<PAGE> 1
As filed with the Securities and Exchange Commission on November 10, 1998
Registration No. 333-_____
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
MULTIGRAPHICS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 34-0054940
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
431 LAKEVIEW COURT 60056
MOUNT PROSPECT, ILLINOIS (Zip Code)
(Address of principal executive offices)
MULTIGRAPHICS, INC.
1998 STOCK INCENTIVE PLAN FOR DIRECTORS
(Full title of the plan)
STEVEN R. ANDREWS Copy to:
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY JIM L. KAPUT
MULTIGRAPHICS, INC. SIDLEY & AUSTIN
431 LAKEVIEW COURT ONE FIRST NATIONAL PLAZA
MOUNT PROSPECT, ILLINOIS 60056 CHICAGO, ILLINOIS 60603
(847) 375-1820 (312) 853-7000
(Name, address, and telephone number,
including area code, of agent for service)
----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================
Proposed Proposed
Amount maximum maximum
Title of to be offering aggregate Amount of
Securities to be registered(1) price per offering registration fee
registered share(2) price(2)
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.025 par value 140,000 shares $4.31 $603,400 $168
===============================================================================
</TABLE>
(1) This registration statement also covers an additional and indeterminate
number of shares as may become issuable because of the provisions of
the Plan relating to adjustments for changes resulting from stock
dividends, stock splits and similar changes.
(2) Estimated solely for the purpose of calculating the registration fee
and, pursuant to Rule 457(h) under the Securities Act of 1933, based
upon the average of the high and low sale prices of the Common Stock of
the Registrant on The American Stock Exchange on November 4, 1998.
===============================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by Multigraphics, Inc. (the "Company")
are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended July
31, 1998 filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since July 31, 1998; and
(c) The description of the Common Stock, par value $.025, of the
Company which is contained in a registration statement filed under Section 12 of
the Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference into this Registration Statement and
to be a part hereof from the respective dates of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 145 ("Section 145") of the General
Corporation Law of the State of Delaware (the "Delaware GCL"), which provides
for indemnification of directors and officers in certain circumstances.
In accordance with Section 102(b)(7) of the Delaware GCL, the Company's
Second Restated Certificate of Incorporation ("Certificate of Incorporation")
provides that no directors of the Company shall be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director except for (i) any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) an unlawful
payment of dividends under Section 174 of the Delaware GCL or (iv) transactions
from which the director derives an improper personal benefit.
The Certificate of Incorporation provides for indemnification of
directors to the fullest extent permitted by the Delaware GCL, as amended from
time to time. Under the Company's By-Laws, the Company may maintain insurance on
behalf of any director, officer, employee or agent of the Company or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Company would have the power to
indemnify such person against such expense, liability or loss under the Delaware
GCL.
II-I
<PAGE> 3
Pursuant to Section 145 and the Company's By-Laws, the Company
maintains directors' and officers' liability insurance coverage.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------ -----------
<S> <C>
4.1 Second Restated Certificate of Incorporation of the Company
4.2 Certificate of Amendment to the Second Restated Certificate
of Incorporation of the Company
4.3 By-laws of the Company
5 Opinion of Sidley & Austin
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Sidley & Austin (contained in Exhibit 5)
24 Powers of Attorney (included on signature page)
99.1 Multigraphics, Inc. 1998 Stock Incentive Plan for Directors
99.2 Form of Multigraphics, Inc. Stock Option Agreement for
Non-Employee Directors
</TABLE>
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;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
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;
II-2
<PAGE> 4
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remained unsold at the termination
of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 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 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Mount Prospect, State of Illinois, on this 10th day of November,
1998.
Multigraphics, Inc.
(Registrant)
By: /s/ Thomas D. Rooney
-------------------------------------
Thomas D. Rooney
President and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on November 10, 1998. Each person whose signature appears
below hereby appoints Thomas D. Rooney or Steven R. Andrews, and each of them
individually, his true and lawful attorney-in-fact, with power to act with or
without the other and with full power of substitution and resubstitution, in any
and all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitutes, may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE(S) DATE
/s/ Jeff M. Moore Chairman of the Board November 10, 1998
- -------------------------- and Director
Jeff M. Moore
/s/ Thomas D. Rooney President, Chief Executive November 10, 1998
- -------------------------- Officer and Director
Thomas D. Rooney
/s/ Gregory T. Knipp Chief Financial Officer
- -------------------------- (principal accounting &
Gregory T. Knipp financial officer) November 10, 1998
Director ________ __, 1998
- --------------------------
Robert E. Anderson III
/s/ Jeffrey D. Benjamin Director November 10, 1998
- --------------------------
Jeffrey D. Benjamin
/s/ Robert N. Dangremond Director November 10, 1998
- --------------------------
Robert N. Dangremond
II-4
<PAGE> 6
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------ ----------------------
<S> <C>
4.1* Second Restated Certificate of Incorporation of the Company
4.2* Certificate of Amendment to the Second Restated Certificate
of Incorporation of the Company
4.3* By-laws of the Company
5* Opinion of Sidley & Austin
23.1* Consent of Arthur Andersen LLP
23.2* Consent of Sidley & Austin (contained in Exhibit 5)
24* Powers of Attorney (included on signature page)
99.1* Multigraphics, Inc. 1998 Stock Incentive Plan for Directors
99.2* Form of Multigraphics, Inc. Stock Option Agreement for
Non-Employee Directors
</TABLE>
- ------------------------
*Filed herewith
II-5
<PAGE> 1
EXHIBIT - 4.1
SECOND RESTATED CERTIFICATE OF INCORPORATION
OF
AM INTERNATIONAL, INC.
AM INTERNATIONAL, INC., a corporation organized and existing under the laws
of the State of Delaware (the "Company"), hereby certifies as follows:
1. The name of the Company is AM International, Inc. The Company was
originally incorporated under the name of Addressograph Securities Corporation.
The date of filing of its original Certificate of Incorporation with the
Secretary of State of the State of Delaware was April 7, 1924.
2. This Second Restated Certificate of Incorporation was duly adopted in
accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of Delaware.
3. The text of the Company's Second Restated Certificate of Incorporation,
as amended, is hereby integrated, further amended and restated to read as set
forth in full:
First: The name of the Company is AM INTERNATIONAL, INC.
Second: Its registered office in the State of Delaware is located at 1209
Orange Street, in the City of Wilmington, County of New Castle. The name and
address of its registered agent is The Corporation Trust Company, 1209 Orange
Street, Wilmington, Delaware.
Third: The purpose of the Company is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware (the "Delaware Code").
Fourth: The total number of shares of all classes of capital stock which
the Company shall have the authority to issue is fifty million (50,000,000)
shares, of which forty million (40,000,000) shall be shares of Common Stock of
the par value of $0.01 per share (the "Common Stock") and ten million
(10,000,000) shares shall be shares of Preferred Stock of the par value of $0.01
per share (the "Preferred Stock"). All shares to be issued must be voting
securities and, as to all classes of such voting securities, voting power shall
be appropriately distributed among such classes by the Board of Directors of the
Company on a proportional one vote per share basis. With respect to any class
of securities having a preference superior to another class of securities with
respect to dividends or other rights, such superior class of securities must
contain adequate provision for the election of directors representing such
preferred class of securities in the event of failure to pay such dividends. No
stockholder shall have any preemptive right to purchase or subscribe for any or
all additional issues of stock with the Company or any or all classes
<PAGE> 2
or series thereof, whether now or hereafter authorized, or for any securities of
the Company convertible into such stock.
Subject to the limitations prescribed by law and the provisions of this
Article Fourth, any number of series of Preferred Stock may be issued from time
to time with such voting powers and in such series and in such amounts, with
such designations, dividend rates, dividend rights, redemption rights,
conversion rights, rights upon dissolution or liquidation, other preferences and
relative, participating, optional or other special rights and qualifications,
limitations or restrictions thereof, as shall for each series thereof be fixed
by resolution of the Board of Directors adopted prior to the time shares of any
such series are first issued. The Board of Directors is hereby expressly
granted the authority to fix any one or more of such matters by resolution so
adopted and to cause a Certificate of Designations to be filed reflecting the
terms thereof.
Fifth: The Company is to have perpetual existence.
Sixth: The private property of the stockholders shall not be subject to
the payment of corporate debts to any extent whatever.
