<PAGE> 1
As filed with the Securities and Exchange Commission on May 2, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MAX & ERMA'S RESTAURANTS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 31-1041397
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
4849 Evanswood Drive
Columbus, Ohio 43229
(Address of Registrant's principal executive offices)
MAX & ERMA'S RESTAURANTS, INC.
1996 STOCK OPTION PLAN
(Full Title of the Plan)
William C. Niegsch, Jr.
Executive Vice President, Chief Financial
Officer, Treasurer, and Secretary Max
& Erma's Restaurants, Inc.
4849 Evanswood Drive
Columbus, Ohio 43229
(614) 431-5800
(Name, address and telephone number of agent for service)
Copies of Correspondence to:
Robert J. Tannous, Esq.
Porter, Wright, Morris & Arthur
41 South High Street
Columbus, Ohio 43215
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share* Price* Fee*
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.10 par value................ 400,000 $7.50 $3,000,000 $1,035.00
- -------------------------------------------------------------------------------------------------------------------
<FN>
*Estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457(h), based upon the average of the high and low prices of Max &
Erma's Common Stock as reported on the Nasdaq National Market on April 26, 1996.
</TABLE>
This Registration Statement shall be deemed to cover an indeterminate number of
additional shares of Max & Erma's Common Stock, $.10 par value, as may be
issuable pursuant to future stock dividends, stock splits or similar
transactions.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information concerning the Max & Erma's
Restaurants, Inc. 1996 Stock Option Plan (the "Plan"), specified in Part I will
be sent or given to employees as specified by Rule 428(b)(1). Such documents are
not filed as part of this Registration Statement in accordance with the Note to
Part I of the Form S-8 Registration Statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and
Exchange Commission by the Registrant are hereby incorporated by reference:
1. Annual Report on Form 10-K for the year ended October 29, 1995;
2. Quarterly Report on Form 10-Q for the quarter ended February 18, 1996;
and
3. Proxy Statement for the Annual Meeting of Shareholders held on March
15, 1996.
The description of Max & Erma's Common Stock which is contained in Max
& Erma's Registration Statement on Form S-2 (SEC File No. 33-80090), filed with
the Securities and Exchange Commission pursuant to the Securities Act of 1933,
as amended, as updated in any amendment or report filed for the purpose of
updating such description, is hereby incorporated by reference.
All documents filed by Max & Erma's, pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended, after the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents. Any statement incorporated by
reference herein 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 other subsequently filed document which 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
II-1
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Article VII, Section 7 of the Registrant's Amended and Restated
Bylaws (the "Bylaws") provides that the Registrant shall indemnify its
directors, officers, employees, and agents to the extent permitted by the
General Corporation Law of Delaware (the "Delaware Law").
(b) Indemnification against expenses (including attorneys' fees)
actually and reasonably incurred by directors, officers, employees, and agents
is required under Section 145 of the Delaware Law in those cases where the
person to be indemnified has been successful on the merits or otherwise in
defense of a lawsuit. Indemnification is permitted in third party actions where
the indemnified party acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation and in criminal
actions where he had no reasonable cause to believe his conduct was unlawful.
Indemnification is also permitted in lawsuits brought by or on behalf of the
corporation if the standards of conduct described above are met, except that no
indemnification is permitted in respect to any matter in which the person is
adjudged to be liable to the corporation unless a court shall determine that
indemnification is fair and reasonable in view of all the circumstances in the
case. In cases where indemnification is permissive, a determination as to
whether the person met the applicable standard of conduct must be made either by
the court, by disinterested directors, by independent legal counsel, or by the
stockholders. Such indemnification rights are specifically not deemed to be
exclusive of other rights of indemnification by agreement or otherwise and the
corporation is authorized to advance expenses incurred prior to the final
disposition of a matter upon receipt of an undertaking to repay such amounts on
a determination that indemnification was not permitted in the circumstances of
the case.
(c) The Registrant's stockholders, at a special meeting of the
stockholders held on September 9, 1986, ratified and approved indemnification
agreements entered into between the Registrant and each of its directors and to
be entered into between the Registrant and its future directors. The
indemnification agreements between the Registrant and each of its directors (i)
confirm the indemnity provided to a director by the Registrant's Bylaws, as
discussed above, and assure a director that this indemnity will continue to be
provided despite future changes in the Bylaws, and (ii) provide that a director
shall be indemnified to the fullest possible extent permitted by law against all
expenses, including attorneys' fees, judgements, fines and settlement amounts,
paid or incurred by him or her in any action or proceeding, including any action
by or in the right of the Registrant on account of his or her service as a
director or officer of the Registrant or as a director or officer of any other
company or enterprise when he or she is serving in such capacity at the request
of the Registrant. No indemnity will be provided under the indemnification
contract to any director on account of willful misconduct or conduct which is
adjudged to have been knowingly fraudulent or deliberately dishonest.
(d) Under Section 145 of the Delaware Law, the Registrant may purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee, or agent of the corporation, or who, while serving in such
capacity, is or was at the request of the corporation, a director, officer,
employee, or agent of another corporation or legal entity or of an employee
benefit plan, against liability asserted against or incurred by such person in
any such capacity whether or not the corporation would have the power to provide
indemnity under Section 145. The Registrant has obtained insurance which,
subject to certain retentions and exceptions, insures the directors and officers
of the Registrant up to a maximum of $5,000,000 (subject to certain exclusions)
in each policy year because of any claim or claims made against them by reason
of their wrongful acts while acting in their capacities as such directors and
officers. The Registrant is insured, subject to certain retentions and
exceptions, to the extent it shall have indemnified the directors and officers
for such loss.
