<PAGE> 1
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GRIFFON CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 11-1893410
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
100 JERICHO QUADRANGLE, JERICHO, NEW YORK 11753
(Address of principal executive offices) (Zip Code)
1997 STOCK OPTION PLAN
1988 NON-QUALIFIED STOCK OPTION PLAN, AS AMENDED
(Full title of the plan)
ROBERT BALEMIAN, PRESIDENT
GRIFFON CORPORATION
100 JERICHO QUADRANGLE
JERICHO, NEW YORK 11753
(Name and address of agent for service)
(516) 938-5544
(Telephone number, including area code, of agent for service)
copy to:
DAVID H. LIEBERMAN, ESQ.
BLAU, KRAMER, WACTLAR & LIEBERMAN, P.C.
100 JERICHO QUADRANGLE
JERICHO, NEW YORK 11753
(516) 822-4820
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Title of Each Proposed Maximum Proposed Maximum
Class of Securities Amount to be Offering Aggregate Amount of
to be Registered Registered Price Per Share (1) Offering Price (1) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,500,000 shs.(3) $13.5625 $20,343,750 $6,165
par value $.25
per share together with
the associated Preferred
Share Purchase Rights (2)
Common Stock, 500,000 shs.(4) $13.5625 $ 6,781,250 $2,055
par value $.25
per share together with
the associated Preferred
Share Purchase Rights (2)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee, based
upon the average of the high and low prices of the Company's Common Stock
reported on the consolidated reporting system on February 4, 1997, pursuant to
Rule 457.
(2) The Registration Statement also covers an indeterminate number of additional
shares of Common Stock which may become issuable pursuant to anti-dilution and
adjustment provisions of the Plan.
(3) Represents shares of Common Stock issuable under the Griffon Corporation
1997 Stock Option Plan.
(4) Represents shares of Common Stock issuable pursuant to the Griffon
Corporation 1988 Non-Qualified Stock Option Plan, As Amended. 500,000 shares of
Common Stock of the 1,000,000 shares of Common Stock issuable under this plan
were previously registered on a Registration Statement on Form S-8, Registration
No. 33-39090.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by the Company with the
Commission (File No. 1-6620) pursuant to the Exchange Act, are incorporated by
reference in this Registration Statement and shall be deemed to be a part
hereof:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1996;
(2) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 1996;
(3) The Company's Proxy Statement dated December 20, 1996 for its
1997 annual meeting of stockholders.
(4) The Registration Statement on Form 8-A dated January 19, 1993
with respect to the Company's Common Stock (File No. 1-6620),
including any amendment or report filed for the purpose of
updating the description of the Common Stock contained
therein.
(5) The Registration Statement on Form 8-A dated May 16, 1996 with
respect to the Company's Preferred Share Purchase Rights.
All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date of this Registration Statement and prior to the
termination of this offering of Common Stock shall be deemed to be incorporated
by reference in this Registration Statement and to be part hereof from the date
of filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference in this Registration Statement shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any subsequently
filed document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
The Company will provide without charge to each person to whom a copy
of this Registration Statement is delivered, upon the written or oral request of
such person, a copy of any or all of the documents incorporated by reference
(except for exhibits thereto unless specifically incorporated by reference
therein). Requests for such copies should be directed to the Secretary, Griffon
Corporation, 100 Jericho Quadrangle, Suite 224, Jericho, New York 11753, (516)
938-5544.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Harvey R. Blau, a member of the law firm of Blau, Kramer, Wactlar &
Lieberman, P.C. is Chairman of the Board and Chief Executive Officer of the
Registrant. As of the date hereof, Mr. Blau owns 354,440 shares of Common Stock,
a warrant to purchase 226,413 shares of Common Stock and 1,565,000 options to
purchase Common Stock granted to Mr. Blau pursuant to the Registrant's various
stock option plans. In addition, the Blau, Kramer, Wactlar & Lieberman, P.C.
Profit Sharing Plan owns 24,715 shares of Common Stock.
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<PAGE> 3
Item 6. Indemnification of Directors and Officers.
Under provisions of the Certificate of Incorporation and the By-Laws of
the Company, each person who is or was a director or officer of the Company may
be indemnified by the Company to the full extent permitted or authorized by the
General Corporation Law of Delaware.
Under such law, to the extent that such person is successful on the
merits of defense of a suit or proceeding brought against him by reason of the
fact that he is a director or officer of the Company, he shall be indemnified
against expenses (including attorneys' fees) reasonably incurred in connection
with such action.
If unsuccessful in defense of a third-party civil suit or if a criminal
suit is settled, such a person may be indemnified under such law against both
(1) expenses (including attorneys' fees) and (2) judgements, fines and amounts
paid in settlement if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the Company, and
with respect to any criminal action, had no reasonable cause to believe his
conduct was unlawful.
