PAGE 1 Registration No.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DEVON GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 03-0212800
(State of Incorporation) (I.R.S. Employer Identification No.)
281 TRESSER BOULEVARD, SUITE 501, STAMFORD, CONNECTICUT 06901-3227
(Address of Principal Executive Offices)
DEVON GROUP, INC. 1995 NON-QUALIFIED STOCK OPTION PLAN
(Full title of the plan)
ROBERT A. FRASCO, ESQ.
Vice President, General Counsel and Secretary
DEVON GROUP, INC.
281 Tresser Boulevard, Suite 501, Stamford, Connecticut 06901-3227
(Name and address of agent for service)
(203) 964-1444
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Aggregate Registration
to be Registered Registered Price Per Share Offering Price Fee
205,000 shares at
$34.25 per share
Common Stock 155,000 shares at
$.01 par value 360,000 shares $37.875 per share $12,891,875.00 $4,445.51
PAGE 2
DEVON GROUP, INC.
1995 NON-QUALIFIED STOCK OPTION PLAN
PART I
INFORMATION REQUIRED IN THE SECTION 10 PROSPECTUS
The document(s) containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1) of the Securities
Act of 1933. Such documents are not being filed with the Securities and
Exchange Commission either as part of this registration statement or as
prospectuses or prospectus supplements pursuant to Rule 424 of the
Securities Act. Such documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this Form S-8,
taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
All reports and other documents subsequently filed by the Corporation
or the 1995 Non-Qualified Stock Option Plan pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment that 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 herein
and to be part hereof from the date of the filing of such documents.
The documents listed below, which have been filed by the Corporation
with the Securities and Exchange Commission, are specifically incorporated
herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended March 31,
1995 of the Corporation.
(b) Quarterly Report on Form 10-Q for the quarter ended June 30, 1995
of the Corporation.
(c) Each holder of shares of Common Stock is entitled to one vote for
each share in all matters to be voted on by stockholders. The Common Stock
has no cumulative voting rights, which means that the holders of shares
entitled to exercise more than 50% of the voting rights are able to elect
100% of the directors. Dividends may be paid to holders of Common Stock
when, as, and if declared by the Board of Directors out of funds legally
available therefor. In the event of any liquidation, dissolution,
or winding-up of the Corporation, the
II-2
PAGE 3
holders of Common Stock will be entitled to receive a pro rata share of the
net assets of the Corporation remaining after payment or provision for
payment of the debts and other liabilities of the Corporation. The shares
of Common Stock, including the shares offered hereby, will be legally
issued, fully-paid, and nonassessable, and the holders thereof will not be
entitled to any preemptive, subscription, redemption, or conversion rights.
The registrar and transfer agent for the Common Stock is Chemical
Mellon Financial Services.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The validity of the issuance of the shares registered hereunder will be
passed upon by Robert A. Frasco, General Counsel of the Corporation. Mr.
Frasco has been granted stock options pursuant to the 1995 Non-Qualified
Stock Option Plan, whereby he has the right to purchase 20,000 shares of
the Common Stock of the Corporation for $34.25 per share at various dates
between January 26, 1996 and July 25, 2001. Mr. Frasco is also a Vice
President and the Secretary of the Corporation.
The financial statements and schedule of the Corporation and
consolidated subsidiaries as of March 31, 1995 and 1994 and for each of the
years in the three-year-period ended March 31, 1995, incorporated by
reference herein, have been so incorporated in reliance upon the reports of
KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing. To the extent that KPMG Peat Marwick
LLP audits and reports on financial statements of the Corporation and
consolidated subsidiaries issued at future dates, and consents to the use
of their report thereon, such financial statements also will be
incorporated by reference in this registration statement in reliance upon
their report and said authority.
Item 6. Indemnification of Directors and Officers
Article IX, Sections 1 and 2 of the By-Laws of the Corporation read as
follows:
"SECTION 1. Indemnification. (a) Any person made, or threatened to
be made, a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
the reason of the fact that he, his testator or intestate is or was a
director, officer, employee or agent of the Corporation shall be
indemnified by the Corporation against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding, or in connection with any appeal therein; provided, that such
person acted in good faith and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the Corporation, or with respect
to any criminal action or proceeding, had no reasonable cause to believe
his conduct
II-3
PAGE 4
unlawful; except, in the case of an action, suit or proceeding by or in the
right of the Corporation in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such director, officer,
employee or agent is liable for negligence or misconduct in the performance
of his duties, unless a court having jurisdiction shall determine that,
despite such adjudication, such person is fairly and reasonably entitled to
indemnification.