(e) Article Thirteenth of the Registrant's Restated Certificate of
Incorporation, as amended (the "Certificate of Incorporation"), provides that
the directors of the Registrant shall not be personally liable to the Registrant
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Registrant or its stockholders; (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law; (iii) for any unlawful payment of a dividend or unlawful stock purchase or
redemption; or (iv) for any transaction from which the director derived any
improper personal benefit.
II-2
<PAGE> 4
The above discussion of the Registrant's Bylaws, Certificate of
Incorporation, and indemnification agreements and of Section 145 of the Delaware
Law is not intended to be exhaustive and is respectively qualified in its
entirety by such Bylaws, Certificate of Incorporation, indemnification
agreements, and statutes.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Reference is made to the information contained in the Exhibit Index
filed as part of this Registration Statement.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)
(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(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 (1)(i) and (1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8
and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 5
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-4
<PAGE> 6
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 Columbus, State of Ohio, on May 1, 1996.
MAX & ERMA'S RESTAURANTS, INC.
By: /s/ William C. Niegsch, Jr.
--------------------------------------------------------
William C. Niegsch, Jr., Executive Vice President, Chief
Financial Officer, Treasurer, and Secretary
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:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
*Todd B. Barnum President, Chief Executive Officer, and ) May 1, 1996
- --------------------------------------------- Chairman of the Board of Directors) )
Todd B. Barnum (Principal Executive Officer) )
)
)
/s/ William C. Niegsch, Jr. Executive Vice President, Chief Financial ) May 1, 1996
- --------------------------------------------- Officer, Treasurer, Secretary, and )
William C. Niegsch, Jr. Director )
(Principal Financial Officer and )
Principal Accounting Officer) )
)
)
*Mark F. Emerson Chief Operating Officer and Director ) May 1, 1996
-------------------------------------------- )
Mark F. Emerson )
)
)
*Karen A. Brennan Vice President of Marketing and Director ) May 1, 1996
- --------------------------------------------- )
Karen A. Brennan )
)
)
*William A. Arthur Director ) May 1, 1996
- --------------------------------------------- )
William A. Arthur )
)
)
*Roger D. Blackwell Director ) May 1, 1996
- --------------------------------------------- )
Roger D. Blackwell )
)
)
*Donald W. Kelley Director ) May 1, 1996
- --------------------------------------------- )
Donald W. Kelley )
)
</TABLE>
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<PAGE> 7
<TABLE>
<CAPTION>
<S> <C> <C>
*Michael D. Murphy Director ) May 1, 1996
- --------------------------------------------- )
Michael D. Murphy )
)
)
*Robert A. Rothman Director ) May 1, 1996
- --------------------------------------------- )
Robert A. Rothman )
</TABLE>
*By: /s/ William C. Niegsch, Jr.
--------------------------------------------
William C. Niegsch, Jr., attorney-in-fact
for each of the persons indicated
II-6
<PAGE> 8
Registration No. 333-_______
---------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
MAX & ERMA'S RESTAURANTS, INC.
------------------------
EXHIBITS
------------------------
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Pagination By
Sequential
Exhibit Exhibit Numbering
Number Description System
- ------ ----------- ------
<C> <C>
4(a) * Max & Erma's Restaurants, Inc. 1996 Stock Option Plan.
4(b) Restated Certificate of Incorporation of Max & Erma's
Restaurants, Inc., Exhibit 4(c) to Form 10-Q, filed on June
26, 1985, and incorporated herein by reference.
4(c) Amended and Restated Bylaws of Max & Erma's Restaurants,
Inc., Exhibit 4(d) to Form 10-Q filed on June 26, 1985, and
incorporated herein by reference.
4(d) Certificate of Amendment of Certificate of Incorporation,
Exhibit 3(c) to Form 10-K filed on January 23, 1987, and
incorporated herein by reference.
4(e) Certificate of Amendment of Certificate of Incorporation,
Exhibit 3(d) to Form 10-K filed on January 25, 1991, and
incorporated herein by reference.
4(f) Form of Common Stock Certificate, Exhibit 4(a) to Form S-1
Registration Statement (File 2-85585), as amended, and
incorporated herein by reference.
4(g) Indenture dated as of August 18, 1994, between Max & Erma's
Restaurants, Inc. and The Huntington National Bank, as
trustee with respect to the 9-1/2% Subordinated Convertible
Debentures (the "Debentures"), Exhibit 4(a) to Form S- 2
Registration Statement (File No. 80090), as amended, and
incorporated herein by reference.
4(h) Form of Debenture, Exhibit 4(b) to Form S-2 Registration Statement
(File No. 33- 80090), as amended and incorporated herein by reference.
5 * Opinion of Porter, Wright, Morris & Arthur regarding legality.
23(a) Consent of Porter, Wright, Morris & Arthur.
23(b) * Consent of Deloitte & Touche LLP.
24 * Powers of Attorney.
- ---------------------
<FN>
* Filed with this Registration Statement
</TABLE>
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<PAGE> 1
MAX & ERMA'S RESTAURANTS, INC.
------------------------
Exhibit 4(a)
------------------------
<PAGE> 2
MAX & ERMA'S RESTAURANTS, INC.
1996 STOCK OPTION PLAN
1. PURPOSE. This plan (the "Plan") is intended as an incentive and to
encourage stock ownership by certain key employees, officers and directors of,
and consultants and advisers who render services to, Max & Erma's Restaurants,
Inc., a Delaware corporation (the "Company"), and any current or future
subsidiaries or parent of the Company by the granting of stock options (the
"Options") as provided herein. By encouraging such stock ownership, the Company
seeks to attract, retain and motivate employees, officers, directors,
consultants and advisers of training, experience and ability. The Options
granted under the Plan may be either incentive stock options ("ISOs") which meet
the requirements of section 422 of the Internal Revenue Code of 1986, as amended
from time to time hereafter (the "Code"), or options which do not meet such
requirements ("Non-Statutory Options").
