $.001 per share.
(i) "Company" means JWGenesis Financial Corp., a Florida
corporation, or any successor thereto as provided in Article
17.
(j) "Corresponding SAR" means an SAR that is granted in relation
to a particular Option and that can be exercised only upon
the surrender to the Company, unexercised, of that portion
of the Option to which the SAR relates.
(k) "Director" means any individual who is a member of the Board
of Directors of the Company.
(l) "Disability" shall have the meaning ascribed to such term in
the Company's long-term disability plan covering the
Participant, or in the absence of such plan, a meaning
consistent with Section 22(e)(3) of the Code.
(m) "Employee" means any employee of the Company or the
Company's Subsidiaries. Directors who are not otherwise
employed by the Company or the Company's Subsidiaries are
not considered Employees under this Plan.
(n) "Effective Date" shall have the meaning ascribed to such
term in Section 1.1.
(o) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor act thereto.
-2-<PAGE>
(p) "Fair Market Value" shall be determined as follows:
(i) If, on the relevant date, the Shares are traded on a
national or regional securities exchange or on The
Nasdaq Stock Market ("Nasdaq") and closing sale prices
for the Shares are customarily quoted, on the basis of
the closing sale price on the principal securities
exchange on which the Shares may then be traded or, if
there is no such sale on the relevant date, then on the
immediately preceding day on which a sale was reported;
(ii) If, on the relevant date, the Shares are not listed on
any securities exchange or traded on Nasdaq, but
nevertheless are publicly traded and reported on Nasdaq
without closing sale prices for the Shares being
customarily quoted, on the basis of the mean between
the closing bid and asked quotations in such other
over-the-counter market as reported by Nasdaq; but, if
there are no bid and asked quotations in the over-the-
counter market as reported by Nasdaq on that date, then
the mean between the closing bid and asked quotations
in the over-the-counter market as reported by Nasdaq on
the immediately preceding day such bid and asked prices
were quoted; and
(iii) If, on the relevant date, the Shares are not
publicly traded as described in (i) or (ii), on the
basis of the good faith determination of the Committee.
(q) "Incentive Stock Option" or "ISO" means an option to
purchase Shares granted under Article 6 which is designated
as an Incentive Stock Option and is intended to meet the
requirements of Section 422 of the Code.
(r) "Initial Value" means, with respect to a Corresponding SAR,
the Option Price per share of the related Option, and with
respect to an SAR granted independently of an Option, the
Fair Market Value of one share of Common Stock on the date
of grant.
(s) "Insider" shall mean an Employee who is, on the relevant
date, an officer or a director, or a ten percent (10%)
beneficial owner of any class of the Company's equity
securities that is registered pursuant to Section 12 of the
Exchange Act or any successor provision, as "officer" and
"director" are defined under Section 16 of the Exchange Act.
(t) "Named Executive Officer" means a Participant who, as of the
date of vesting and/or payout of an Award is one of the
group of "covered employees," as defined in the regulations
promulgated under Code Section 162(m), or any successor
statute.
(u) "Nonqualified Stock Option" or "NQSO" means an option to
purchase Shares granted under Article 6, and which is not
intended to meet the requirements of Code Section 422.
(v) "Option" means an Incentive Stock Option or a Nonqualified
Stock Option.
-3-<PAGE>
(w) "Option Price" means the price at which a Share may be
purchased by a Participant pursuant to an Option, as
determined by the Committee.
(x) "Participant" means an Employee, a Director, or other person
who performs services for the Company or a Subsidiary, who
has been determined by the Committee to contribute
significantly to the profits or growth of the Company and
who has been granted an Award under the Plan which is
outstanding.
(y) "Performance Share Award" means an Award, which, in
accordance with and subject to an Agreement, will entitle
the Participant, or his estate or beneficiary in the event
of the Participant's death, to receive cash, Common Stock or
a combination thereof.
(z) "Person" shall have the meaning ascribed to such term in
Section 3(a)(9) of the Exchange Act and used in Sections
13(d) and 14(d) thereof, including a "group" as defined in
Section 13(d) thereof.
(aa) "Retirement" shall mean retiring from employment with the
Company or any Subsidiary on or after attaining age 65.
(bb) "Restricted Stock" means an Award of Common Stock granted in
accordance with the terms of Article 8 and the other
provisions of the Plan, and which is nontransferable and
subject to a substantial risk of forfeiture. Shares of
Common Stock shall cease to be Restricted Stock when, in
accordance with the terms hereof and the applicable
Agreement, they become transferable and free of substantial
risk of forfeiture.
(cc) "SAR" means a stock appreciation right that entitles the
holder to receive, with respect to each share of Common
Stock encompassed by the exercise of such SAR, the amount
determined by the Committee and specified in an Agreement.
In the absence of such specification, the holder shall be
entitled to receive in cash, with respect to each share of
Common Stock encompassed by the exercise of such SAR, the
excess of the Fair Market Value on the date of exercise over
the Initial Value. References to "SARs" include both
Corresponding SARs and SARs granted independently of
Options, unless the context requires otherwise.