Seventh: In furtherance and not in limitation of the powers conferred by
statute
A. The Board of Directors is expressly authorized:
1. To make, alter, amend, or repeal the by-laws of the Company,
subject to the power of stockholders having voting power to make
additional bylaws or to alter, amend, or repeal any by-law whether adopted
by them or otherwise.
2. The Board of Directors may, by resolutions passed by a majority of
the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the Company, which, to the
extent provided in said resolution or resolutions or in the by-laws of the
Company, shall have and may exercise the powers of the Board of Directors
in the management of the business and affairs of the Company, and may have
power to authorize the seal of the Company to be affixed to all papers
which may require it.
B. The Company may in its by-laws confer powers upon its Board of
Directors, in addition to the foregoing, and in addition to the powers and
authorities expressly conferred upon them by statute.
Eighth: The Company reserves the right to amend, alter, change or repeal
any provision contained in this Second Restated Certificate of Incorporation in
the manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
<PAGE> 3
Ninth: A director of the Company shall not be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director provided that nothing contained in this Article shall eliminate the
liability of a director (i) for any breach of the director's duty of loyalty to
the Company or its stockholder, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware Code, or (iv) for any transaction from which the
director derived an improper personal benefit. If the Delaware Code is further
amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the Company
shall be eliminated or limited to the fullest extent permitted by the Delaware
Code, as so amended. Any repeal or modification of this article by the
stockholders of the Company shall not adversely affect any right or protection
of a director of the Company existing at the time of such repeal or
modification.
IN WITNESS WHEREOF, AM International, Inc. has caused this Second Restated
Certificate of Incorporation to be signed by Robert N. Dangremond, President and
Chief Executive Officer and Morton Rible, its Secretary this 8th day of October,
1993.
By: \s\ Robert N. Dangremond
-----------------------------------
Robert N. Dangremond
President and Chief Executive Officer
Attest: \s\ Morton Rible
-------------------------------
Morton Rible
Secretary
<PAGE> 1
EXHIBIT - 4.2
CERTIFICATE OF AMENDMENT
TO THE
SECOND RESTATED CERTIFICATE OF INCORPORATION
OF
AM INTERNATIONAL, INC.
The undersigned, Thomas D. Rooney and Steven R. Andrews, do hereby certify
that they are the President and Chief Executive Officer and Secretary,
respectively, of AM International, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), and they do further certify:
1. That the Board of Directors of the Corporation, by a unanimous vote at a
meeting duly called and held on May 1, 1997, adopted a resolution declaring
advisable and approving amendments to the Second Restated Certificate of
Incorporation of the Corporation, as amended, a copy of such amendments is
attached hereto as Exhibit A.
2. Such amendments were duly approved and adopted on May 29, 1977 by the
requisite vote of the stockholders of the corporation in accordance with the
applicable provisions of Section 242 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, AM International, Inc. has caused this Certificate of
Amendment to be signed by Thomas D. Rooney, its duly authorized President and
Chief Executive Officer, and attested to by Steven R. Andrews, its duly
authorized Secretary, this 28th day of May 1997.
AM INTERNATIONAL, INC.
By: \s\ Thomas D. Rooney
-----------------------------
Name: Thomas D. Rooney
Title: President and
Chief Executive Officer
ATTEST:
By: \s\ Steven R. Andrews
---------------------------
Name: Steven R. Andrews
Title: Secretary
<PAGE> 2
Exhibit A
1 Article First of the Second Restated Certificate of Incorporation is
amended to read in its entirety as follows:
"The name of the corporation is MULTIGRAPHICS, INC."
2. Article Fourth of the Second Restated Certificate of Incorporation is
amended to read in its entirety as follows:
The total number of shares of all classes of capital stock which the
Company shall have the authority to issue is ten million (10,000,000) shares, of
which nine million five hundred thousand (9,500,000) shares shall be shares of
Common Stock of the par value of $0.025 per share (the "Common Stock") and five
hundred thousand (500,000) shares shall be shares of Preferred Stock of the par
value of $0.01 per share (the "Preferred Stock". Every share of Common Stock of
the Corporation issued as of the date and time that this Amendment becomes
effective (including any shares held by the Corporation as treasury shares)
shall automatically be converted into two-fifths of a validly issued, fully paid
and nonassessable share of Common Stock and each share of Common Stock into
which shares are converted shall have a par value of $.025. Upon the
effectiveness of this Amendment, each certificate representing one or more
shares of Common Stock immediately prior to such effectiveness shall represent a
number of shares of Common Stock (subject to the treatment of fractional share
interests as described below) equal to the shares evidenced thereby prior to
such effectiveness multiplied by two-fifths. Holders of certificates
representing shares of Common Stock immediately prior to such effectiveness
shall be entitled to receive, upon delivery of such certificates to the
Corporation or to its agent a certificate or certificates representing the
number of shares of Common Stock (subject to the treatment of fractional share
interests as described below) previously evidenced by the certificates so
tendered multiplied by two-fifths. No fractional shares of Common Stock shall
be issued. In lieu of any fractional shares to which the holder would otherwise
be entitled, the Corporation shall pay cash (without interest) equal to the
product of such fraction (determined based on the aggregate number of shares
held by such holder) multiplied by the average of the closing sale price of a
share of Common Stock as reported on the American Stock Exchange on the
effective date hereof and rounding the result to the nearest $.01.
All shares to be issued must be voting securities and, as to all classes of
such voting securities, voting power shall be appropriately distributed among
such classes by the Board of Directors of the Company on a proportional one vote
per share basis. With respect to any class of securities having a preference
superior to another class of securities with respect to dividends or other
rights, such superior class of securities must contain adequate provision for
the election of directors representing such preferred class of securities in the
event of failure to pay such dividends. No stockholder shall have any
preemptive right to purchase or subscribe for any or all additional issues of
stock with the
<PAGE> 3
Company or any or all classes or series thereof, whether now or thereafter
authorized, or for any securities of the Company convertible into such stock.
Subject to the limitations prescribed by law and the provisions of this
Article Fourth, any number of series of Preferred Stock may be issued from time
to time with such voting powers and in such series and in such amounts, with
such designations, dividend rates, dividend rights, redemption rights,
conversion rights, rights upon dissolution or liquidation, other preferences and
relative, participating, optional or other special rights and qualifications,
limitations or restrictions thereof, as shall for each series thereof be fixed
by resolution of the Board of Directors adopted prior to the time shares of any
such series are first issued. The Board of Directors is hereby expressly
granted the authority to fix any one or more of such matters by resolution so
adopted and to cause a Certificate of Designations to be filed reflecting the
terms thereof.
<PAGE> 1
EXHIBIT - 4.3
MULTIGRAPHICS, INC.
AMENDED AND RESTATED BY-LAWS
ARTICLE I
CORPORATE OFFICES
The registered office of the Corporation within the State of Delaware shall
be located at the principal place of business of its registered agent. The
Corporation may also have such other offices at such places, within or without
the State of Delaware, as the Board of Directors may from time to time designate
or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meetings. The annual meeting of stockholders shall be
held each year on such day in the Month of December or any other date designated
by the Board of Directors and stated in the notice of meeting for the purposes
of electing directors by written ballot and transacting such other business as
may be properly brought before the meeting.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors or (b) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have substantially complied in all material
respects with the timeliness, eligibility and other requirements of Rule 14a-8
entitled "Proposals of Security Holders" promulgated under the Securities
Exchange Act of 1934 (the "1934 Act"). In addition, a stockholder's notice
must be sent to the attention of the Corporation's Secretary and must set forth
(a) as to each matter the stockholder proposes to bring before the annual
meeting, a brief description of the proposed business and the reasons for
conducting such business at the annual meeting, (b) the stockholder's name and
record address, (c) the class and number of shares of the Corporation which are
beneficially owned by the stockholder, (d) the dates upon which he acquired
beneficial ownership of such securities, (e) appropriate documentary support to
the stockholder's claim of beneficial ownership of such securities, and (f) a
brief description of any material interest of the stockholder in such business.
Notwithstanding anything in the By-laws to the contrary, no business shall be
conducted at an annual meeting except in accordance with the procedures set
forth in this Article II, Section 1. The presiding officer of an annual meeting
shall, if the facts warrant, determine and declare to the meeting that business
was not properly brought before the meeting in accordance with the provisions of
this Article II, Section 1 and if he should so determine, he shall so declare to
the meeting and any such business not properly brought before the meeting shall
not be transacted.
