<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 22, 1995.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
BESTWAY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 81-0332743
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
7800 STEMMONS FREEWAY
SUITE 320
DALLAS, TEXAS 75247
(ADDRESS OF PRINCIPAL (ZIP CODE)
EXECUTIVE OFFICES)
BESTWAY, INC.
INCENTIVE STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
R. BROOKS REED
CHAIRMAN OF THE BOARD,
PRESIDENT AND CHIEF EXECUTIVE OFFICER
7800 STEMMONS FREEWAY
SUITE 320
DALLAS, TEXAS 75247
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(214) 630-6655
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
-----------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================
Proposed Maximum
Proposed Maximum Aggregate Amount of
Title of Securities Amount to be Offering Price Offering Registration
to be Registered Registered(1) Per Share(3) Price(3) Fee(3)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value
("Common Stock") . . . . . . . . . . 225,000 $6.25 $1,406,250 $485.00
============================================================================================================
</TABLE>
(1) The number of shares of Common Stock set forth is the maximum aggregate
number of shares that it is anticipated will be purchased by the Plan.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to
be offered pursuant to the employee benefit plan described herein.
(3) Calculated on the basis of the average of the bid and asked sales price of
the Common Stock of Bestway, Inc. on June 19, 1995, as reported by the
National Quotation Bureau, Inc., and as adjusted to reflect the 500:1
reverse stock split of the Common Stock effected on June 6, 1995 and the
subsequent reclassification of the Common Stock pursuant to which each
share of Common Stock was converted into ten shares, effected on June 7,
1995.
-----------------
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents constituting Part I of this Registration Statement will be
sent or given to employees as specified by Rule 428(b)(1) promulgated under the
Securities Act of 1933, as amended (the "Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Bestway, Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this registration statement:
(1) The Company's latest Annual Report on Form 10-K for the fiscal
year ended July 31, 1994, as filed with the Commission on October 28, 1994.
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
October 31, 1994, as filed with the Commission on December 13, 1994.
(3) The Company's Quarterly Report on Form 10-Q for the quarter ended
January 31, 1995, as filed with the Commission on March 16, 1995.
(4) The Company's Quarterly Report on Form 10-Q for the quarter ended
April 30, 1995, as filed with the Commission on June 13, 1995.
(5) The description of the Company's Common Stock contained in the
Registration Statement on Form S-1 (No. 2- 69421) filed with the Commission
on October 6, 1980, as amended by Amendment No. 1 thereto filed with the
Commission on November 12, 1980, and Amendment No. 2 thereto filed with the
Commission on December 3, 1980.
In addition, all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
1
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") empowers a
corporation to indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding by reason of the fact that he is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
enterprise. Section 145 also allows a corporation to purchase and maintain
insurance on behalf of any such person.
Section 10.1 of the Company's Amended and Restated Bylaws (the "Bylaws")
provides that the Company shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding by reason of the fact that such person was or is a
director, trustee, officer, employee or agent of the Company, or was or is
serving at the request of the Company as a director, trustee, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
Company, and with respect to any criminal action or proceeding, such person had
no reasonable cause to believe his conduct was unlawful.
Section 10.2 of the Bylaws provides for similar indemnification with
respect to such person who is involved in an action or suit by or in the right
of the Company to procure a judgment in the Company's favor; provided that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for gross negligence or
willful misconduct in the performance of his duty to the Company, unless the
court determines that such person is fairly and reasonably entitled to
indemnity for the expenses as the court shall deem proper.
To the extent that a person is successful in a defense of any action, suit
or proceeding referred to in Sections 10.1 and 10.2 of the Bylaws, such person
shall be indemnified against expenses reasonably incurred in connection
therewith, as may be determined by a majority vote of a quorum of directors not
party to the action, or, in the alternative, if such quorum is unobtainable, by
a majority vote of directors not party to the action, or by independent legal
counsel or the stockholders. The indemnification provided for in the Bylaws is
not exclusive of any other rights to indemnification to which a person may be
entitled.
Section 10.7 of the Bylaws authorizes the Company to purchase and maintain
insurance on behalf of any person who is or was a director, trustee, officer,
employee or agent of the Company or serving in such capacities at the request
of the Company for any other entities, against any liability asserted against
such person and incurred by such person with respect to any of the
above-referenced capacities, whether or not the Company would have the power to
indemnify such person against such liability.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Index to Exhibits on Page 6.
2
<PAGE> 4
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement:
Provided, however, that paragraphs (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 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.
(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 Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities 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 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe 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 Dallas, State of Texas on June 22, 1995.
BESTWAY, INC.