(dd) "Shares" means the shares of Common Stock of the Company
(including any new, additional or different stock or
securities resulting from the changes described in Section
4.3).
(ee) "Stock Award" means a grant of Shares under Article 8 that
is not generally subject to restrictions and pursuant to
which a certificate for the Shares is transferred to the
Employee.
(ff) "Subsidiary" means any corporation, partnership, joint
venture or other entity in which the Company has a fifty
percent (50%) or greater voting interest.
-4-<PAGE>
ARTICLE 3. ADMINISTRATION
3.1 The Committee. The Plan shall be administered by the
Compensation Committee of the Board, or by any other committee or
subcommittee appointed by the Board.
3.2 Authority of the Committee. Subject to the provisions of
the Plan, the Committee shall have full power to select the Employees,
Directors, and other persons who perform services for the Company or a
Subsidiary, who are responsible for the future growth and success of
the Company who shall participate in the Plan (who may change from
year to year); determine the size and types of Awards; determine the
terms and conditions of Awards in a manner consistent with the Plan
(including conditions on the exercisability of all or a part of an
Option or SAR, restrictions on transferability and vesting provisions
on Restricted Stock or Performance Share Awards and the duration of
the Awards); construe and interpret the Plan and any agreement or
instrument entered into under the Plan; establish, amend or waive
rules and regulations for the Plan's administration; and (subject to
the provisions of Article 14) amend the terms and conditions of any
outstanding Award to the extent such terms and conditions are within
the discretion of the Committee as provided in the Plan, including
accelerating the time any Option or SAR may be exercised and
establishing different terms and conditions relating to the effect of
the termination of employment or other services to the Company.
Further, the Committee shall make all other determinations which may
be necessary or advisable in the Committee's opinion for the
administration of the Plan. All expenses of administering this Plan
shall be borne by the Company.
3.3 Decisions Binding. All determinations and decisions made by
the Committee pursuant to the provisions of the Plan and all related
orders and resolutions of the Board shall be final, conclusive and
binding on all Persons, including the Company, the shareholders,
Employees, Participants and their estates and beneficiaries.
ARTICLE 4. SHARES SUBJECT TO THE PLAN
4.1 Number of Shares. Subject to adjustment as provided in
Section 4.3, the total number of Shares available for grant of Awards
under the Plan shall not exceed an aggregate of one million, five
hundred thousand (1,500,000) Shares. The Shares may, in the
discretion of the Company, be either authorized but unissued Shares or
Shares held as treasury shares, including Shares purchased by the
Company, whether on the market or otherwise.
The following rules shall apply for purposes of the determination
of the number of Shares available for grant under the Plan:
(a) The grant of an Option, SAR, Stock Award, Restricted
Stock Award or Performance Share Award shall reduce the
Shares available for grant under the Plan by the number
of Shares subject to such Award.
(b) While an Option, SAR, Stock Award, Restricted Stock
Award or Performance Share Award is outstanding, it
shall be counted against the authorized pool of Shares,
regardless of its vested status.
-5-<PAGE>
4.2 Lapsed Awards. If any Award granted under this Plan is
canceled, terminates, expires or lapses for any reason, or if Shares
are withheld in payment of the Option Price or for withholding taxes,
any Shares subject to such Award or that are withheld shall again be
available for the grant of an Award under the Plan. However, in the
event that prior to the Award's cancellation, termination, expiration
or lapse, the holder of the Award at any time received one or more
"benefits of ownership" pursuant to such Award (as defined by the
Securities and Exchange Commission, pursuant to any rule or
interpretation promulgated under Section 16 of the Exchange Act), the
Shares subject to such Award shall not again be made available for
regrant under the Plan.
4.3 Adjustments In Authorized Shares. In the event of any
change in corporate capitalization, such as a stock split, or a
corporate transaction, such as any merger, consolidation, separation,
including a spin-off, or other distribution of stock or property of
the Company, any reorganization (whether or not such reorganization
comes within the definition of such term in Code Section 368) or any
partial or complete liquidation of the Company, such adjustment shall
be made in the number and class of Shares which may be delivered under
the Plan, and in the number and class of and/or price of Shares
subject to outstanding Awards granted under the Plan, as may be
determined to be appropriate and equitable by the Committee, in its
sole discretion, to prevent dilution or enlargement of rights;
provided, however, that the number of Shares subject to any Award
shall always be a whole number and the Committee shall make such
adjustments as are necessary to insure Awards of whole Shares.
ARTICLE 5. ELIGIBILITY AND PARTICIPATION
Any key Employee of the Company or any Subsidiary, including any
such Employee who is also a director of the Company or any Subsidiary,
any non-employee Director, and any other person who performs services
for the Company or a Subsidiary, whose judgment, initiative and
efforts contribute or may be expected to contribute materially to the
successful performance of the Company or any Subsidiary shall be
eligible to receive an Award under the Plan. In determining the
individuals to whom such an Award shall be granted and the number of
Shares which may be granted pursuant to that Award, the Committee
shall take into account the duties of the respective individual, his
or her present and potential contributions to the success of the
Company or any Subsidiary, and such other factors as the Committee
shall deem relevant in connection with accomplishing the purpose of
the Plan.