<PAGE> 2
Section 2. SPECIAL MEETINGS. Special meetings of stockholders for any
purpose or purposes may be called only by the Chief Executive Officer, a
majority of the Board of Directors, or a majority of stockholders.
Section 3. NOTICES OF MEETINGS. A written notice of each meeting of
stockholders stating the place, date and time of the meeting, and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given to each stockholder entitled to vote at such meeting not less
than ten nor more than sixty days before the date of the meeting. If mailed,
notice is given when deposited in the United States mail, postage prepaid,
directed to the stockholder at his address as it appears on the records of the
Corporation.
Section 4. PLACE OF MEETINGS. Meetings of stockholders shall be held at
such places, within or without the State of Delaware, as may be designated by
the Board of Directors and stated in the notice of meeting.
Section 5. QUORUM. The holders of a majority of the issued and outstanding
shares of stock entitled to vote at any meeting of stockholders, present in
person or represented by proxy, shall be required and shall constitute a quorum
for the transaction of business. If holders of a majority of such shares are
not present in person or represented by proxy at any meeting, those stockholders
who are present in person or represented by proxy shall have the authority to
adjourn the meeting from time to time until the holders of the required number
of shares are present or represented.
Section 6. ADJOURNMENT. When a meeting of stockholders is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business which
might have been transacted had a quorum been present at the time originally
designated for the meeting; provided, that if the adjournment is for more than
thirty days or if, after the adjournment, a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 7. VOTING. Each stockholder having the right to vote at a meeting
of stockholders shall be entitled, as to each matter submitted to a vote, to one
vote for each share of voting stock held of record by such stockholder. At any
meeting of stockholders at which a quorum is present, all elections shall be
determined by plurality vote of stockholders entitled to vote thereon present in
person or represented by proxy; and all other matters submitted to vote shall be
decided by majority vote of stockholders entitled to vote thereon present in
person or represented by proxy.
Section 8. PROXIES. A stockholder entitled to vote at a meeting of
stockholders may vote by proxy appointed by a written instrument duly signed by
or on
2
<PAGE> 3
behalf of such stockholder and bearing a date not more than three years prior to
the meeting unless the proxy provides for a longer period.
ARTICLE III
FIXING DATE FOR DETERMINATION
OF STOCKHOLDERS OF RECORD
In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty or less than ten days before the date of such meeting,
nor more than sixty days prior to any other action. If no record date is fixed,
(i) the record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at the close of business on the day
next preceding the day on which notice is given and (ii) the record date for
determining stockholders for any other purpose shall be at the close of business
on the day which the Board of Directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders of record entitled to notice of or to vote at a meeting
of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
ARTICLE IV
ACTION BY CONSENT
Section 1. RECORD DATE. The record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting
shall be fixed by the Board. Any stockholder seeking to have the stockholders
authorize or take corporate action by written consent without a meeting shall,
by written notice, request the Board of Directors to fix a record date. The
Board of Directors shall, at its next regularly scheduled meeting but in no
event more than 10 business days after receipt of such a request, fix a record
date which shall be no more than 15 days thereafter, unless a later date shall
be specified by such stockholder in which case the record date shall be the date
so specified or, if such date falls on a Saturday, Sunday or legal holiday, the
record date shall be determined by the Board of Directors to be the day next
following which is not a Saturday, Sunday or legal holiday. Each such notice
shall set forth: (a) the name and address of the stockholder who intends to
seek corporate action by written consent; (b) a representation that the
stockholder is a holder of record of stock of the Corporation; (c) a description
of all arrangements or understandings between the stockholder and any other
person or persons (naming such person or persons) pursuant to which the request
for corporate action by written consent is to be made by the stockholder; and
(d) such other
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information regarding each action proposed by such stockholder as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission, had the action been proposed by the
Board of Directors.
Section 2. DATE OF CONSENT. The date for determining if an action has been
consented to by the holder or holders of shares of outstanding stock of the
Corporation have the requisite voting power to authorize or take the action
specified therein (the "Consent Date") shall be the 55th day after the record
date fixed by the Board pursuant to Section 1 of this Article IV; provided,
however, that if such day falls on a Saturday, Sunday or legal holiday, the
Consent Date shall be the day next following which is not a Saturday, Sunday or
legal holiday.
Section 3. PROCEDURES. In the event of the delivery to the Corporation of
a written consent or consents purporting to authorize or take corporate action
and related revocations (each such written consent and related revocation is
referred to in this Article IV as a "Consent"), the Secretary of the Corporation
shall provide for the safe-keeping of such Consent and shall conduct such
reasonable investigation as he or she deems necessary or appropriate for the
purpose of ascertaining the validity of such Consent and all matters incident
thereto including, without limitation, whether the holders of shares having the
requisite voting power to authorize or take the action specified in the Consent
have given consent and whether the corporate action purported to be authorized
or taken may legally be taken by the stockholders of the Corporation; provided,
however, that if the corporate action to which the Consent relates is the
removal or replacement of one or more members of the Board, the Secretary of the
Corporation shall designate two persons who may not be members of the Board to
serve as inspectors with respect to such Consent and such inspectors shall
discharge the functions of the Secretary of the Corporation under this Article
IV, Section 3. If after such investigation the Secretary or the inspectors (as
the case may be) shall determine that the consent is valid and that the action
purported to be authorized or taken may legally be taken by the stockholders of
the Corporation, that fact shall be certified on the records of the Corporation
kept for the purpose of recording the proceedings of meetings of stockholders
and the Consent shall be filed in such records at which time the Consent shall
become effective as stockholder action; provided, however, that if any
proceedings have been commenced in the Court of Chancery of the State of
Delaware or any other court of competent jurisdiction for an adjudication of any
legal issues incident to determining the validity of the Consent or the legality
of the action purported to be authorized or taken thereby, neither the Secretary
nor the inspectors (as the case may be) shall make such certification or filing
and the Consent shall not become effective as stockholder action until the final
termination of such proceedings unless and until such Court shall have
determined that such proceedings are not being pursued expeditiously and in good
faith. In conducting the investigation required by this Article IV, Section 3,
the Secretary or the inspectors (as the case may be) may at the expense of the
Corporation retain special legal counsel and any other necessary or appropriate
professional advisors and such other personnel as they may deem necessary or
appropriate to assist them and shall be fully protected in relying in good faith
upon the opinion of such counsel or advisors.
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ARTICLE V
DIRECTORS
Section 1. NUMBER, TERM AND NOMINATION. The business and affairs of the
Corporation shall be managed under the direction of a Board of Directors
consisting of not less than three nor more than fifteen members, the number of
which shall be fixed by the Board of Directors. Each director shall hold office
until the next annual meeting of stockholders or until his successor is elected
and qualified or until his earlier resignation or removal.
Subject to the rights of holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation,
nominations for the election of Directors may be made by the Board of Directors
or a committee appointed by the Board of Directors or by any stockholder
entitled to vote in the election of Directors generally. However, any
stockholder entitled to vote in the election of Directors generally may nominate
one or more persons for election as Directors at a meeting only if the
stockholder making the nomination has substantially complied in all material
respects with the requirements of Rule 14a-8 entitled "Proposals of Security
Holders" and Rule 14a-11 entitled "Special Provisions Applicable to Election
Contest" promulgated under the 1934 Act. The stockholder making the nomination
must send written notice to the Corporation's Secretary not later than (i) with
respect to an election to be held at an annual meeting of stockholders, 120 days
prior to the anniversary date of the immediately preceding annual meeting, and
(ii) with respect to an election to be held at a special meeting of stockholders
for the election of Directors, the close of business on the tenth day following
the date on which notice of such meeting is first mailed or otherwise sent to
stockholders. Each such notice shall set forth: (a) the name and address of
the stockholder who intends to make the nomination and of the person or persons
to be nominated; (b) a representation that the stockholder is a holder of record
of stock of the Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) a description of all arrangements or understandings
between the stockholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations are to
be made by the stockholder; (d) such other information regarding each nominee as
would be required to be included pursuant to Regulation 14A or any other
applicable rule of the 1934 Act; and (e) the consent of each nominee to serve as
a Director of the Corporation if so elected. The presiding officer of the
meeting may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedure.
Section 2. COMMITTEES. The Board of Directors, by resolution passed by a
majority of the whole Board, may designate one or more committees, each
committee to consist of one or more directors of the Corporation. In the event
of the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the
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meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation,
except to the extent proscribed by statute.