By:
-------------------------------------------
R. Brook Reed
Chairman of the Board, President and Chief
Executive Officer
The undersigned directors and officers of Bestway, Inc. hereby constitute
and appoint R. Brooks Reed, with full power to act and with full power of
substitution and resubstitution, our true and lawful attorney-in-fact with full
power to execute in our name and behalf in the capacities indicated below any
and all amendments (including post- effective amendments and amendments
thereto) 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 and hereby ratify and confirm all that such
attorney-in-fact, or either of them, or his substitutes shall lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on June 22, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ----------------------------------------------- -----------------------------------
<S> <C>
President, Chief Executive Officer
- ----------------------------------------------- and Chairman of the Board (Principal Executive
R. Brooks Reed Officer)
Director
- -----------------------------------------------
Jack E. Meyer
Director
- -----------------------------------------------
James A. O'Donnell
Vice President - Controller
- ----------------------------------------------- (Principal Financial and Accounting Officer)
Beth A. Durrett
</TABLE>
S-1
<PAGE> 6
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ----------------------------------------------- -----------------------------------
<S> <C>
Vice President - Marketing
- -----------------------------------------------
Teresa A. Sheffield
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the
administrator of the Plan has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Dallas, State of Texas on June 22, 1995.
BESTWAY, INC. INCENTIVE STOCK OPTION
PLAN
By: Compensation Committee
By:
----------------------------------
Jack E. Meyer
James A. O'Donnell
S-2
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER EXHIBIT NUMBERED PAGE
- ------ ------- -------------
<S> <C>
**4.1 - Capital Restructuring Agreement, dated July 19, 1993, between the
Company and O'Donnell & Masur, L.P.
**4.2 - First Amended Revolving Credit Loan Agreement, dated August 19, 1993,
between the Company and Comerica Bank-Texas.
*4.3 - Specimen of certificate representing Common Stock, $.01 par value,
of the Company.
*4.4 - Bestway, Inc. Incentive Stock Option Plan.
*4.5 - Form of Incentive Stock Option Agreement pursuant to Incentive Stock Option Plan.
*5 - Opinion and consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
*23.1 - Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included in
Exhibit 5).
*23.2 - Consent of Coopers & Lybrand L.L.P.
*24 - Powers of Attorney (included in signature page hereto).
</TABLE>
- --------------------
* Filed herewith
** Incorporated by reference to the Form 8-K filed on behalf of the Company
with the Commission on September 2, 1993.
E-1
<PAGE> 1
EXHIBIT 4.3
[NUMBER] [SHARES]
BESTWAY, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
This Certifies that CUSIP 086584 20 8
SEE REVERSED FOR CERTAIN DEFINITIONS
SPECIMEN SPECIMEN SPECIMEN
is the owner of
fully paid and non-assessable Shares of the Common Stock, of the par value of
one cent each of
BESTWAY, INC.
transferable on the books of the Corporation of the holder hereof in person or
by duly authorized attorney upon the surrender of this certificate properly
endorsed.
This Certificate is not valid until countersigned by the transfer agent
and registered by the registrar.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
DATED Countersigned
/s/ R. BROOKS REED Chairman of the Board Stock Transfer Company
of American, Inc.
P.0. Box 515943
Dallas, Texas 75251
/s/ Beth A. Durrett Secretary Transfer Agent
By
Authorized Signature
[SEAL]
<PAGE> 1
EXHIBIT 4.4
BESTWAY, INC.
INCENTIVE STOCK OPTION PLAN
1. PURPOSE. The purpose of this Bestway, Inc. Incentive Stock
Option Plan (hereinafter referred to as the "Plan") is to further the success
of Bestway, Inc., a Delaware corporation (the "Company"), and its affiliates by
making available Common Stock of the Company for purchase by officers and
employees of the Company or its affiliates, and thus to provide an additional
incentive to such individuals to continue in the service of the Company or its
affiliates and to give them a greater interest as shareholders in the success
of the Company.
2. DEFINITIONS. As used in this Plan, the terms set forth below
shall have the indicated meanings:
(a) "BOARD" means the Board of Directors of the Company.
(b) "CODE" means the Internal Revenue Code of 1986.
(c) "COMMITTEE" means the Committee administering the Plan described
in Paragraph 3 hereof.
(d) "COMMON STOCK" means the Company's common stock, par value $.01
per share.
(e) "COMPANY" means Bestway, Inc., a Delaware corporation, and any
successor in interest.
(f) "DATE OF GRANT" means the date on which an Option is granted
under a written Option Agreement executed by the Company and a Participant
pursuant to the Plan.
(g) "DISINTERESTED PERSON" means a "disinterested person" as defined
in Rule 16b-3 promulgated under the Exchange Act or any successor provision.
