As filed with the Securities and Exchange Commission on May 30, 1995.
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MOTO PHOTO, INC.
(Name of registrant as specified in its charter)
DELAWARE 31-1080650
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4444 LAKE CENTER DRIVE
DAYTON, OHIO 45426
(Address of Principal Executive Offices) (Zip Code)
MOTO PHOTO, INC.
1992 PERFORMANCE AND EQUITY INCENTIVE PLAN
(Full title of the plan)
DAVID A. MASON
4444 LAKE CENTER DRIVE
DAYTON, OHIO 45426
(Name and address of agent for service)
(513) 854-6685
(Telephone number, including area code, of agent for service)
Copy to:
J. Bradford Hammond
Crowe & Dunlevy, A Professional Corporation
321 South Boston, Suite 500
Tulsa, Oklahoma 74103
(918) 592-9800
CALCULATION OF REGISTRATION FEE
TITLE OF EACH CLASS OF AMOUNT TO PROPOSED PROPOSED AMOUNT OF
SECURITIES TO BE BE MAXIMUM MAXIMUM REGISTRATION
REGISTERED REGISTERED OFFERING AGGREGATE FEE
PRICE OFFERING
PER PRICE(1)
SHARE(1)
Voting Common Stock, 1,250,000 $2.16 $2,700,000 $932
par value $.01 per
share
(1)Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee, based on the average of the high and low
sales prices of the Common Stock as reported on the National Association of
Securities Dealers Automated Quotation System on May 22, 1995.
The contents of the Registrant's Registration Statement on Form S-8 (File No.
33-53188) relating to the 1992 Performance and Equity Incentive Plan (the "1992
Plan") of the Registrant are incorporated herein by reference. This Registration
Statement has been filed in accordance with General Instruction E to Form S-8
for the purpose of registering the offer and sale of additional shares of Voting
Common Stock that may be issued or sold by the Registrant in connection with the
1992 Plan.
For a list of exhibits filed as part of this Registration Statement, see the
Exhibit Index hereto.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Dayton, State of Ohio, on May 30, 1995.
MOTO PHOTO, INC.
By: /s/DAVID A. MASON
David A. Mason
Executive Vice-President - Finance,
Chief Financial Officer and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Position Date
MICHAEL F. ADLER* Chairman of the May 30, 1995
Michael F. Adler Board of Directors,
President, and Chief
Executive Officer
(Principal Executive
Officer)
/s/DAVID A. MASON Executive Vice- May 30, 1995
David A. Mason President - Finance,
Chief Financial
Officer, Treasurer
and Director
(Principal Financial
Officer)
ALFRED E. LEFELD* Vice President and May 30, 1995
Alfred E. Lefeld Controller
(Principal
Accounting Officer)
JACOB A. MYERS* Secretary and May 30, 1995
Jacob A. Myers Director
FRANK W. BENSON* Director May 30, 1995
Frank W. Benson
LESLIE CHARM* Director May 30, 1995
Leslie Charm
DEXTER B. DAWES* Director May 30, 1995
Dexter B. Dawes
HARRY D. LOYLE* Director May 30, 1995
Harry D. Loyle
*By: /s/DAVID A. MASON
David A. Mason
Attorney-in-fact
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
4.1 1992 Performance and Equity Incentive Plan of the Registrant, as
amended
5.1 Opinion of Crowe & Dunlevy, A Professional Corporation,
on legality of securities.
23.1 Consent of Crowe & Dunlevy, A Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Powers of Attorney.
EXHIBIT 4.1
AMENDMENT NO. 1
TO
1992 PERFORMANCE AND EQUITY INCENTIVE PLAN
OF
MOTO PHOTO, INC.
(AS ADOPTED EFFECTIVE APRIL 11, 1995)
A. On April 20, 1992, the Board of Directors of Moto Photo, Inc., a
Delaware corporation (the "Corporation"), adopted and on July 15, 1992, the
shareholders approved the Corporation's 1992 Performance and Equity Incentive
Plan (the "Plan"). The Board of Directors has the authority pursuant to Section
17 of the Plan to amend the Plan from time to time and deems it desirable and in
the best interests of the Corporation to amend the Plan to increase the number
of shares of Common Stock authorized for issuance for all purposes under the
Plan from 500,000 shares to 1,250,000 shares.
B. The amendment of the Plan set forth herein shall be conditioned upon,
and is subject in all respects to, the approval of the shareholders of the
Corporation as required under Section 17 of the Plan. If such approval is not
obtained, this amendment shall be of no further force or effect.
NOW, THEREFORE, BE IT RESOLVED, that the Plan be and hereby is amended as
follows:
1. The first paragraph of Section 4(b) of the Plan is hereby amended in
its entirety to read as follows:
"The maximum number of shares of Common Stock in respect of which
Awards may be granted under the Plan, subject to adjustment as
provided in Section 15 of the Plan, is 1,250,000 shares."
1992 MOTO PHOTO PERFORMANCE & EQUITY INCENTIVE PLAN
1. PURPOSE. The purpose of the 1992 Moto Photo Performance and
Equity Incentive Plan (herein referred to as the "Plan") is to promote and
advance the interest of Moto Photo, Inc. (the "Company") and its shareholders by
enabling the Company to attract, retain and reward managerial and other key
employees and to strengthen the mutuality of interests between such employees
and the Company's shareholders. The Plan is designed to meet this intent by
offering performance-based stock and cash incentives and other equity-based
incentive awards thereby providing a proprietary interest in pursuing the
long-term growth, profitability and financial success of the Company.