Section 3. COMPENSATION. Directors shall receive such compensation as
shall be fixed by the Board of Directors and shall be entitled to reimbursement
for any reasonable expenses incurred in attending meetings and otherwise
carrying out their duties. Directors may also serve the Corporation in any
other capacity and receive compensation therefor.
Section 4. VACANCIES. Vacancies occurring for any reason and newly created
directorships resulting from an increase in the authorized number of directors
may be filled by a majority of the directors then in office or by a sole
remaining director.
Section 5. QUORUM AND VOTING. A majority of the entire Board of Directors
or of the membership of any committee thereof shall constitute a quorum for the
transaction of business, and the vote of the majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors of such committee.
Section 6. REGULAR MEETINGS. Regular meetings of the Board of Directors or
any committee thereof may be held without notice at such places, within or
without the State of Delaware, and at such times as the Board of Directors or
committee members may determine from time to time.
Section 7. SPECIAL MEETINGS. Special meetings of the Board of Directors or
any committee thereof may be called at the request of the Chairman of the Board,
the President, or the greater of one-third or any two of the members of the
Board of Directors or committee for which the special meeting is to be held.
Special meetings shall be held at such places, within or without the State of
Delaware, and at such times as may be stated in the notice of meeting. Written
notice of each special meeting shall be given to each director or, in the case
of committee meetings, to each committee member either (i) personally, by
telegram or by fax at least 24 hours before such meeting, or (ii) by mail at
least three days before such meeting. If mailed, notice is given when deposited
in the United States mail, postage prepaid, addressed to the director at his
principal place of business or residence. Notice of a meeting need not state
the purpose of, or the business to be transacted at, such meeting.
Section 8. MEETING BY TELEPHONE. Directors may participate in any meeting
of the Board of Directors or any committee thereof by conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and all directors so participating shall be
deemed to be present in person at such meeting.
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Section 9. ACTION BY WRITTEN CONSENT. Any action required or permitted to
be taken at any meeting of the Board of Directors or any committee thereof may
be taken without a meeting if, prior or subsequent to the taking of such action,
all members of the Board or committee consent thereto in writing and the writing
or writings are filed with the minutes of proceedings of the Board or committee.
ARTICLE VI
WAIVER OF NOTICE
Whenever notice is required to be given by statute or under any provision
of the certificate of incorporation or these by-laws, written waiver thereof,
signed by the person entitled to notice whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders, directors or
members of a committee of the Board of Directors need be specified in any
written waiver of notice.
ARTICLE VII
OFFICERS
Section 1. ELECTION AND TERM. At the first meeting of the Board of
Directors following the annual meeting of stockholders, or as soon thereafter as
is conveniently possible, the Board of Directors shall elect a Chairman of the
Board, President, one or more Vice Presidents (any one or more of which may be
designated as a Senior or Executive Vice President), Treasurer and Secretary and
may elect a Vice Chairman of the Board, a Controller and such Assistant
Treasurers, Assistant Controllers, Assistant Secretaries and other officers as
the Board of Directors may determine. The Board of Directors may elect officers
at such additional times as it deems advisable. Each officer of the Corporation
shall serve until his successor is elected and qualified or until his earlier
resignation or removal. Any number of offices may be held by the same person,
except that neither the President nor the Chairman of the Board may serve as the
Secretary or a Vice President.
Section 2. REMOVAL. The Board of Directors may remove any officer, with or
without cause, at any time by a vote of a majority of the Board of Directors,
but no such removal shall prejudice the contract rights, if any, of the person
so removed.
Section 3. VACANCIES. The Board of Directors may fill any vacancy
occurring in any office for any reason.
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Section 4. COMPENSATION. The salaries and other compensation of the
officers of the Corporation shall be determined by the Board of Directors or by
the Chairman of the Board or a committee of the Board of Directors acting under
authority delegated by the Board of Directors.
Section 5. DUTIES. The duties and powers of the officers of the
Corporation shall be as follows:
(a) Chairman of the Board - The Chairman of the Board shall (i) be chosen
from among the members of the Board of Directors, (ii) preside at all meetings
of stockholders and the Board of Directors and (iii) perform such other duties
as from time to time may be assigned by the Board of Directors.
(b) Vice Chairman of the Board - The Vice Chairman of the Board shall (i)
be chosen from among the members of the Board of Directors, (ii) preside at all
meetings of stockholders and the Board of Directors during the absence or
disability of the Chairman of the Board and (iii) perform such other duties as
from time to time may be assigned by the Chairman of the Board of the Board of
Directors.
(c) President - The President shall (i) preside at all meetings of the
stockholders and the Board of Directors during the absence or disability of the
Chairman and Vice Chairman of the Board, (ii) be the Chief Executive Officer of
the Corporation, (iii) be primarily responsible for the general management of
the business affairs of the Corporation and for implementing the policies and
directives of the Board of Directors, (iv) have authority to make contracts on
behalf of the Corporation in the ordinary course of the Corporation's business
and (v) perform such other duties as from time to time may be assigned to him by
the Board of Directors.
(d) Vice President - the Vice Presidents, in the order designated by the
Board of Directors, shall exercise the functions of the President during the
absence or disability of the President and shall perform such other duties as
the President or the Board of Directors may assign to them.
(e) Treasurer - The Treasurer shall (i) have general supervision over the
funds of the Corporation and the investment or deposit thereof (ii) advise the
officers and, if requested, the Board of Directors as the President or the Board
of Directors may assign to such person.
(f) Assistant Treasurers - the Assistant Treasurers, in the order
designated by the Board of Directors, shall exercise the duties of the Treasurer
during the absence or disability of the Treasurer and shall perform such other
duties as the Treasurer or the Board of Directors may assign to them.
(g) Secretary - The Secretary shall (i) attend all meetings of the
stockholders, the Board of Directors and all committees of the Board of
Directors and record all
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proceedings of such meeting in a book to be kept for that purpose, (ii) give, or
cause to be given, such notice as is required of all meetings of the
stockholders, Board of Directors and committees of the Board of Directors and
(iii) perform such other duties as the Chairman of the board or the Board of
Directors may assign to him.
(h) Assistant Secretaries - The Assistant Secretaries, in the order
designated by the Board of Directors, shall exercise the duties of the Secretary
during the absence or disability of the Secretary and shall perform such other
duties as the Secretary or the Board of Directors may assign to them.
ARTICLE VIII
INDEMNIFICATION
Section 1. Each person who was or is made a party or is threatened to be
made a party to or is involved in any action, suit, or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she or a person of whom he or she is the legal
representative is or was a director or officer of the Company or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans maintained
or sponsored by the Company, whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Company to the fullest extent
authorized by the General Corporation Law of the State of Delaware as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment), against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise tax or penalties and amounts paid or to be
paid in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that except
as provided in Section 3 of this Article VIII, the Company shall indemnify any
such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors. The right to indemnification conferred in
this Article VIII shall be a contract right and shall include the right to be
paid by the Company the expenses incurred in defending any such proceeding in
advance of its final disposition, such advances to be paid by the Company within
20 days after the receipt by the Company of a statement or statements from the
claimant requesting such advance or advances from time to time; provided,
however, that if the General Corporation Law of the State of Delaware requires,
the payment of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without
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limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Company of
an undertaking by or on behalf of such director or officer, to repay all amounts
so advanced if it shall ultimately be determined that such director or officer
is not entitled to be indemnified under this Article VIII or otherwise.
Section 2. To obtain indemnification under this Article VIII, a claimant
shall submit to the Company a written request, including therein or therewith
such documentation and information as is reasonably available to the claimant
and is reasonably necessary to determine whether and to what extent the claimant
is entitled to indemnification. Upon written request by a claimant for
indemnification pursuant to the first sentence of this Section 2, a
determination, if required by applicable law, with respect to the claimant's
entitlement thereto shall be made as follows: (1) if requested by the claimant,
by Independent Counsel (as hereinafter defined), or (2) if no request is made by
the claimant for a determination by Independent Counsel, (i) by the Board of
Directors by a majority vote of a quorum consisting of Disinterested Directors
(as hereinafter defined), or (ii) if a quorum of the Board of Directors
consisting of Disinterested Directors is not obtainable or, even if obtainable,
such quorum of Disinterested Directors so directs, by Independent Counsel in a
written opinion to the Board of Directors, a copy of which shall be delivered to
the claimant, or (iii) if a quorum of Disinterested Directors so directs, by the
stockholders of the Company. In the event the determination of entitlement to
indemnification is to be made by Independent Counsel at the request of the
claimant, the Independent Counsel shall be selected by the Board of Directors
unless there shall have occurred within two years prior to the date of the
commencement of the action, suit or proceeding for which indemnification is
claimed a "Change of Control" (as hereinafter defined), in which case the
Independent Counsel shall be selected by the claimant unless the claimant shall
request that such selection be made by the Board of Directors. If it is so
determined that the claimant is entitled to indemnification, payment to the
claimant shall be made within 10 days after such determination.