(b) Without limitation of any right conferred by paragraph (a) of this
Section, any person made, or threatened to be made, a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he,
his testator or intestate is or was a director, officer, employee or agent
of the Corporation, and is or was serving as a fiduciary of, or otherwise
rendering services to, any employee benefit plan of or relating to the
Corporation, shall be indemnified by the Corporation against expenses
(including attorneys' fees), judgments, fines, excise taxes and amounts
paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding, or in connection with any appeal
therein; provided, that such person acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, or with respect to a criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; except in the case of
an action, suit or proceeding by or in the right of the Corporation in
relation to matters as to which it shall be adjudged in such action, suit
or proceeding that such director, officer, employee or agent is liable for
negligence or misconduct in the performance of his duties, unless a court
having jurisdiction shall determine that, despite such adjudication, such
person is fairly and reasonably entitled to indemnification.
(c) The foregoing rights of indemnification shall not be deemed
exclusive of any other rights to which any director, officer, employee or
agent may be entitled or of any power of the Corporation apart from the
provisions of this Section.
SECTION 2. Insurance for Indemnification. The Corporation may
purchase and maintain insurance for the indemnification of the Corporation
and the directors, officers, employees and agents of the Corporation to the
full extent and in the manner permitted by the applicable laws of the
United States and the State of Delaware from time to time in effect."
The Corporation also has entered into individual contracts with its
Chairman, President, Executive Vice President and Chief Financial Officer,
Senior Vice President, Finance and Treasurer, and Vice President and
General Counsel providing for indemnification in accordance with the
indemnification provisions of the State of Delaware.
Section 145 of the Delaware General Corporation Law contain provisions
for indemnification by the Corporation, under certain circumstances, of
officers and directors of the Corporation for certain liabilities which may
be incurred by them in their capacities as such.
The Corporation has purchased insurance to indemnify the Corporation
and all of its directors, officers and other employees who hold management
positions in divisions and subsidiaries for those liabilities in respect of
which such
II-4
PAGE 5
indemnification insurance is permitted under the laws of the State of
Delaware.
The Corporation has additionally purchased insurance, as an extension
of the foregoing policy, covering any directors, officers, and full-time
salaried employees who are or shall be in breach of any fiduciary duty
imposed by the Employee Retirement Income Security Act of 1974 upon
fiduciaries as defined under that Act.
Article Sixth of the Corporation's Restated Certificate of
Incorporation reads as follows:
"To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or may hereafter be amended, a director of the
Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director."
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
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 effective date of the registration statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8, and
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d)of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
II-5
PAGE 6
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference
in this 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 Securities and Exchange 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 0f 1933
and will be governed by the final adjudication of such issue.
The Registrant. Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8
and has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Stamford, and the State of Connecticut on November 1, 1995.
DEVON GROUP, INC.
By:s/Marne Obernauer,Jr.
Marne Obernauer, Jr.
Chairman, Chief Executive Officer,
Director
II-6
PAGE 7
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
s/Marne Obernauer, Jr Chairman, Chief Executive November 1,1995
Officer, and Director
(Principal Executive Officer)
s/John W. Dinzole President, Chief Operating Officer, November 1, 1995
and Director
s/Bruce K. Koch Executive Vice President, November 1, 1995
Operations and Finance,
and Chief Financial Officer
(Principal Financial Officer)
s/Robert H. Donovan Senior Vice President, Finance November 1, 1995
and Treasurer
(Principal Accounting Officer)
s/Robert S. Blank Director November 1, 1995
s/William G. Gisel Director November 1, 1995
s/Thomas J. Harrington Director November 1, 1995
s/Marne Obernauer Chairman of the Executive November 1, 1995
Committee, Director
s/Edward L. Palmer Director November 1, 1995
II-7
PAGE 8
INDEX TO EXHIBITS
DEVON GROUP, INC.
EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
Exhibit No. Description
3.1 Restated Certificate of Incorporation of Devon Group, Inc.*
3.2 By-Laws of Devon Group, Inc.*
4.1 Devon Group, Inc. 1995 Non-Qualified Stock Option Plan and
Form of Option Agreement
5.1 Opinion and Consent of Robert A. Frasco, Esq.
23.1 Consent of KPMG Peat Marwick LLP
* Incorporated by reference from the Corporation's Registration
Statement on Form S-8 (Registration # 33-75060) previously
filed with the Commission on February 7, 1994.