2. DEFINITIONS. For purposes of the Plan, the following terms shall
have the meanings set forth below:
(a) "Award" or "Awards" means an award or grant made to a
Participant under Sections 6 through 10, inclusive, of the Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as in effect
from time to time or any successor thereto, together with rules,
regulations and interpretations promulgated thereunder.
(d) "Committee" means the Committee of the Board constituted as
provided in Section 3 of the Plan.
(e) "Common Stock" means the Voting Common Stock, par value
$0.01 per share, of the Company or any security of the Company issued in
substitution, exchange or lieu thereof.
(f) "Company" means Moto Photo, Inc., a Delaware corporation, or
any successor corporation.
(g) "Deferred Compensation Stock Option" means any Stock Option
granted pursuant to the provisions of Section 6 of the Plan that is
specifically designated as such.
(h) "Disability" means disability as determined by the Committee
in accordance with standards and procedures similar to those under the
Company's long-term disability plan.
(i) "Exchange Act" means the Securities Exchange Act of 1934, as
amended and in effect from time to time, or any successor statute.
(j) "Fair Market Value" means the closing "asked" price of the
shares in the over-the-counter market on the date on which such value is to
be determined or, if such asked price is not available, the last sales
price on such day or, if no shares were traded on such day, on the next
preceding day on which the shares were traded, as reported by the National
Association of Securities Dealers Automatic Quotation System (NASDAQ) or
other national quotation service. If the shares are listed on a national
securities exchange, Fair Market Value means the closing price of the
shares on such national securities exchange on the day on which such value
is to be determined or, if no shares were traded on such day, on the next
preceding day on which shares were traded, as reported by National
Quotation Bureau, Inc. or other national quotation service. If at any time
shares of Common Stock are not traded on an exchange or in the
over-the-counter market, Fair Market Value shall be the value determined by
the Committee, taking into consideration those factors affecting or
reflecting value which they deem appropriate. For purposes of determining
the exercise price of an Incentive Stock Option, Fair Market Value shall
not under any circumstances exceed the amount contemplated by Section
422(b)(4) of the Code.
(k) "Incentive Stock Option" means any Stock Option granted
pursuant to the provisions of Section 6 of the Plan that is intended to be
and is specifically designated as an "incentive stock option" within the
meaning of Section 422 of the Code.
(l) "Non-Qualified Stock Option" means any Stock Option granted
pursuant to the provisions of Section 6 of the Plan that is not an
Incentive Stock Option.
(m) "Participant" means an employee of the Company or a
Subsidiary who is granted an Award under the Plan.
(n) "Performance Award" means an Award granted pursuant to the
provisions of Section 9 of the Plan the vesting of which is contingent on
performance attainment.
(o) "Performance Equity Grant" means an Award of units
representing shares of Common Stock granted pursuant to the provisions of
Section 9 of the Plan.
(p) "Performance Unit Grant" means an Award of monetary units
granted pursuant to the provisions of Section 9 of the Plan.
(q) "Plan" means this 1992 Moto Photo Performance and Equity
Incentive Plan of the Company, as set forth herein and as it may be
hereafter amended and from time to time in effect.
(r) "Restricted Award" means an Award granted pursuant to the
provisions of Section 8 of the Plan.
(s) "Restricted Stock Grant" means an Award of shares of Common
Stock granted pursuant to the provisions of Section 8 of the Plan.
(t) "Restricted Unit Grant" means an Award of units representing
shares of Common Stock granted pursuant to the provisions of Section 8 of
the Plan.
(u) "Retirement" means retirement from active employment with
the Company and its Subsidiaries on or after the normal retirement date
specified in the Company's retirement plan for salaried employees or such
earlier retirement date as approved by the Committee for purposes of this
Plan.
(v) "Stock Appreciation Right" means an Award to benefit from
the appreciation of Common Stock granted pursuant to the provisions of
Section 7 of the Plan.
(w) "Stock Option" means an Award to purchase shares of Common
Stock granted pursuant to the provisions of Section 6 of the Plan.
(x) "Subsidiary" means any corporation or entity in which the
Company directly or indirectly controls 50% or more of the total voting
power of all classes of its stock having voting power.
3. ADMINISTRATION.
(a) The Plan shall be administered by the Committee to be
appointed from time to time by the Board and comprised of not less than
two of the then members of the Board, provided that all of the members of
the Committee shall be persons who qualify to administer the Plan as
contemplated by Rule 16b-3(c)(2) of the Exchange Act or any successor
provision. Members of the Committee shall serve at the pleasure of the
Board and the Board may from time to time remove members from, or add
members to, the Committee. A majority of the members of the Committee
shall constitute a quorum for the transaction of business. Action approved
in writing by a majority of the members of the Committee then serving shall
be fully effective as if the action had been taken by unanimous vote at a
meeting duly called and held.
(b) The Committee is authorized to construe and interpret the
Plan to promulgate, amend and rescind rules and regulations relating to the
implementation of the Plan and to make all other determinations necessary
or advisable for the administration of the Plan. The Committee may
designate persons other than members of the Committee to carry out its
responsibilities under such conditions and limitations as it may prescribe,
except that the Committee may not delegate its authority with regard to
selection for participation of, and the granting of Awards to, persons
subject to Sections 16(b) of the Exchange Act. Any determination, decision
or action of the Committee in connection with the construction,
interpretation, administration, or application of the Plan shall be final,
conclusive and binding upon all persons participating in the Plan and any
person validly claiming under or through persons participating in the Plan.