2. EFFECTIVE DATE. The Plan will become effective on December 12, 1995 (the
"Effective Date").
3. ADMINISTRATION.
(a) The Plan will be administered by a committee (the
"Committee") appointed by the Board of Directors of the Company (the "Board")
which consists of not fewer than three members of the Board. If any class of
equity securities of the Company is registered under section 12 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), all members of the
Committee will be "disinterested persons" as defined in Rule 16b-3(c)(2)(i)
promulgated under the 1934 Act (or any successor rule of like tenor and effect)
and "outside directors" as defined in section 162(m) of the Code and the
regulations promulgated thereunder and will not be eligible to receive any
options under this Plan except pursuant to paragraph 4(b) of the Plan.
(b) Subject to the provisions of the Plan, the Committee is
authorized to establish, amend and rescind such rules and regulations as it
deems appropriate for its conduct and for the proper administration of the Plan,
to make all determinations under and interpretations of, and to take such
actions in connection with the Plan or the Options granted thereunder as it
deems necessary or advisable. All actions taken by the Committee under the Plan
are final and binding on all persons. No member of the Committee is liable for
any action taken or determination made relating to the Plan, except for willful
misconduct.
(c) The Company will indemnify each member of the Committee against
costs, expenses and liabilities (other than amounts paid in settlements to which
the Company does not consent, which consent will not be unreasonably withheld)
reasonably incurred by such member in connection with any action to which he or
she may be a party by reason of service as a member of the Committee, except in
relation to matters as to which he or she is adjudged in such action to be
personally guilty of negligence or willful misconduct in the performance of his
or her duties. The
<PAGE> 3
foregoing right to indemnification is in addition to such other rights as the
Committee member may enjoy as a matter of law, by reason of insurance coverage
of any kind, or otherwise.
4. ELIGIBILITY.
(a) The Committee may grant Options and Tax Offset Payments, as
defined in paragraph 10, to such key employees of (or, in the case of
Non-Statutory Options only, to directors who are not employees of and to
consultants and advisers who render services to) the Company or its subsidiaries
or parent as the Committee may select from time to time (the "Optionees");
provided, however, that if any class of equity securities of the Company is
registered under section 12 of the 1934 Act, any member of the Board who is not
an employee of the Company may not receive any Option or Tax Offset Payment
under the Plan except pursuant to paragraph 4(b) of the Plan. The Committee may
grant more than one Option to an individual under the Plan.
(b) If any class of equity securities of the Company is
registered under section 12 of the 1934 Act, on October 15 of each year, each
member of the Board who is not an employee of the Company, including members of
the Committee, will automatically receive under this Plan a Non-Statutory Option
to purchase 3,000 shares of the Company's common stock, $.10 par value, at an
exercise price equal to 100% of the fair market value of the shares on the date
of grant. Such Option will not be exercisable until a period of one year from
the date of grant and will terminate on the fifth anniversary of the date of
grant. This paragraph 4(b) may not be amended more than once every six months,
other than to comport with changes in the Code, the Employee Retirement Income
Security Act of 1974, as amended from time to time, or the rules thereunder.
(c) No ISO may be granted to an individual who, at the time an
ISO is granted, is considered under section 422(b)(6) of the Code as owning
stock possessing more than 10 percent of the total combined voting power of all
classes of stock of the Company or of its parent or any subsidiary corporation;
provided, however, this restriction will not apply if at the time such ISO is
granted the option price per share of such ISO is at least 110% of the fair
market value of such share, and such ISO by its terms is not exercisable after
the expiration of five years from the date it is granted. This paragraph 4(c)
has no application to Options granted under the Plan as Non-Statutory Options.
(d) The aggregate fair market value (determined as of the date
the ISO is granted) of shares with respect to which ISOs are exercisable for the
first time by any Optionee during any calendar year under the Plan or any other
incentive stock option plan of the Company or a parent or subsidiary of the
Company may not exceed $100,000. This paragraph 4(d) has no application to
Options granted under the Plan as Non-Statutory Options.
5. STOCK SUBJECT TO PLAN. The shares subject to Options under the Plan
are the shares of common stock, $.10 par value, of the Company (the "Shares").
The Shares issued pursuant to Options granted under the Plan may be authorized
and unissued Shares, Shares purchased on the open market or in a private
transaction, or Shares held as treasury stock. The aggregate number of Shares
for which Options may be granted under the Plan may not exceed 400,000, subject
to adjustment in accordance
-2-
<PAGE> 4
with the terms of paragraph 13 of the Plan. The maximum number of Shares for
which Options may be granted under the Plan during the term of the Plan to any
one individual may not exceed 200,000 subject to adjustment in accordance with
the terms of paragraph 13 of the Plan. The unpurchased Shares subject to
terminated or expired Options may again be offered under the Plan. The
Committee, in its sole discretion, may permit the exercise of any Option as to
full Shares or fractional Shares. Proceeds from the sale of Shares under Options
will be general funds of the Company.
6. TERMS AND CONDITIONS OF OPTIONS.
(a) At the time of grant, the Committee will determine whether
the Options granted will be ISOs or Non-Statutory Options. All Options and Tax
Offset Payments granted will be authorized by the Committee and, within a
reasonable time after the date of grant, will be evidenced by stock option
agreements in writing ("Stock Option Agreements"), in the form attached hereto
as Exhibit A, or in such other form and containing such terms and conditions not
inconsistent with the provisions of this Plan as the Committee may determine.
Any action under paragraph 13 may be reflected in an amendment to, or
restatement of, such Stock Option Agreements.
(b) The Committee may grant Options and Tax Offset Payments
having terms and provisions which vary from those specified in the Plan if such
Options or Tax Offset Payments are granted in substitution for, or in connection
with the assumption of, existing options granted by another corporation and
assumed or otherwise agreed to be provided for by the Company pursuant to or by
reason of a transaction involving a corporate merger, consolidation, acquisition
of property or stock, separation, reorganization or liquidation to which the
Company is a party.