Section 3. If a claim under Section 1 of this Article VIII is not paid in
full by the Company within 30 days after a written claim pursuant to Section 2
of this Article VIII has been received by the Company, the claimant may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the Company)
that the claimant has not met the standard of conduct which makes it permissible
under the General Corporation Law of the State of Delaware for the Company to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Company. Neither the failure of the Company (including
its Board of Directors, Independent Counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the
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General Corporation Law of the State of Delaware, nor an actual determination by
the Company (including its Board of Directors, Independent Counsel or
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
Section 4. If a determination shall have been made pursuant to Section 2 of
this Article VIII that the claimant is entitled to indemnification, the Company
shall be bound by such determination in any judicial proceeding commenced
pursuant to Section 3 of this Article VIII.
Section 5. The Company shall be precluded from asserting in any judicial
proceeding commenced pursuant to Section 3 of this Article VIII that the
procedures and presumptions of this Article VIII are not valid, binding and
enforceable and shall stipulate in such proceeding that the Company is bound by
all the provisions of this Article VIII.
Section 6. The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article VIII shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, By-Laws, agreement, vote of stockholders or Disinterested
Directors or otherwise. No repeal or modification of this Article VIII shall in
any way diminish or adversely affect the rights of any director, officer,
employee or agent of the Company hereunder in respect of any occurrence or
matter arising prior to any such repeal or modification.
Section 7. The Company may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Company or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Company would have the power to
indemnify such person against such expense, liability or loss under the General
Corporation Law of the State of Delaware. To the extent that the Company
maintains any policy or policies providing such insurance, each such director or
officer, and each such agent or employee to which rights to indemnification have
been granted as provided in Section 8 of this article VIII, shall be covered by
such policy or policies in accordance with its or their terms to the maximum
extent of the coverage thereunder for any such director, officer, employee or
agent.
Section 8. The Corporation may, to the extent authorized from time to time
by the Board of Directors, grant rights to indemnification, and rights to be
paid by the Company the expenses incurred in defending any proceeding in advance
of its final disposition, to any employee or agent of the Company to the fullest
extent of the provisions of this Article VIII with respect to the
indemnification and advancement of expenses to directors and officers of the
Company.
Section 9. If any provision or provisions of this Article VIII shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (1) the
validity, legality and enforceability of the remaining provisions of this
Article VIII (including, without
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limitation, each portion of any paragraph of this Article VIII containing any
such provision held to be invalid, illegal or unenforceable, that is not itself
held to be invalid, illegal or unenforceable) shall not in any way be affected
or impaired thereby; and (2) to the fullest extent possible, the provisions of
this Article VIII (including, without limitation, each such portion of any
paragraph of this Article VIII containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
Section 10. For purposes of this Article VIII:
a. "Change of Control" means (i) the replacement of a majority of the Board
of Directors of the Company from the directors who constituted the Board of
Directors at the close of business on the "Effective Date" of the Company's Plan
or Reorganization dated September 29, 1993, and such replacement shall not have
been approved by the Board of Directors of the Company as constituted on such
Effective Date (or as changed over time with the approval of the Board of
Directors of the Company) or (ii) a person or entity or group of persons or
entities acting in concert shall, as a result of a tender or exchange offer,
open market purchases, privately negotiated purchases or otherwise, after such
Effective Date, have become the beneficial owner (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934, as amended) of securities of
the Company representing more than 50% of the combined voting power of the then
outstanding securities of the Company ordinarily (and apart from rights arising
under special circumstances) having the right to vote in the election of
directions.
b. "Disinterested Director" means a director of the Company who is not and
was not a party to the matter in respect of which indemnification is sought by
the claimant.
c. "Independent Counsel" means a law firm, a member of a law firm, or an
independent practitioner, that is experienced in matters of corporation law and
shall include any person who, under the applicable standards of professional
conduct then prevailing, would not have a conflict of interest in representing
either the Company or the claimant in an action to determine the claimant's
rights under this Article VIII.
Section 11. Any notice, request or other communication required or
permitted to be given to the Company under this Article VIII shall be in writing
and either delivered in person or sent by telecopy, telex, telegram, overnight
mail or courier service, or certified or registered mail, postage prepaid,
return receipt requested, to the Secretary of the Company and shall be effective
only upon receipt by the Secretary.
ARTICLE IX
CORPORATE SEAL
The Corporation shall have a corporate seal which shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"corporate seal."
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ARTICLE X
FISCAL YEAR
The fiscal year of the Corporation shall begin the first day of August each
year.
ARTICLE XI
AMENDMENTS
Section 1. AMENDMENTS BY THE BOARD OF DIRECTORS. Except as otherwise
proscribed by law or by these By-Laws, the Board of Directors may alter, amend
or repeal these by-laws, subject to the right of the stockholders entitled to
vote to alter, amend or repeal any by-laws made by the Board of Directors.
Section 2. AMENDMENTS TO ARTICLE VIII. Subject to the right of the
stockholders entitled to vote to alter, amend or repeal any by-laws made by the
Board of Directors, the Board of Directors shall not alter, amend or repeal
Article VIII herein entitled "Indemnification" without the affirmative vote of
80% of the directors then in office. No amendment to Article VIII of the
By-laws by the Board of Directors shall be given retroactive effect, if such
amendment would eliminate, restrict or in any other manner adversely affect the
rights of any person thereunder.
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EX-5
Sidley & Austin
One First National Plaza
Chicago, IL 60603
Telephone 312 853 7000
Facsimile 312 853 7036
November 10, 1998
Multigraphics, Inc.
431 Lakeview Court
Mount Prospect, Illinois 60056
Re: Multigraphics, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Multigraphics, Inc., a Delaware corporation
(the "Company"), in connection with the filing of a Registration Statement on
Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"), relating to the registration of 140,000 shares of common stock, par
value $.025, of the Company ("Common Stock") to be offered to participants in
the Company's 1998 Stock Incentive Plan for Directors (the "Plan").
We are familiar with the Second Restated Certificate of Incorporation, as
amended, and the By-laws of the Company and resolutions of the Board of
Directors of the Company relating to the Plan and the Registration Statement.
In this connection, we have examined originals, or copies of originals
certified or otherwise identified to our satisfaction, of such records of the
Company and other corporate documents, have examined such questions of law and
have satisfied ourselves as to such matters of fact as we have considered
relevant and necessary as a basis for the opinions set forth herein. We have
assumed the authenticity of all documents submitted to us as originals, the
genuineness of all signatures, the legal capacity of all natural persons and the
conformity with the original documents of any copies thereof submitted to us for
our examination.
<PAGE> 2
Multigraphics, Inc.
November 10, 1998
Page 2
Based upon the foregoing, we are of the opinion that:
1. The Company is duly incorporated and validly existing under the laws of
the State of Delaware.
2. If, pursuant to the authorization of the Company's Board of Directors or
a duly authorized committee thereof, the Company shall originally issue any
authorized but unissued shares of Common Stock pursuant to the Plan, such shares
will be legally issued, fully paid and non-assessable when (i) the Registration
Statement shall have become effective under the Act; (ii) such shares shall have
been duly issued and sold in the manner contemplated by the Plan; and (iii)
certificates representing such shares shall have been duly executed,
countersigned and registered and duly delivered against receipt by the Company
of the consideration (but not less than the par value thereof) provided in the
Plan.
We do not find it necessary for the purposes of this opinion letter to
cover, and accordingly we express no opinion as to, the application of the
securities or blue sky laws of the various states to the sale of shares of
Common Stock. We assume no obligation to update or supplement this opinion
letter to reflect any facts or circumstances which may hereafter come to our
attention with respect to the opinions expressed above, including any change in
applicable law.
This opinion letter is limited to the General Corporation Law of the State
of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to all references to our firm included in or made a
part of the Registration Statement.