If unsuccessful in defense of a suit brought by or in the right of the
Company, or if such suit is settled, such a person may be indemnified under such
law only against expenses (including attorneys' fees) incurred in the defense or
settlement of such suit if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the Company except
that if such a person is adjudged to be liable in such suit for negligence or
misconduct in the performance of his duty to the Company, he cannot be made
whole even for expenses unless the court determines that he is fairly and
reasonably entitled to indemnity for such expenses.
The Company and its officers and directors are covered by officers and
directors liability insurance. The policy coverage is $30,000,000, which
includes reimbursement for costs and fees. There is a maximum deductible under
the policy of $100,000 for each claim. The Company has entered into
Indemnification Agreements with certain of its officers and directors. The
Agreements provide for reimbursement for all direct and indirect costs of any
type or nature whatsoever (including attorneys' fees and related disbursements)
actually and reasonably incurred in connection with either the investigation,
defense or appeal of a Proceeding, as defined, including amounts paid in
settlement by or on behalf of an Indemnitee.
Item 7. Exemption from registration claimed.
Not applicable.
Item 8. Exhibits.
4.1 1988 Non-Qualified Stock Option Plan, As Amended.
4.2 1997 Stock Option Plan.
5 Opinion and consent of Blau, Kramer, Wactlar & Lieberman, P.C.
23.1 Consent of Blau, Kramer, Wactlar & Lieberman, P.C. - included
in their opinion filed as Exhibit 5.
23.2 Consent of Arthur Andersen LLP.
24 Powers of Attorney-included in signature page hereof.
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;
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<PAGE> 4
(ii)To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement;
(iii)To include any material information with respect
to the plan of distribution not previously disclosed
in the Registration Statement or any material change
to such information in the Registration Statement;
provided, however, that paragraphs (a)(l)(i) and
(a)(l)(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 purposes 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 the 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 policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 Jericho, New York on the 7 day of February, 1997.
GRIFFON CORPORATION
By: /s/ Robert Balemian
---------------------------
Robert Balemian
President and Director
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed on February 7, 1997 by the following
persons in the capacities indicated. Each person whose signature appears below
constitutes and appoints Harvey R. Blau and Robert Balemian, and each of them
acting individually, with full power of substitution, our true and lawful
attorneys-in-fact and agents to do any and all acts and things in our name and
on our behalf in our capacities indicated below which they or either of them may
deem necessary or advisable to enable Griffon Corporation to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission, in connection with this Registration
Statement including specifically, but not limited to, power and authority to
sign for us or any of us in our names in the capacities stated below, any and
all amendments (including post-effective amendments) thereto, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in such connection, as
fully to all intents and purposes as we might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Harvey R. Blau Chairman of the Board
- ------------------------- (Principal Executive Officer)
Harvey R. Blau
/s/ Robert Balemian President and Director
- ------------------------- (Principal Financial Officer)
Robert Balemian
/s/ Patrick Alesia Vice President and Treasurer
- ------------------------- (Principal Accounting Officer)
Patrick Alesia
/s/ Henry A. Alpert Director
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Henry A. Alpert
/s/ Bertrand M. Bell Director
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Bertrand M. Bell
/s/ Robert Bradley Director
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Robert Bradley
/s/ Abraham M. Buchman Director
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Abraham M. Buchman
/s/ Clarence A. Hill, Jr. Director
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Clarence A. Hill, Jr.
/s/ Ronald J. Kramer Director
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Ronald J. Kramer
/s/ James W. Stansberry Director
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James W. Stansberry
/s/ Martin S. Sussman Director
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Martin S. Sussman
/s/ William H. Waldorf Director
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William H. Waldorf
/s/ Lester L. Wolff Director
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Lester L. Wolff
</TABLE>
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EXHIBIT INDEX
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Item No. Description
-------- -----------
4.1 1988 Non-Qualified Stock Option Plan, As Amended.
4.2 1997 Stock Option Plan.
5 Opinion and consent of Blau, Kramer, Wactlar & Lieberman, P.C.
23.1 Consent of Blau, Kramer, Wactlar & Lieberman, P.C. - included
in their opinion filed as Exhibit 5.
23.2 Consent of Arthur Andersen LLP.
24 Powers of Attorney-included in signature page hereof.
<PAGE> 1
EXHIBIT 4.1
GRIFFON CORPORATION
1988 NON-QUALIFIED STOCK OPTION PLAN,
AS AMENDED
1. Purpose and Effect
The purpose of this plan (the "Plan") is to induce officers,
directors and other senior executives and management and supervisory personnel
of and consultants to Griffon Corporation, a Delaware corporation ("Griffon")
and its subsidiaries (Griffon and its subsidiaries being hereinafter
collectively referred to as the "Company"), who are in a position to make
material contributions to the Company's success, to remain in the service of the
Company, to offer them incentives and rewards in recognition of their share in
the Company's progress, and to encourage them to continue to promote the best
interests of the Company through the grant to them of options (the "Options")
for the purchase of the Common Stock, $.25 par value, of Griffon (the "Common
Stock"). The Plan is also intended to aid the Company in competing with other
enterprises for the services of new senior executives needed to help insure
continued development. For purposes of this Plan, the term "subsidiaries" shall
include all corporations at least 50% of the voting stock of which is owned
directly or indirectly by Griffon.