7. PRICE. The Committee will determine the option price per Share (the
"Option Price") of each Option granted under the Plan. Notwithstanding the
foregoing, the Option Price of each ISO granted under the Plan may not be less
than the fair market value of a Share on the date of grant of such Option. The
date of grant will be the date the Committee acts to grant the Option or such
later date as the Committee specifies and the fair market value will be
determined in accordance with paragraph 26(c) and without regard to any
restrictions other than a restriction which, by its terms, will never lapse.
8. OPTION PERIOD. The Committee will determine the period during which
each Option may be exercised (the "Option Period"); provided, however, any ISO
granted under the Plan will have an Option Period which does not exceed 10 years
from the date of grant.
9. NONTRANSFERABILITY OF OPTIONS. An Option will not be transferable
by the Optionee otherwise than by will or the laws of descent and distribution
and may be exercised, during the lifetime of the Optionee, only by the Optionee
or by the Optionee's guardian or legal representative.
10. TAX OFFSET PAYMENTS. The Committee has the authority and discretion
under the Plan to make cash grants to Optionees to offset a portion of the taxes
which may become payable upon exercise of Non-Statutory Options or on certain
dispositions of Shares acquired under ISOs ("Tax Offset Payments"). In the case
of Non-Statutory Options, such Tax Offset Payments will be in an
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<PAGE> 5
amount determined by multiplying a percentage established by the Committee by
the difference between the fair market value of a Share on the date of exercise
and the Option Price, and by the number of Shares as to which the Option is
being exercised. If the Tax Offset Payment is being made on account of the
disposition of Shares acquired under an ISO, such Tax Offset Payments will be in
an amount determined by multiplying a percentage established by the Committee by
the difference between the fair market value of a Share on the date of
disposition, if less than the fair market value on the date of exercise, and the
Option Price, and by the number of Shares acquired under an ISO of which an
Optionee is disposing. The percentage will be established, from time to time, by
the Committee at that rate which the Committee, in its sole discretion,
determines to be appropriate and in the best interest of the Company to assist
Optionees in the payment of taxes. The Company has the right to withhold and pay
over to any governmental entities (federal, state or local) all amounts under a
Tax Offset Payment for payment of any income or other taxes incurred on
exercise.
11. EXERCISE OF OPTIONS.
(a) The Committee, in its sole discretion, will determine the
terms and conditions of exercise and vesting percentages of Options granted
hereunder. Notwithstanding the foregoing or the terms and conditions of any
Stock Option Agreement to the contrary, (i) if the Optionee's employment is
terminated as a result of disability or death, his or her Options will be
exercisable to the extent and for the period specified in paragraph 12(b); (ii)
if the Optionee's employment is terminated other than as a result of disability
or death or for cause, his or her Options will be exercisable to the extent and
for the period specified in paragraph 12(a); (iii) if a merger or similar
reorganization or sale of substantially all of the Company's assets occurs, all
outstanding Options will be exercisable to the extent and for the period
specified in paragraph 13(b) or paragraph 13(c), whichever paragraph applies;
and (iv) if a change in control occurs, all outstanding Options will be
exercisable for the period specified in paragraph 13(d).
(b) An Option may be exercised only upon delivery of a written
notice to the Committee, any member of the Committee, or any officer of the
Company designated by the Committee to accept such notices on its behalf,
specifying the number of Shares for which it is exercised.
(c) Within five business days following the date of exercise of
an Option, the Optionee or other person exercising the Option will make full
payment of the Option Price in cash or, with the consent of the Committee, (i)
by tendering previously acquired Shares (valued at fair market value, as
determined by the Committee, as of such date of tender); (ii) with a full
recourse promissory note of the Optionee for the portion of the Option Price in
excess of the par value of Shares subject to the Option, under terms and
conditions determined by the Committee; (iii) any combination of the foregoing;
or (iv) if the Shares subject to the Option have been registered under the
Securities Act of 1933, as amended (the "1933 Act"), and there is a regular
public market for the Shares, by delivering to the Company on the date of
exercise of the Option written notice of exercise together with:
(A) written instructions to forward a copy of such notice of
exercise to a broker or dealer, as defined in section 3(a)(4) and
3(a)(5) of the
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<PAGE> 6
1934 Act ("Broker"), designated in such notice and to deliver to
the specified account maintained with the Broker by the person
exercising the Option a certificate for the Shares purchased upon
the exercise of the Option, and
(B) a copy of irrevocable instructions to the Broker to
deliver promptly to the Company a sum equal to the purchase price
of the Shares purchased upon exercise of the Option and any other
sums required to be paid to the Company under paragraph 18 of the
Plan.
(d) If Tax Offset Payments sufficient to allow for withholding of
taxes are not being made at the time of exercise of an Option, the Optionee or
other person exercising such Option will pay to the Company an amount equal to
the withholding amount required to be made less any amount withheld by the
Company under paragraph 18.
12. TERMINATION OF EMPLOYMENT.
(a) Upon termination of an Optionee's employment with the Company,
any parent or subsidiary of the Company, or any successor corporation to either
the Company or any parent or subsidiary of the Company, other than (i)
termination of employment by reason of death or disability, as defined in
paragraph 26(b), or (ii) termination of employment for cause, as defined in
paragraph 26(f), the Optionee will have 30 days after the date of termination
(but not later than the expiration date of the Stock Option Agreement) to
exercise all Options held by him or her to the extent the same were exercisable
on the date of termination; provided, however, if such termination is a result
of the Optionee's retirement with the consent of the Company and if the
Committee, in its sole discretion, so permits, such Option shall then be
exercisable to the extent of 100% of the Shares subject thereto. The Committee
will determine in each case whether a termination of employment is a retirement
with the consent of the Company and, subject to applicable law, whether a leave
of absence is a termination of employment. The Committee may cancel an Option
during the 30-day period after termination of employment referred to in this
paragraph if the Optionee engages in employment or activities contrary, in the
opinion of the Committee, to the best interests of the Company or any parent or
subsidiary of the Company.