The Committee's powers include, but are not limited to, modifications,
procedures and subplans as are necessary to comply with provisions of the
laws of foreign countries in which the Company and its subsidiaries may
operate to assure the viability of the benefits of Awards made to
Participants employed in such countries and to meet the intent of the Plan.
The Company shall effect the granting of Awards under the Plan in
accordance with the determinations made by the Committee, by execution of
instruments in writing in such form as approved by the Committee.
4. PLAN DURATION; COMMON STOCK SUBJECT TO PLAN.
(a) Term. The Plan shall terminate on July 15, 2002, except
with respect to Awards then outstanding.
(b) Shares of Common Stock Subject to Plan. The maximum number
of shares of Common Stock in respect of which Awards may be granted under
the Plan, subject to adjustment as provided in Section 15 of the Plan, is
500,000.
If any Awards are forfeited, terminated, expire unexercised,
settled in cash in lieu of stock or exchanged for other Awards, the shares
of Common Stock which were theretofor subject to such Awards shall again be
available for Awards under the Plan to the extent of such forfeiture or
expiration of such Awards. Further, any shares of Common Stock which are
used as full or partial payment to the Company by a Participant of the
purchase price of shares of Common Stock upon exercise of a Stock Option
shall again be available for Awards under the Plan, as shall any shares
covered by Stock Appreciation Rights which are not issued as payment upon
exercise.
Common Stock which may be issued under the Plan may be either
authorized and unissued shares or issued shares which have been reacquired
by the Company. No fractional shares of Common Stock shall be issued under
the Plan.
5. ELIGIBILITY. Persons eligible for Awards under the Plan shall
consist of managerial and other key employees of the Company and/or its
Subsidiaries who hold positions of significant responsibilities or whose
performance or potential contribution, in the sole judgment of the Committee,
will benefit the future success of the Company.
6. STOCK OPTIONS. Stock Options granted under the Plan may be in
the form of Incentive Stock Options, Non-Qualified Stock Options or Deferred
Compensation Stock Options and such Stock Options shall be subject to the
following terms and conditions and shall contain such additional terms and
conditions, not inconsistent with the express provisions of the Plan, as the
Committee shall deem desirable:
(a) Grant. Stock Options may be granted under the Plan on such
terms and conditions not inconsistent with the Provisions of the Plan and
in such form as the Committee may from time to time approve. Stock Options
may be granted alone, in addition to or in tandem with other Awards under
the Plan.
(b) Stock Option Price. The option exercise price per share of
Common Stock purchasable under a Stock Option shall be determined by the
Committee at the time of grant, but in no event shall the exercise price of
an Incentive Stock Option be less than one hundred percent (100%) of the
Fair Market Value of the Common Stock on the date of the grant of such
Stock Option.
(c) Option Term. The term of each Stock Option shall be fixed
by the Committee; except that the term of Incentive Stock Options shall not
exceed ten (10) years after the date the Incentive Stock Option is granted.
(d) Exercisability. A Stock Option shall be exercisable at such
time or times and subject to such terms and conditions as shall be
determined by the Committee at the date of grant. Except as provided in
Section 13 of this Plan, no Stock Option may be exercised unless the holder
thereof is at the time of such exercise in the employ of the Company or a
Subsidiary and has been continuously so employed since the date such Stock
Option was granted.
(e) Method of Exercise. A Stock Option may be exercised, in
whole or in part, by giving written notice of exercise to the Company
specifying the number of shares to be purchased. Such notice shall be
accompanied by payment in full of the purchase price in cash or, if
acceptable to the Committee in its sole discretion, in shares of Common
Stock already owned by the Participant, or by surrendering outstanding
Awards denominated in stock or stock units. Subject to Section 6(h) of
this Plan, the Committee may also permit Participants, either on a
selective or aggregate basis, to simultaneously exercise Options and sell
the shares of Common Stock thereby acquired, pursuant to a brokerage or
similar arrangement, approved in advance by the Committee, and use the
proceeds from such sale as payment of the purchase price of such shares.
(f) Special Rules for Incentive Stock Options. With respect to
Incentive Stock Options granted under the Plan, the following additional
provisions shall apply:
(i) The aggregate Fair Market Value (determined as of the
date the Incentive Stock Option is granted) of the number of shares
with respect to which Incentive Stock Options are exercisable for the
first time by a Participant during any calendar year shall not exceed
One Hundred Thousand Dollars ($100,000) or such other limit as may be
required by the Code;
(ii) If at the time an Incentive Stock Option is granted,
the Participant owns stock possessing more than ten percent (10%) of
the total combined voting power of all classes of stock of Company,
then the terms of the Incentive Stock Option shall specify that the
exercise price shall be at least 110% of the Fair Market Value of the
Common Stock subject to the Incentive Stock Option and such Incentive
Stock Option shall not be exercisable after the expiration of five (5)
years from the date granted; and
(iii) The Committee shall include any other terms and
conditions as may be required in order that the Incentive Stock
Options qualify under Section 422 of the Code or successor provision.