2. Administration
(a) The Plan shall be administered by the Board of Directors of
Griffon (the "Board"), provided however, that the Board may, in the exercise of
its discretion, designate from among its members a Compensation Committee (the
"Committee") consisting of no fewer than three directors, each of whom shall be
a "disinterested person" within the meaning of Rule 16b-3 (or any successor rule
or regulation) promulgated under the Securities Exchange Act of 1934, as amended
("Exchange Act"), and may delegate to the Committee full power and authority,
subject to such orders or resolutions not inconsistent with the provisions of
the Plan as may from time to time be issued or adopted by the Board, to
interpret the provisions and supervise the administration of the Plan. Any
member of the Committee may be removed at any time either with or without cause
by resolution adopted by the Board, and any vacancy on the Committee may at any
time be filled by resolution adopted by the Board. Any or all power and
functions of the Committee may at any time and from time to time be exercised by
the Board; provided, however, that with respect to the participation in the Plan
of persons who are members of the Board, such powers and functions of the
Committee may be exercised by the Board only if, at the time of such exercise, a
majority of the members of the entire Board and a majority of the directors
acting in the particular matter are "disinterested persons" within the meaning
of Rule 16b-3 promulgated under the Exchange Act.
(b) Each Option shall be evidenced by an Option Agreement that shall
contain such terms and conditions (consistent with the terms and conditions of
this Plan) as may be approved by the Board or the Committee, as the case may be,
and shall be signed by an officer of Griffon and the optionee (the "Optionee").
(c) Subject to any applicable provisions of Griffon's By-Laws, all
decisions made by the Board or the Committee pursuant to the provisions of the
Plan and related orders or resolutions of the Board shall be final, conclusive
and binding on all persons, including the Company, stockholders, employees and
Optionees.
3. Shares Subject to the Plan
(a) The shares of Common Stock to be delivered upon exercise of
Options granted under the Plan shall be made available, at the discretion of the
Board, either from the authorized but unissued shares of Common Stock or from
shares of Common Stock required by Griffon and held in treasury.
<PAGE> 2
(b) Subject to adjustments made pursuant to the provisions of
Paragraph (c) of this Section 3, the aggregate number of shares to be delivered
upon exercise of all Options that may be granted under this Plan shall be
500,000(*) shares. If an Option granted under the Plan shall expire or terminate
for any reason during the term of the Plan, the shares subject to but not
delivered under such Option shall be available for the grant of other Options.
(c) In the event of a merger, reorganization, consolidation,
recapitalization, stock dividend, stock split, or other change in corporate
structure affecting the Common Stock, appropriate adjustments shall be made in
the aggregate number of shares subject to the Plan and in the number and
exercise price of shares subject to unexercised Options previously granted under
the Plan.
4. Eligibility and Participation
The persons eligible to receive Options shall consist of officers,
directors and other senior executives and management and supervisory personnel
of and consultants to the Company. Subject to the limitations of the Plan, the
Board or the Committee, as the case may be, shall select the persons to be
granted Options, determine the number and exercise price of the shares subject
to each Option, and determine the time when each Option shall be granted. More
than one Option may be granted to the same person.
5. Term of Plan and Option Period
The term during which Options may be granted under this Plan shall
commence on May 5, 1988 and expire on May 4, 1998. Subject to the provisions of
the Plan with respect to death, retirement and termination of employment, the
maximum period during which each Option may be exercised may be fixed by the
Board or the Committee, as the case may be, at the time such Option is granted
but shall in no event exceed ten (10) years.
6. Exercise Price
(a) The price at which shares of Common Stock may be purchased upon
exercise of a particular Option shall be not less than one hundred percent
(100%) of the fair market value of such shares on the date such Option is
granted, as determined by the Board or the Committee, as the case may be.
(b) For purposes of determining the fair market value of a share of
Common Stock on the date of grant, if the Common Stock (i) is then listed on any
national securities exchange, the fair market value shall be the closing price
per share of the Common Stock on such exchange at the close of the trading
session on the date of grant, (ii) is then listed on NASDAQ (but not on any
national securities exchange), the fair market value shall be the closing price
per share of the Common Stock on NASDAQ on the date of grant, or (iii) is then
traded on the over-the-counter market (but not on a national securities exchange
or NASDAQ, the fair market value shall be the average of the closing bid and
asked prices of the Common Stock as reported by the National Quotation Bureau,
Inc. or other entity then publishing bid and asked prices for the Common Stock
for the date of grant, or, if unavailable, then the last trading date on which
bid and asked quotations were published immediately preceding the date of grant.