(b) Upon termination of employment by reason of death or
disability, the Optionee's personal representative, or the person or persons to
whom his or her rights under the Options pass by will or the laws of descent or
distribution, will have one year after the date of such termination (but not
later than the expiration date of the Stock Option Agreement) to exercise all
Options held by Optionee to the extent the same were exercisable on the date of
termination; PROVIDED, HOWEVER, the Committee, in its sole discretion, may
permit the exercise of all or any portion of any Option granted to such Optionee
not otherwise exercisable.
(c) Upon termination of employment for cause (as defined in
paragraph 26(f)), all Options held by such Optionee will terminate on the date
of termination.
-5-
<PAGE> 7
13. REORGANIZATIONS.
(a) If a stock split, stock dividend, combination or exchange of
shares, exchange for other securities, reclassification, reorganization,
redesignation or other change in the Company's capitalization occurs, the
Committee will proportionately adjust or substitute the aggregate number of
Shares for which Options may be granted under this Plan, the number of Shares
subject to outstanding Options and the Option Price of the Shares subject to
outstanding Options to reflect the same. The Committee will make such other
adjustments to the Options, the provisions of the Plan and the Stock Option
Agreements as may be appropriate and equitable, which adjustments may provide
for the elimination of fractional Shares.
(b) In the event of a change of the Company's common stock, $.10
par value, resulting from a merger or similar reorganization as to which the
Company is the surviving corporation, or a merger or similar reorganization
involving only a change in the state of incorporation or an internal
reorganization not involving a change in control as defined in paragraph 26(a),
the number and kind of Shares which thereafter may be purchased pursuant to an
Option under the Plan and the number and kind of Shares then subject to Options
granted hereunder and the price per Share thereof will be appropriately adjusted
in such manner as the Board may deem equitable to prevent dilution or
enlargement of the rights available or granted hereunder.
(c) Except as otherwise determined by the Board, a merger or a
similar reorganization which the Company does not survive (other than a merger
or similar reorganization involving only a change in the state of incorporation
or an internal reorganization not involving a change in control as defined in
paragraph 26(a)), or a sale of all or substantially all of the assets of the
Company, will cause every Option hereunder to terminate, to the extent not then
exercised, unless any surviving entity agrees to assume the obligations
hereunder on terms reasonably acceptable to the Board; provided, however, that,
in the case of such a merger or similar reorganization, or such a sale of all or
substantially all of the assets of the Company, if there is no such assumption,
the Board, in its sole discretion, may provide that some or all of the
unexercised portion of any one or more of the outstanding Options will be
immediately exercisable and vested as of such date prior to such merger, similar
reorganization or sale of assets as the Board determines. If the Board makes an
Option fully exercisable under this paragraph 13(c), the Board will notify the
Optionee that the Option will be fully exercisable for a period of thirty (30)
days from the date of such notice, and the Option will terminate upon the
expiration of such period.
(d) If a change in control (as defined in paragraph 26(a)) occurs,
all outstanding Options granted under this Plan will become immediately
exercisable to the extent of 100% of the Shares subject thereto notwithstanding
any contrary waiting or vesting periods specified in this Plan or in any
applicable Stock Option Agreement.
14. SALE OF OPTION SHARES. If any class of equity securities of the
Company is registered pursuant to section 12 of the 1934 Act, any Optionee or
other person exercising the Option who
-6-
<PAGE> 8
is subject to section 16 of the 1934 Act by virtue of his or her relationship to
the Company shall not sell or otherwise dispose of the Shares subject to Option
unless at least six months have elapsed from the date of the grant of the
Option.
15. RIGHTS AS SHAREHOLDER. The Optionee has no rights as a shareholder with
respect to any Shares covered by an Option until the date of issuance of a stock
certificate to the Optionee for such Shares.
16. NO CONTRACT OF EMPLOYMENT. Nothing in the Plan or in any Option or
Stock Option Agreement confers on any Optionee any right to continue in the
employment or service of the Company or any parent or subsidiary of the Company
or interfere with the right of the Company to terminate such Optionee's
employment or other services at any time. The establishment of the Plan will in
no way, now or hereafter, reduce, enlarge or modify the employment relationship
between the Company or any parent or subsidiary of the Company and the Optionee.
Options granted under the Plan will not be affected by any change of duties or
position as long as the Optionee continues to be employed by the Company or any
parent or subsidiary of the Company.
17. AGREEMENTS AND REPRESENTATIONS OF OPTIONEES. As a condition to the
exercise of an Option, the Committee, in its sole determination, may require the
Optionee to represent in writing that the Shares being purchased are being
purchased only for investment and without any present intent at the time of the
acquisition of such Shares to sell or otherwise dispose of the same.
18. WITHHOLDING TAXES. The Company or any parent or subsidiary of the
Company has the right (a) to withhold from any salary, wages, or other
compensation for services payable by the Company or any parent or subsidiary of
the Company to or with respect to an Optionee, or to demand payment from the
Optionee or other person to whom the Company is delivering certificates for
Shares purchased upon exercise of an Option of, amounts sufficient to satisfy
any federal, state or local withholding tax liability attributable to such
Optionee's (or any beneficiary's or personal representative's) receipt or
disposition of Shares purchased under any Option or (b) to take any such other
action as it deems necessary to enable it to satisfy any such tax withholding
obligations. The Committee, in its sole discretion, may permit an Optionee to
elect to have Shares that would be acquired upon exercise of Options (valued at
fair market value as of the date of exercise) withheld by the Company in
satisfaction of such Optionee's withholding tax liabilities.
