As filed with the Securities and Exchange Commission on
August 19, 1998.
Registration No. 033-53935
_________________________________________________________________
_________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
USBANCORP, INC.
(Exact name of registrant as specified in its charter)
Pennsylvania 25-1424278
(State of Incorporation) (I.R.S. Employer Identification No.)
Main & Franklin Streets
Johnstown, Pennsylvania 15901
(814) 533-5300
(Address and telephone number of principal executive offices)
USBANCORP, Inc. 1991 Stock Option Plan
(Full Title of the Plan)
With a copy to:
Terry K. Dunkle Jeffrey P. Waldron, Esquire
Chairman, President and Chief Stevens & Lee
Executive Officer One Glenhardie Corporate Center
Main & Franklin Streets 1275 Drummers Lane
Johnstown, Pennsylvania 15901 Wayne, Pennsylvania 19087
(814) 533-5300 (610) 293-4961
(Name, address and telephone
number of agent for service)
=================================================================
CALCULATION OF REGISTRATION FEE
=================================================================
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Per Offering Registration
be Registered Registered(1) Share(1) Price(1) Fee
Common Stock, 200,000 $23.25 $4,650,000 $1,410
$2.50 par value
per share
=================================================================
(1) Amount to be registered is an additional 200,000 shares of
Common Stock as approved for issuance under the 1991 Stock
Option Plan at the 1998 Annual Meeting.
(2) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(h). Price per share
represents the closing price for a share of Registrant's
Common Stock on the Nasdaq Stock Market on August 14, 1998.
PAGE 1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in
this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1997.
(b) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31 and June 30, 1998.
(c) All other reports filed by the Company pursuant to
Section 13(a) or 15(d) of the Exchange Act since
December 31, 1997.
(d) The description of USBANCORP's common stock contained
in its registration statement on Form 8-A filed with
the Securities and Exchange Commission on November 13,
1985.
All documents subsequently filed by the Registrant pursuant
to sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment that 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 statements contained herein or in a document
incorporated or deemed 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 subsequently filed document that also is or is
deemed incorporated by reference herein modifies or supersedes
such statement. Any such 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.
See "Item 3. Incorporation of Documents by Reference."
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Pennsylvania law provides that a Pennsylvania corporation
may indemnify directors, officers, employees and agents of the
corporation against liabilities they may incur in such capacities
for any action taken or any failure to act, whether or not the
<PAGE 2>
corporation would have the power to indemnify the person under
any provision of law, unless such action or failure to act is
determined by a court to have constituted recklessness or willful
misconduct. Pennsylvania law also permits the adoption of a
bylaw amendment, approved by shareholders, providing for the
elimination of a director's liability for monetary damages for
any action taken or any failure to take any action unless (1) the
director has breached or failed to perform the duties of his
office and (2) the breach or failure to perform constitutes self-
dealing, willful misconduct or recklessness.
Registrant's bylaws provide for (1) indemnification of
directors, officers, employees and agents of the registrant and
its subsidiaries and (2) the elimination of a director's
liability for monetary damages, to the fullest extent permitted
by Pennsylvania law.
Directors and officers are also insured against certain
liabilities for their actions, as such, by an insurance policy
obtained by the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Articles of Incorporation of USBANCORP, Inc., as
amended (Incorporated by reference to Exhibit III
to Registration Statement No. 2-79639 on Form S-
14, Exhibits 4.2 and 4.3 to Registration Statement
No. 33-685 on Form S-2, Exhibit 4.1 to
Registration Statement No. 33-56604 on Form S-3,
Exhibit 3.1 to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1994,
and Exhibit 3.1 to the Registrant's Form 10-Q for
the quarter ended June 30, 1998).
4.2 Bylaws of USBANCORP, Inc., as amended and restated
(Incorporated by reference to Exhibit 3.2 to the
Registrant's Annual Report on Form 10-K for the
year ended December 31, 1994).
5. Opinion of Stevens & Lee.
23.1 Consent of Arthur Andersen & Co.
23.2 Consent of Stevens & Lee is contained in its
opinion at Exhibit 5 of this Registration
Statement.
24 Power of Attorney of Directors and Officers
(included on signature page).