7. Exercise of Options
(a) Each Option granted under this Plan may be exercised only during
the continuance of the Optionee's employment or service with the Company and
only as to such percentage of the shares covered thereby during such periods as
may be determined at the time of grant by the Board or the Committee, as the
case may be, but if no such percentage is specified, then each Option granted
under this Plan may be exercised as to 50% of the shares covered
- ------------------
(*) Increased to 1,000,000 shares as per amendment of November 12, 1992.
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<PAGE> 3
thereby on the date of grant and as to an additional 50% of the shares covered
thereby one-year after the date of grant (so that such Option may be exercised
as to 100% of the shares covered thereby beginning one (1) year after the date
of grant), except in case of death, retirement or termination of employment or
service as hereinafter provided. Subject to the foregoing limitations and the
terms and conditions of the option agreement, each Option shall be exercisable
with respect to such number of shares and during such periods as shall be fixed
by the Board or the Committee, as the case may be; provided, however, that if
the Board or the Committee grants an Option or Options exercisable in more than
one installment, and if the employment or service of an Optionee holding such
Option is terminated, the Option shall be exercisable as to such number of
shares as to which the Optionee had the right to exercise on the date of
termination of employment or service.
(b) No shares of Common Stock shall be delivered pursuant to the
exercise of any Option, in whole or in part, until qualified for delivery under
such laws and regulations as may be deemed by the Board or the Committee, as the
case may be, to be applicable thereto and until payment in full of the exercise
price thereof is received by the Company.
(c) When exercising Options in whole or in part, Optionees may pay
the exercise price in cash, in shares of Common Stock or by means of any other
consideration acceptable to the Board or the Committee. For purposes of valuing
any share of Common Stock used to exercise any Option in whole or in part, such
shares shall be valued as provided in Section 6(b). Shares of Common Stock used
to exercise any Option granted hereunder shall be free and clear of all liens,
pledges, claims, encumbrances and restrictions of any kind or nature whatsoever,
other than restrictions imposed upon such shares pursuant to the provisions of
the Securities Act of 1933, as amended.
(d) No Optionee, or legal representative, legatee, or distributee of
an optionee, shall be deemed to be a holder of any shares subject to any Option
granted hereunder unless and until the certificate or certificates therefor have
been issued and delivered.
8. Non-Transferability of Options
An Option granted under the Plan may not be transferred except by
will or the laws of descent and distribution, and during the lifetime of the
person to whom granted, may be exercised only by such person.
9. Death, Retirement and Termination of Employment
Any Option, the period of which has not theretofore expired, shall
terminate at the time of death of the person to whom granted or at the time or
retirement or termination for any reason of such person's employment or service
with the Company, and no share of Common Stock may thereafter be delivered
pursuant to such Option, except that:
(a) upon retirement or termination of employment or service (other
than by death, disability, voluntary termination or termination for cause), an
Optionee may within two (2) months after the date of such retirement or
termination, purchase all or part of the shares with respect to which such
Optionee is entitled to exercise such Option, in accordance with the provisions
of Section 7 hereof, but in no event after the expiration of the term of the
Option ("cause" for purposes of this Plan shall mean (i) willful disregard of
duties, (ii) habitual absence from employment or service, (iii) intoxication, or
(iv) dishonesty);
(b) upon the "disability" of any Optionee, the Optionee may within
six (6) months after the date of such termination of employment, but in no event
after the expiration of the term of the Option, purchase all or part of the
shares with respect to which such Optionee is entitled to exercise such Option,
in accordance with the provisions of Section 7 hereof. For purposes of the Plan
the term "disability" shall mean a physical or mental disability as defined in
Section 105 of the Internal Revenue Code of 1986, as amended; and
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<PAGE> 4
(c) upon the death of any Optionee while in active employment or
service, the person or persons to whom such Optionee's rights under the Option
are transferred by will or the laws of descent and distribution may, within six
(6) months after the date of such Optionee's death, but in no event after the
expiration of the term of the Option, purchase all or any part of the shares
with respect to which the Option was exercisable on the date of termination of
employment or service in accordance with the provisions of Section 7 hereof.
10. Amendments and Discontinuance
The Board may, suspend, discontinue or make any amendment that would
(i) make any material change in the class of eligible persons as defined in the
Plan, (ii) increase the total number of shares for which Options may be granted
under the Plan, (iii) extend the term of the Plan or the maximum option period,
(iv) decrease the minimum option price, or (v) permit adjustments in the number
and option price of shares granted under the Plan.
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<PAGE> 1
EXHIBIT 4.2
GRIFFON CORPORATION
1997 STOCK OPTION PLAN
SECTION 1. GENERAL PROVISIONS
1.1. NAME AND GENERAL PURPOSE
The name of this plan is the Griffon Corporation 1997 Stock Option Plan
(hereinafter called the "Plan"). The purpose of the Plan is to enable Griffon
Corporation (the "Company") and its subsidiaries and affiliates to foster and
promote the interests of the Company by attracting and retaining officers and
employees of the Company who contribute to the Company's success by their
ability, ingenuity and industry, to enable such officers and employees of the
Company to participate in the long-term success and growth of the Company by
giving them a proprietary interest in the Company and to provide incentive
compensation opportunities competitive with those of competing corporations.