(g) Deferred Compensation Stock Options. Deferred Compensation
Stock Options are intended to provide a means by which compensation
payments can be deferred to future dates. The number of shares of Common
Stock subject to a Deferred Compensation Stock Option shall be determined
by the Committee, in its sole discretion, in accordance with the following
formula:
Amount of Compensation to be Deferred = Number of (Fair Market Value -
Exercise Price) Optioned Shares
Amounts of compensation deferred may include amounts earned under Awards
granted under the Plan or under any other compensation plan, program or
arrangement of the Company as permitted by the Committee.
Deferred Compensation Stock Options will be granted only if the
Committee has reasonably determined that a recipient of such an option will
not be deemed at the date of grant to be in receipt of the amount of income
being deferred for purposes of the Code.
(h) Six Month Holding Period. Common Stock acquired upon
exercise of any Stock Option shall not be disposed of by the Participant
until after six months elapse from the date the Stock Option was granted.
7. STOCK APPRECIATION RIGHTS. The grant of Stock Appreciation
Rights under the Plan shall be subject to the following terms and conditions and
shall contain such additional terms and conditions, not inconsistent with the
express terms of the Plan, as the Committee shall deem desirable:
(a) Stock Appreciation Rights. A Stock Appreciation Right is an
Award entitling a Participant to receive an amount equal to (or if the
Committee shall determine at the time of grant, less than) the excess of
the Fair Market Value of a share of Common Stock on the date of exercise
over the Fair Market Value of a share of Common Stock on the date of grant
of the Stock Appreciation Right, or such other price as set by the
Committee, multiplied by the number of shares of Common Stock with respect
to which the Stock Appreciation Right shall have been exercised.
(b) Grant. A Stock Appreciation Right may be granted in tandem
with, in addition to or completely independent of a Stock Option or any
other Award under the Plan.
(c) Exercise. A Stock Appreciation Right may be exercised by a
Participant in accordance with procedures established by the Committee,
except that in no event shall a Stock Appreciation Right be exercisable
within the first six (6) months after the date of grant, except in the
event of the death or Disability of the Participant. In the case of an
officer who is subject to Section 16(b) of the Exchange Act, no payment in
the form of cash may be made upon the exercise of a Stock Appreciation
Right unless such exercise is made during the period beginning on the third
business day and ending on the twelfth business day following the date of
release for publication of the Corporation's quarterly or annual statement
of earnings, or unless the Committee has provided that the Stock
Appreciation Right shall be automatically exercised on one or more
specified dates outside of the control of the Participant.
(d) Form of Payment. Payment upon exercise of a Stock
Appreciation Right may be made in cash, in shares of Common Stock, a
Deferred Compensation Stock Option or any combination thereof, as the
Committee shall determine; provided, however, that any Stock Appreciation
Right exercised upon or subsequent to the occurrence of a Change in Control
(as defined in Section 16) shall be paid in cash.
8. RESTRICTED AWARDS. Restricted Awards granted under the Plan may
be in the form of either Restricted Stock Grants or Restricted Unit Grants.
Restricted Awards shall be subject to the following terms and conditions and
shall contain such additional terms and conditions, not inconsistent with the
express provisions of the Plan, as the Committee shall deem desirable:
(a) Restricted Stock Grants. A Restricted Stock Grant is an
Award of shares of Common Stock transferred to a Participant subject to
such terms and conditions as the Committee deems appropriate, including,
without limitation, restrictions on the sale, assignment, transfer or other
disposition of such shares and the requirement that the Participant forfeit
such shares back to the Company upon termination of employment for
specified reasons within a specified period of time.
(b) Restricted Unit Grants. A Restricted Unit Grant is an Award
of units (with each unit having a value equivalent to one share of Common
Stock) granted to a Participant subject to such terms and conditions as the
Committee deems appropriate, including, without limitation, the requirement
that the Participant forfeit such units upon termination of employment for
specified reasons within a specified period of time.
(c) Grants of Awards. Restricted Awards may be granted under
the Plan in such form and on such terms and conditions as the Committee may
from time to time approve. Restricted Awards may be granted alone, in
addition to or in tandem with other Awards under the Plan. Subject to the
terms of the Plan, the Committee shall determine the number of Restricted
Awards to be granted to a Participant and the Committee may impose
different terms and conditions on any particular Restricted Award made to
any Participant. Each Participant receiving a Restricted Stock Grant shall
be issued a stock certificate in respect of such shares of Common Stock.
Such certificate shall be registered in the name of such Participant, shall
be accompanied by a stock power duly executed by such Participant, shall
bear an appropriate legend referring to the terms, conditions and
restrictions applicable to such Award, and shall be held in custody by the
Company until the restrictions thereon shall have lapsed.
(d) Restriction Period. Restricted Awards shall provide that in
order for a Participant to vest in such Awards, the Participant must remain
in the employment of the Company or its Subsidiaries, subject to relief for
specified reasons, for such time period commencing on the date of the
Award and ending on such later date or dates as the Committee may designate
at the time of the Award ("Restriction Period"). During the Restriction
period, a Participant may not sell, assign, transfer, pledge, encumber or
otherwise dispose of shares of Common Stock received under a Restricted
Stock Grant. The Committee, in its sole discretion, may provide for the
lapse of restrictions in installments during the Restriction Period. Upon
expiration of the applicable Restriction period (or lapse of restrictions
during the Restriction Period where the restrictions lapse in installments)
the Participant shall be entitled to receive his or her Restricted Award or
portion thereof, as the case may be; provided, however, Common Stock
received upon payment of a Restricted Award shall not be disposed of by the
Participant until after six months elapse from the date the Restricted
Award was granted.