In general, and subject to Rule 16b-3, a "disinterested person" is a director
who, during the one-year period prior to his or her service on the Committee,
was not granted a stock option or other equity security of the Company or any
of its affiliates, except as expressly permitted under the Rule.
(h) "EFFECTIVE DATE" means the effective date of this Plan specified
in Paragraph 14 hereof.
(i) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as it
may be amended from time to time.
-1-
<PAGE> 2
(j) "FAIR MARKET VALUE" means, as of a particular date, the last
price at which shares of the Common Stock were traded on such date as reported
on the over-the-counter exchange or market on which the Common Stock is traded
or, if the Common Stock is not traded on such exchange or market, as reported
on any other national securities exchange or market on which the Common Stock
may be traded, including the New York Stock Exchange, if applicable. If the
Common Stock was not traded on such date, the nearest preceding trading date
shall be substituted in the preceding sentence. Notwithstanding the foregoing,
however, Fair Market Value shall be determined consistent with Code Section
422(b)(4) or any successor provisions.
(k) "OPTION" means an option granted pursuant to this Plan that
qualifies as an incentive stock option under Section 422 of the Code.
(l) "OPTION AGREEMENT" means a written agreement between the Company
and a Participant pursuant to which Options are granted to a Participant under
this Plan.
(m) "OPTION PRICE" means the price per share of Common Stock,
determined under Paragraph 7(a) hereof, for which an Option may be exercised.
(n) "OPTIONEE" shall mean the person who is entitled to exercise an
Option.
(o) "PARENT" means a parent corporation of the Company as defined in
Section 424(e) of the Code.
(p) "PARTICIPANTS" means the employees and officers of the Company,
its Subsidiaries, and its Parents and those directors of the Company who are
also employees of the Company.
(q) "PLAN" means this Bestway, Inc. Incentive Stock Option Plan.
(r) "RELINQUISHED OPTIONS" means Options relinquished pursuant to
Paragraph 9 hereof.
(s) "SUBSIDIARY" means a subsidiary corporation of the Company as
defined in Section 424(f) of the Code.
3. ADMINISTRATION OF PLAN. The Board of Directors of the Company
shall appoint a committee (the "Committee") composed of not less than two
persons to administer the Plan. Only Disinterested Persons shall be eligible
to serve as members of the Committee. The Committee shall report all action
taken by it to the Board, which shall review and ratify or approve those
actions that are by law required to be so reviewed and ratified or approved by
the Board. The Committee shall have full and final authority in its
discretion, subject to the provisions of the Plan, to determine the
Participants to whom, and the time or times at which, Options shall be granted
and the number of shares covered by each Option; to construe and
-2-
<PAGE> 3
interpret the Plan and any agreements made pursuant to the Plan; to determine
the terms and provisions (which need not be identical or consistent with
respect to each Participant) of the respective Option Agreements and any
agreements ancillary thereto, including, without limitation, terms covering the
payment of the Option Price; and to make all other determinations and take all
other actions deemed necessary or advisable for the proper administration of
this Plan. All such actions and determinations shall be conclusively binding
for all purposes and upon all persons.
4. OPTIONS AUTHORIZED. The Options granted under this Plan shall
be incentive stock options within the meaning of Section 422 of the Code. The
Committee shall have the full power and authority, subject to the Code and
other applicable law, to grant to an Optionee, in exchange for the surrender
and cancellation of an Option, a new Option having a purchase price lower than
that provided in the Option so surrendered and cancelled and containing such
other terms and conditions as the Committee may prescribe in accordance with
the provisions of this Plan. No Options may be granted under the Plan prior to
the Effective Date. In addition to any other limitations set forth herein, the
aggregate Fair Market Value (determined in accordance with Paragraph 7(a) of
the Plan as of the time the Option is granted) of the Common Stock with respect
to which Options are exercisable for the first time by a Participant in any
calendar year (under all plans of the Company and of any Parent or Subsidiary)
shall not exceed $100,000.
5. COMMON STOCK SUBJECT TO OPTIONS. The aggregate number of shares
of the Company's Common Stock that may be issued upon the exercise of Options
shall not exceed 225,000 shares, subject to adjustment under the provisions of
Paragraph 8. The shares of Common Stock to be issued upon the exercise of
Options may be authorized but unissued shares, or shares issued and reacquired
by the Company. In the event any Option shall, for any reason, terminate or
expire or be surrendered without having been exercised in full, the shares
subject to such Option shall again be available for Options to be granted under
the Plan, except that shares for which Relinquished Options (or portions
thereof) are exercisable shall not again be available for the grant of Options
under the Plan.