1.2 DEFINITIONS
a. "Affiliate" means any person or entity controlled by or under
common control with the Company, by virtue of the ownership of
voting securities, by contract or otherwise.
b. "Board" means the Board of Directors of the Company.
c. "Change in Control" means a change of control of the Company,
or in any person directly or indirectly controlling the
Company, which shall mean:
(a) a change in control as such term is presently defined in
Regulation 240.12b-(f) under the Securities Exchange Act of
1934, as amended (the "Exchange Act"); or
(b) if any "person" (as such term is used in Section 13(d) and
14(d) of the Exchange Act) other than the Company or any
"person" who on the date of this Agreement is a director or
officer of the Company, becomes the "beneficial owner" (as
defined in Rule 13(d)-3 under the Exchange Act) directly or
indirectly, of securities of the Company representing twenty
percent (20%) or more of the voting power of the Company's
then outstanding securities; or
(c) if during any period of two (2) consecutive years during
the term of this Plan, individuals who at the beginning of
such period constitute the Board of Directors cease for any
reason to constitute at least a majority thereof.
d. "Code" means the Internal Revenue Code of 1986, as amended.
e. "Committee" means the Committee referred to in Section 1.3 of
the Plan.
f. "Common Stock" means shares of the Common Stock, par value
$.25 per share, of the Company.
g. "Company" means Griffon Corporation, a corporation organized
under the laws of the State of Delaware (or any successor
corporation).
<PAGE> 2
h. "Fair Market Value" means the market price of the Common Stock
on the New York Stock Exchange consolidated reporting system
on the date of the grant or on any other date on which the
Common Stock is to be valued hereunder. If no sale shall have
been reported on the New York Stock Exchange consolidated
reporting system on such date, Fair Market Value shall be
determined by the Committee in accordance with the Treasury
Regulations applicable to incentive stock options under
Section 422 of the Code.
i "Incentive Stock Option" means an Incentive Stock Option as
described in Section 2.1 of the Plan.
j. "Non-Employee Director" shall have the meaning set forth in
Rule 16(b) promulgated by the Securities and Exchange
Commission ("Commission"); provided, that such person is also
an "outside director" as set forth in Section 162(m) of the
Code and the regulations promulgated thereunder.
k. "Non-Qualified Stock Option" means a Non-Qualified Stock
Option as described in Section 2.1 of the Plan.
l. "Option" means any option to purchase Common Stock under
Section 2 of the Plan.
m. "Participant" means any officer or employee of the Company, a
Subsidiary or an Affiliate who is selected by the Committee to
participate in the Plan.
n. "Subsidiary" means any corporation in which the Company
possesses directly or indirectly 50% or more of the combined
voting power of all classes of stock of such corporation.
o. "Total Disability" means accidental bodily injury or sickness
which wholly and continuously disabled an optionee. The
Committee, whose decisions shall be final, shall make a
determination of Total Disability.
1.3 ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Committee appointed by the Board
consisting of two or more members of the Board all of who shall be Non-Employee
Directors. The Committee shall serve at the pleasure of the Board and shall have
such powers as the Board may, from time to time, confer upon it.
Subject to this Section 1.3, the Committee shall have sole and complete
authority to adopt, alter, amend or revoke such administrative rules, guidelines
and practices governing the operation of the Plan as it shall, from time to
time, deem advisable, and to interpret the terms and provisions of the Plan.
The Committee shall keep minutes of its meetings and of action taken by
it without a meeting. A majority of the Committee shall constitute a quorum, and
the acts of a majority of the members present at any meeting at which a quorum
is present, or acts approved in writing by all of the members of the Committee
without a meeting, shall constitute the acts of the Committee.
1.4 ELIGIBILITY
Stock options may be granted only to officers or employees of the
Company or a Subsidiary or Affiliate. Subject to Section 2.3, any person who has
been granted any Option may, if he is otherwise eligible, be granted an
additional Option or Options.
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1.5 SHARES
The aggregate number of shares reserved for issuance pursuant to the
Plan shall be 1,500,000 shares of Common Stock, or the number and kind of shares
of stock or other securities which shall be substituted for such shares or to
which such shares shall be adjusted as provided in Section 1.6. No individual
may be granted options to purchase more than an aggregate of 750,000 shares of
Common Stock pursuant to the Plan.
Such number of shares may be set aside out of the authorized but
unissued shares of Common Stock or out of issued shares of Common Stock acquired
for and held in the Treasury of the Company, not reserved for any other purpose.
Shares subject to, but not sold or issued under, any Option terminating or
expiring for any reason prior to its exercise in full will again be available
for Options thereafter granted during the balance of the term of the Plan.
1.6 ADJUSTMENTS DUE TO STOCK SPLITS,
MERGERS, CONSOLIDATION, ETC.