Very truly yours,
/s/ Sidley & Austin
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated September 25,
1998 included in the Multigraphics Inc. Form 10-K for the year ended July 31,
1998 and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Chicago, Illinois
November 10, 1998
<PAGE> 1
EX-99.1
MULTIGRAPHICS, INC.
1998 STOCK INCENTIVE PLAN FOR DIRECTORS
I. INTRODUCTION
1.1 PURPOSES. The purposes of the 1998 Stock Incentive Plan for Directors (the
"Plan") of Multigraphics, Inc. (the "Company") are (i) to align the interests of
the Company's stockholders and directors who are not officers or employees of
the Company or any subsidiary ("Non-Employee Directors") by increasing the
proprietary interest of Non-Employee Directors in the Company's growth and
success, (ii) to advance the interests of the Company by attracting and
retaining Non-Employee Directors and (iii) to motivate Non-Employee Directors to
act in the long-term best interests of the Company and its stockholders.
1.2 CERTAIN DEFINITIONS.
"AGREEMENT" shall mean the written agreement evidencing an option.
"BOARD" shall mean the Board of Directors of the Company.
"CHANGE IN CONTROL" shall have the meaning set forth as of the effective
date of this Plan in Section 6.8(b) of the Company's 1994 Long-Term Incentive
Plan (the "1994 Plan"), regardless of whether the 1994 Plan is amended or
terminated.
"COMMON STOCK" shall mean the common stock, $.025 par value, of the
Company.
"COMPANY" shall have the meaning set forth in Section 1.1.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"FAIR MARKET VALUE" shall mean the closing transaction price of a share of
Common Stock on the American Stock Exchange on the date as of which such value
is being determined or, if there shall be no reported transaction for such date,
on the next preceding date for which a transaction was reported; provided,
however, that Fair Market Value may be determined by the Board by whatever means
or method as the Board, in the good faith exercise of its discretion, shall at
such time deem appropriate.
"MATURE SHARES" shall mean previously-acquired shares of Common Stock for
which the holder thereof has good title, free and clear of all liens and
encumbrances and which such holder either (i) has held for at least six months
or (ii) has purchased on the open market.
"NON-EMPLOYEE DIRECTORS" shall have the meaning set forth in Section 1.1.
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"STOCK AWARD" shall have the meaning set forth in Section 3.1.
1.3 ADMINISTRATION. This Plan shall be administered by the Board. The Board
shall, subject to the terms of this Plan, interpret this Plan and the
application thereof, establish rules and regulations it deems necessary or
desirable for the administration of this Plan. All such interpretations, rules,
regulations and conditions shall be final, binding and conclusive. A majority of
the Board shall constitute a quorum. The acts of the Board shall be either (i)
acts of a majority of the members of the Board present at any meeting at which a
quorum is present or (ii) acts approved in writing by all of the members of the
Board without a meeting.
1.4 SHARES AVAILABLE. Subject to adjustment as provided in Section 4.6,
140,000 shares of Common Stock shall be available under this Plan, reduced by
the sum of the aggregate number of shares of Common Stock which become subject
to outstanding options and are issued pursuant to Stock Awards. To the extent
that shares of Common Stock subject to an outstanding option are not issued or
delivered by reason of the expiration, termination, cancellation or forfeiture
of such option or by reason of the delivery or withholding of shares of Common
Stock to pay all or a portion of the exercise price of an option, then such
shares of Common Stock shall again be available under this Plan. Shares of
Common Stock shall be made available from authorized and unissued shares of
Common Stock, or authorized and issued shares of Common Stock reacquired and
held as treasury shares or otherwise, or a combination thereof.
II. STOCK OPTIONS
2.1 ELIGIBILITY. Each Non-Employee Director shall be granted options to
purchase shares of Common Stock in accordance with this Article II. All options
granted under this Article II shall constitute stock options that are not
incentive stock options under Section 422 of the Internal Revenue Code of 1986,
as amended.
2.2 GRANTS OF OPTIONS. Each Non-Employee Director shall be granted options as
follows:
(a) Time of Grant. As of the effective date of this Plan (or, if after the
effective date of this Plan and prior to the date of the 1999 annual meeting of
stockholders, on the date on which a person is first elected or begins to serve
as a Non-Employee Director other than by reason of termination of employment),
each person who is a Non-Employee Director as of such date shall be granted an
option to purchase 10,000 shares of Common Stock (which amount shall be pro
rated if such Non-Employee Director is first elected or begins to serve as a
Non-Employee Director after the effective date of this Plan and prior to the
date of the 1999 annual meeting of stockholders) at a purchase price per share
equal to 100% of the Fair Market Value of a share of Common Stock on such date.
On the date of the 1999 annual meeting of stockholders of the Company and,
thereafter, on the date of each annual meeting of stockholders of the Company,
each person who is a Non-Employee Director immediately after such meeting of
stockholders shall be granted an option to purchase 5,000 shares of Common
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Stock at a purchase price per share equal to the Fair Market Value of a share of
Common Stock on the date of grant of such option.
(b) Exercise Period and Exercisability. Each option shall be fully
exercisable on and after its date of grant and shall expire ten years after its
date of grant or on such earlier date as provided in Section 2.3. An exercisable
option, or portion thereof, may be exercised in whole or in part only with
respect to whole shares of Common Stock.
2.3 TERMINATION OF DIRECTORSHIP. If an optionee ceases to be a director of the
Company for any reason, each option held by such optionee may thereafter be
exercised by such optionee (or such optionee's legal representative, executor,
administrator, beneficiary or similar person) until and including the earliest
to occur of the (i) date which is seven months after the effective date of such
optionee's ceasing to be a director and (ii) the expiration date of the term of
such option.
2.4 METHOD OF EXERCISE. An option may be exercised (i) by giving written
notice to the Company specifying the number of whole shares of Common Stock to
be purchased and accompanied by payment therefor in full (or arrangement made
for such payment to the Company's satisfaction) either (A) in cash, (B) by
delivery (either actual delivery or by attestation procedures established by the
Company) of Mature Shares having an aggregate Fair Market Value, determined as
of the date of exercise, equal to the aggregate purchase price payable by reason
of such exercise, (C) in cash by a broker-dealer acceptable to the Company to
whom the optionee has submitted an irrevocable notice of exercise or (D) a
combination of (A) and (B), in each case to the extent set forth in the
Agreement relating to the option, and (ii) by executing such documents as the
Company may reasonably request. The Company shall have sole discretion to
disapprove of an election pursuant to any of clauses (B)-(D). Any fraction of a
share of Common Stock which would be required to pay such purchase price shall
be disregarded and the remaining amount due shall be paid in cash by the
optionee. No certificate representing Common Stock shall be delivered until the
full purchase price therefor has been paid (or arrangement made for such payment
to the Company's satisfaction).
III. STOCK AWARDS
3.1 STOCK AWARDS. The Board may, in its discretion, grant shares of Common
Stock ("Stock Awards") to Non-Employee Directors in lieu of all or part of the
annual cash retainer that would otherwise be payable. The shares of Common Stock
subject to a Stock Award shall be issued as of each date on which such retainer
would otherwise be payable and the number of shares of Common Stock to be issued
shall equal the number of shares (rounded up to the nearest whole share)
determined by dividing the amount of such retainer by the Fair Market Value of a
share of Common Stock on the date as of which such shares are issued. Stock
Awards shall not be subject to any restrictions, performance measures or other
limitations imposed by the Company. The holder of a Stock Award shall have all
rights as a stockholder
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of the Company, including, but not limited to, voting rights, the right to
receive dividends and the right to participate in any capital adjustment
applicable to all holders of Common Stock.
IV. GENERAL
4.1 EFFECTIVE DATE AND TERM OF PLAN. This Plan shall become effective as of
the date of approval by the Board. This Plan shall terminate when shares of
Common Stock are no longer available for the grant of awards, unless terminated
earlier by the Board. Termination of this Plan shall not affect the terms or
conditions of any award granted prior to termination.
4.2 AMENDMENTS. The Board may amend this Plan as it shall deem advisable,
subject to any requirement of stockholder approval required by applicable law,
rule or regulation. No amendment may impair the rights of an optionee without
the consent of such optionee.
4.3 AGREEMENT. No option shall be valid until an Agreement is executed by the
Company and the optionee and, upon execution by each party and delivery of the
Agreement to the Company, such option shall be effective as of the effective
date set forth in the Agreement.