6. PARTICIPANTS. Except as hereinafter provided, Options may be
granted under the Plan to any Participant. In determining the Participants to
whom Options shall be granted and the number of shares to be covered by such
Option, the Committee may take into account the nature of the services rendered
by the respective Participants, their present and potential contributions to
the Company's success, and such other factors as the Committee in its
discretion shall deem relevant. A Participant who has been granted an Option
under the Plan may be granted an additional Option or Options under the Plan,
in the Committee's discretion.
7. TERMS AND CONDITIONS OF OPTIONS. The grant of an Option under
the Plan shall be evidenced by an Option Agreement executed by the Company and
the applicable Participant and shall contain such terms and be in such form as
the Committee may from time to time approve, subject to the following
limitations and conditions:
-3-
<PAGE> 4
(a) OPTION PRICE. The Option Price per share with respect to each
Option shall be determined by the Committee, but shall in no instance be less
than the Fair Market Value of the shares subject to the Option as of the Date
of Grant.
(b) PERIOD OF OPTION. The expiration date of each Option shall be
fixed by the Committee, but, notwithstanding any provision of the Plan to the
contrary, such expiration date shall not be more than 10 years from the Date of
Grant.
(c) VESTING OF SHAREHOLDER RIGHTS. Neither an Optionee nor his
successor in interest shall have any of the rights of a shareholder of the
Company solely by virtue of the ownership of such Option until the Option is
exercised and a certificate or certificates for shares relating to the Option
are issued to such Optionee or successor.
(d) EXERCISE OF OPTION. Each Option shall be exercisable from time
to time (but not sooner than six months after the Date of Grant) over such
period and upon such terms and conditions as the Committee shall determine, but
not at any time as to less than 25 shares unless the remaining shares that have
become so purchasable are less than 25 shares. After the death of the
Optionee, an Option may be exercised as provided in Paragraph 16 hereof.
(e) NONTRANSFERABILITY OF OPTION. No Option shall be transferable
or assignable by an Optionee, other than by will or the laws of descent and
distribution, and each Option shall be exercisable, during the Optionee's
lifetime, only by him or her or, during periods of legal disability, by his or
her legal representative. No Option shall be subject to execution, attachment,
or similar process.
(f) DISQUALIFYING DISPOSITION. The Option Agreement evidencing any
Options granted under this Plan shall provide that if the Optionee makes a
disposition, within the meaning of Section 424(c) of the Code and regulations
promulgated thereunder, of any share or shares of Common Stock issued to him or
her pursuant to exercise of the Option within the two-year period commencing on
the day after the Date of Grant of such Option or within the one-year period
commencing on the day after the date of issuance of the share or shares to him
or her pursuant to the exercise of such Option, he or she shall, within 10 days
of such disposition date, notify the Company of the sales price or other value
ascribed to or used to measure the disposition of the share or shares thereof
and immediately deliver to the Company any amounts required by law to be
withheld.
(g) LIMITATION ON GRANTS TO CERTAIN SHAREHOLDERS. An Option may be
granted to a Participant only if such Participant, at the time the Option is
granted, does not own, after application of the attribution rules of Section
424(d) of the Code, stock possessing more than 10% of the total combined voting
power of all classes of Common Stock of the Company or of its Parent or
Subsidiary. The preceding restriction shall not apply if at the time the
Option is granted the Option Price is at least 110% of the Fair Market Value,
as of the Date of Grant, of
-4-
<PAGE> 5
the Common Stock subject to the Option and such Option by its terms is not
exercisable after the expiration of five years from the Date of Grant.
(h) CONSISTENCY WITH CODE. Notwithstanding any other provision in
this Plan to the contrary, the provisions of all Option Agreements shall not
violate the requirements of the Code applicable to the Options authorized
hereunder.
8. ADJUSTMENTS. The Committee, in its discretion, may make such
adjustments in the Option Price and the number of shares covered by outstanding
Options if such adjustments are required to prevent any dilution or enlargement
of the rights of the holders of such Options that would otherwise result from
any reorganization, recapitalization, stock split, stock dividend, combination
of shares, merger, consolidation, change of control of the Company, issuance of
rights, or other change in the capital structure of the Company. The
Committee, in its discretion, may also make such adjustments in the aggregate
number of shares that may be subject to the future grant of Options if such
adjustments are appropriate to reflect any transaction or event described in
the preceding sentence.