99 USBANCORP, Inc. 1991 Stock Option Plan, as
<PAGE 3>
amended.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement to include any additional or changed
material information with respect to the plan of distribution.
(2) That, for the purpose of determining liability
under the Securities Act of 1933, to treat each post-effective
amendment as a new registration statement of the securities
offered, and the offering of such securities at that time to be
the initial bona fide offering thereof.
(3) To file a post-effective amendment to remove from
registration any of the securities being registered which remain
unsold at the termination of the offering.
Provided, however, that subparagraphs (a)(1)(i) and
(a)(1)(ii) of this section do not apply if 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 that
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
the purpose 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 a plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in this Registration
Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes to deliver
or cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual report to
<PAGE 4>
security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements
of Rule 14a-3 or Rule 14c-3 if under the Securities Act of 1934;
and, where interim financial information required to be presented
by Article 3 of Regulation S-X are not set forth in the
prospectus, to deliver, or cause to be delivered to each person
to whom the prospectus is sent or given, the latest quarterly
report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(d) 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.
PAGE 5
<PAGE>
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 Johnstown, Commonwealth of
Pennsylvania, on July 30, 1998.
USBANCORP, INC.
By /s/ Terry K. Dunkle
Terry K. Dunkle,
Chairman, President, and Chief
Executive Officer
PAGE 6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities indicated and on the dates indicated.
Signature Title Date
/s/ Terry K. Dunkle Chairman, President, July 30, 1998
Terry K. Dunkle and Chief Executive
Officer
/s/ Jeffrey A. Stopko Senior Vice President July 30, 1998
Jeffrey A. Stopko and Chief financial
Officer
/s/ Jerome M. Adams Director July 30, 1998
Jerome M. Adams
/s/ Clifford A. Barton Director July 30, 1998
Clifford A. Barton
/s/ Michael F. Butler Director July 31, 1998
Michael F. Butler
/s/ James C. Dewar Director July 31, 1998
James C. Dewar
/s/ James M. Edwards, Sr. Director July 31, 1998
James M. Edwards, Sr.
/s/ Richard W. Kappel Director July 30, 1998
Richard W. Kappel
/s/ Margaret A. O'Malley Director July 31, 1998
Margaret A. O'Malley
/s/ Mark E. Pasquerilla Director July 31, 1998
Mark E. Pasquerilla
/s/ Jack Sevy Director July 30, 1998
Jack Sevy
/s/ Thomas C. Slater Director July 31, 1998
Thomas C. Slater
/s/ James C. Spangler Director July 31, 1998
James C. Spangler
/s/ Robert L. Wise Director July 31, 1998
Robert L. Wise
PAGE 7
<PAGE>
EXHIBIT INDEX
4.1 Articles of Incorporation of USBANCORP, Inc., as
amended (Incorporated by reference to Exhibit III
to Registration Statement No. 2-79639 on Form S-
14, Exhibits 4.2 and 4.3 to Registration Statement
No. 33-685 on Form S-2, Exhibit 4.1 to
Registration Statement No. 33-56604 on Form S-3,
Exhibit 3.1 to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1994,
and Exhibit 3.1 to the Registrant's Form 10-Q for
the quarter ended June 30, 1998).
4.2 Bylaws of USBANCORP, Inc., as amended and restated
(Incorporated by reference to Exhibit 3.2 to the
Registrant's Annual Report on Form 10-K for the
year ended December 31, 1994).
5. Opinion of Stevens & Lee.
23.1 Consent of Arthur Andersen & Co.
23.2 Consent of Stevens & Lee is contained in its
opinion at Exhibit 5 of this Registration
Statement.
24 Power of Attorney of Directors and Officers
(included on signature page).
99 USBANCORP, Inc. 1991 Stock Option Plan, as
amended.
<PAGE 8>
Exhibit 5.1
August 19, 1998
Board of Directors
USBANCORP, Inc.
Main and Franklin Streets
Johnstown, Pennsylvania 15901
Re: USBANCORP, Inc. 1991 Stock Option Plan
Gentlemen:
You have asked us to provide you with our opinion whether
the 200,000 additional shares of common stock, par value $2.50
per share (the "Common Stock"), of USBANCORP, Inc. (the
"Company") authorized for issuance from time to time pursuant to
the exercise of options issued under the USBANCORP, Inc. 1991
Stock Option Plan, as amended (the "Plan"), when and if such
shares are issued pursuant to and in accordance with the Plan,
will be duly and validly issued, fully paid and nonassessable.