II-8
PAGE 1
EXHIBIT 5.1
Opinion and Consent of Counsel
November 1, 1995
Devon Group, Inc.
281 Tresser Boulevard, Suite 501
Stamford, Connecticut 06901-3227
Attention: Board of Directors
Devon Group, Inc.
360,000 Shares of Common Stock, $.01 par value
Registration Statement No.
Dear Sirs:
I have acted as counsel for Devon Group, Inc., a Delaware corporation
(the "Company"), in connection with the registration under the Securities
Act of 1933 (the "Securities Act") of 360,000 shares (the "Shares") of
Common Stock, $.01 par value (the "Common Stock"). The Shares will be
issued by the Company to certain directors and employees pursuant to a 1995
Non-Qualified Stock Option Plan, effective as of July 25, 1995.
In that connection, I have examined originals, or copies certified or
otherwise identified to my satisfaction, of such documents, corporate
records and other instruments as I have deemed necessary for the purposes
of rendering the opinions set forth below, including the following: (a)
the Restated Certificate of Incorporation, as amended, of the Company; (b)
the By-laws of the Company; and (c) the 1995 Non-Qualified Stock Option
Plan of the Company.
Based upon the foregoing, I am of the opinion as follows:
1. The Company is a validly existing corporation under the laws
of the State of Delaware.
2. The issuance and sale of the Shares have been duly authorized
and, when issued, delivered and paid for pursuant to the 1995 Non-Qualified
Stock Option Plan, the shares will be validly issued, fully paid and
nonassessable.
I am admitted to the Bar of the State of New York and I express no
opinion as to the laws of any other jurisdiction. However, to the extent
that matters of Delaware corporate law are involved in the opinions set
forth above, you are aware that I am not admitted to the Bar of the State
of Delaware and am not an expert in the law of such jurisdiction.
Accordingly, such opinions concerning Delaware corporate law are based upon
my reasonable (although not necessarily complete) familiarity with the
Delaware General Corporation Law as a result of my prior involvement in
transactions involving such law.
I know that I am referred to under the heading "Interest of Named
Experts and Counsel" in the Prospectus forming a part of the Registration
Statement on Form S-8 relating to the Shares filed with the Securities and
Exchange Commission pursuant to the Securities Act, and I hereby consent to
such use of my name in said Registration Statement and to the use of this
opinion for filing with said Registration Statement as Exhibit 5.1 thereto.
Very truly yours,
s/Robert A.Frasco
Robert A.Frasco
Vice President and General Counsel
Exhibit 23.1
The Board of Directors
Devon Group, Inc.
We consent to the use of our reports incorporated herein by reference and
to the reference to our firm under the heading "Experts" in the prospectus.
s/KPMG Peat Marwick LLP
Stamford, Connecticut
November 1, 1995
DEVON GROUP, INC.
1995 Non-Qualified Stock Option
Fee Calculation
November 1, 1995
Maximum Aggregate
Stock Options Number of Options Offering Price
Stock Options granted
@ $34.25 205,000 X $34.25 7,021,250
Stock Options not
yet granted 155,000 X $37.875* 5,780,625
360,000 12,891,875
X.00034483
$4,445.51
* Average of bid and ask price on November 8, 1995
Exhibit 4.1
Effective: July 25, 1995
DEVON GROUP, INC.
1995 NON-QUALIFIED STOCK OPTION PLAN
1. PURPOSE
The purposes of this Plan are: (a) to further the growth and
success of Devon Group, Inc. and its subsidiaries (collectively, the
"Company") by enabling directors and employees of the Company to acquire
shares of its Common Stock, $.01 par value (the "Common Stock"), under
the terms and conditions and in the manner contemplated by this Plan,
thereby increasing their personal involvement and interest in the
Company; (b) to enable the Company to obtain and retain the services of
directors and key employees necessary to the growth and development of
the Company; and (c) to provide a means of rewarding outstanding
performance.