9. RELINQUISHMENT of Options.
(a) The Committee, in granting Options hereunder, shall have
discretion to provide that an Optionee, or his or her heirs or other legal
representatives (to the extent entitled to exercise the Option under the terms
of applicable law and this Plan), in lieu of purchasing the entire number of
shares subject to purchase pursuant to such Option, shall have the right to
relinquish all or any part of the unexercised portion of the Option (such
portion of the Option relinquished being hereinafter referred to as the
"Relinquished Option") for a number of whole shares of Common Stock equal to
the product of (i) the number of shares of Common Stock subject to the
Relinquished Option and (ii) a fraction, the numerator of which is the excess
of (A) the current Fair Market Value per share, as of the date of
relinquishment, of Common Stock covered by the Relinquished Option over (B) the
Option Price of such Relinquished Option, and the denominator of which is the
Fair Market Value per share of such Common Stock. No fractional shares of
Common Stock will be issued pursuant to the exercise of Relinquished Options.
Rather, cash equal to the fractional amount of such share multiplied by the
Fair Market Value per share will be paid to the Optionee, subject to any
federal income tax withholding and other withholding requirements described in
Paragraph 13 hereof that are applicable.
(b) The Committee, in granting Options hereunder, shall have
discretion to determine the terms upon which such Options shall be
relinquishable, subject to the applicable provisions of the Code and the Plan,
and including such provisions as deemed advisable to permit the exemption from
the operation of Section 16b of the Exchange Act, in whole or in part, of any
such transaction involving such relinquishment. Outstanding Option Agreements
may be amended, if necessary, to permit such exemption.
-5-
<PAGE> 6
10. RESTRICTIONS ON ISSUING SHARES. The exercise of each Option
shall be subject to the condition that if at any time the Company shall
determine in its discretion that the satisfaction of withholding tax or other
withholding liabilities, or that the listing, registration, or qualification of
any shares otherwise deliverable upon such exercise upon any securities
exchange or under any state or federal law, or that the consent or approval of
any regulatory body, is necessary or desirable as a condition of, or in
connection with, such exercise or the delivery or purchase of shares pursuant
thereto, then in any such event, such exercise shall not be effective unless
such withholding, listing, registration, qualification, consent, or approval
shall have been effected or obtained free of any conditions not acceptable to
the Company.
11. USE OF PROCEEDS. The proceeds received by the Company from the
sale of Common Stock pursuant to the exercise of Options granted under the Plan
shall be added to the Company's general funds and used for general corporate
purposes.
12. AMENDMENT, SUSPENSION, AND TERMINATION OF PLAN. The Board may
at any time suspend or terminate the Plan or may amend it from time to time in
such respects as the Board may deem advisable in order that the Options granted
thereunder may conform to any changes in the law or in any other respect which
the Board may deem to be in the best interests of the Company, provided,
however, that without approval by the shareholders of the Company voting the
proper percentage of its voting power, no such amendment shall make any change
in the Plan for which shareholder approval is required of the Company by (a)
Rule 16b-3, promulgated under the Exchange Act; (b) the Code or regulatory
provisions dealing with incentive stock options pursuant to Code section 422;
(c) any rules for listed companies promulgated by any national stock exchange
on which the Company's stock is traded; or (d) any other applicable rule or
law. Unless sooner terminated hereunder, the Plan shall terminate 10 years
after the Effective Date. No Option may be granted during any suspension or
after the termination of the Plan. Except as provided in Paragraph 13, no
amendment, suspension, or termination of the Plan shall, without an Optionee's
consent, impair or negate any of the rights or obligations under any Option
theretofore granted to such Optionee under the Plan.
13. WITHHOLDING. If and to the extent withholding of any amount is
required by law, the Committee may, in its sole discretion, (a) require an
Optionee to remit to the Company a cash amount sufficient to satisfy, in whole
or in part, any federal, state, and local withholding requirements prior to the
delivery of any certificate for shares pursuant to the exercise of an Option
hereunder; (b) grant to an Optionee the right to satisfy, in whole or in part,
any such withholding requirements by electing to require that the Company, upon
any exercise or relinquishment of the Option, withhold from the shares of
Common Stock issuable to the Optionee upon the exercise or relinquishment of
the Option that number of full shares of Common Stock having a Fair Market
Value as of the date of exercise or relinquishment equal to the amount or
portion of the amount required to be withheld; or (c) satisfy such withholding
requirements through another lawful method, including through additional
withholdings against the Optionee's other wages with the Company.
-6-
<PAGE> 7
14. EFFECTIVE DATE OF PLAN. This Plan shall become effective on the
date (the "Effective Date") of the last to occur of (a) the adoption of the
Plan by the Board; and (b) the approval, within 12 months of such adoption, by
a majority (or such other proportion as may be required by state law or the
Articles of Incorporation of the Company) of the outstanding voting shares of
stock of the Company, voted either in person or by proxy, at a duly held
stockholders meeting.