ARTICLE 6. STOCK OPTIONS
6.1 Grant of Options. Subject to the terms and provisions of
the Plan, Options may be granted to Participants at any time and from
time to time as shall be determined by the Committee. The Committee
shall have discretion in determining the number of Shares subject to
Options granted to each Participant. An Option may be granted with or
without a Corresponding SAR. No Participant may be granted ISOs
(under the Plan and all other incentive stock option plans of the
Company and any Subsidiary) which are first exercisable in any
calendar year for Common Stock having an aggregate Fair Market Value
(determined as of the date an Option is granted) that exceeds
$100,000. The preceding annual limit shall not apply to NQSOs. The
Committee may grant a Participant ISOs, NQSOs or a combination
thereof, and may vary such Awards among Participants. The maximum
number of Shares subject to Options which can be granted under the
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Plan during any calendar year to any individual is 250,000 Shares.
6.2 Agreement. Each Option grant shall be evidenced by an
Agreement that shall specify the Option Price, the duration of the
Option, the number of Shares to which the Option pertains and such
other provisions as the Committee shall determine. The Option
Agreement shall further specify whether the Award is intended to be an
ISO or an NQSO. Any portion of an Option that is not designated as an
ISO or otherwise fails or is not qualified as an ISO (even if
designated as an ISO) shall be a NQSO. If the Option is granted in
connection with a Corresponding SAR, the Agreement shall also specify
the terms that apply to the exercise of the Option and Corresponding
SAR.
6.3 Option Price. The Option Price for each grant of an ISO
shall not be less than one hundred percent (100%) of the Fair Market
Value of a Share on the date the Option is granted. In no event,
however, shall any Participant who owns (within the meaning of Section
424(d) of the Code) stock of the Company possessing more than ten
percent (10%) of the total combined voting power of all classes of
stock of the Company be eligible to receive an ISO at an Option Price
less than one hundred ten percent (110%) of the Fair Market Value of a
share on the date the ISO is granted. The Option Price for each grant
of a NQSO shall be established by the Committee and, in its
discretion, may be less than the Fair Market Value of a Share on the
date the Option is granted.
6.4 Duration of Options. Each Option shall expire at such time
as the Committee shall determine at the time of grant; provided,
however, that no Option shall be exercisable later than the tenth
(10th) anniversary date of its grant; provided, further, however, that
any ISO granted to any Participant who at such time owns (within the
meaning of Section 424(d) of the Code) stock of the Company possessing
more than ten percent (10%) of the total combined voting power of all
classes of stock of the Company, shall not be exercisable later than
the fifth (5th) anniversary date of its grant.
6.5 Exercise of Options. Options granted under the Plan shall
be exercisable at such times and be subject to such restrictions and
conditions as the Committee shall in each instance approve, including
conditions related to the employment of the Participant with the
Company or any Subsidiary, which need not be the same for each grant
or for each Participant. Each Option shall be exercisable for such
number of Shares and at such time or times, including periodic
installments, as may be determined by the Committee at the time of the
grant. The Committee may provide in the Agreement for automatic
accelerated vesting and other rights upon the occurrence of a Change
in Control of the Company. Except as otherwise provided in the
Agreement and Article 13, the right to purchase Shares that are
exercisable in periodic installments shall be cumulative so that when
the right to purchase any Shares has accrued, such Shares or any part
thereof may be purchased at any time thereafter until the expiration
or termination of the Option. The exercise or partial exercise of
either an Option or its Corresponding SAR shall result in the
termination of the other to the extent of the number of Shares with
respect to which the Option or Corresponding SAR is exercised.
6.6 Payment. Options shall be exercised by the delivery of a
written notice of exercise to the Company, setting forth the number of
Shares with respect to which the Option is to be exercised,
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accompanied by full payment for the Shares. The Option Price upon
exercise of any Option shall be payable to the Company in full,
either: (a) in cash, (b) cash equivalent approved by the Committee,
(c) if approved by the Committee, by tendering previously acquired
Shares (or delivering a certification of ownership of such Shares)
having an aggregate Fair Market Value at the time of exercise equal to
the total Option Price (provided that the Shares which are tendered
must have been held by the Participant for six months, if required for
accounting purposes, and for the period required by law, if any, prior
to their tender to satisfy the Option Price), or (d) by a combination
of (a), (b) and (c). The Committee also may allow cashless exercises
as permitted under Federal Reserve Board's Regulation T, subject to
applicable securities law restrictions, or by any other means which
the Committee determines to be consistent with the Plan's purpose and
applicable law.
As soon as practicable after receipt of a written notification of
exercise and full payment, the Company shall deliver to the
Participant, in the Participant's name, Share certificates in an
appropriate amount based upon the number of Shares purchased under the
Option(s), and may place appropriate legends on the certificates
representing such Shares.