2. ADMINISTRATION OF PLAN
(a) The Plan shall be administered by a committee (the "Committee")
consisting of two or more directors appointed from time to time by the
Board of Directors of the Company (the "Board"); provided, however,
that, so long as the Plan shall be required to comply with Rule 16b-3
("Rule 16b-3") promulgated by the Securities and Exchange Commission
(the "SEC") under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), in order to permit transactions pursuant to the Plan by
officers and directors of the Company to be exempt from the provisions
of Section 16(b) of the 1934 Act, the Plan shall be administered by the
Committee and each member of the Committee, at the effective date of his
or her appointment to the Committee, shall be a "disinterested person"
within the meaning of Rule 16b-3. The members of the Committee may be
removed at any time either with or without cause by the Board. Any
vacancy on the Committee, whether due to action of the Board or any
other cause, shall be filled by the Board.
(b) The Committee shall authorize the issuance of options under the
Plan and (subject to the terms of the Plan) shall have complete
authority to construe, interpret, and administer the Plan. A majority
of the entire Committee shall constitute a quorum and the actions of a
majority of the members of the Committee present at a meeting which a
quorum is present, or actions approved in writing by all of the members
of the Committee, shall be the actions of the Committee; provided,
however, that if the Committee consists of only two members, both shall
be required to constitute a quorum and to act at a meeting or to approve
actions in writing. Anything contained in this Plan to the contrary
notwithstanding, a member of the Committee shall not be eligible to
receive options under the Plan.
3. ELIGIBLE EMPLOYEES AND LIMITATION ON GRANTS
From time to time, the Committee may grant options under this Plan
to (i) any director of the Company who at the time the options are
granted to him is not a member of the Committee or (ii) any person
employed by the Company at the time the options are granted to him, in
such amounts, at such prices (subject to the minimum price requirements
set forth in Section 5) and upon such other terms and conditions not
inconsistent with this Plan as the Committee, in its discretion, may
determine. A person who has been granted an option (hereinafter
referred to as an "Optionee") may, if otherwise eligible, be granted
additional options if the Committee shall so determine.
4. SHARES SUBJECT TO THE PLAN
The capital stock with respect to which options may be granted
under this Plan shall consist of shares of the Company's authorized but
unissued Common Stock. The aggregate number of shares of Common Stock
which may be issued upon the exercise of all options granted under this
Plan shall not exceed 360,000 shares, subject to adjustment as provided
in Section 13. Shares subject to unexercised portions of any terminated
or expired options shall again be available for the granting of options
under the Plan.
5. EXERCISE PRICE
The exercise price for the shares of Common Stock to be issued
pursuant to the exercise of an option granted under this Plan shall be
determined in each case by the Committee and set forth in each stock
option agreement between the Company and the Optionee. In no event
shall such option price be less than 100% of the fair market value of
the shares of Common Stock subject to the option (as determined by the
Committee) on the date the option is granted.
6. EXERCISE OF OPTIONS
Each stock option agreement shall state the period or periods of
time within which the option may be exercised by the Optionee, in whole
or in part, which shall be such period or periods of time as may be
determined by the Committee; provided, that no option granted under this
Plan shall be exercisable more than 10 years after the date of its
grant. Each option shall be exercisable during its term, in whole or in
part, as determined by the Committee, and shall be exercisable with
respect to whole shares only. At any time, the Committee and the
Optionee may agree to accelerate the exercise date or dates for any
outstanding option.
An option granted under this Plan shall be exercised by delivery to
the Secretary of the Company of: (a) a notice in writing from the
Optionee of his intention to purchase shares, specifying the number of
shares as to which the Optionee desires to exercise his option and the
date upon which the Optionee desires to complete his purchase (which
must be within the exercise periods specified in the stock option
agreement); (b) any representations of the Optionee required under
Section 15; and (c) cash in the form of a certified check for the cash
portion of the exercise price with respect to the number of shares for
which the option is being exercised and/or, if permitted under the terms
of the stock option agreement, the certificate(s) representing the
shares to be delivered to the Company and canceled in payment of all or
a portion of the exercise price with respect to the number shares being
acquired pursuant to the exercise of the option.