We, as counsel to the Company, have reviewed:
1. The Pennsylvania Business Corporation Law of 1988, as
amended;
2. The Articles of Incorporation of the Company;
3. The By-laws of the Company; and
4. The Resolutions of the Board of Directors of the
Company adopted on February 27, 1998 as certified by
the Corporate Secretary of the Company.
Based on our review of such documents, it is our opinion
that the Common Stock issuable upon the exercise of options
granted under the Plan, when and as issued and paid for in
accordance with the provisions of the Plan, will be duly and
validly issued, fully paid and nonassessable. In giving the
foregoing opinion, we have assumed that the Company will have, at
the time of the issuance of such Common Stock, a sufficient
number of authorized shares available for issue.
We consent to the filing of this opinion as an exhibit to
the registration statement the Company is filing today in
connection with the registration of 200,000 shares of the
Company's Common Stock, and to the reference to us under the
heading "legal matters" in the related Prospectus. In giving
this consent, we do not thereby admit that we come within the
category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the Rules and
Regulations of the Securities and Exchange Commission thereunder.
Very truly yours
STEVENS & LEE
/s/ Stevens & Lee
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement
(No. 333-53935) of our report dated January 23, 1998 included in
USBANCORP, Inc.'s Form 10-K for the year ended December 31, 1997
and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
Pittsburgh, Pennsylvania,
August 13, 1998
USBANCORP, INC.
1991 STOCK OPTION PLAN
August 23, 1991, as
amended on February 24, 1995
and February 27, 1998
<PAGE>
USBANCORP, INC.
1991 STOCK OPTION PLAN
The purposes of the 1991 Stock Option Plan (the "Plan")
are to encourage eligible employees of USBANCORP, INC. (the
"Corporation") and its Subsidiaries, including Directors and
officers of the Corporation who are employees, to increase their
efforts to make the Corporation and each Subsidiary more
successful, to provide an additional inducement for such
employees to remain with the Corporation or a Subsidiary, to
reward such employees by providing an opportunity to acquire the
Common Stock, par value $2.50 per share, of the Corporation (the
"Common Stock") on favorable terms and to provide a means through
which the Corporation may attract able persons to enter the
employment of the Corporation or one of its Subsidiaries. For
purposes of the Plan, the term "Subsidiary" means any corporation
in an unbroken chain of corporations beginning with the
Corporation if each of the corporations (other than the last
corporation in the unbroken chain) owns stock possessing at least
fifty percent (50%) or more of the total combined voting power of
all classes of stock in one of the other corporations in the
chain.
SECTION 1
Administration
The Plan shall be administered by a Committee (the
"Committee") appointed from time to time by the Board of
Directors of the Corporation (the "Board") and consisting of no
fewer than three members of the Board, none of whom is, or was
within one year prior to becoming a member of the Committee,
eligible for selection as a person to whom stock options may be
granted pursuant to the Plan or any other plan of the Corporation
or any of its affiliates (as "affiliates" is defined in
regulations of the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"))
entitling the participants therein to acquire stock or stock
options of the Corporation or any of its affiliates. If at any
time a member of the Committee would not be eligible for initial
appointment to the Committee, said member shall be deemed to have
resigned from the Committee. The Board may at any time, without
cause, remove any person from the Committee by written notice to
such person. Any member of the Committee may resign by written
notice to the Board.
The Committee shall interpret the Plan and prescribe
such rules, regulations and procedures in connection with the
operations of the Plan as it shall deem to be necessary and
advisable for the administration of the Plan consistent with the
purposes of the Plan.
The Committee shall keep records of any action taken at
its meetings. A majority of the Committee shall constitute a
quorum at any meeting and the acts of a majority of the members
present at any meeting at which a quorum is present, or acts
approved in writing by a majority of the Committee, shall be the
acts of the Committee.
SECTION 2
Eligibility
Those salaried employees of the Corporation or any
Subsidiary with executive, managerial, technical or professional
responsibility, who may or may not be an officer or a member of
the Board of Directors, shall be eligible to receive stock
options as described herein.