6.7 Limited Transferability. If permitted by the Committee in
the Agreement, a Participant may transfer an Option granted hereunder,
including but not limited to transfers to members of his or her
Immediate Family (as defined below), to one or more trusts for the
benefit of such Immediate Family members, or to one or more
partnerships where such Immediate Family members are the only
partners, if (i) the Participant does not receive any consideration in
any form whatsoever for such transfer, (ii) such transfer is permitted
under applicable tax laws, and (iii) the Participant is an Insider,
such transfer is permitted under Rule 16b-3 of the Exchange Act as in
effect from time to time. Any Option so transferred shall continue to
be subject to the same terms and conditions in the hands of the
transferee as were applicable to said Option immediately prior to the
transfer thereof. Any reference in any such Agreement to the
employment by or performance of services for the Company by the
Participant shall continue to refer to the employment of, or
performance by, the transferring Participant. For purposes hereof,
"Immediate Family" shall mean the Participant and the Participant's
spouse, children and grandchildren. Any Option that is granted
pursuant to any Agreement that did not initially expressly allow the
transfer of said Option and that has not been amended to expressly
permit such transfer, shall not be transferable by the Participant
otherwise than by will or by the laws of descent and distribution and
such Option thus shall be exercisable in the Participant's lifetime
only by the Participant.
6.8 Shareholder Rights. No Participant shall have any rights as
a shareholder with respect to Shares subject to his Option until the
issuance of such Shares to the Participant pursuant to the exercise of
such Option.
ARTICLE 7. STOCK APPRECIATION RIGHTS
7.1 Grants of SARs. The Committee shall designate Participants
to whom SARs are granted, and will specify the number of Shares of
Common Stock subject to each grant. An SAR may be granted with or
without a related Option. All SARs granted under this Plan shall be
-8-<PAGE>
subject to an Agreement in accordance with the terms of this Plan. A
payment to the Participant upon the exercise of a Corresponding SAR
may not be more than the difference between the Fair Market Value of
the Shares subject to the ISO on the date of grant and the Fair Market
Value of the Shares on the date of exercise of the Corresponding SAR.
The maximum number of Shares underlying SARs which can be awarded
under the Plan during any calendar year to any individual is 250,000
Shares.
7.2 Duration of SARs. The duration of an SAR shall be set forth
in the Agreement as determined by the Committee. An SAR that is
granted as a Corresponding SAR shall have the same duration as the
Option to which it relates. An SAR shall terminate due to the
Participant's termination of employment at the same time as the date
specified in Article 6 with respect to Options, regardless of whether
the SAR was granted in connection with the grant of an Option.
7.3 Exercise of SAR. An SAR may be exercised in whole at any
time or in part from time to time and at such times and in compliance
with such requirements as the Committee shall determine as set forth
in the Agreement; provided, however, that a Corresponding SAR that is
related to an Incentive Stock Option may be exercised only to the
extent that the related Option is exercisable and only when the Fair
Market Value of the Shares exceeds the Option Price of the related
ISO. An SAR granted under this Plan may be exercised with respect to
any number of wholes shares less than the full number of shares for
which the SAR could be exercised. A partial exercise of an SAR shall
not affect the right to exercise the SAR from time to time in
accordance with this Plan and the applicable Agreement with respect to
the remaining shares subject to the SAR. The exercise of either an
Option or Corresponding SAR shall result in the termination of the
other to the extent of the number of Shares with respect to which the
Option or its Corresponding SAR is exercised.
7.4 Determination of Payment of Cash and/or Common Stock Upon
Exercise of SAR. At the Committee's discretion, the amount payable as
a result of the exercise of an SAR may be settled in cash, Common
Stock, or a combination of cash and Common Stock. A fractional share
shall not be deliverable upon the exercise of an SAR, but a cash
payment shall be made in lieu thereof.
7.5 Nontransferability. Each SAR granted under the Plan shall
be nontransferable except by will or by the laws of descent and
distribution. During the lifetime of the Participant to whom the SAR
is granted, the SAR may be exercised only by the Participant. No
right or interest of a Participant in any SAR shall be liable for, or
subject to any lien, obligation or liability of such Participant. A
Corresponding SAR shall be subject to the same restrictions on
transfer as the ISO to which it relates.
Notwithstanding the foregoing, if the Agreement so provides, a
Participant may transfer an SAR (other than a Corresponding SAR that
relates to an Incentive Stock Option) under the same rules and
conditions as are set forth in Section 6.7.
7.6 Shareholder Rights. No Participant shall have any rights as
a shareholder with respect to Shares subject to an SAR until the
issuance of Shares (if any) to the Participant pursuant to the
exercise of such SAR.