Notwithstanding anything to the contrary contained herein or in any
stock option agreement, each option held by any Optionee shall, upon a
Change of Control (as defined below), become exercisable in full for the
aggregate number of shares covered thereby until the end of the seven-
month period commencing with such Change of Control; provided, however,
that such right to full exercise may be limited by the Committee prior
to such Change of Control to the extent such limitation is, in the sole
judgment of the Committee, necessary or advisable to avoid any adverse
income tax consequences to the Company or such Optionee as a result of
such exercise. For the purposes of this Section 6, "Change of Control"
means the occurrence of any of the following: (i) any person or group
(other than any employee or group which includes employees of the
Company) becoming the beneficial owner of 50% or more of the shares of
the Company then entitled to vote for the election of directors, (ii)
any employee or group which includes employees of the Company becoming
the beneficial owner of 100% of such shares, or (iii) more than one-half
of the Board of Directors of the Company being constituted by persons
who were not (A) members of the Board of Directors on July 25, 1995, or
(B) recommended or elected to the Board of Directors by a majority of
those members of the Board of Directors consisting of members referred
to in clause (A) and members so recommended or elected.
Upon the effectiveness of any merger, consolidation, liquidation or
dissolution of the Company, or of the sale of all or substantially all
of the assets of the Company (a "Corporate Transaction"), each option
held by any Optionee shall automatically terminate, unless provision
shall be made in connection with such Corporation Transaction for the
assumption of such option by, or the substitution for such option of a
new option covering the stock of, the surviving, successor or purchasing
corporation or a parent or subsidiary thereof, with appropriate
adjustments to the exercise price of and the kind and number of shares
covered by such assumed or new option. Upon the approval by the
stockholders of the Company of any Corporation Transaction, unless
provision has been made for the assumption of or substitution for such
option as described in the preceding sentence, each option held by any
Optionee shall become exercisable in full for the aggregate number of
shares covered thereby until the effectiveness of such Corporate
Transaction.
7. SURRENDER OF SHARES FOR PAYMENT OF EXERCISE PRICE
The Committee, in its discretion, may allow all or a portion of the
exercise price to be paid by the Optionee's surrender and cancellation
of outstanding shares of Common Stock already owned by the Optionee,
valued at their fair market value on the exercise date.
The "fair market value" of the surrendered shares of Common Stock,
if shares of Common Stock are publicly traded, shall be equal to the
closing price on the last business day shares of Common Stock were
traded preceding the date of exercise. If there is no public trading
market for such shares, the Committee in its sole discretion shall
determine the fair market value of the shares of Common Stock and such
determination shall be final and binding; provided, however, that if the
Optionee objects to the fair market value of the surrendered shares as
determined by the Committee, the Optionee may deliver a notice in
writing to the Secretary of the Company of his intention not to exercise
his options. Such notice shall be deemed to revoke the Optionee's
notice pursuant to Section 6 and the surrendered shares of Common Stock
shall be returned to the Optionee.
8. TERMINATION OF UNEXERCISED OPTIONS FOLLOWING TERMINATION OF EMPLOYMENT
If an Optionee ceases to be a director or an employee of the
Company other than because of his death or total disability, all or any
portion of the Optionee's option which is otherwise exercisable by its
terms and has not been previously exercised shall expire three months
following the date of such termination and shall thereafter be of no
further force and effect. If an Optionee ceases to be a director or an
employee of the Company because of his death or total disability, an
otherwise exercisable option shall expire one year following the date of
such termination and shall thereafter be of no further force and effect.
Total disability as used in this Section, shall have the meaning
determined by the Committee from time to time, in its discretion.
9. NONTRANSFERABILITY OF OPTIONS
Each option issued under this Plan shall not be transferable by the
Optionee otherwise than by will or the laws of descent and distribution,
or pursuant to a qualified domestic relations order and shall be
exercisable, during the Optionee's lifetime, only by the Optionee.
10. DURATION OF PLAN
This Plan shall terminate on, and no option shall be granted under
this Plan after 10 years from the date this Plan becomes effective.
11. OPTION AGREEMENTS
Each option granted under this Plan shall be evidenced by a stock
option agreement between the Company and the Optionee which agreement
shall be executed by a duly authorized officer of the Company, shall
comply with the provisions of this Plan, and shall be in a form approved
by the Committee.
12. STOCKHOLDER RIGHTS
An Optionee shall have none of the rights of a stockholder with
respect to the shares subject to his option until such shares have been
issued to the Optionee pursuant to his exercise of the option.