15. TERMINATION OF EMPLOYMENT. Except as may otherwise be provided
in an Option Agreement, in the event of the retirement (with the written
consent of the Company), or other termination of the employment of, a
Participant to whom an Option has been granted under the Plan, other than (a) a
termination that is either (i) for cause (as defined in the applicable Option
Agreement) or (ii) voluntary on the part of the employee and without the
written consent of the Company; or (b) a termination by reason of death, the
employee may exercise his Option at any time within three months after such
retirement or other termination of employment (or within one year after
termination of employment due to disability within the meaning of Code Section
422(c)(6)), or within such other time as the Committee shall authorize
consistent with Code Section 422, but in no event after 10 years from the date
of granting thereof (or such lesser period as may be specified in the Option
Agreement), but only to the extent of the number of shares for which his
Options were exercisable by him at the date of the termination of his
employment. Except as may otherwise be provided in an Option Agreement, in the
event of the termination of the employment of an employee to whom an Option has
been granted under the Plan that is either (i) for cause (as defined in the
applicable Option Agreement) or (ii) voluntary on the part of the employee and
without the written consent of the Company, any Option held by him under the
Plan, to the extent not previously exercised, shall forthwith terminate on the
date of such termination of employment. Options granted under the Plan shall
not be affected by any change of employment so long as the holder continues to
be an employee of the Company, a Subsidiary, or a Parent. The employment
relationship of a Participant shall be treated as continuing intact with an
employer for any period that the Optionee is on military or sick leave or other
bona fide leave of absence, provided that the period of such leave does not
exceed ninety (90) days or a longer period so long as the Participant's right
to reemployment is guaranteed either by statute or by contract. Nothing in the
Plan or in any Option granted pursuant to the Plan shall confer on any
individual any right to continue in the employ of the Company or any of its
Subsidiaries or Parents or interfere in any way with the right of the Company
or any of its Subsidiaries or Parents to terminate his employment at any time.
16. DEATH OF HOLDER OF OPTION. In the event a Participant to whom
an Option has been granted under the Plan dies during, or within three months
after the termination of, his employment by the Company or a Subsidiary or
Parent, such Option (unless it shall have been previously terminated pursuant
to the provisions of the Plan or unless otherwise provided in his Option
Agreement) may be exercised (to the extent of the entire number of shares
covered by the Option whether or not purchasable by the employee at the date of
his death) by the executor or administrator of the Optionee's estate or by the
person or persons to whom the Optionee shall have transferred such Option by
will or by the laws of descent and distribution, at any time
-7-
<PAGE> 8
within a period of 12 months after his death, but not after the exercise
termination date set forth in the relevant Option Agreement.
17. LOANS TO ASSIST IN EXERCISE OF OPTIONS. If approved by the
Board, the Company or any Parent or Subsidiary may lend money or guarantee
loans by third parties to an individual to finance the exercise of any Option
granted under the Plan to carry Common Stock thereby acquired. No such loan to
finance the exercise of an Option shall have an interest rate or other terms
that would cause any part of the principal amount to be characterized as
interest for purposes of the Code. No Optionee shall have any right to receive
such a loan.
-8-
<PAGE> 1
EXHIBIT 4.5
STOCK OPTION AGREEMENT
PURSUANT TO THE BESTWAY, INC.
INCENTIVE STOCK OPTION PLAN
This STOCK OPTION AGREEMENT (the "Agreement") is made as of the _____
day of _____________, 1995, by and between BESTWAY, INC., a Delaware
corporation (the "Company"), and ________________ ("Employee").
W I T N E S S E T H:
The Company has determined that it is in the best interests of the
Company and its shareholders to encourage ownership in the Company by qualified
employees and officers of the Company and its affiliates, thereby providing
additional incentive for them to continue in the employ of the Company or its
affiliates. To that end, an incentive stock option is granted by the Committee
to Employee pursuant, and subject, to the Bestway, Inc. Incentive Stock Option
Plan (the "Plan") on the following terms and conditions:
I.
Defined Terms
Unless otherwise defined herein or, unless the context requires a
different definition, capitalized terms used herein shall have the meanings
assigned to them in the Plan.
II.
Shares Optioned, Option Price and Time of Exercise
Effective as of the date of this Agreement, the Company grants to
Employee, subject to the terms and provisions set forth hereinafter and in the
Plan, the right and option to purchase all or any part of that number of shares
set forth in Exhibit A of the presently authorized but unissued Common Stock,
at the purchase price per share set forth as the Option Price in Exhibit A (the
option hereby granted being hereinafter referred to as the "Option"). The
Option shall be an incentive stock option within the meaning of Section 422 of
the Code.
This Agreement shall not be dated, and the Option shall not be
considered granted or become exercisable, prior to the date on which Employee
delivers to the Company a fully executed counterpart of this Agreement.