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<PAGE>
ARTICLE 8. RESTRICTED STOCK; STOCK AWARDS
8.1 Grants. The Committee may from time to time in its
discretion grant Restricted Stock and Stock Awards to Participants and
may determine the number of Shares of Restricted Stock or Stock Awards
to be granted. The Committee shall determine the terms and conditions
of, and the amount of payment, if any, to be made by the Employee for
such Shares or Restricted Stock. A grant of Restricted Stock may, in
addition to other conditions, require the Participant to pay for such
Shares of Restricted Stock, but the Committee may establish a price
below Fair Market Value at which the Participant can purchase the
Shares of Restricted Stock. Each grant of Restricted Stock shall be
evidenced by an Agreement containing terms and conditions not
inconsistent with the Plan as the Committee shall determine to be
appropriate in its sole discretion. The maximum number of Shares of
Common Stock or Restricted Stock which can be awarded under the Plan
during any calendar year to any individual is 250,000 Shares.
8.2 Restricted Period; Lapse of Restrictions. At the time a
grant of Restricted Stock is made, the Committee shall establish a
period or periods of time (the "Restricted Period") applicable to such
grant which, unless the Committee otherwise provides, shall not be
less than one year. Subject to the other provisions of this Article
8, at the end of the Restricted Period all restrictions shall lapse
and the Restricted Stock shall vest in the Participant. At the time a
grant is made, the Committee may, in its discretion, prescribe
conditions for the incremental lapse of restrictions during the
Restricted Period and for the lapse or termination of restrictions
upon the occurrence of other conditions in addition to or other than
the expiration of the Restricted Period with respect to all or any
portion of the Restricted Stock. Such conditions may, but need not,
include the following:
(a) The death, Disability or Retirement of the Employee to
whom Restricted Stock is granted, or
(b) The occurrence of a Change in Control (as defined in
Section 13.1).
The Committee may also, in its discretion, shorten or terminate the
Restricted Period, or waive any conditions for the lapse or
termination of restrictions with respect to all or any portion of the
Restricted Stock at any time after the date the grant is made.
8.3 Rights of Holder; Limitations Thereon. Upon a grant of
Restricted Stock, a stock certificate (or certificates) representing
the number of Shares of Restricted Stock granted to the Participant
shall be registered in the Participant's name and shall be held in
custody by the Company or a bank selected by the Committee for the
Participant's account. Following such registration, the Participant
shall have the rights and privileges of a shareholder as to such
Restricted Stock, including the right to receive dividends, if and
when declared by the Board of Directors, and to vote such Restricted
Stock, except that the right to receive cash dividends shall be the
right to receive such dividends either in cash currently or by payment
in Restricted Stock, as the Committee shall determine, and except
further that, the following restrictions shall apply:
(a) The Participant shall not be entitled to delivery of a
certificate until the expiration or termination of the
Restricted Period for the Shares represented by such
certificate and the satisfaction of any and all other
-10-
<PAGE>
conditions prescribed by the Committee;
(b) None of the Shares of Restricted Stock may be sold,
transferred, assigned, pledged, or otherwise encumbered
or disposed of during the Restricted Period and until
the satisfaction of any and all other conditions
prescribed by the Committee; and
(c) All of the Shares of Restricted Stock that have not
vested shall be forfeited and all rights of the
Participant to such Shares of Restricted Stock shall
terminate without further obligation on the part of the
Company, unless the Participant has remained an
employee (or non-Employee Director) of the Company or
any of its Subsidiaries, until the expiration or
termination of the Restricted Period and the
satisfaction of any and all other conditions prescribed
by the Committee applicable to such Shares of
Restricted Stock. Upon the forfeiture of any Shares of
Restricted Stock, such forfeited Shares shall be
transferred to the Company without further action by
the Participant and shall, in accordance with Section
4.2, again be available for grant under the Plan.
With respect to any Shares received as a result of adjustments
under Section 4.3 hereof and any Shares received with respect to cash
dividends declared on Restricted Stock, the Participant shall have the
same rights and privileges, and be subject to the same restrictions,
as are set forth in this Article 8.
8.4 Delivery of Unrestricted Shares. Upon the expiration or
termination of the Restricted Period for any Shares of Restricted
Stock and the satisfaction of any and all other conditions prescribed
by the Committee, the restrictions applicable to such Shares of
Restricted Stock shall lapse and a stock certificate for the number of
Shares of Restricted Stock with respect to which the restrictions have
lapsed shall be delivered, free of all such restrictions except any
that may be imposed by law, to the holder of the Restricted Stock.
The Company shall not be required to deliver any fractional Share but
will pay, in lieu thereof, the Fair Market Value (determined as of the
date the restrictions lapse) of such fractional Share to the holder
thereof. Concurrently with the delivery of a certificate for
Restricted Stock, the holder shall be required to pay an amount
necessary to satisfy any applicable federal, state and local tax
requirements as set out in Article 15 below.
8.5 Nonassignability of Restricted Stock. Unless the Committee
provides otherwise in the Agreement, no grant of, nor any right or
interest of a Participant in or to, any Restricted Stock, or in any
instrument evidencing any grant of Restricted Stock under the Plan,
may be assigned, encumbered or transferred except, in the event of the
death of a Participant, by will or the laws of descent and
distribution.