Subject to the provisions of the Plan, the Committee
shall have full and final authority, in its discretion, to grant
stock options as described herein and to determine the employees
to whom stock options shall be granted and the number of shares
to be covered by each stock option. In determining the
eligibility of any employee, as well as in determining the number
of shares which may be acquired pursuant to each stock option,
the Committee shall consider the positions and the
responsibilities of the employee being considered, the nature and
value to the Corporation or a Subsidiary of his or her services,
his or her present and/or potential contribution to the success
of the Corporation or a Subsidiary and such other factors as the
Committee may deem relevant.
SECTION 3
Shares Available under the Plan
The aggregate number of shares of the Common Stock
which may be issued or delivered and as to which stock options
may be granted under the Plan is 485,000 shares. All of such
shares are subject to adjustment and substitution as set forth in
Section 6.
If any stock option granted under the Plan is cancelled
by mutual consent or terminates or expires for any reason without
having been exercised in full, the number of shares subject to
such stock option shall again be available for purposes of the
Plan.
The shares which may be issued or delivered under the
Plan may be either authorized but unissued shares or treasury
shares or partly each, as shall be determined from time to time
by the Board.
SECTION 4
Grant of Stock Options
The Committee shall have authority, in its discretion,
to grant "incentive stock options" pursuant to Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), to grant
"non-statutory stock options" (stock options which do not qualify
under such Section 422 of the Code) or to grant both types of
stock options, provided that the exercise of one type of option
shall not affect the other type.
To the extent that the aggregate fair market value of
stock with respect to which incentive stock options are
exercisable for the first time by any individual during any
calendar year (under all plans of the individual's employer
corporation and its parent and subsidiary corporations) exceeds
$100,000, such stock options shall be treated as options which
are non-statutory stock options. The preceding sentence shall be
applied by taking options into account in the order in which they
are granted. Also, for this purpose, the fair market value of
any stock shall be determined as of the date the option with
respect to such stock was granted.
SECTION 5
Terms and Conditions of Stock Options
Stock options granted under the Plan shall be subject
to the following terms and conditions:
(A) The purchase price at which each stock option may
be exercised (the "option price") shall be such price as the
Committee, in its discretion, shall determine but shall not
be less than one hundred percent (100%) of the fair market
value per share of Common Stock which may be acquired
pursuant to the stock option on the date of grant, except
that in the case of an incentive stock option granted to an
employee who, immediately prior to such grant, owns stock
possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Corporation or
any Subsidiary (a "Ten Percent Employee"), the option price
shall not be less than 110% of such fair market value on the
date of grant. For purposes of this Section 5(A), the fair
market value of the Common Stock shall be determined as
provided in Section 5(H) below. Also, for purposes of this
Section 5(A), an individual (i) shall be considered as
owning not only shares of the Common Stock owned
individually, but also all shares that are at the time
owned, directly or indirectly, by or for the spouse,
ancestors, lineal descendants and brothers and sisters
(whether by the whole or half blood) of such individual and
(ii) shall be considered as owning proportionately any
shares owned, directly or indirectly, by or for any
corporation, partnership, estate or trust in which such
individual shall be a stockholder, partner or beneficiary.
(B) The option price shall be payable in full in any
one or more of the following ways:
(i) in cash; and/or
(ii) in shares of the Common Stock (which are
owned by the optionee free and clear of all liens and
other encumbrances and which are not subject to the
restrictions set forth in Section 7 below) having a
fair market value on the date of exercise of the stock
option, determined as provided in Section 5(H), equal
to the option price for the shares being purchased.
If the option price is paid in whole or in part in
shares of Common Stock, any portion of the option price
representing a fraction of a share shall be paid in cash. The
date of exercise of a stock option shall be determined under
procedures established by the Committee, and the option price
shall be payable at such time or times as the Committee, in its
discretion, shall determine. No shares shall be issued or
delivered upon exercise of a stock option until full payment of
the option price has been made. When full payment of the option
price has been made and subject to the restrictions set forth in
Section 7, the optionee shall be considered for all purposes to
be the owner of the shares with respect to which payment has been
made. Payment of the option price with shares shall not increase
the number of shares of Common Stock which may be issued or
delivered under the Plan as provided in Section 3.