13. ADJUSTMENT UPON CHANGES IN CAPITALIZATION
If the outstanding shares of Common Stock of the Company are
increased, decreased or changed into or exchanged for a different number
or kind of shares or securities of the Company through reorganization,
merger, recapitalization, reclassification, stock split-up, stock
dividend, stock consolidation or otherwise, an appropriate and
proportionate adjustment shall be made in the number and kind of shares
subject to options under this Plan. A corresponding adjustment changing
the number or kind of shares allocated to, and the exercise price per
share of, options or portions thereof outstanding at the time of such
change shall likewise be made. Any such adjustment of an outstanding
option shall be made without changing the total price applicable to the
unexercised portion of the option.
Any adjustments under this Section shall be made by the Committee.
No fractional shares of stock shall be issued under this Plan on account
of any such adjustment.
The grant of an option pursuant to this Plan shall not affect in
any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital structure,
to merge, consolidate or dissolve, or to liquidate, sell or transfer all
or any part of its business or assets.
14. AMENDMENT OR DISCONTINUANCE
The Board may at any time terminate or amend the Plan in any
respect; provided, however, that the approval of the holders of a
majority of the votes that may be cast by all of the holders of shares
of Common Stock and preferred stock of the Company, if any, entitled to
vote (voting as a single class) shall be obtained prior to any such
amendment becoming effective if such approval is required by law or is
necessary to comply with regulations promulgated by the SEC under
Section 16(b) of the 1934 Act; and, further provided, that no such
termination or amendment shall adversely affect any option theretofore
granted but not exercised under this Plan without the consent of the
holder of such option.
15. COMPLIANCE WITH SECURITIES LAWS
No options shall be granted under this Plan, and no shares shall be
purchased upon the exercise of any option, unless and until any then
applicable securities laws or requirements of any regulatory agencies
having jurisdiction and of any exchanges upon which stock subject to
said options of the Company may be listed shall have been fully complied
with.
At the time of the exercise of any option hereunder, the Committee,
in its discretion, may require assurances or representations
satisfactory to it from the person exercising such option appropriate to
satisfy the requirements of applicable Federal and state securities
laws, any regulatory agencies having jurisdiction, and any exchanges
upon which stock subject to said option of the Company may be listed.
16. WITHHOLDING AND EMPLOYMENT TAXES
At the time of exercise of an option, the Optionee shall remit to
the Company in cash all applicable Federal and state withholding and
employment taxes.
17. EMPLOYMENT
Nothing contained in this Plan shall be deemed to give any Optionee
a right to the continuation of his employment by the Company to which he
is not otherwise entitled or to be nominated as a director, nor shall
the Company be under any obligation by virtue of this Plan to retain any
Optionee as an employee or director for any period.
18. NUMBER AND GENDER
With respect to words used in this Plan, the singular form shall
include the plural form, the masculine gender shall include the feminine
gender, and vice versa, as the context requires.
19. ADOPTION AND EFFECTIVE DATE OF PLAN
This Plan was adopted by resolution of the Board on May 2, 1995 and
shall become effective upon the written consent of the holders of a
majority of the securities of the Company entitled to vote, or approval
by stockholders at a validly called stockholders meeting and holding a
majority (or such greater number as may be required by law or applicable
governmental regulations or orders) of the shares voting at such
meeting.
Exhibit 4.1
OPTION AGREEMENT dated July 25, 1995,
between DEVON GROUP, INC., a
Delaware corporation (hereinafter
called the "Company"), and
an employee of the Company or of a
subsidiary corporation (hereinafter
called the "Employee").
The Company desires, by affording the Employee an opportunity
to purchase shares of its Common Stock, par value $.01 per share
(hereinafter called "Common Stock"), to further the objectives of the
"Devon Group, Inc. 1995 Non-Qualified Stock Option Plan" (hereinafter
called the "Plan"), thereby providing the Employee with an added
incentive to continue his services to the Company and to raise his
personal interest in and profit from the success of the Company.
NOW, THEREFORE, in consideration of the mutual covenants
herein set forth and for other good and valuable considerations, the
parties hereto have agreed, and do hereby agree, as follows:
1. The Company hereby grants to the Employee, as a matter of
separate agreement and not in lieu of salary or any other compensation
for services, the right and option (hereinafter called the Option) to
purchase all or any part of an aggregate of shares of Common
Stock on the terms and conditions herein set forth.
2. The purchase price of the shares of Common Stock subject to
the Option shall be $ per share.