(e) Payment of Awards. A Participant shall be entitled to
receive payment for a Restricted Unit Grant (or portion thereof) in an
amount equal to the aggregate Fair Market Value of the shares of Common
Stock covered by such Award upon expiration of the applicable Restriction
Period. Payment in settlement of a Restricted Unit Grant shall be made as
soon as practicable following the conclusion of the respective Restriction
Period in cash, in shares of Common Stock equal to the number of units
granted under the Restricted Unit Grant with respect to which such payment
is made, a Deferred Compensation Stock Option or in any combination
thereof, as the Committee in its sole discretion shall determine. With
respect to a Restricted Stock Grant, the Committee may also, in its
discretion, permit a Participant to elect to receive, in lieu of shares of
unrestricted stock at the conclusion of a Restriction Period, a cash
payment equal to the Fair Market Value of the Restricted Stock vesting on
the date the restrictions lapse.
(f) Rights as a Shareholder. A Participant shall have, with
respect to the shares of Common Stock received under a Restricted Stock
Grant, all of the rights of a shareholder of the Company, including the
right to vote the shares, and the right to receive any cash dividends.
Stock dividends issued with respect to the shares covered by a Restricted
Stock Grant shall be treated as additional shares under the Restricted
Stock Grant and shall be subject to the same restrictions and other terms
and conditions that apply to shares under the Restricted Stock Grant with
respect to which such dividends are issued.
9. PERFORMANCE AWARDS. Performance Awards granted under the Plan
may be in the form of either Performance Equity Grants or Performance Unit
Grants. Performance Awards shall be subject to the following terms and
conditions and shall contain such additional terms and conditions, not
inconsistent with the express provisions of the Plan, as the Committee shall
deem desirable:
(a) Performance Equity Grants. A Performance Equity Grant is an
Award of units (with each unit equivalent in value to one share of Common
Stock) granted to a Participant subject to such terms and conditions as the
Committee deems appropriate, including, without limitation, the requirement
that the Participant forfeit such units or a portion of such units in the
event certain performance criteria are not met within a designated period
of time.
(b) Performance Unit Grants. A Performance Unit Grant is an
Award of units (with each unit representing such monetary amount as
designated by the Committee) granted to a Participant subject to such terms
and conditions as the Committee deems appropriate, including, without
limitation, the requirement that the Participant forfeit such units or a
portion of such units in the event certain performance criteria are not met
within a designated period of time.
(c) Grants of Awards. Performance Awards may be granted under
the Plan in such form as the Committee may from time to time approve.
Performance Awards may be granted alone, in addition to or in tandem with
other Awards under the Plan. Subject to the terms of the Plan, the
Committee shall determine the number of Performance Awards to be granted to
a Participant and the Committee may impose different terms and conditions
on any particular Performance Award made to any Participant.
(d) Performance Goals and Performance Periods. Performance
Awards shall provide that in order for a Participant to vest in such Awards
the Company and/or the individual Participant, or his or her division or
unit, must achieve certain performance goals ("Performance Goals") over a
designated performance period ("Performance Period") having a minimum
duration of two years. The Performance Goals and Performance Period shall
be established by the Committee, in its sole discretion. The Committee
shall establish Performance Goals for each Performance Period before, or as
soon as practicable after, the commencement of the Performance Period. The
Committee shall also establish a schedule or schedules for such Performance
Period setting forth the portion of the Performance Award which will be
earned or forfeited based on the degree of achievement of the Performance
Goals actually achieved or exceeded. In setting Performance Goals, the
Committee may use such measures of performance in such manner as it deems
appropriate, such as, for example, return on equity, earnings growth,
revenue growth, comparisons to peer companies or prior period performance
of the Participant or his or her division or unit. During the Performance
Period, the Committee shall have the authority to adjust upward or downward
the Performance Goals in such manner as it deems appropriate.
(e) Payment of Awards. In the case of a Performance Equity
Grant, the Participant shall be entitled to receive payment for each unit
earned in an amount equal to the aggregate Fair Market Value of the shares
of Common Stock covered by such Award at the time such Award is vested or
otherwise required to be settled in accordance with its terms. In the case
of a Performance Unit Grant, the Participant shall be entitled to receive
payment for each unit earned in an amount equal to the dollar value of each
unit times the number of units earned. Payment in settlement of a
Performance Award shall be made as soon as practicable following the
conclusion of the respective Performance Period in cash, in shares of
Common Stock, a Deferred Compensation Stock Option or in any combination
thereof, as the Committee in its sole discretion shall determine.
10. OTHER STOCK-BASED AND COMBINATION AWARDS.
(a) The Committee may grant other Awards under the Plan pursuant
to which Common Stock is or may in the future be acquired, or Awards
denominated in stock units, including ones valued using measures other than
market value. Such Other Stock-Based Grants may be granted either alone,
in addition to or in tandem with any other type of Award Granted under the
Plan.
(b) The Committee may also grant Awards under the Plan in tandem
or combination with other Awards or in exchange of Awards, or in tandem or
combination with, or as alternatives to grants or rights under any other
employee plan of the Company, including the plan of any acquired entity.
(c) Subject to the provisions of the Plan, the Committee shall
have authority to determine the individuals to whom and the time or times
at which such Awards shall be made, the number of shares of Common Stock to
be granted or covered pursuant to such Awards, and any and all other
conditions and/or terms of the Awards.