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ARTICLE 9. PERFORMANCE SHARE AWARDS
9.1 Award. The Committee may designate Participants to whom
Performance Share Awards will be granted from time to time for no
consideration and specify the number of shares of Common Stock covered
by the Award. No more than 250,000 Performance Shares may be earned
by any individual with respect to any calendar year.
9.2 Earning the Award. A Performance Share Award, or portion
thereof, will be earned, and the Participant will be entitled to
receive Common Stock, a cash payment or a combination thereof, only
upon the achievement by the Participant, the Company, or a Subsidiary
of such performance objectives as the Committee, in its discretion,
shall prescribe on the date of grant. To the extent required, the
performance objectives applicable to Awards to Named Executive
Officers intended to qualify under Code Section 162(m) shall be
selected from among the following measures: return on equity or
assets, earnings per share, total earnings, earnings growth, return on
capital, profit before taxes, profit after taxes, economic value added
and increase in Fair Market Value of the Shares. The determination
as to whether such objectives have been achieved shall be made by the
Committee, and such determination shall be conclusive; provided,
however, that the period in which such performance is measured shall
be at least one year.
The Committee may in determining whether performance targets
have been met adjust the Company's financial results to exclude the
effect of unusual charges or income items or other events, including
acquisitions or dispositions of businesses or assets, restructurings,
reductions in force, currency fluctuations or changes in accounting,
which are distortive of financial results (either on a segment or
consolidated basis); provided, that for purposes of determining the
Performance Share Awards of Named Executive Officers, the Committee
shall exclude unusual items whose exclusion has the effect of
increasing income or earnings if such items constitute "extraordinary
items" under generally accepted accounting principles or are
significant unusual items. In addition, the Committee will adjust its
calculations to exclude the effect on financial results of changes in
the Code or other tax laws, or the regulations relating thereto.
9.3 Payment. In the discretion of the Committee, the amount
payable when a Performance Share Award is earned may be settled in
cash, by the grant of Common Stock or a combination of cash and Common
Stock. The aggregate Fair Market Value of the Common Stock received
by the Participant pursuant to a Performance Share Award, together
with any cash paid to the Participant, shall be equal to the aggregate
Fair Market Value, on the date the Performance Shares are earned, of
the number of Shares of Common Stock equal to each Performance Share
earned. A fractional Share will not be deliverable when a Performance
Share Award is earned, but a cash payment will be made in lieu
thereof.
9.4 Shareholder Rights. No Participant shall have, as a result
of receiving a Performance Share Award, any rights as a shareholder
until and to the extent that the Performance Shares are earned and
Common Stock is transferred to such Participant. If the Agreement so
provides, a Participant may receive a cash payment equal to the
dividends that would have been payable with respect to the number of
Shares of Common Stock covered by the Award between (a) the date that
the Performance Shares are awarded and (b) the date that a transfer of
Common Stock to the Participant, cash settlement, or combination
-12-<PAGE>
thereof is made pursuant to the Performance Share Award. A
Participant may not sell, transfer, pledge, exchange, hypothecate, or
otherwise dispose of a Performance Share Award or the right to receive
Common Stock thereunder other than by will or the laws of descent and
distribution. After a Performance Share Award is earned and paid in
Common Stock, a Participant will have all the rights of a shareholder
with respect to the Common Stock so awarded.
ARTICLE 10. BENEFICIARY DESIGNATION
To the extent applicable, each Participant under the Plan may,
from time to time, name any beneficiary or beneficiaries (who may be
named contingently or successively) to whom any benefit under the Plan
is to be paid in case of his or her death before he or she receives
any or all of such benefit. Each such designation shall revoke all
prior designations by the same Participant, shall be in a form
prescribed by the Company and shall be effective only when filed by
the Participant, in writing, with the Company during the Participant's
lifetime. In the absence of any such designation, benefits remaining
unpaid at the Participant's death shall be paid to the Participant's
estate.
If required, the spouse of a married Participant domiciled in a
community property jurisdiction shall join in any designation of a
beneficiary or beneficiaries other than the spouse.
ARTICLE 11. DEFERRALS
The Committee may permit a Participant to defer to another plan
or program such Participant's receipt of Shares or cash that would
otherwise be due to such Participant by virtue of the exercise of an
Option, the vesting of Restricted Stock, or the earning of a
Performance Share Award. If any such deferral election is required or
permitted, the Committee shall, in its sole discretion, establish
rules and procedures for such payment deferrals.
ARTICLE 12. RIGHTS OF EMPLOYEES
12.1 Employment. Nothing in the Plan shall interfere with or
limit in any way the right of the Company or a Subsidiary to terminate
any Participant's employment by, or performance of services for, the
Company at any time, nor confer upon any Participant any right to
continue in the employ or service of the Company or a Subsidiary. For
purposes of the Plan, transfer of employment of a Participant between
the Company and any one of its Subsidiaries (or between Subsidiaries)
shall not be deemed a termination of employment.
12.2 Participation. No Employee shall have the right to be
selected to receive an Award under this Plan, or, having been so
selected, to be selected to receive a future Award.