Thereafter, the Option shall be exercisable in accordance with the Exercise
Schedule set forth on Exhibit A, subject to any termination, acceleration or
change in such Exercise Schedule as may be set forth in this Agreement apart
from Exhibit A.
<PAGE> 2
Neither the Option nor any other rights granted under this Agreement
may be exercised after the Expiration Date set forth on Exhibit A and, before
that time, the Option may be terminated as hereinafter provided. Once Employee
becomes entitled to purchase any of the shares subject to the Option he shall
be entitled to purchase such shares at any time thereafter, subject to the
others terms and restrictions set forth in this Agreement (including Exhibit
A). No partial exercise of the Option may be for less than 25 full shares
unless the remaining shares that have become purchasable are less than 25
shares.
III.
Exercise Procedure and Withholding
Employee shall exercise the Option by notifying the Company of the
number of shares that he desires to purchase and by delivering with such notice
the full payment for the purchase price of the shares being purchased. Such
purchase price shall be payable in cash.
The Company will, as soon as is reasonably possible, notify the
Employee of the amounts, if any, that must be withheld under federal, state and
local law due to exercise of the Option. The Company shall have no obligation
to deliver certificates for the shares purchased until any such withholding
obligations are satisfied. The Company shall satisfy its withholding
obligations by withholding from the shares to be delivered pursuant to the
exercise that number of shares of Common Stock (valued at Fair Market Value on
the date of withholding) sufficient to satisfy such obligations, subject to
such restrictions or procedures as the Committee deems necessary to satisfy
Rule 16b-3 promulgated under the Exchange Act.
IV.
Termination of Employment
In the event of the retirement (with the written consent of the
Company), or other termination of the employment of, the Employee other than
(a) a termination that is either (i) for Cause or (ii) voluntary on the part of
the Employee and without the written consent of the Company, or (b) a
termination by reason of death, the Employee may exercise the Option at any
time within three months of such retirement or other termination of employment
(or within one year after termination of employment due to Disability), but in
no event after the Expiration Date in Exhibit A, but only to the extent of the
number of shares for which the Option is exercisable by him at the date of the
termination of employment. In the event of a termination of the employment of
the Employee that is either (i) for Cause or (ii) voluntary on the part of the
Employee and without the written consent of the Company, the Option, to the
extent not previously exercised, shall forthwith terminate on the date of such
termination of employment. Except as may be otherwise provided in this
Agreement, the Option granted hereunder shall not be affected by any change of
employment so long as Employee continues to be employed by the Company, a
Parent or a Subsidiary.
- 2 -
<PAGE> 3
"Cause" shall mean (i) the engaging by the Employee in willful,
reckless or grossly negligent misconduct which is materially injurious to the
Company or any of its affiliates, monetarily or otherwise, (ii) the Employee's
conviction of a felony, (iii) a violation by the Employee of any Company
policies that occurs after the giving of a written warning regarding a similar
violation by an officer or other supervising employee of the Company or (iv)
the failure by the Employee to pass any Company-administered drug test.
Notwithstanding the foregoing, the Employee shall in no event be deemed to have
been terminated for Cause unless and until there shall have been delivered to
him a termination notice by the President or the Board of the Company.
"Disability" shall mean disability within the meaning of Code Section
422(c)(6).
In the event the Employee dies during, or within three months after
the termination of his employment by the Company or a Subsidiary or Parent, the
Option (unless it shall have previously terminated) may be exercised (to the
extent of the entire number of shares covered by the Option whether or not
exercisable by the Employee at the date of his death) by the executor or
administrator of the Employee's estate or by the person or persons to whom the
Employee shall have transferred the Option by will or by the laws of descent
and distribution, at any time within a period of one year after his death, but
in no event after the Expiration Date set forth on Exhibit A hereto.
V.
Non-Assignability and Term of Option
The Option shall not be transferable or assignable by the Employee,
otherwise than by will or the laws of descent and distribution and the Option
shall be exercisable, during the Employee's lifetime, only by him or, during
periods of legal disability, by his legal representative. No Option shall be
subject to execution, attachment, or similar process.
In no event may the Option be exercisable to any extent by anyone
after the Expiration Date specified in Exhibit A. It is expressly agreed that,
anything contained herein to the contrary notwithstanding, this Agreement shall
not constitute, or be evidence of, any agreement or understanding, express or
implied, that the Company will employ Employee for any period of time or in any
position or for any particular compensation.
VI.
Rights and Duty of Employee as to Stock
Neither Employee, nor his successor in interest, shall have any of the
rights of a shareholder of the Company with respect to the shares for which the
Option is exercisable until such shares are properly delivered to the Employee
or successor.