3. The term of the Option shall be for a period of six years
from the date hereof, or such shorter period as is prescribed in
paragraphs 5 and 6 hereof. The Option shall be eligible for exercise as
follows: to the extent of 10% of the number of shares specified in
paragraph 1 hereof, after January 25, 1996, to the extent of an
additional 20% after July 25, 1997; to the extent of an additional 20%
after July 25, 1998; to the extent of an additional 20% after
July 25, 1999; and to the extent of an additional 30% after July 25, 2000;
and such installments shall be cumulative. The Option may be exercised,
at any time or from time to time during said term, as to all full shares
which have become so purchasable, but in no case may the Option be
exercised as to less than 100 shares at any one time. Except as provided
in paragraphs 5 and 6 hereof, the Option may not be exercised unless the
Employee shall, at the time of exercise, be an employee of the Company or
of a subsidiary corporation. At any time, the Compensation Committee of
the Board of Directors and the Employee may agree to accelerate the
exercise date or dates for any outstanding Option. The Employee shall
have none of the rights of a stockholder with respect to any of the shares
of Common Stock subject to the Option until such shares shall be issued
to him upon the exercise of the Option.
4. The Option shall not be transferable otherwise than by will
or the laws of descent and distribution, and the Option shall be
exercisable, during the lifetime of the Employee, only by him. More
particularly (but without limiting the generality of the foregoing),
the Option may not be assigned, transferred (except as aforesaid),
pledged or hypothecated in any way (whether by operation of law or
otherwise), and shall not be subject to execution, attachment or
similar process. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of the Option contrary to the
provisions hereof, and the levy of any execution, attachment, or
similar process upon the Option, shall be null and void and without
effect.
5. In the event of the termination of the employment of the
Employee otherwise than by reason of death, or total disability (as
defined by the Compensation Committee of the Board of Directors, from
time to time, in its discretion), he may exercise the Option, to the
extent that he was entitled to do so pursuant to the provisions of
paragraph 3 hereof at the time of such termination, at any time within
three months after such termination, but not after ten years from the
date hereof. The Option shall not be affected by any change of
employment so long as the Employee continues to be an employee of the
Company or of a subsidiary corporation (or by any temporary leave of
absence approved, if for a period of not more than ninety days, by an
officer of the Company or the subsidiary corporation, as the case may
be, by which the Employee is employed or, if for a period longer than
ninety days, approved by the Compensation Committee of the Board of
Directors of the Company). Nothing herein contained shall confer on
the Employee any right to continue in the employ of the Company or any
subsidiary corporation or interfere in any way with the right of the
Company or any subsidiary corporation, or the right of the Employer, to
terminate the employment of the Employee at any time.
6. In the event of the death or total disability of the
Employee while he is employed by the Company or a subsidiary
corporation, the Option, may be executed by a legatee or legatees of
the Option under the Employee's last will, or by the personal
representatives or distributees of the Employee, at any time within a
period of one year after the death or total disability of the Employee,
but not after ten years from the date hereof, to the extent of the
number of shares purchasable by the Employee at the date of his death
or disability.
7. If all or any portion of the Option is exercised subsequent
to any stock dividend, stock split, recapitalization, combination or
exchange of shares, reorganization (including, but not limited to,
merger or consolidation), liquidation or other event occurring after
the date hereof, as a result of which any shares or other securities of
the Company or of any other entity (including, but not limited to, any
subsidiary of the Company) shall be issued in respect of the
outstanding shares of Common Stock, or shares of Common Stock shall be
changed into the same or a different number of shares or other
securities of the same or another class or classes,
the person or persons so exercising the Option shall receive, for the
aggregate price paid upon such exercise, the class and aggregate number
of shares or other securities which, if shares of Common Stock (as
authorized at the date hereof) had been purchased on the date hereof
for the same aggregate price (on the basis of the price per share set
forth in paragraph 2) and had not been disposed of, such person or
persons would be holding at the time of such exercise as a result of
such purchase and any and all such stock dividends, stock splits,
recapitalizations, combinations or exchanges of shares,
reorganizations, liquidations or other events. In the event of any
corporate separation or division (including, but not limited to, split-
up, split-off, or spin-off) as a result of which any shares or other
securities of any entity other than the Company (including, but not
limited to, any subsidiary of the Company) shall be distributed in
respect of the outstanding shares of Common Stock, the Compensation
Committee of the Board of Directors shall make such adjustments in the
terms of the Option (including, but not limited to, the number of
shares covered and the purchase price of such shares) as it may deem
appropriate to provide equitably for the Employee's interest in the
Option. Upon any adjustment as aforesaid, the minimum number of full
shares which may be purchased upon any exercise of the Option as
specified in paragraph 3 shall be adjusted proportionately. No
fractional shares shall be issued upon any exercise of the Option, and
the aggregate price paid shall be appropriately reduced on account of
any fractional share not issued.