If, at any time, the Company shall take any action, whether by stock
dividend, stock split, combination of shares or otherwise, which results in a
proportionate increase or decrease in the number of shares of Common Stock
theretofore issued and outstanding, the number of shares which are reserved for
issuance under the Plan and the number of shares which, at such time, are
subject to Options shall, to the extent deemed appropriate by the Committee, be
increased or decreased in the same proportion, provided, however, that the
Company shall not be obligated to issue fractional shares.
Likewise, in the event of any change in the outstanding shares of
Common Stock by reason of any recapitalization, merger, consolidation,
reorganization, combination or exchange of shares or other corporate change, the
Committee shall make such substitution or adjustments, if any, as it deems to be
appropriate, as to the number or kind of shares of Common Stock or other
securities which are reserved for issuance under the Plan and the number of
shares or other securities which, at such time are subject to Options.
In the event of a Change in Control, at the option of the Board or
Committee, (a) all options outstanding on the date of such Change in Control
shall, for a period of sixty (60) days following such Change in Control, become
immediately and fully exercisable, and (b) an optionee will be permitted to
surrender for cancellation within sixty (60) days after such Change in Control
any option or portion of an option which was granted more than six (6) months
prior to the date of such surrender, to the extent not yet exercised, and to
receive a cash payment in an amount equal to the excess, if any, of the Fair
Market Value (on the date of surrender) of the shares of Common Stock subject to
the option or portion thereof surrendered, over the aggregate purchase price for
such Shares under the option.
1.7 NON-ALIENATION OF BENEFITS
Except as herein specifically provided, no right or unpaid benefit
under the Plan shall be subject to alienation, assignment, pledge or charge and
any attempt to alienate, assign, pledge or charge the same shall be void. If any
Participant or other person entitled to benefits hereunder should attempt to
alienate, assign, pledge or charge any benefit hereunder, then such benefit
shall, in the discretion of the Committee, cease.
1.8 WITHHOLDING OR DEDUCTION FOR TAXES
If, at any time, the Company or any Subsidiary or Affiliate is
required, under applicable laws and regulations, to withhold, or to make any
deduction for any taxes, or take any other action in connection with any Option
exercise, the Participant shall be required to pay to the Company or such
Subsidiary or Affiliate, the amount of any taxes required to be withheld, or, in
lieu thereof, at the option of the Company, the Company or such Subsidiary or
Affiliate may accept a sufficient number of shares of Common Stock to cover the
amount required to be withheld.
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1.9 ADMINISTRATIVE EXPENSES
The entire expense of administering the Plan shall be borne by the
Company.
1.10 GENERAL CONDITIONS
a. The Board or the Committee may, from time to time, amend,
suspend or terminate any or all of the provisions of the Plan,
provided that, without the Participant's approval, no change
may be made which would prevent an Incentive Stock Option
granted under the Plan from qualifying as an Incentive Stock
Option under Section 422 of the Code or result in a
"modification" of the Incentive Stock Option under Section
424(h) of the Code or otherwise alter or impair any right
theretofore granted to any Participant; and further provided
that, without the consent and approval of the holders of a
majority of the outstanding shares of Common Stock of the
Company present at a meeting at which a quorum exists, neither
the Board nor the Committee may make any amendment which (i)
changes the class of persons eligible for options; (ii)
increases (except as provided under Section 1.6 above) the
total number of shares or other securities reserved for
issuance under the Plan; (iii) decreases the minimum option
prices stated in Section 2.2 hereof (other than to change the
manner of determining Fair Market Value to conform to any then
applicable provision of the Code or any regulation
thereunder); (iv) extends the expiration date of the Plan, or
the limit on the maximum term of Options; or (v) withdraws the
administration of the Plan from a committee consisting of two
or more members, each of whom is a non-employee director.
b. With the consent of the Participant affected thereby, the
Committee may amend or modify any outstanding Option in any
manner not inconsistent with the terms of the Plan, including,
without limitation, and irrespective of the provisions of
Sections 2.3(c) and 2.4(b) below, to accelerate the date or
dates as of which an installment of an Option becomes
exercisable.
c. Nothing contained in the Plan shall prohibit the Company or
any Subsidiary or Affiliate from establishing other additional
incentive compensation arrangements for employees of the
Company or such Subsidiary or Affiliate.
d. Nothing in the Plan shall be deemed to limit, in any way, the
right of the Company or any Subsidiary or Affiliate to
terminate a Participant's employment with the Company (or such
Subsidiary or Affiliate) at any time.
e. Any decision or action taken by the Board or the Committee
arising out of or in connection with the construction,
administration, interpretation and effect of the Plan shall be
conclusive and binding upon all Participants and any person
claiming under or through any Participant.
f. No member of the Board or of the Committee shall be liable for
any act or action, whether of commission or omission, (i) by
such member except in circumstances involving actual bad
faith, nor (ii) by any other member or by any officer, agent
or employee.