11. DEFERRAL ELECTIONS. The Committee may permit a Participant to
elect to defer his or her receipt of the payment of cash or the delivery of
shares of Common Stock that would otherwise be due to such Participant by virtue
of the earn out or exercise of an Award made under the Plan. If any such
election is permitted, the Committee shall establish rules and procedures for
such payment deferrals, including, but not limited to, the possible (a) payment
or crediting of reasonable interest on such deferred amounts credited in cash,
(b) the payment or crediting of dividend equivalents in respect of deferrals
credited in units of Common Stock, and (c) granting of Deferred Compensation
Stock Options.
12. DIVIDEND EQUIVALENTS. Awards of Stock Options, Stock
Appreciation Rights, Restricted Unit Grants, Performance Equity Grants, and
other stock-based Awards may, in the discretion of the Committee, earn dividend
equivalents. In respect of any such Award which is outstanding on a dividend
record date for Common Stock, the Participant may be credited with an amount
equal to the amount of cash or stock dividends that would have been paid on the
shares of Common Stock covered by such Award had such covered shares been issued
and outstanding on such dividend record date. The Committee shall establish
such rules and procedures governing the crediting of dividend equivalents,
including the timing, form of payment and payment contingencies of such dividend
equivalents, as it deems are appropriate or necessary.
13. TERMINATION OF EMPLOYMENT. The terms and conditions under which
an Award may be exercised after a Participant's termination of employment shall
be determined by the Committee.
In the case of an Incentive Stock Option, such Award shall expire no
later than the date three months after the termination of the Participant's
employment for any reason other than death or Disability. In the event of
termination of the Participant's employment by reason of death or Disability,
the Incentive Stock Option shall expire on the earlier of the expiration of (i)
the date specified in the Award which in no event shall be later than 12 months
after the date of such termination, or (ii) the term specified in Section 6(c)
of this Plan.
Notwithstanding any other provision to the contrary, in the event a
Participant's employment with the Company or a Subsidiary terminates for any
reason within six (6) months of the date of grant of any Award held by the
Participant, such Award shall expire as of the date of such termination of
employment and the Participant and the Participant's legal representative or
beneficiary shall forfeit any and all rights pertaining to such Award.
14. NON-TRANSFERABILITY OF AWARDS. No Award under the Plan, and no
rights or interests therein, shall be assignable or transferable by a
Participant except by will or the laws of descent and distribution. During the
lifetime of a Participant, Stock Options and Stock Appreciation Rights are
exercisable only by, and payments in settlement of Awards will be payable only
to, the Participant or his legal representative.
15. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, ETC.
(a) The existence of the Plan and the Awards granted hereunder
shall not affect or restrict in any way the right or power of the Board or
the shareholders of the Company to make or authorize any adjustment,
recapitalization, reorganization or other change in the Company's capital
structure or its business, any merger or consolidation of the Company, any
issue of bonds, debentures, preferred or prior preference stocks ahead of
or affecting the Company's capital stock or the rights thereof, the
dissolution or liquidation of the Company or any sale or transfer of all or
any part of its assets or business, or any other corporate act or
proceeding.
(b) In the event of any change in capitalization affecting the
Common Stock of the Company, such as a stock dividend, stock split,
recapitalization, merger, consolidation, split-up, combination or exchange
of shares or other form of reorganization, or any other change affecting
the Common Stock, such proportionate adjustments, if any, as the Board in
its discretion may deem appropriate to reflect such change shall be made
with respect to the aggregate number of shares of Common Stock for which
Awards in respect thereof may be granted under the Plan, the maximum number
of shares of Common Stock which may be sold or awarded to any Participant,
the number of shares of Common Stock covered by each outstanding Award, and
the price per share in respect of outstanding Awards.
(c) The Committee may also make such adjustments in the number
of shares covered by, and the price or other value of any outstanding
Awards in the event of a spin-off or other distribution (other than normal
cash dividends) of Company assets to shareholders. In the event that
another corporation or business entity is being acquired by the Company,
and the Company agrees to assume outstanding employee stock options and/or
stock appreciation rights and/or the obligation to make future grants of
options or rights to employees of the acquired entity, the aggregate number
of shares of Common Stock available for Awards under Section 4 of the Plan
may be increased accordingly.
16. CHANGE IN CONTROL.
(a) In the event of a Change in Control (as defined below) of
the Company, and except as the Board may expressly provide otherwise, (i)
all Stock Options and Stock Appreciation Rights then outstanding shall
become fully exercisable as of the date of the Change in Control, whether
or not then exercisable, (ii) all restrictions and conditions of all
Restricted Stock Grants and Restricted Unit Grants then outstanding shall
be deemed satisfied as of the date of the Change in Control, and (iii) all
Performance Equity Grants and Performance Unit Grants shall be deemed to
have been fully earned as of the date of the Change in Control, subject to
the limitation that any Award which has been outstanding less than six (6)
months on the date of the Change in Control shall not be afforded such
treatment.
(b) A "Change in Control" of the Company shall have occurred if,
after the date of approval of this Plan by the Shareholders of Company, any
Acquiring Person (other than the Company, any Subsidiary, any employee
benefit plan of the Company or of any Subsidiary, or any person or entity
organized, appointed or established by the Company or any Subsidiary for or
pursuant to the terms of any such plans), alone or together with its
Affiliates and Associates, shall become the beneficial owner of thirty-five
percent (35%) or more of the shares of Common Stock then outstanding
(except pursuant to an offer for all outstanding shares of the Company's
Common Stock at a price and upon such terms and conditions as a majority of
the Continuing Directors determine to be in the best interests of the
Company and its shareholders, (other than the Acquiring Person or any
Affiliate or Associate thereof on whose behalf the offer is being made)),
and the Continuing Directors no longer constitute a majority of the Board.