(C) Subject to Section 8 hereof, stock options may be
exercised at the following rate. On or after the first
anniversary of the date on which the options were granted
(the "Grant Date"), one-third of such options may be
exercised (rounded upward to the nearest whole share). On
or after the second anniversary of the Grant Date two-thirds
of such options may be exercised (rounded upward to the
nearest whole share) minus the aggregate number of such
options previously exercised. On or after the third
anniversary of the Grant Date, the remainder of the options
may be exercised. No incentive stock option shall be
exercisable after the expiration of ten years (five years in
the case of a Ten Percent Employee) from the date of grant.
No non-statutory stock option shall be exercisable after the
expiration of ten years and six months from the date of
grant. Subject to this Section 5(C) and Sections 5(F), 5(G)
and 5(H) below, stock options may be exercised at such
times, in such amounts and subject to such restrictions as
shall be determined, in its discretion, by the Committee.
(D) No stock option rights shall be transferable by an
optionee other than by will, or if an optionee dies
intestate, by the laws of descent and distribution of the
state of domicile of the optionee at the time of death, and
all stock options shall be exercisable during the lifetime
of an optionee only by the optionee.
(E) Unless otherwise determined by the Committee and
set forth in the stock option agreement referred to in
Section 5(G) or an amendment thereto:
(i) If the employment of an optionee who is not a
Disabled Optionee (as defined in Section 5(F) below) is
voluntarily terminated with the consent of the
Corporation or a Subsidiary, any then outstanding stock
option held by such an optionee shall be exercisable
(to the extent exercisable on the date of termination
of employment) by such an optionee at any time prior to
the earlier of the expiration date of such stock option
or the date which is three months after the date of
termination of employment;
(ii) If an optionee retires under any retirement
plan of the Corporation or a Subsidiary, any then
outstanding stock option held by such an optionee shall
be exercisable in full (whether or not so exercisable
on the date of termination of employment) by such an
optionee at any time prior to the earlier of the
expiration date of such stock option or the date which
is three months after the date of termination of
employment;
(iii) If the employment of an optionee who is a
Disabled Optionee is terminated, any then outstanding
stock option held by such optionee shall be exercisable
in full (whether or not so exercisable on the date of
termination of employment) by the optionee at any time
prior to the earlier of the expiration date of such
stock option or the date which is one year after the
date of termination of employment;
(iv) The following transfers of employees will
not be treated as a termination of employment:
(a) A transfer of an employee between
Subsidiaries of the Corporation;
(b) A transfer of an employee from the
Corporation to one of its Subsidiaries; or
(c) A transfer of an employee to the
Corporation from one of its Subsidiaries.
(v) Following the death of an optionee during
employment, any outstanding stock option held by the
optionee at the time of death shall be exercisable in
full (whether or not so exercisable on the date of the
death of the optionee) by the person or persons
entitled to do so under the will of the optionee, or,
if the optionee shall fail to make testamentary
disposition of the stock option or shall die intestate,
by the legal representative of the optionee, at any
time prior to the expiration date of such stock option
or within one year after the date of death, whichever
is the shorter period. Following the death of an
optionee after termination of employment during a
period when a stock option is exercisable as provided
in clauses (i), (ii) and (iii) above, any outstanding
stock option held by the optionee at the time of death
shall, to the extent the stock option was exercisable
by the optionee at the time of death, be exercisable by
such person or persons as would have been so entitled
had the employee died prior to the termination of
employment, so long as such exercise occurs prior to
the earlier of the expiration date of such stock option
or the date which is one year after the date of death.
(F) If the employment of an optionee terminates for
any reason other than voluntary termination with the consent
of the Corporation or a Subsidiary, disability, retirement
under any retirement plan of the Corporation or a
Subsidiary, or death, the rights of such optionee under any
then outstanding stock option shall terminate at the time of
such termination of employment. In addition, the Committee
may in its discretion immediately terminate all stock
options held by the optionee if an optionee (i) engages in
the operation or management of a business, whether as owner,
partner, officer, director, employee or otherwise and
whether during or after termination of employment, which is
in competition with the Corporation or any of its
Subsidiaries; (ii) uses for his own benefit or discloses to
a third party information pertaining to the Corporation or
any of its Subsidiaries which the Corporation or its
Subsidiaries consider to be confidential; or
(iii) interferes with the relationship between the
Corporation or a Subsidiary and its employees, suppliers or
customers.