1.11 COMPLIANCE WITH APPLICABLE LAW
Notwithstanding any other provision of the Plan, the Company shall not
be obligated to issue any shares of Common Stock, or grant any Option with
respect thereto, unless it is advised by counsel of its selection that it may do
so without violation of the applicable Federal and State laws pertaining to the
issuance of securities and the Company may require any stock certificate so
issued to bear a legend, may give its transfer agent instructions limiting the
transfer thereof, and may take such other steps, as in its judgment are
reasonably required to prevent any such violation.
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1.12 EFFECTIVE DATES
The Plan was adopted by the Board on November 6, 1996, subject to
approval by the stockholders of the Company. The Plan shall terminate on
November 5, 2006.
SECTION 2. OPTION GRANTS
2.1 AUTHORITY OF COMMITTEE
Subject to the provisions of the Plan, the Committee shall have the
sole and complete authority to determine (i) the Participants to whom Options
shall be granted; (ii) the number of shares to be covered by each Option; and
(iii) the conditions and limitations, if any, in addition to those set forth in
Sections 2 and 3 hereof, applicable to the exercise of an Option, including
without limitation, the nature and duration of the restrictions, if any, to be
imposed upon the sale or other disposition of shares acquired upon exercise of
an Option.
Stock options granted under the Plan may be of two types: an incentive
stock option ("Incentive Stock Option"); and a non-qualified stock option
("Non-Qualified Stock Option").
It is intended that the Incentive Stock Options granted hereunder shall
constitute incentive stock options within the meaning of Section 422 of the Code
and shall be subject to the tax treatment described in Section 422 of the Code.
Anything in the Plan to the contrary notwithstanding, no provision of
the Plan relating to Incentive Stock Options shall be interpreted, amended or
altered, nor shall any discretion or authority granted under the Plan be so
exercised, so as to disqualify either the Plan or, without the consent of the
optionee, any Incentive Stock Option under Section 422 of the Code.
The Committee shall have the authority to grant Incentive Stock
Options, or to grant Non-Qualified Stock Options, or to grant both types of
Options. To the extent that any Option does not qualify as an Incentive Stock
Option, in whole or in part, it shall constitute a separate Non-Qualified Stock
Option to the extent of such disqualification.
2.2 OPTION EXERCISE PRICE
The price of stock purchased upon the exercise of Options granted
pursuant to the Plan shall be the Fair Market Value thereof at the time that the
Option is granted.
If an employee owns or is deemed to own (by reason of the attribution
rules applicable under Section 424(d) of the Code) more than 10% of the combined
voting power of all classes of the stock of the Company or any parent
corporation of the Company or Subsidiary and an Option granted to such employee
is intended to qualify as an Incentive Stock Option within the meaning of
Section 422 of the Code, the exercise price shall be no less than 110% of the
Fair Market Value of the Common Stock on the date the Option is granted. The
purchase price is to be paid in full in cash, certified or bank cashier's check
or, at the option of the Company, Common Stock valued at its Fair Market Value
on the date of exercise, or a combination thereof, when the Option is exercised
and stock certificates will be delivered only against such payment.
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2.3 INCENTIVE STOCK OPTION GRANTS
Each Incentive Stock Option will be subject to the following
provisions:
a. Term of Option
An Incentive Stock Option will be for a term of not more than
ten years from the date of grant, except in the case of an
employee described in the second paragraph of Section 2.2
above in which case an Incentive Stock Option will be for a
term of not more than five years from the date of the grant.
b. Annual Limit
To the extent the aggregate Fair Market Value of the Common
Stock (determined as of the date of grant) with respect to
which any options granted hereunder are intended to be
designated as Incentive Stock Options under the Plan (or any
other incentive stock option plan of the Company or any
Subsidiary) which may be exercisable for the first time by the
optionee in any calendar year exceeds $100,000, such options
shall not be considered incentive stock options.
c. Exercise
Subject to the power of the Committee under Section 1.10(b)
above and except in the manner described below upon the death
of the optionee, an Incentive Stock Option may be exercised
only in installments as follows: up to one-half of the subject
shares on and after the first anniversary of the date of
grant, up to all of the subject shares on and after the second
such anniversary of the date of the grant of such Option but
in no event later than the expiration of the term of the
Option.
An Incentive Stock Option shall be exercisable during the
optionee's lifetime only by the optionee and shall not be
exercisable by the optionee unless, at all times since the
date of grant and at the time of exercise, such optionee is an
employee of the Company, any parent corporation of the Company
or any Subsidiary, except that, upon termination of all
employment (other than by death, Total Disability, or by Total
Disability followed by death in the circumstances provided
below) with the Company, any parent corporation of the Company
and any Subsidiary or Affiliate, the optionee may exercise an
Incentive Stock Option at any time within three months
thereafter but only to the extent such Option is exercisable
on the date of such termination.
Upon termination of all employment by Total Disability, the
Optionee may exercise such options at any time within one year
thereafter, but only to the extent such option is exercisable
on the date of such termination.