- 3 -
<PAGE> 4
Employee shall promptly notify the Company within ten (10) days after
the Employee disposes of any of the shares prior to the expiration of (i) two
years after the Date of Grant set forth on Exhibit A hereto or (ii) one year
after the date of exercise of that portion (or portions) of the Option that
resulted in the purchase of such shares by Employee. Such notification shall
include information giving the date of sale, the number of shares sold and the
price at which such shares were sold. In addition to such notification,
Employee shall promptly deliver to the Company the amount, if any, which the
Committee, in its sole discretion, determines must be withheld under federal,
state and local law.
VII.
Notices
Any notice to be given hereunder shall be in writing and shall be
addressed to the Company, in care of the Committee of the Bestway, Inc.
Incentive Stock Option Plan, at 7800 Stemmons Freeway, Suite 320, Dallas, Texas
75247; and any notice to be given to Employee shall be addressed to the address
designated below the signature appearing hereinafter, or at such other address
as either party may hereafter designate in writing to the other. Any such
notice shall have been deemed duly given when enclosed in a properly sealed
envelope, addressed as aforesaid, registered or certified, and deposited (with
the proper postage and registration or certificate fee prepaid) in the United
States mail.
VIII.
Successors or Assigns of the Company
The Option shall be binding upon and shall inure to the benefit of any
successor of the Company.
IX.
Miscellaneous
(a) Incorporation of Plan. The terms and provisions of the Plan
are hereby incorporated in this Agreement. Unless otherwise specifically
stated herein, such terms and provisions shall control in the event of any
inconsistency between the Plan and this Agreement.
(b) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAW OF
THE STATE OF TEXAS AND ALL APPLICABLE FEDERAL LAW, EXCEPT TO THE EXTENT THAT IT
IMPLICATES MATTERS WHICH ARE THE SUBJECT OF THE GENERAL CORPORATION LAW OF THE
STATE OF DELAWARE WHICH MATTERS SHALL BE GOVERNED BY THE LATTER LAW.
- 4 -
<PAGE> 5
(c) Gender. References to the masculine herein shall be deemed to
include the feminine, wherever appropriate.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, which shall together constitute a valid and binding Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the Company
and the Employee as of the date and year first written above.
BESTWAY, INC.
By:_____________________________________
Title:__________________________________
________________________________________
[signature of Employee]
________________________________________
[printed name of Employee]
Address of Employee:
________________________________________
________________________________________
- 5 -
<PAGE> 6
EXHIBIT A
TO THE
STOCK OPTION AGREEMENT
PURSUANT TO THE
BESTWAY, INC.
INCENTIVE STOCK OPTION PLAN
<TABLE>
<S> <C> <C>
1. Date of Grant: _______________, 1995
2. Employee:
___________________________________________________________________________
3. Number of Shares: ___________________ shares of Common Stock
4. Option Price per Share: $__________________ [Fair Market Value on Date of Grant]
5. Exercise Schedule: Option is exercisable as to 25% of the shares on the first anniversary of
the Date of Grant and is exercisable as to an additional 25% of the shares
on each of the second, third and fourth anniversary dates of the Date of
Grant.
6. Expiration Date: ____________________, 2005
</TABLE>
- 6 -
<PAGE> 1
EXHIBIT 5
[AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. LETTERHEAD]
June 20, 1995
Bestway, Inc.
7800 Stemmons Freeway
Suite 320
Dallas, Texas 75247
Ladies and Gentlemen:
We have acted as counsel to Bestway, Inc., a Delaware corporation (the
"Company"), in connection with the preparation and filing of the Registration
Statement on Form S-8 with the Securities and Exchange Commission, relating to
225,000 shares (the "Shares") of the Company's common stock, $0.01 par value
per share, reserved for issuance under the Bestway, Inc. Incentive Stock Option
Plan.
We have examined and relied upon originals or copies of such corporate
records of the Company, communications or certifications of public officials,
certificates of officers, directors and representatives of the Company and
other documents as we have deemed relevant and necessary for the purpose of
rendering this opinion. In making such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents tendered to us
as originals and the conformity to original documents of all documents
submitted to us as copies.
On the basis of the foregoing examination and assumptions, and in
reliance thereon, it is our opinion that, when sold in the manner contemplated
by the Registration Statement, the Shares will be legally issued, fully paid
and nonassessable.
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement. This opinion may not be quoted without our prior
written consent.
Sincerely,
/s/ AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-8 filed on
June 22, 1995 of our report dated October 25, 1994, on our audits of the
financial statements and financial statement schedules of Bestway Rental, Inc.
Coopers & Lybrand L.L.P.
Dallas, Texas
June 22, 1995