(c) "Acquiring Person" means any person (any individual, firm,
corporation or other entity) who or which, together with all Affiliates and
Associates, shall be the beneficial owner of a substantial block of the
Company's Common Stock.
(d) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act.
(e) "Continuing Director" means (i) any individual who is a
member of the Board, while such individual is a member of the Board, who is
not an Acquiring Person, or an Affiliate or Associate of an Acquiring
Person, or a representative or nominee of an Acquiring Person or of any
such Affiliate or Associate and was a member of the Board prior to the
occurrence of the Change in Control date, or (ii) any successor of a
Continuing Director, while such successor is a member of the Board, and who
is not an Acquiring Person, or an Affiliate or Associate, and is
recommended or elected to succeed the Continuing Director by a majority of
the Continuing Directors.
17. AMENDMENT AND TERMINATION. Without further approval of the
shareholders, the Board may at any time terminate the Plan, or may amend it from
time to time in such respects as the Board may deem advisable, except that the
Board may not, without approval of the shareholders, make any amendment which
would (i) increase the aggregate number of shares of Common Stock which may be
issued under the Plan (except for adjustments pursuant to Section 15 of the
Plan), (ii) materially modify the requirements as to eligibility for
participation in the Plan, or (iii) materially increase the benefits accruing to
Participants under the Plan. The above notwithstanding, the Board may amend the
Plan to take into account changes in applicable securities, federal income tax
laws and other applicable laws. Further, should the provisions of Rule 16b-3,
or any successor rule, under the Exchange Act be amended, the Board may amend
the Plan in accordance with any modifications to this rule.
18. MISCELLANEOUS.
(a) Tax Withholding. The Company shall have the right to deduct
from any settlement, including the delivery or vesting of shares, made
under the Plan any federal, state or local taxes of any kind required by
law to be withheld with respect to such payments or to take such other
action as may be necessary in the opinion of the Company to satisfy all
obligation for the payment of such taxes. If Common Stock is used to
satisfy tax withholding, such stock shall be valued based on the Fair
Market Value when the tax withholding is required to be made.
(b) No Right to Employment. Neither the adoption of the Plan
nor the granting of any Award shall confer upon any employee of the Company
or any Subsidiary any right to continued employment with the Company or any
Subsidiary, as the case may be, nor shall it interfere in any way with the
right of the Company or a Subsidiary to terminate the employment of any of
its employees at any time, with or without cause.
(c) Unfunded Plan. The Plan shall be unfunded and the Company
shall not be required to segregate any assets that may at any time be
represented by Awards under the Plan. Any liability of the Company to any
person with respect to any Award under the Plan shall be based solely upon
any contractual obligations that may be effected pursuant to the Plan. No
such obligation of the Company shall be deemed to be secured by any pledge
of, or other encumbrance on, any property of the Company.
(d) Payments to Trust. The Committee is authorized to cause to
be established a trust agreement or several trust agreements whereunder the
Committee may make payments of amounts due or to become due to Participants
in the Plan.
(e) Annulment of Awards. The grant of any Award under the Plan
payable in cash is provisional until cash is paid in settlement thereof.
The grant of any Award payable in Common Stock is provisional until the
Participant becomes entitled to the certificate in settlement thereof. In
the event the employment of a Participant is terminated for cause (as
defined below), any Award which is provisional shall be annulled as of the
date of such termination for cause. For the purpose of this Section 18(e),
the term "terminated for cause" means any discharge for violation of the
policies and procedures of the Company or for other job performance or
conduct which is detrimental to the best interests of the Company, as
determined by the Committee in its sole discretion.
(f) Engaging in Competition With Company. In the event a
Participant terminates his or her employment with the Company or a
Subsidiary for any reason whatsoever (except after a Change in Control),
and within eighteen (18) months after the date thereof accepts employment
with any significant competitor of, or otherwise engages in material
competition with, the Company or a Subsidiary, the Committee, in its sole
discretion, may require such Participant to return to the Company the
economic value of any Award which is realized or obtained (measured at the
date of exercise, vesting or payment) by such Participant at any time
during the period beginning on that date which is six months prior to the
date of such Participant's termination of employment with the Company or a
Subsidiary.
(g) Other Company Benefit and Compensation Programs. Payments
and other benefits received by a Participant under an Award made pursuant
to the Plan shall not be deemed a part of a Participant's regular,
recurring compensation for purposes of the termination indemnity or
severance pay law of any country and shall not be included in, nor have any
effect on, the determination of benefits under any other employee benefit
plan or similar arrangement provided by the Company or a Subsidiary unless
expressly so provided by such other plan or arrangements, or except where
the Committee expressly determines that inclusion of an Award or portion of
an Award should be included to accurately reflect competitive compensation
practices or to recognize that an Award has been made in lieu of a portion
of competitive annual cash compensation. Awards under the Plan may be made
in combination with or in tandem with, or as alternatives to, grants,
awards or payments under any other Company or Subsidiary plans. The Plan
notwithstanding, the Company or any Subsidiary may adopt such other
compensation programs and additional compensation arrangements as it deems
necessary to attract, retain and reward employees for their service with
the Company and its Subsidiaries.