ARTICLE 13. CHANGE IN CONTROL
13.1 Definition. For purposes of the Plan, a "Change in Control"
means either of the following events:
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(a) the acquisition by a person or entity other than a now
existing shareholder of the Company (or any affiliate
of a shareholder of the Company), whether in one or
several transactions, by exchange, merger,
consolidation, assignment, stock spin-off, stock split-
up, or other transaction, of more than thirty-five
percent (35%) of the voting stock of the Company, or of
the right to vote or to direct the voting of such
percentage of voting stock; or
(b) a change in the membership of the Board of Directors of
the Company such that a majority of the members are
persons who are not Continuing Directors. For purposes
of this Agreement, a "Continuing Director" is a person
who is a member of the Board of Directors of the
Company as of June 12, 1998 or a person who is elected
as a director of the Company upon the nomination by or
approval of a majority of the Continuing Directors in
office.
13.2 Limitation on Awards. Notwithstanding any other provisions
of the Plan, if the right to receive or benefit from any Award under
this Plan, either alone or together with payments that a Participant
has the right to receive from the Company or a Subsidiary, would
constitute a "parachute payment" (as defined in Section 280G of the
Code), all such payments shall be reduced to the largest amount that
will result in no portion being subject to the excise tax imposed by
Section 4999 of the Code.
ARTICLE 14. AMENDMENT, MODIFICATION AND TERMINATION
14.1 Amendment, Modification and Termination. The Board may, at
any time and from time to time, alter, amend, suspend or terminate the
Plan in whole or in part; provided, that, unless approved by the
holders of a majority of the total number of Shares of the Company
represented and voted at a meeting at which a quorum is present, no
amendment shall be made to the Plan if such amendment would (a)
materially modify the eligibility requirements provided in Article 5;
(b) increase the total number of Shares (except as provided in Section
4.3) which may be granted under the Plan, as provided in Section 4.1;
(c) extend the term of the Plan; or (d) amend the Plan in any other
manner which the Board, in its discretion, determines should become
effective only if approved by the shareholders even if such
shareholder approval is not expressly required by the Plan or by law.
14.2 Awards Previously Granted. No termination, amendment or
modification of the Plan shall adversely affect in any material way
any Award previously granted under the Plan, without the written
consent of the Participant holding such Award. The Committee shall,
with the written consent of the Participant holding such Award, have
the authority to cancel Awards outstanding and grant replacement
Awards therefor.
14.3 Compliance With Code Section 162(m). At all times when the
Committee determines that compliance with Code Section 162(m) is
required or desired, all Awards granted under this Plan to Named
Executive Officers shall comply with the requirements of Code Section
162(m). In addition, in the event that changes are made to Code
Section 162(m) to permit greater flexibility with respect to any Award
or Awards under the Plan, the Committee may, subject to this Article
14, make any adjustments it deem appropriate.
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ARTICLE 15. WITHHOLDING
15.1 Tax Withholding. The Company shall have the power and the
right to deduct or withhold, or require a Participant to remit to the
Company, an amount sufficient to satisfy federal, state and local
taxes (including the Participant's FICA obligation) required by law to
be withheld with respect to any taxable event arising in connection
with an Award under this Plan.
15.2 Share Withholding. With respect to withholding required
upon the exercise of Options, or upon any other taxable event arising
as a result of Awards granted hereunder which are to be paid in the
form of Shares, Participants may elect, subject to the approval of the
Committee, to satisfy the withholding requirement, in whole or in
part, by having the Company withhold Shares having a Fair Market Value
on the date the tax is to be determined equal to the minimum statutory
total tax which could be imposed on the transaction. All elections
shall be irrevocable, made in writing, signed by the Participant, and
elections by Insiders shall additionally comply with all legal
requirements applicable to Share transactions by such Participants.
ARTICLE 16. INDEMNIFICATION
Each person who is or shall have been a member of the Committee,
or the Board, shall be indemnified and held harmless by the Company
against and from any loss, cost, liability or expense that may be
imposed upon or reasonably incurred by him or her in connection with
or resulting from any claim, action, suit or proceeding to which he or
she may be a party or in which he or she may be involved by reason of
any action taken or failure to act under the Plan and against and from
any and all amounts paid by him or her in settlement thereof, with the
Company's approval, or paid by him in satisfaction of any judgment in
any such action, suit or proceeding against him, provided he shall
give the Company an opportunity, at its own expense, to handle and
defend the same before he undertakes to handle and defend it on his
own behalf. The foregoing right of indemnification shall be in
addition to any other rights of indemnification to which such persons
may be entitled under the Company's Articles of Incorporation or
Bylaws, as a matter of law, or otherwise, or any power that the
Company may have to indemnify them or hold them harmless.
ARTICLE 17. SUCCESSORS
All obligations of the Company under the Plan, with respect to
Awards granted hereunder, shall be binding on any successor to the
Company, whether the existence of such successor is the result of a
direct or indirect purchase, merger, consolidation or otherwise, of
all or substantially all of the business and/or assets of the Company.