4.4 NON-TRANSFERABILITY OF OPTIONS. Unless otherwise specified in the
Agreement relating to an option, no option shall be transferable other than by
will, the laws of descent and distribution or pursuant to beneficiary
designation procedures approved by the Company. Except to the extent permitted
by the foregoing sentence or the option Agreement, each option may be exercised
during the optionee's lifetime only by the optionee or the optionee's legal
representative or similar person. Except to the extent permitted by the second
preceding sentence or the option Agreement, no option may be sold, transferred,
assigned, pledged, hypothecated, encumbered or otherwise disposed of (whether by
operation of law or otherwise) or be subject to execution, attachment or similar
process. Upon any attempt to so sell, transfer, assign, pledge, hypothecate,
encumber or otherwise dispose of any option, such option and all rights
thereunder shall immediately become null and void.
4.5 RESTRICTIONS ON SHARES. Each option shall be subject to the requirement
that if at any time the Company determines that the listing, registration or
qualification of the shares of Common Stock subject to such option upon any
securities exchange or under any law, or the consent or approval of any
governmental body, or the taking of any other action is necessary or desirable
as a condition of, or in connection with, the exercise of such option or the
delivery of shares thereunder, such option shall not be exercised and such
shares shall not be delivered unless such listing, registration, qualification,
consent, approval or other action shall have been effected or obtained, free of
any conditions not acceptable to the Company. The Company may require that
certificates evidencing shares of Common Stock delivered pursuant to any option
or Stock Award bear a legend indicating that the sale, transfer or other
disposition thereof by the holder is prohibited except in compliance with the
Securities Act of 1933, as amended, and the rules and regulations thereunder.
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4.6 ADJUSTMENT. In the event of any stock split, stock dividend,
recapitalization, reorganization, merger, consolidation, combination, exchange
of shares, liquidation, spin-off or other similar change in capitalization or
event, or any distribution to holders of Common Stock other than a regular cash
dividend, the number and class of securities available under this Plan, the
number and class of securities subject to each outstanding option and the
purchase price per security, and the number and class of securities subject to
each option to be granted to Non-Employee Directors pursuant to Article II shall
be appropriately adjusted by the Board, such adjustments to be made without an
increase in the aggregate purchase price. The decision of the Board regarding
any such adjustment shall be final, binding and conclusive. If any such
adjustment would result in a fractional security being (a) available under this
Plan, such fractional security shall be disregarded, or (b) subject to an
option, the Company shall pay the holder of such option, in connection with the
first exercise of such option in whole or in part occurring after such
adjustment, an amount in cash determined by multiplying (i) the fraction of such
security (rounded to the nearest hundredth) by (ii) the excess, if any, of (A)
the Fair Market Value on the exercise date over (B) the exercise price of such
option.
4.7 CHANGE IN CONTROL.
(a) (1) Notwithstanding any provision in this Plan or any Agreement, in the
event of a Change in Control pursuant to Section 6.8(b)(3) or (4) of the 1994
Plan in connection with which the holders of Common Stock receive shares of
common stock that are registered under Section 12 of the Exchange Act, there
shall be substituted for each share of Common Stock available under this Plan,
whether or not then subject to an outstanding option, the number and class of
shares into which each outstanding share of Common Stock shall be converted
pursuant to such Change in Control. In the event of any such substitution, the
purchase price per share shall be appropriately adjusted by the Board (whose
determination shall be final, binding and conclusive), such adjustments to be
made without an increase in the aggregate purchase price.
(2) Notwithstanding any provision in this Plan or any Agreement, in the
event of a Change in Control pursuant to Section 6.8(b)(1) or (2) of the 1994
Plan, or in the event of a Change in Control pursuant to Section 6.8(b)(3) or
(4) of the 1994 Plan in connection with which the holders of Common Stock
receive consideration other than shares of common stock that are registered
under Section 12 of the Exchange Act, each outstanding option shall be
surrendered to the Company by the optionee, and each such option shall
immediately be canceled by the Company, and the optionee shall receive, within
ten days of the occurrence of a Change in Control, a cash payment from the
Company in an amount equal to the number of shares of Common Stock then subject
to such option, multiplied by the excess, if any, of the greater of (A) the
highest per share price offered to stockholders of the Company in any
transaction whereby the Change in Control takes place or (B) the Fair Market
Value of a share of Common Stock on the date of occurrence of the Change in
Control, over the purchase price per share of Common Stock subject to the
option. The Company may, but is not required to,
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cooperate with any person who is subject to Section 16 of the Exchange Act to
assure that any cash payment in accordance with the foregoing to such person is
made in compliance with Section 16 and the rules and regulations thereunder.
(b) Notwithstanding the exercise period set forth in Section 2.3, and
notwithstanding the expiration date of the term of any option, in the event the
Company is involved in a business combination which is intended to be treated as
a pooling of interests for financial accounting purposes (a "Pooling
Transaction") or pursuant to which an optionee receives a substitute option to
purchase securities of any entity, including an entity directly or indirectly
acquiring the Company, then each option (or option in substitution thereof) held
by such optionee shall be exercisable until and including the latest of (x) the
expiration date of the term of the option or, in the event of such optionee's
termination of service, the date determined pursuant to Section 2.3, (y) the
date which is seven months after the consummation of such business combination
and (z) the date which is 30 days after the date of expiration of any period
during which such optionee may not dispose of a security issued in the Pooling
Transaction in order for the Pooling Transaction to be accounted for as a
pooling of interests.
4.8 RIGHTS AS STOCKHOLDER. No person shall have any right as a stockholder of
the Company with respect to any shares of Common Stock or other equity security
of the Company which is subject to an option unless and until such person
becomes a stockholder of record with respect to such shares of Common Stock or
equity security.
4.9 DESIGNATION OF BENEFICIARY. If permitted by the Company, an optionee may
file with the Company a written designation of one or more persons as such
optionee's beneficiary or beneficiaries (both primary and contingent) in the
event of the optionee's death. To the extent an outstanding option is
exercisable, such beneficiary or beneficiaries shall be entitled to exercise
such option.
Each beneficiary designation shall become effective only when filed in
writing with the Company during the optionee's lifetime on a form prescribed by
the Company. The spouse of a married optionee domiciled in a community property
jurisdiction shall join in any designation of a beneficiary other than such
spouse. The filing with the Company of a new beneficiary designation shall
cancel all previously filed beneficiary designations.
If an optionee fails to designate a beneficiary, or if all designated
beneficiaries of an optionee predecease the optionee, then each outstanding
option held by such optionee, to the extent exercisable, may be exercised by
such optionee's executor, administrator, legal representative or similar person.
4.10 GOVERNING LAW. This Plan and each award and Agreement, and all
determinations made and actions taken pursuant thereto, shall be governed by the
laws of the State of Delaware and construed in accordance therewith without
giving effect to principles of conflicts of laws.
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EX 99.2
MULTIGRAPHICS, INC.
STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
Multigraphics, Inc., a Delaware corporation (the "Company"), hereby grants
to ______________ (the "Optionee") as of _________ (the "Grant Date"), pursuant
to the provisions of the Multigraphics, Inc. Stock Incentive Plan for Directors
(the "Plan"), a non-qualified option to purchase from the Company (the "Option")
[10,000] [5,000] shares of its Common Stock, $.025 par value ("Stock"), at the
price of $____ per share upon and subject to the terms and conditions set forth
below. Capitalized terms not defined herein shall have the meanings specified in
the Plan.
1. Option Subject to Acceptance of Agreement. The Option shall be null
and void unless the Optionee shall accept this Agreement by executing it in the
space provided below and returning such original execution copy to the Company.
2. Time and Manner of Exercise of Option.
2.1. Maximum Term of Option. In no event may the Option be exercised, in
whole or in part, after 5:00 p.m., Chicago time, on [insert 10-year anniversary
of Grant Date] (the "Expiration Date").
2.2. Exercise of Option. (a) The Option is exercisable as to 100% of the
Stock subject to the Option on the date hereof.
(b) If the Optionee's service as a director of the Company terminates for
any reason, the Option shall be exercisable by the Optionee or the Optionee's
Legal Representative for a period extending from the effective date of such
termination until the earliest to occur of (1) the date which is seven months
after the effective date of such termination of service as a director and (2)
the Expiration Date.