19. EXCHANGES. The Committee may permit the voluntary surrender of all or a
portion of any Option granted under the Plan to be conditioned upon the granting
to the Optionee of a new Option for the same or a different number of Shares as
the Option surrendered, or may require such voluntary surrender as a condition
precedent to a grant of a new Option to such Optionee. Subject to the provisions
of the Plan, such new Option will be exercisable at the then fair market value
of the Shares, during such period and on such other terms and conditions as are
specified by the Committee at the time the new Option is granted. Upon
surrender, the Options surrendered will be cancelled, and the Shares previously
subject to them will be available for the
-7-
<PAGE> 9
grant of other Options. The Committee also may grant Tax Offset Payments to any
Optionee surrendering such Option for a new Option.
20. COMPLIANCE WITH LAWS AND REGULATIONS. The Plan, the grant and exercise
of Options thereunder, and the obligation of the Company to sell and deliver the
Shares under such Options, will be subject to all applicable federal and state
laws, rules and regulations and to such approvals by any government or
regulatory agency as may be required. Options issued under this Plan are not
exercisable prior to (i) the date upon which the Company has registered the
Shares for which Options may be issued under the 1933 Act and the completion of
any registration or qualification of such Shares under state law, or any ruling
or regulation of any government body which the Company, in its sole discretion,
determines to be necessary or advisable in connection therewith, or (ii) receipt
by the Company of an opinion from counsel to the Company stating that the
exercise of such Options may be effected without registering the Shares subject
to such Options under the 1933 Act or under state or other law.
21. ASSUMPTION. The Plan may be assumed by the successors and assigns of
the Company.
22. EXPENSES. The Company will bear all expenses and costs in connection
with administration of the Plan.
23. AMENDMENT, MODIFICATION AND TERMINATION OF THE PLAN. The Board may
terminate, amend or modify the Plan at any time without further action on the
part of the shareholders of the Company; provided, however, that (a) no
amendment to the Plan may cause the ISOs granted hereunder to fail to qualify as
incentive stock options under the Code; and (b) any amendment to the Plan which
requires the approval of the shareholders of the Company under the Code, the
regulations promulgated thereunder or the rules promulgated under section 16 of
the 1934 Act will be subject to approval by the shareholders of the Company in
accordance with the Code, such regulations or such rules. No amendment,
modification or termination of the Plan may adversely affect in any manner any
Option previously granted to an Optionee under the Plan without the consent of
the Optionee or the transferee of such Option.
24. TERM OF PLAN. The Plan will become effective on the Effective Date,
subject to the approval of the Plan by the holders of a majority of the shares
of stock of the Company entitled to vote within twelve months of the date of the
Plan's adoption by the Board, and the exercise of all Options granted prior to
such approval will be subject to such approval. The Plan will terminate on the
tenth anniversary of the Effective Date, or such earlier date as may be
determined by the Board. Termination of the Plan, however, will not affect the
rights of Optionees under Options previously granted to them, and all unexpired
Options will continue in force and operation after termination of the Plan
except as they may lapse or terminate by their own terms and conditions.
25. LIMITATION OF LIABILITY. The liability of the Company under this Plan
or in connection with any exercise of an Option is limited to the obligations
expressly set forth in the
-8-
<PAGE> 10
Plan and in any Stock Option Agreements, and no term or provision of this Plan
or of any Stock Option Agreements will be construed to impose any further or
additional duties, obligations or costs on the Company not expressly set forth
in the Plan or the Stock Option Agreements.
26. DEFINITIONS.
(a) CHANGE IN CONTROL. A "change in control" will be deemed to
have occurred if and when (i) a person, partnership, corporation, trust or other
entity ("Person") acquires or combines with the Company, or 50 percent or more
of its assets or earning power, in one or more transactions, and after such
acquisition or combination, less than a majority of the outstanding voting
shares of the Person surviving such transaction (or the ultimate parent of the
surviving Person) is owned by the owners of the voting shares of the Company
outstanding immediately prior to such acquisition or combination; or (ii) during
any period of two consecutive years during the term of this Plan, individuals
who at the beginning of such period are members of the Board ("Original Board
Members") cease for any reason to constitute at least a majority of the Board,
unless the election of each Board member who was not an Original Board Member
has been approved in advance by Board members representing at least two-thirds
of the Board members then in office who were Original Board Members.
(b) DISABILITY. The term "disability" means a physical or mental
condition resulting from bodily injury, disease, or mental disorder which
renders the Optionee incapable of continuing the Optionee's usual and customary
employment or service with the Company or any parent or subsidiary of the
Company.
(c) FAIR MARKET VALUE. If the Shares are publicly traded, the term
"fair market value" as used in this Plan means (i) the closing price quoted in
the Nasdaq National Market, if the Shares are so quoted, (ii) the last quote
reported by Nasdaq for small-cap issues, if the Shares are so quoted, (iii) the
mean between the bid and asked prices as reported by Nasdaq, if the Shares are
so quoted, or (iv) if the Shares are listed on a securities exchange, the
closing price at which the Shares are quoted on such exchange, in each case at
the close of the date immediately before the Option is granted or, if there be
no quotation or sale on that date, the next preceding date on which the Shares
were quoted or traded. In all other cases, the fair market value will be
determined in accordance with procedures established in good faith by the
Committee and with respect to ISOs, conforming to regulations issued by the
Internal Revenue Service regarding incentive stock options.
(d) KEY EMPLOYEES. The term "key employees" means those executive,
administrative, operational and managerial employees who are determined by the
Committee to be eligible for Options under the Plan.