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ARTICLE 18. LEGAL CONSTRUCTION
18.1 Gender and Number. Except where otherwise indicated by the
context, any masculine term used herein also shall include the
feminine; the plural shall include the singular and the singular shall
include the plural.
18.2 Severability. In the event any provision of the Plan shall
be held illegal or invalid for any reason, the illegality or
invalidity shall not affect the remaining parts of the Plan, and the
Plan shall be construed and enforced as if the illegal or invalid
provision had not been included.
18.3 Requirements of Law. The granting of Awards and the
issuance of Shares under the Plan shall be subject to all applicable
laws, rules and regulations, and to such approvals by any governmental
agencies or national securities exchanges as may be required.
18.4 Regulatory Approvals and Listing. The Company shall not be
required to issue any certificate or certificates for Shares under the
Plan prior to (i) obtaining any approval from any governmental agency
which the Company shall, in its discretion, determine to be necessary
or advisable, (ii) the admission of such shares to listing on any
national securities exchange or Nasdaq on which the Company's Shares
may be listed, and (iii) the completion of any registration or other
qualification of such Shares under any state or federal law or ruling
or regulations of any governmental body which the Company shall, in
its sole discretion, determine to be necessary or advisable.
Notwithstanding any other provision set forth in the Plan, if
required by the then-current Section 16 of the Exchange Act, any
"derivative security" or "equity security" offered pursuant to the
Plan to any Insider may not be sold or transferred for at least six
(6) months after the date of grant of such Award. The terms "equity
security" and "derivative security" shall have the meanings ascribed
to them in the then-current Rule 16(a) under the Exchange Act.
18.5 Securities Law Compliance. With respect to Insiders,
transactions under this Plan are intended to comply with all
applicable conditions of Rule 16b-3 or its successors under the
Exchange Act. To the extent any provisions of the Plan or action by
the Committee fails to so comply, it shall be deemed null and void, to
the extent permitted by law and deemed advisable by the Committee.
18.6 Governing Law. To the extent not preempted by Federal law,
the Plan, and all agreements hereunder, shall be construed in
accordance with and governed by the laws of the State of Florida.
AS APPROVED BY THE BOARD OF DIRECTORS OF JWGENESIS FINANCIAL
CORP. ON JULY 7, 1998.
JWGENESIS FINANCIAL CORP.
By:_______________________________
Attorneys at Law
Suite 2800
1100 Peachtree Street
KILPATRICK STOCKTON LLP Atlanta, Georgia 30309-4530
Telephone: 404.815.6500
Facsimile: 404.815.6555
Web site: www.kilstock.com
January 11, 1999
EXHIBIT 5
JWGenesis Financial Corp.
980 North Federal Highway, Suite 120
Boca Raton, Florida 33242
Re: Form S-8 Registration Statement
Gentlemen:
We have acted as counsel for JWGenesis Financial Corp. a Florida
corporation (the "Company"), in the preparation of the Form S-8 Registration
Statement relating to the Company's 1998 Stock Option and Award Plan and the
proposed offer and sale of up to 1,500,000 shares of the Company's common
stock, par value $.001 per share (the "Common Stock"), pursuant thereto.
In such capacity, we have examined certificates of public officials and
originals or copies of such corporate records, documents, and other
instruments relating to the authorization of the Plan and the authorization
and issuance of the shares of Common Stock as we have deemed relevant under
the circumstances.
Based on and subject to the foregoing, it is our opinion that the Plan
and the proposed offer and sale thereunder of up to 1,500,000 shares of
Common Stock have been duly authorized by the Board of Directors of the
Company, and that the shares, when issued in accordance with the terms and
conditions of the Plan, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to said
Registration Statement.
KILPATRICK STOCKTON LLP
By: /s/ Jan M. Davidson
Jan M. Davidson, a partner
ACCOUNTANTS' CONSENT
Exhibit 23(a)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-8 of JWGenesis
Financial Corp. ("JWGenesis"), of our report dated March 5, 1998, appearing
on page F-2 of JW Charles Financial Services, Inc.'s Annual Report on Form
10-K/A for the year ended December 31, 1997. We also consent to the use of
our report dated April 16, 1998 on the financial statement of JWGenesis as
of January 16, 1998 included in the JWGenesis Registration Statement on Form
S-4 (No. 333-47693).
/s/ PricewaterhouseCoopers LLP
Tampa, Florida
January 6, 1999
ACCOUNTANTS' CONSENT
Exhibit 23(b)
CONSENT OF LALLMAN, FELTMAN, SHELTON & PETERSON, P.A.
We hereby consent (i) to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-8 of JWGenesis
Financial Corp. ("JWGenesis"), of our report dated January 30, 1998, on the
financial statements of Genesis Merchant Group Securities, LLC for each of
the three fiscal years ended December 31, 1997, 1996, and 1995 included in
or made a part of JWGenesis' Registration Statement on Form S-4 and (ii) to
the use of all references to our firm in such registration statement.
/s/ Lallman, Feltman, Shelton & Peterson, P.A.
Ketchum, Idaho
January 5, 1999