8. Subject to the terms and conditions of this Agreement, the
Option may be exercised by written notice to the Company at its office
at 281 Tresser Boulevard, Stamford, Connecticut 06901, attention of the
Secretary. Such notice shall state the election to exercise the
Option, the number of shares in respect of which it is being exercised,
the date upon which the employee desires to complete his purchase, and
shall be signed by the person or persons so exercising the Option. The
notice shall be accompanied by the payment of the full purchase price
of said shares. Payment may be made by certified check payable to the
order of the Company, and/or by delivery of certificates of Common
Stock already owned and fully endorsed by the Employee (valued at their
fair market value on the exercise date, as defined below). The Company
shall deliver a certificate or certificates representing said shares as
soon as practicable after the notice shall be received by the Company.
The certificate or certificates for the shares as to which the Option
shall have been so exercised shall be registered in the name of the
person or persons so exercising the Option and shall be delivered as
aforesaid to or upon the written order of the person or persons
exercising the Option. In the event the Option shall be exercised,
pursuant to paragraph 6 hereof, by any person or persons other than the
Employee, such notice shall be accompanied by appropriate proof of the
right of such person or persons to exercise the Option. All shares
that shall be purchased upon the exercise of the Option as provided
herein shall be fully paid and nonassessable. The Employee agrees at
the time of the exercise of an Option, the Employee shall remit to the
Company in cash all applicable Federal and State withholding and
employment taxes. The "fair market value" of the surrendered shares of
Common Stock, if such shares are publicly traded, shall be equal to the
average of the daily closing prices (or the means between the last bid
and asked prices for a day on which no sales took place) of the 30
business days immediately preceding the date of exercise. If there is
no public trading market for such shares, the Compensation Committee of
the Board of Directors in its sole discretion shall determine the fair
market value of the shares of Common Stock and such determination shall
be final and binding; provided, however, that if the Employee objects
to the fair market value of the surrendered shares as determined by the
Committee, the Employee may deliver a notice in writing to the
Secretary of the Company of his intention not to exercise his options.
Such notice shall be deemed to revoke the Employee's notice pursuant to
Section 6 and the surrendered shares of Common Stock shall be returned
to the Employee.
9. The Employee hereby represents and warrants and covenants
that unless a registration statement covering the shares of Common
Stock to be issued under the Plan shall be effective under the
Securities Act of 1933, the shares that will be issued upon exercise of
the Option shall be acquired for investment and not with a view to the
distribution or resale thereof. At the time of the exercise of any
Option hereunder, the Compensation Committee of the Board of Directors,
in its discretion, may require assurances or representations
satisfactory to it from the person exercising such Option appropriate
to satisfy the requirements of applicable Federal and State securities
laws, any regulatory agencies having jurisdiction, and any exchanges
upon which stock subject to said Option of the Company may be listed.
10. The Company shall at all times during the term of the
Option reserve and keep available such number of shares of Common Stock
as will be sufficient to satisfy the requirements of this Agreement,
shall pay all original issue and/or transfer taxes with respect to the
issue and/or transfer of shares pursuant hereto and all other fees and
expenses necessarily incurred by the Company in connection therewith
and will from time to time use its best efforts to comply with all laws
and regulations which, in the opinion of counsel for the Company, shall
be applicable thereto.
11. As used herein, the term "subsidiary corporation" shall
mean any present and future subsidiary corporation of the Company, and
the term "Common Stock" shall mean the class of Common Stock of the
Company as authorized at the date hereof.
12. The Employee agrees that he will promptly notify the
Company by written notice at its office at the address set forth in
paragraph 8 of any disposition of shares of Common Stock acquired by
the Employee upon any exercise of the Option.
13. This Agreement shall be subject to and governed by the
terms of the Plan.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
duly executed by its officer thereunto duly authorized, and the
Employee has hereunto set his hand, all on the day and year first above
written.
DEVON GROUP, INC.
By
Marne Obernauer, Jr.
Chairman
Employee