(e) PARENT AND SUBSIDIARY. The terms "subsidiary" and "parent"
as used in the Plan have the respective meanings set forth in sections 424(f)
and (e) of the Code.
-9-
<PAGE> 11
(f) TERMINATION FOR CAUSE. The term "termination of employment for
cause" means termination of employment for (a) the commission of an act of
dishonesty, including but not limited to misappropriation of funds or property
of the Company; (b) the engagement in activities or conduct injurious to the
reputation of the Company; (c) the conviction or entry of a guilty or no contest
plea to a misdemeanor (involving an act of moral turpitude) or a felony; (d) the
violation of any of the terms and conditions of any written agreement the
Optionee may have with the Company or its parent or subsidiary (following 30
days' written notice from the Company specifying the violation and the
employee's failure to cure such violation within such 30-day period) or (e) any
refusal to comply with the written directives, policies or regulations
established from time to time by the Board.
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<PAGE> 12
[ISO /or/ NSO] No. 96-____
EXHIBIT A
---------
MAX & ERMA'S RESTAURANTS, INC.
[INCENTIVE /OR/ NONSTATUTORY]
STOCK OPTION AGREEMENT
UNDER THE
1996 STOCK OPTION PLAN
Max & Erma's Restaurants, Inc. (the "Company") hereby grants, effective
this __ day of ______, 19___ (the "Effective Date") to (the "Optionee") an
________ option to purchase shares of its common stock, $.10 par value (the
"Option Shares"), at a ___________ price of Dollars ($ ) per share pursuant to
the Company's 1996 Stock Option Plan (the "Plan"), subject to the following:
1. RELATIONSHIP TO THE PLAN. This option is granted pursuant to the Plan,
and is in all respects subject to the terms, provisions and definitions of the
Plan and any amendments thereto. The Optionee acknowledges receipt of a copy of
the Plan and represents that he or she is familiar with the terms and conditions
thereof. The Optionee accepts this option subject to all the terms and
provisions of the Plan (including without limitation provisions relating to
nontransferability, exercise of the option, sale of the option shares,
termination of the option, adjustment of the number of shares subject to the
option, and the exercise price of the option). The Optionee further agrees that
all decisions and interpretations made by the Compensation Committee (the
"Committee"), as established under the Plan, and as from time to time
constituted, are final, binding, and conclusive upon the Optionee and his or her
heirs. This option [IS/IS NOT] an Incentive Stock Option under the Plan.
2. TIME OF EXERCISE. This option may be exercised, from time to time, in
full or in part, by the Optionee to the extent the option is vested based upon
the number of full years the Optionee is an employee of the Company after the
Effective Date (the "Vested Percentage") and remains exercisable (subject to the
provisions herein and the Plan) until it has been exercised as to all of the
Option Shares or the __ anniversary of the Effective Date, whichever occurs
first. The Optionee is entitled to exercise this option to the extent of the
percentage of, and not to exceed in the aggregate, the maximum number of the
Option Shares, based upon the Vested Percentage, from time to time, as
determined in accordance with the following schedule:
-A1-
<PAGE> 13
Years of Employment Total
After the Effective Date Vested Percentage
------------------------ -----------------
Notwithstanding the foregoing, this option may not be exercised unless (i) the
Option Shares are registered under the Securities Act of 1933, as amended, and
are registered or qualified under applicable state securities or "blue sky"
laws, or (ii) the Company has received an opinion of counsel to the Company to
the effect that the option may be exercised and Option Shares may be issued by
the Company pursuant thereto without such registration or qualification. If this
option is not otherwise exercisable by reason of the foregoing sentence, the
Company will take reasonable steps to comply with applicable state and federal
securities laws in connection with such issuance.
3. METHODS OF EXERCISE. This option is exercisable by delivery to the
Company of written notice of exercise which specifies the number of shares to be
purchased and the election of the method of payment therefor, which will be one
of the methods of payment specified in paragraph 11(c) of the Plan. If payment
is otherwise than payment in full in cash, the method of payment is subject to
the consent of the Committee. Upon receipt of payment for the shares to be
purchased pursuant to the option or, if applicable, the shares to be delivered
pursuant to the election of an alternative payment method, the Company will
deliver or cause to be delivered to the Optionee, to any other person exercising
this option, or to a broker or dealer if the method of payment specified in
clause (iii) of paragraph 11(c) of the Plan is elected, a certificate or
certificates for the number of shares with respect to which this option is being
exercised, registered in the name of the Optionee or other person exercising the
option, or if appropriate, in the name of such broker or dealer; provided,
however, that if any law or regulation or order of the Securities and Exchange
Commission or other body having jurisdiction over the exercise of this option
will require the Company or Optionee (or other person exercising this option) to
take any action in connection with the shares then being purchased, the delivery
of the certificate or certificates for such shares may be delayed for the period
necessary to take and complete such action.
4. ACQUISITION FOR INVESTMENT. This option is granted on the condition
that the acquisition of the Option Shares hereunder will be for the account of
the Optionee (or other person exercising this option) for investment purposes
and not with a view to resale or distribution, except that such condition will
be inoperative if the Option Shares are registered under the Securities Act of
1933, as amended, or if in the opinion of counsel for the Company such shares
may be resold without registration. At the time of any exercise of the option,
the Optionee (or other person exercising this option) will execute such further
agreements as the Company may require to implement the foregoing condition and
to acknowledge the Optionee's
-A2-
<PAGE> 14
(or such other person's) familiarity with restrictions on the resale of the
Option Shares under applicable securities laws.
5. DISPOSITION OF SHARES. The Optionee or any other person who may
exercise this option will notify the Company within seven (7) days of any sale
or other transfer of any Option Shares. If any class of equity securities of the
Company is registered pursuant to section 12 of the Securities Exchange Act of
1934, as amended, and the Optionee or any other person who may exercise this
option is subject to section 16 of that Act by virtue of such Optionee's or
person's relationship to the Company, the Optionee or other person exercising
this Option agrees not to sell or otherwise dispose of any Option Shares unless
at least six (6) months have elapsed from the Effective Date.