"Disabled Optionee" shall mean an individual who is
unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous
period of not less than 12 months.
Whether termination of employment is a voluntary
termination with the consent of the Corporation or a
Subsidiary; whether an optionee is a Disabled Optionee;
whether an optionee has engaged in the operation or
management of a business which is in competition with the
Corporation or any of its Subsidiaries; whether an optionee
uses for his own benefit or discloses to a third party
information pertaining to the Corporation or any of its
Subsidiaries which is confidential; and whether an optionee
has interfered with the relationship between the Corporation
or a Subsidiary and its employees, suppliers or customers
shall be determined in each case by the Committee, whose
determination shall be final and binding unless such
determination is demonstratably arbitrary and capricious.
(G) All stock options shall be confirmed by a stock
option agreement, or an amendment thereto, which shall be
executed by the Chief Executive Officer, the President (if
other than the Chief Executive Officer) or any Executive
Vice President on behalf of the Corporation and by the
employee to whom such stock options are granted.
(H) Fair market value of the Common Stock, so long as
the Common Stock trades in the Over-the-Counter market or on
a stock exchange, shall be computed by taking a weighted
average of the mean between the highest and lowest selling
prices per share of the Common Stock as quoted in such
reliable publication as the Committee, in its discretion,
may choose to rely upon, on the nearest date before and the
nearest date after the date as of which fair market value is
to be determined on which there are sales.
If at any time the Common Stock does not trade in the
Over-the-Counter market or on a stock exchange, the fair
market value of the Common Stock shall be determined by an
independent and experienced appraiser which is selected by
the Committee. Fair market value shall be determined
without regard to any restriction applicable to the Common
Stock other than a restriction which, by its terms, will
never lapse.
(I) The obligation of the Corporation to issue or
deliver shares of the Common Stock under the Plan shall be
subject to (i) the effectiveness of a registration statement
under the Securities Act of 1933, as amended, with respect
to such shares, if deemed necessary or appropriate by
counsel for the Corporation, (ii) the condition that the
shares shall have been listed (or authorized for listing
upon official notice of issuance) upon each stock exchange
on which such shares may then be listed and (iii) all other
applicable laws, regulations, rules and orders which may
then be in effect; provided, however, that if the Company
Stock shall be delisted from all national stock exchanges
and/or deregistered in accordance with the provisions of the
Securities Exchange Act of 1934, as amended, the Corporation
shall have the obligation to issue and deliver shares of
Common Stock under the Plan upon the exercise of any then
outstanding stock option.
Subject to the foregoing provisions of this Section 5
and the other provisions of the Plan, any stock option granted
under the Plan shall be subject to such other terms and
conditions as the Committee shall deem advisable.
SECTION 6
Adjustment and Substitution of Shares
If a dividend or other distribution shall be declared
upon the Common Stock payable in shares of Common Stock, the
number of shares of Common Stock then subject to any outstanding
stock option and the number of shares which may be issued or
delivered under the Plan but are not then subject to an
outstanding stock option shall be adjusted by adding thereto the
number of shares which would have been distributable thereon if
such shares had been outstanding on the date fixed for
determining the stockholders entitled to receive such stock
dividend or distribution.
If the outstanding shares of Common Stock shall be
changed into or exchangeable for a different number or kind of
shares of stock or other securities of the Corporation or another
corporation, whether through reorganization, reclassification,
recapitalization, stock split-up, combination of shares, merger
or consolidation, then there shall be substituted for each share
of Common Stock subject to any then outstanding stock option and
for each share of Common Stock which may be issued or delivered
under the Plan but is not then subject to an outstanding stock
option, the number and kind of shares of stock or other
securities into which each outstanding share of Common Stock
shall be so changed or for which each such share shall be
exchangeable.