In the event of the death of an optionee (i) while an employee
of the Company, any parent corporation of the Company or any
Subsidiary or Affiliate, or (ii) within three months after
termination of all employment with the Company, any parent
corporation of the Company and any Subsidiary or Affiliate
(other than for Total Disability) or (iii) within one year
after termination on account of Total Disability of all
employment with the Company, any parent corporation of the
Company and any Subsidiary or Affiliate, such optionee's
estate or any person who acquires the right to exercise such
option by bequest or inheritance or by reason
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<PAGE> 7
of the death of the optionee may exercise such optionee's
Option at any time within the period of three years from the
date of death. In the case of clauses (i) and (iii) above,
such Option shall be exercisable in full for all the remaining
shares covered thereby, but in the case of clause (ii) such
Option shall be exercisable only to the extent it was
exercisable on the date of such termination.
Notwithstanding the foregoing provisions regarding the
exercise of an Option in the event of death, Total Disability
or other termination of employment, in no event shall an
Option be exercisable in whole or in part after the
termination date provided in the Option.
d. Transferability
An Incentive Stock Option granted under the Plan shall not be
transferable otherwise than by will or by the laws of descent
and distribution.
2.4 NON-QUALIFIED STOCK OPTION GRANTS
Each Non-Qualified Stock Option will be subject to the following
provisions:
a. Term of Option
A Non-Qualified Stock Option will be for a term of not more
than ten years from the date of grant.
b. Exercise
The exercise of a Non-Qualified Stock Option shall be subject
to the same terms and conditions as provided under Section
2.3(c) above except that (i) upon termination of all
employment by Total Disability, the Optionee may exercise such
options at any time within three years thereafter and (ii) in
the event of the death of an Optionee within three years after
termination on account of Total Disability of all employment
with the Company, or any subsidiary or affiliate, such
Optionee's estate or any person who acquires the right to
exercise such option by bequest or inheritance or by reason of
the death of the Optionee may exercise such Optionee's option
at any time within a period of three years from the date of
death.
c. Transferability
A Non-Qualified Stock Option granted under the Plan shall not
be transferable otherwise than by will or by the laws of
descent and distribution, except as may be permitted by the
Board or the Committee.
2.5 AGREEMENTS
In consideration of any Options granted to a Participant under the
Plan, each such Participant shall enter into an Option Agreement with the
Company providing, consistent with the Plan, such terms as the Committee may
deem advisable.
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EXHIBIT 5
February 10, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Griffon Corporation
Registration Statement on Form S-8
Gentlemen:
Reference is made to the filing by Griffon Corporation (the
"Corporation") of a Registration Statement on Form S-8 with the Securities and
Exchange Commission pursuant to the provisions of the Securities Act of 1933, as
amended, covering the registration of 500,000 shares of the Corporation's Common
Stock, $.25 par value per share, in connection with an amendment to the
Corporation's 1988 Non-Qualified Stock Option Plan, as amended (the "1988
Plan"), and 1,500,000 shares of the Corporation's Common Stock, $.25 par value
per share, in connection with the Corporation's 1997 Stock Option Plan (the
"1997 Plan").
As counsel for the Corporation, we have examined its corporate records,
including its Certificate of Incorporation, as amended, By-Laws, its corporate
minutes, the form of its Common Stock certificate, the 1988 Plan, the 1997 Plan,
related documents under the 1988 Plan and 1997 Plan and such other documents as
we have deemed necessary or relevant under the circumstances.
Based upon our examination, we are of the opinion that:
1. The Corporation is duly organized and validly existing under the
laws of the State of Delaware.
2. There have been reserved for issuance by the Board of Directors of
the Corporation an additional 500,000 shares of its Common Stock, $.25 par value
per share, for an aggregate of 1,000,000 shares of Common Stock, par value $.25
per share, reserved for issuance under the 1988 Plan. The shares of the
Corporation's Common Stock, when issued pursuant to the 1988 Plan, will be
validly authorized, legally issued, fully paid and non-assessable.
3. There have been reserved for issuance by the Board of Directors of
the Corporation 1,500,000 shares of its Common Stock, $.25 par value per share,
under the 1997 Plan. The shares of the Corporation's Common Stock, when issued
pursuant to the 1997 Plan, will be validly authorized, legally issued, fully
paid and non-assessable.
We hereby consent to be named in the Registration Statement and in the
Prospectus which constitutes a part thereof as counsel to the Corporation, and
we hereby consent to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
/s/ Blau, Kramer, Wactlar & Lieberman, P.C.
-------------------------------------------
BLAU, KRAMER, WACTLAR & LIEBERMAN, P.C.
<PAGE> 1
EXHIBIT 23.1
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated November 6, 1996
included in Griffon Corporation's Form 10-K for the year ended September 30,
1996 and to all references as to our Firm included in this registration
statement.
/s/ Arthur Anderson LLP
-----------------------
ARTHUR ANDERSON LLP
February 7, 1997
Roseland, New Jersey
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