6. WITHHOLDING. As a condition to the issuance of any of the Option Shares
under this option, Optionee or any person who may exercise this option
authorizes the Company to withhold in accordance with applicable law from any
salary, wages or other compensation for services payable by the Company to or
with respect to Optionee any and all taxes required to be withheld by the
Company under federal, state or local law as a result of such Optionee's or such
person's receipt or disposition of Option Shares purchased under this option.
If, for any reason, the Company is unable to withhold all or any portion of the
amount required to be withheld, Optionee (or any person who may exercise this
option) agrees to pay to the Company upon exercise of this option an amount
equal to the withholding required to be made less the amount actually withheld
by the Company.
7. GENERAL. This Agreement will be construed as a contract under the laws
of the State of Ohio without reference to Ohio's choice of law rules. It may be
executed in several counterparts, all of which will constitute one Agreement. It
will bind and, subject to the terms of the Plan, benefit the parties and their
respective successors, assigns, and legal representatives.
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement as of the date first above written.
OPTIONEE: MAX & ERMA'S RESTAURANTS, INC.
By:
- --------------------------- -----------------------------
Its:
----------------------------
-A3-
<PAGE> 1
MAX & ERMA'S RESTAURANTS, INC.
----------------------
Exhibit 5
----------------------
<PAGE> 2
May 1, 1996
Max & Erma's Restaurants, Inc.
4849 Evanswood Drive
Columbus, Ohio 43229
Re: Registration Statement on Form S-8
Max & Erma's Restaurants, Inc. 1996 Stock Option Plan (the "Plan")
Gentlemen:
We have acted as counsel for Max & Erma's Restaurants, Inc., a Delaware
corporation ("Max & Erma's"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement"), filed by Max & Erma's with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
with respect to the registration of an additional 400,000 shares of Max & Erma's
Common Stock, $.10 par value (the "Shares"), to be issued under the Plan.
In connection with this opinion, we have examined such corporate
records, documents and other instruments of the registrant as we have deemed
necessary.
Based on the foregoing, we are of the opinion that the Shares will,
when issued and paid for in accordance with the provisions of the Plan, be
legally issued, fully paid and nonassessable, and entitled to the benefits of
the Plan.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Porter, Wright, Morris & Arthur
PORTER, WRIGHT, MORRIS & ARTHUR
<PAGE> 1
MAX & ERMA'S RESTAURANTS, INC.
----------------------
Exhibit 23(b)
----------------------
<PAGE> 2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in these Registration Statements
of Max & Erma's Restaurants, Inc. on Form S-8 of our report dated December 11,
1995 appearing in the Annual Report on Form 10-K of Max & Erma's Restaurants,
Inc. for the year ended October 29, 1995.
DELOITTE & TOUCHE LLP
Columbus, Ohio
April 29, 1996
<PAGE> 1
MAX & ERMA'S RESTAURANTS, INC.
----------------------
Exhibit 24
----------------------
<PAGE> 2
EXHIBIT 24
POWER OF ATTORNEY
-----------------
Each of the undersigned officers and directors of Max & Erma's
Restaurants, Inc. (the "Corporation"), hereby appoints Todd B. Barnum and
William C. Niegsch, Jr., as his attorneys or either of them, with power to act
without the others, as his attorney, to sign, in his name and on his behalf and
in any and all capacities stated below, and to cause to be filed with the
Securities and Exchange Commission (the "Commission"), the Corporation's
Registration Statement on Form S-8 (the "Registration Statement") for the
purpose of registering under the Securities Act of 1933, as amended, 400,000
shares of Common Stock, $.10 par value, to be sold and distributed by the
Corporation pursuant to the Corporation's 1996 Stock Option Plan (the "Plan")
and such other number of shares as may be issued under the anti-dilution
provisions of the Plan, and any and all amendments, including post-effective
amendments, to the Registration Statement, hereby granting unto such attorneys
and each of them, individually, full power and authority to do and perform in
the name and on behalf of the undersigned, and in any and all such capacities,
every act and thing whatsoever necessary to be done in and about the premises as
fully as the undersigned could or might do in person, hereby granting to each
such attorney-in-fact full power of substitution and revocation, and hereby
ratifying all that any such attorney-in-fact or his substitute may do by virtue
hereof.
IN WITNESS WHEREOF, the undersigned have signed these presents this 16th
day of April, 1996.
<TABLE>
<CAPTION>
<S> <C>
/s/ Todd B. Barnum
- ---------------------------- President, Chief Executive Officer, Chairman
Todd B. Barnum of the Board (Principal Executive Officer)
/s/ William C. Niegsch, Jr.
- ---------------------------- Executive Vice President, Chief Financial
William C. Niegsch, Jr. Officer, Treasurer, Secretary, and Director
(Principal Financial Officer and Principal
Accounting Officer)
/s/ Mark F. Emerson
- ---------------------------- Chief Operating Officer and Director
Mark F. Emerson
/s/ Karen A. Brennan
- ---------------------------- Vice President of Marketing and Director
Karen A. Brennan
/s/ William E. Arthur
- ---------------------------- Director
William E. Arthur
/s/ Roger D. Blackwell
- ---------------------------- Director
Roger D. Blackwell
/s/ Donald W. Kelley
- ---------------------------- Director
Donald W. Kelley
</TABLE>
-1-
<PAGE> 3
/s/ Michael D. Murphy Director
- -------------------------------------
Michael D. Murphy
/s/ Robert A. Rothman Director
- -------------------------------------
Robert A. Rothman
-2-