(c) Notwithstanding Sections 2.1 and 2.4 and the exercise period set
forth above in Section 2.2(b), in the event the Company is involved in a
business combination, including a business combination which is intended to be
treated as a pooling of interests for financial accounting purposes (a "Pooling
Transaction"), in connection with which the Optionee receives a substitute
option to purchase securities of any entity, including an entity directly or
indirectly acquiring the Company:
(1) if the acquisition of the substitute option by the Optionee may be treated
as a purchase for purposes of Section 16(b) of the Exchange Act and the
Optionee's service as a director of the Company is terminated for any reason
during the nine-month period beginning three months prior to the consummation of
such business combination, then the Option (or option in
<PAGE> 2
substitution thereof) shall be exercisable until and including the latest to
occur of (i) the date determined pursuant to Section 2.2(b), (ii) the date which
is seven months after the consummation of such business combination and (iii)
the Expiration Date; or
(2) if the Optionee is restricted from disposing of a security (or security
underlying a security) issued in connection with the Pooling Transaction and the
purpose of such restriction is to ensure that the Pooling Transaction is
accounted for as a pooling of interests (the "Pooling Restriction") and the
Optionee's service as a director of the Company is terminated for any reason
during the nine-month period beginning three months prior to the consummation of
such business combination, then the Option (or option in substitution thereof)
shall be exercisable until and including the latest to occur of (i) the date
determined pursuant to Section 2.2(b), (ii) the date which is one month after
the date of expiration of the Pooling Restriction and (iii) the Expiration Date.
2.3 Method of Exercise. Subject to the limitations set forth in this
Agreement, the Option may be exercised by the Optionee (1) by giving written
notice to the Company specifying the number of whole shares of Stock to be
purchased and accompanied by payment therefor in full (or arrangement made for
such payment to the Company's satisfaction) either (i) in cash, (ii) by delivery
(either actual delivery or by attestation procedures established by the Company)
of previously owned whole shares of Stock (which the Optionee has held for at
least six months prior to the delivery of such shares or which the Optionee
purchased on the open market and in each case for which the Optionee has good
title, free and clear of all liens and encumbrances) having an aggregate Fair
Market Value, determined as of the date of exercise, equal to the aggregate
purchase price payable pursuant to the Option by reason of such exercise, (iii)
in cash by a broker-dealer acceptable to the Company to whom the Optionee has
submitted an irrevocable notice of exercise or (iv) a combination of (i) and
(ii) and (2) by executing such documents as the Company may reasonably request.
The Company shall have sole discretion to disapprove of an election pursuant to
any of clauses (ii) - (iv). Any fraction of a share of Stock which would be
required to pay such purchase price shall be disregarded and the remaining
amount due shall be paid in cash by the Optionee. No certificate representing a
share of Stock shall be delivered until the full purchase price therefor has
been paid.
2.4 Termination of Option. (a) Subject to Section 2.2(c), in no event may
the Option be exercised after it terminates as set forth in this Section 2.4.
The Option shall terminate, to the extent not exercised pursuant to Section 2.3
or earlier terminated pursuant to Section 2.2, on the Expiration Date.
(b) In the event that rights to purchase all or a portion of the shares of
Stock subject to the Option expire or are exercised, canceled or forfeited, the
Optionee shall, upon the Company's request, promptly return this Agreement to
the Company for full or partial cancellation, as the case may be. Such
cancellation shall be effective regardless of whether the Optionee returns this
Agreement. If the Optionee continues to have rights to purchase shares of Stock
hereunder, the Company shall, within 10 days of the Optionee's delivery of this
Agreement to the Company, either (i) mark this Agreement to indicate the extent
to which the
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Option has expired or been exercised, canceled or forfeited or (ii)
issue to the Optionee a substitute option agreement applicable to such rights,
which agreement shall otherwise be substantially similar to this Agreement in
form and substance.
3. Additional Terms and Conditions of Option.
3.1. Nontransferability of Option. The Option may not be transferred by the
Optionee other than (i) by will or the laws of descent and distribution or
pursuant to beneficiary designation procedures approved by the Company. Except
to the extent permitted by the foregoing sentence, during the Optionee's
lifetime the Option is exercisable only by the Optionee or the Optionee's Legal
Representative. Except to the extent permitted by the foregoing, the Option may
not be sold, transferred, assigned, pledged, hypothecated, encumbered or
otherwise disposed of (whether by operation of law or otherwise) or be subject
to execution, attachment or similar process. Upon any attempt to so sell,
transfer, assign, pledge, hypothecate, encumber, or otherwise dispose of the
Option, the Option and all rights hereunder shall immediately become null and
void.
3.2. Adjustment. In the event of any stock split, stock dividend,
recapitalization, reorganization, merger, consolidation, combination, exchange
of shares, liquidation, spin-off or other similar change in capitalization or
event, or any distribution to holders of Stock other than a regular cash
dividend, the number and class of securities subject to the Option and the
purchase price per security shall be appropriately adjusted by the Board without
an increase in the aggregate purchase price. If any adjustment would result in a
fractional security being subject to the Option, the Company shall pay the
Optionee, in connection with the first exercise of the Option occurring after
such adjustment, an amount in cash determined by multiplying (i) the fraction of
such security (rounded to the nearest hundredth) by (ii) the excess, if any, of
(A) the Fair Market Value on the exercise date over (B) the exercise price of
the Option. The decision of the Board regarding any such adjustment shall be
final, binding and conclusive.
3.3. Delivery of Certificates. Upon the exercise of the Option, in whole or
in part, the Company shall deliver or cause to be delivered one or more
certificates representing the number of shares purchased against full payment
therefor. The Company shall pay all original issue or transfer taxes and all
fees and expenses incident to such delivery.
3.4. Option Confers No Rights as Stockholder. The Optionee shall not be
entitled to any privileges of ownership with respect to shares of Stock subject
to the Option unless and until purchased and delivered upon the exercise of the
Option, in whole or in part, and the Optionee becomes a stockholder of record
with respect to such delivered shares; and the Optionee shall not be considered
a stockholder of the Company with respect to any such shares not so purchased
and delivered.
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3.5. Option Confers No Rights to Continue to Serve as a Director. In no
event shall the granting of the Option or its acceptance by the Optionee give or
be deemed to give the Optionee any right to continue to serve, to be elected or
reelected to serve or to be nominated to serve as a director of the Company.
3.6. Decisions of Board. The Board shall have the right to resolve all
questions which may arise in connection with the Option or its exercise. Any
interpretation, determination or other action made or taken by the Board
regarding the Plan or this Agreement shall be final, binding and conclusive.
3.7. Company to Reserve Shares. The Company shall at all times prior to the
expiration or termination of the Option reserve and keep available, either in
its treasury or out of its authorized but unissued shares of Stock, the full
number of shares subject to the Option from time to time.
3.8. Agreement Subject to the Plan. This Agreement is subject to the
provisions of the Plan and shall be interpreted in accordance therewith. The
Optionee hereby acknowledges receipt of a copy of the Plan.
4. Miscellaneous Provisions.
4.1 Legal Representative. As used herein, the term "Legal Representative"
shall include an executor, administrator, legal representative, guardian or
similar person.
4.2. Successors. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and any person or persons
who shall, upon the death of the Optionee, acquire any rights hereunder in
accordance with this Agreement or the Plan.
4.3. Notices. All notices, requests or other communications provided for in
this Agreement shall be made in writing either (a) by personal delivery to the
party entitled thereto, (b) by facsimile with confirmation of receipt, (c) by
mailing in the United States mails to the last known address of the party
entitled thereto or (d) by express courier service. The notice, request or other
communication shall be deemed to be received upon personal delivery, upon
confirmation of receipt of facsimile transmission or upon receipt by the party
entitled thereto if by United States mail or express courier service; provided,
however, that if a notice, request or other communication sent to the Company is
not received during regular business hours, it shall be deemed to be received on
the next succeeding business day of the Company.
4.4. Governing Law. This Agreement, the Option and all determinations made
and actions taken pursuant hereto and thereto shall be governed by the laws of
the State of Delaware and construed in accordance therewith without giving
effect to principles of conflicts of laws.
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4.5. Counterparts. This Agreement may be executed in two counterparts each
of which shall be deemed an original and both of which together shall constitute
one and the same instrument.
MULTIGRAPHICS, INC.
By: ________________________________
Name:
Title:
Accepted this ______ day of
_________________, 199_.
___________________________
Optionee
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