In the case of any adjustment or substitution as
provided for in this Section 6, the aggregate option price for
all shares subject to each then outstanding stock option prior to
such adjustment or substitution shall be the aggregate option
price for all shares of stock or other securities (including any
fraction) to which such shares shall have been adjusted or which
shall have been substituted for such shares. Any new option
price per share shall be carried to at least three decimal places
with the last decimal place rounded upwards to the nearest whole
number.
No adjustment or substitution provided for in this
Section 6 shall require the Corporation to issue or sell a
fraction of a share or other security. Accordingly, all
fractional shares or other securities which result from any such
adjustment or substitution shall be eliminated and not carried
forward to any subsequent adjustment or substitution.
If any such adjustment or substitution provided for in
this Section 6 requires the approval of stockholders in order to
enable the Corporation to grant incentive stock options, then no
such adjustment or substitution shall be made without prior
stockholder approval. Notwithstanding the foregoing, in the case
of incentive stock options, if the effect of any such adjustment
or substitution would be to cause the stock option to fail to
continue to qualify as an incentive stock option or to cause a
modification, extension or renewal of such stock option within
the meaning of Section 424 of the Code, the Committee may elect
that such adjustment or substitution not be made but rather shall
use reasonable efforts to effect such other adjustment of each
then outstanding stock option as the Committee in its sole
discretion shall deem equitable and which will not result in any
disqualification, modification, extension or renewal (within the
meaning of Section 424 of the Code) of such incentive stock
option.
SECTION 7
Restrictions on Transfer of Certain Shares
Shares of Common Stock acquired under exercise of an
option pursuant to Section 5(B)(ii) by a person then subject to
the provisions of Section 16 of the Exchange Act shall not be
sold or otherwise transferred prior to the expiration of six
months after the date of the grant of the option. The
Corporation is authorized to (i) retain the certificate(s)
representing such shares or place such certificates in the
custody of its transfer agent, (ii) place a restrictive legend on
such shares, and/or (iii) issue a stop transfer order to the
transfer agent with respect to such shares in order to enforce
the transfer restrictions of this Section.
SECTION 8
Acceleration of the Exercise Date of Stock Options
Notwithstanding any other provision of this Plan, all
stock options shall become exercisable upon the occurrence of any
of the events listed below whether or not such options are then
exercisable under the provisions of the applicable agreements
relating thereto:
(A) Stock option rights shall be exercisable during
any one or more of the following periods:
(i) for a period of 60 days beginning on the date
on which shares of Common Stock are first purchased
pursuant to a tender offer or exchange offer (other
than such an offer by the Corporation or a Subsidiary),
whether or not such offer is approved or opposed by the
Corporation or a Subsidiary and regardless of the
number of shares of Common Stock purchased pursuant to
such offer;
(ii) for a period of 60 days beginning on the
date the Corporation acquires knowledge that any person
or group deemed a person under Section 13(d)(3) of the
Exchange Act (other than any director of the
Corporation on August 23, 1991, any Affiliate or
Associate of any such director (with such terms having
the respective meanings set forth in Rule 12b-2 under
the Exchange Act as in effect on August 23, 1991), any
member of the family of any such director, any trust
(including the trustees thereof) established by or for
the benefit of any such persons, or any charitable
foundation, whether a trust or a corporation (including
the trustees and directors thereof) established by any
of such persons), in a transaction or series of
transactions shall become the beneficial owner,
directly or indirectly (with beneficial ownership
determined as provided in Rule 13d-3, or any successor
rule, under the Exchange Act), of securities of the
Corporation entitling the person or group to 20% or
more of all votes (without consideration of the rights
of any class of stock to elect directors by a separate
class vote) to which all shareholders of the
Corporation would be entitled if the election of
Directors were an election held on such date;
(iii) for a period of 60 days beginning on the
date of filing under the Exchange Act of a Statement on
Schedule 13D, or any amendment thereto, by any person
or group deemed a person under Section 13(d)(3) of the
Exchange Act, disclosing an intention or possible
intention to acquire or change control of the
Corporation;
(iv) for a period of 60 days beginning on the
date, during any period of two consecutive years, when
individuals who at the beginning of such period
constitute the Board of Directors of the Corporation
cease for any reason to constitute at least a majority
thereof, unless the election, or the nomination for
election by the shareholders of the Corporation, of
each new Director was approved by a vote of at least
two-thirds of the Directors then still in office who
were Directors at the beginning of such period; and
(v) for a period of 60 days beginning on the date
of approval by the shareholders of the Corporation of
an agreement (a "reorganization agreement") providing
for (a) the merger or consolidation of the Corporation
with another corporation where the shareholders of the
Corporation, immediately prior to the merger or
consolidation, will not beneficially own, immediately
after the merger or consolidation, shares of the
corporation issuing cash or securities in the merger or
consolidation entitling such shareholders to 40% or
more of all votes (without consideration of the rights
of any class of stock to elect directors by a separate
class vote) to which all shareholders of such
corporation would be entitled in the election of
Directors or where the members of the Board of
Directors of the Corporation, immediately prior to the
merger or consolidation, do not, immediately after the
merger or consolidation, constitute a majority of the
Board of Directors of the corporation issuing cash or
securities in the merger or consolidation or (b) the
sale or other disposition of all or substantially all
the assets of the Corporation.