(h) Securities Law Restrictions. No shares of Common Stock
shall be issued under the Plan unless counsel for the Company shall be
satisfied that such issuance will be in compliance with applicable Federal
and state securities laws. Certificates for shares of Common Stock
delivered under the Plan may be subject to such stop-transfer orders and
other restrictions as the Committee may deem advisable under the rules,
regulations, and other requirements of the Securities and Exchange
Commission, any stock exchange upon which the Common Stock is then listed,
and any applicable Federal or state securities law. The Committee may
cause a legend or legends to be put on any such certificates to make
appropriate reference to such restrictions.
(i) Award Agreement. Each Participant receiving an Award under
the Plan shall enter into an agreement with the Company in a form specified
by the Committee agreeing to the terms and conditions of the Award and such
related matters as the Committee shall, in its sole discretion, determine.
(j) Costs of Plan. The costs and expenses of administering the
Plan shall be borne by the Company.
(k) Governing Law. The Plan and all actions taken thereunder
shall be governed by and construed in accordance with the laws of the State
of Delaware.
(l) Effective Date. The Plan shall be effective if, and when,
approved by the affirmative vote of a majority of the holders of the Common
Stock present in person or represented by proxy at the 1992 annual meeting
of shareholders or any adjournment thereof.
EXHIBIT 5.1
May 30, 1995
Moto Photo, Inc.
4444 Lake Center Drive
Dayton, Ohio 45426
Re: Moto Photo, Inc. - Registration Statement on Form S-8 Relating to
1,250,000 Shares of Common Stock Issuable in Connection with the
1992 Performance and Equity Incentive Plan (the "1992 Plan")
Ladies and Gentlemen:
We have acted as counsel to Moto Photo, Inc. (the "Company") in connection
with the offer and sale of securities of the Company pursuant to a Registration
Statement on Form S-8 (the "Registration Statement") relating to the 1992 Plan.
We understand that the Registration Statement will be filed on or about May 30,
1995. You have requested our opinion as to certain matters in connection with
the Registration Statement.
We have examined, and are familiar with, the originals or copies, the
authenticity of which have been established to our satisfaction, of all
documents and other instruments we have deemed necessary to express the opinions
hereinafter set forth. We have assumed the accuracy and completeness of such
documents and instruments and of the information contained therein.
Based on the foregoing, and upon consideration of applicable law, it is our
opinion that the 750,000 authorized but unissued shares of Voting Common Stock,
par value $.01 per share ("Common Stock"), of the Company or treasury stock of
the Company authorized for issuance under the 1992 Plan pursuant to Amendment
No. 1 to the 1992 Plan and covered by the Registration Statement will, when
issued in the manner described in the 1992 Plan and upon payment therefor and
delivery thereof as provided in the 1992 Plan, be validly issued, fully paid and
nonassessable.
In accordance with Item 8(a) of Form S-8 under the Securities Act of 1933,
we do not express an opinion as to the legality of the up to 500,000 shares of
Common Stock covered by the Registration Statement which may be purchased on the
open market by participants in the 1992 Plan.
We hereby consent to the use of this opinion as an exhibit to the above-
captioned Registration Statement .
Respectfully submitted,
CROWE & DUNLEVY
A PROFESSIONAL CORPORATION
By: /s/ MICHAEL M. STEWART
Michael M. Stewart
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of Moto Photo, Inc. and the related Prospectus of our report dated
March 7, 1995, with respect to the consolidated financial statements and
schedules of Moto Photo, Inc. and subsidiaries included in its Annual Report
(Form 10-K) for the year ended December 31, 1994, filed with the Securities and
Exchange Commission.
Ernst & Young LLP
Dayton, Ohio
May 30, 1995
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints David A. Mason, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign the Registration Statement on Form
S-8, relating to the offer and sale of shares of Voting Common Stock of the
Company in connection with the Company's 1992 Performance and Equity Incentive
Plan, and any and all amendments thereto (including post-effective amendments),
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Signature Title Date
/s/MICHAEL F. ADLER Chairman of the May 30, 1995
Michael F. Adler Board of Directors, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints Michael F. Adler, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign the Registration Statement on Form
S-8, relating to the offer and sale of shares of Voting Common Stock of the
Company in connection with the Company's 1992 Performance and Equity Incentive
Plan, and any and all amendments thereto (including post-effective amendments),
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Signature Title Date
/s/DAVID A. MASON Executive Vice-President - May 30, 1995
David A. Mason Finance, Chief Financial
Officer, Treasurer and
Director
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each of the undersigned hereby constitutes
and appoints Michael F. Adler and David A. Mason, and each or any of them, his
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign the Registration Statement on Form S-8, relating to the
offer and sale of shares of Voting Common Stock of the Company in connection
with the Company's 1992 Performance and Equity Incentive Plan, and any and all
amendments thereto (including post-effective amendments), and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Signature Title Date
/s/ALFRED E. LEFELD Vice-President May 30, 1995
Alfred E. Lefeld and Controller
/s/JACOB A. MYERS Secretary and Director May 30, 1995
Jacob A. Myers
/s/FRANK W. BENSON Director May 30, 1995
Frank W. Benson
/s/LESLIE CHARM Director May 30, 1995
Leslie Charm
/s/DEXTER B. DAWES Director May 30, 1995
Dexter B. Dawes
/s/HARRY D. LOYLE Director May 30, 1995
Harry D. Loyle