SECTION 9
Effect of the Plan on the Rights of Employees and Employer
Neither the adoption of the Plan nor any action of the
Board or the Committee pursuant to the Plan shall be deemed to
give any employee any right to be granted a stock option under
the Plan and nothing in the Plan, in any stock option granted
under the Plan or in any stock option agreement shall confer any
right upon any employee to continue in the employment of the
Corporation or any Subsidiary or diminish in any way the right of
the Corporation or any Subsidiary to terminate the employment of
any employee at any time. The granting of a stock option shall
impose no obligation upon the Optionee to exercise such option.
SECTION 10
Amendment
The right to alter and amend the Plan at any time and
from time to time and the right to revoke or terminate the Plan
are hereby specifically reserved to the Board; provided always
that no such revocation or termination shall terminate any
outstanding stock option theretofore granted under the Plan; and
provided further that no such alteration or amendment of the Plan
shall, without prior stockholder approval, (a) increase the total
number of shares which may be issued under the Plan, (b) increase
the total number of shares issuable pursuant to any stock option
granted to any one optionee, (c) make any changes in the class of
eligible employees or (d) extend the period set forth in the Plan
during which stock options may be granted. No alteration,
amendment, revocation or termination of the Plan shall, without
the written consent of the holder of a stock option theretofore
granted under the Plan, adversely affect the rights of such
holder with respect to such stock option.
SECTION 11
Effective Date and Duration of Plan
The effective date and date of adoption of the Plan
shall be August 23, 1991 (the "Effective Date"), the date of
adoption of the Plan by the Board, provided that such adoption of
the Plan by the Board is approved by the affirmative vote of the
holders of at least a majority of the outstanding shares of
Common Stock at a meeting of such holders duly called, convened
and held within one year of the Effective Date. Notwithstanding
any provision of the Plan to the contrary, no stock option
granted under the Plan prior to such shareholder approval may be
exercised until after such approval. No stock option may be
granted under the Plan subsequent to the date which is ten (10)
years following the effective date of the Plan.
SECTION 12
Application of Funds
The proceeds received by the Corporation for the sale
of the Common Stock pursuant to exercise of stock options shall
be used for general corporate purposes.
SECTION 13
Reservation of the Stock
The Corporation shall be under no obligation to
purchase or reserve Common Stock to satisfy the exercise of stock
options. The grant of stock options to employees hereunder shall
not be construed to constitute the establishment of a trust of
the Common Stock issuable pursuant to such stock options, and no
particular Common Stock shall be identified as optioned and
reserved for employees hereunder. The Corporation shall be
deemed to have complied with the terms of the Plan if, at the
time of issuance and delivery pursuant to the exercise of a stock
option, it has a sufficient number of shares of the Common Stock
authorized and unissued or in its treasury which may then be
appropriated and issued for purposes of the Plan, irrespective of
the date when such Common Stock was authorized.
SECTION 14
Governing Law
The Plan and all determinations and actions taken
pursuant thereto shall be governed by the laws of the
Commonwealth of Pennsylvania and construed in accordance
therewith.
This Plan has been prepared, negotiated and delivered
in, and shall be construed and enforced in accordance with, the
laws of the Commonwealth of Pennsylvania.
