<PAGE> 1
* **************************************************************************
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* As filed with the Securities and Exchange Commission on July 11, 1994 *
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Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________________
MCDONALD & COMPANY INVESTMENTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 34-1391950
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Suite 2100
800 Superior Avenue
Cleveland, Ohio 44114
(Address of principal executive offices, including zip code)
______________________
MCDONALD & COMPANY INVESTMENTS, INC. 1993 STOCK BONUS PLAN
(Full title of the plan)
______________________
Copy to:
William B. Summers, Jr.
President and Chief Executive Officer Thomas F. McKee, Esq.
McDonald & Company Investments, Inc. Calfee, Halter & Griswold
Suite 2100 Suite 1800
800 Superior Avenue 800 Superior Avenue
Cleveland, Ohio 44114 Cleveland, Ohio 44114
(216) 443-2300 (216) 622-8200
(Name, address and telephone number, including area code, of agent for service)
______________________
CALCULATION OF REGISTRATION FEE
<TABLE>
____________________________________________________________________________________
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share (1) price (1) fee
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 579,186 $12.375 $7,167,427 $2,472.00
par value shares
$1.00 per share
- ------------------------------------------------------------------------------------
</TABLE>
(1) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
-----------------------------------------------
The following documents of McDonald & Company Investments, Inc. (the
"Company"), previously filed with the Securities and Exchange Commission,
are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended March
25, 1994;
2. The Company's definitive Proxy Statement used in connection with its
Annual Meeting of Stockholders to be held on August 3, 1994; and
3. The Company's Form 8-A dated July 1, 1983 (Reg. No. 1-8526).
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 after the date of this
Registration Statement, 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 the Registration Statement and to be a part hereof
from the date of filing of such documents.
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Article VII of the Company's Certificate of Incorporation provides that
Directors of the Company are not personally liable to the Company for any
breach of fiduciary duty as a Director, except in certain very limited
circumstances.
Article V of the Company's By-Laws provides in part that the Company shall
indemnify any Director or officer who was or is a party to or is threatened to
be made a party to, or is involved in, any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she, or a person of whom he or
she is the legal representative, is or was a Director or officer of the
Company, or is or was serving at the request of the Company, in certain
capacities for another entity, against all expense, liability and loss
reasonably incurred or suffered by such person in connection with such action,
suit or proceeding. Responsibility for determinations with respect to such
indemnification shall be made by the Board of Directors, by independent
legal counsel or by the stockholders of the Company.
The Company has also entered into indemnity agreements (the "Indemnity
Agreements") with its Directors and officers that further expand the
protection provided to the Company's Directors and officers and are based
upon the sections of the General Corporation Law of the State of Delaware
and Article V of the Company's By-Laws that recognize the validity of
additional indemnity rights granted by agreement. The substantive content
of the Indemnity
II-1
<PAGE> 3
Agreements and Article V of the By-Laws is substantially the same except that
pursuant to the Indemnity Agreements (i) indemnity is expressly provided for
settlements in derivative actions and (ii) partial indemnification is
permitted in the event that the Director or officer is not entitled to full
indemnification.
Both the General Corporation Law of the State of Delaware and Article V
of the Company's By-Laws provide that the Company may maintain insurance to
cover losses incurred pursuant to liability of Directors and officers of
the Company, which insurance, if any, may cover liabilities of Directors and
officers of the Company arising under the Securities Act of 1933.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
See the Exhibit Index at Page E-1 of this Registration Statement.
Item 9. Undertakings
------------
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. The undersigned registrant 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)
II-2
<PAGE> 4
or 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. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to Directors, officers
and controlling persons of the Company pursuant to the foregoing
provisions described under Item 6 above, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of
expenses incurred or paid by a Director, officer or controlling
person of the Company 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
Company 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 Securities Act of
1933 and will be governed by the final adjudication of such issue.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all 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 Cleveland, State of Ohio, this 11th day of July,
1994.
MCDONALD AND COMPANY INVESTMENTS, INC.
By: /S/ William B. Summers, Jr.
_________________________________
William B. Summers, Jr.,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on July 11, 1994.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/S/ William B. Summers, Jr. President, Chief Executive Officer and Director
_____________________________ (Principal Executive Officer)
William B. Summers, Jr.
/S/ Thomas M. O'Donnell Chairman and Director
_____________________________
Thomas M. O'Donnell
/S/ Robert T. Clutterbuck
_____________________________ Treasurer (Principal Accounting and Financial
Robert T. Clutterbuck Officer)
/S/ James A. Karman
_____________________________ Director
James A. Karman
/S/ Bennett E. Bidwell
_____________________________ Director
Bennett E. Bidwell
/S/ Frederick R. Nance
_____________________________ Director
Frederick R. Nance
II-4
<PAGE> 6
/S/ Willard E. Carmel
_____________________________ Director
Willard E. Carmel
/S/ Rena J. Blumberg
_____________________________ Director
Rena J. Blumberg
/S/ Donald E. Weston
_____________________________ Director
Donald E. Weston
</TABLE>
II-5
<PAGE> 7
Calfee, Halter & Griswold
Suite 1800
800 Superior Avenue
Cleveland, Ohio 44114
(216) 622-8380
July 11, 1994
McDonald & Company Investments, Inc.
800 Superior Avenue
Suite 2100
Cleveland, Ohio 44114
We are familiar with the proceedings taken and proposed to be taken
by McDonald & Company Investments, Inc., a Delaware corporation (the
"Company"), with respect to 579,186 shares of Common Stock, par value $1.00
per share (the "Shares"), of the Company to be issued from time to time
pursuant to the Company's 1993 Stock Bonus Plan (the "Plan"). As counsel
for the Company, we have assisted in the preparation of a Registration
Statement on Form S-8 (the "Registration Statement") to be filed by the
Company with the Securities and Exchange Commission to effect the registration
of the Shares under the Securities Act of 1933, as amended.
In this connection, we have examined the Certificate of Incorporation
and the By-Laws of the Company, both as amended, records of proceedings
of the Board of Directors and stockholders of the Company, and such other
records and documents as we have deemed necessary or advisable to render the
opinion contained herein. Based upon our examination and inquiries, we are of
the opinion that the Shares, when issued pursuant to the terms and conditions
of the Plan, will be duly authorized, validly issued, fully paid and
nonassessable.
This opinion is limited to the General Corporation Law of the State of
Delaware and we express no view as to the effect of any other law on the
opinion set forth herein.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
CALFEE, HALTER & GRISWOLD
II-6
<PAGE> 8
EXHIBIT 23.1
We consent to the incorporation by reference in the Registration
Statement (Form S-8) and related Prospectus pertaining to the 1993 Stock
Bonus Plan of McDonald & Company Investments, Inc. of our report with
respect to the consolidated financial statements and schedules of McDonald &
Company Investments, Inc. included in its Annual Report (Form 10-K) for the
year ended March 25, 1994, filed with the Securities and Exchange
Commission.
Ernst & Young
Cleveland, Ohio
July 8, 1994
II-7
<PAGE> 9
EXHIBIT 23.2
CONSENT OF COUNSEL
The consent of Calfee, Halter & Griswold is contained in their opinion filed
as Exhibit 5.1 to this Registration Statement.
II-8
<PAGE> 10
EXHIBIT 24.1
MCDONALD & COMPANY INVESTMENTS, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that McDonald & Company Investments, Inc.
hereby constitutes and appoints Thomas M. O'Donnell, William B. Summers,
Jr., Robert T. Clutterbuck, Thomas F. McKee and John J. Jenkins, or any one
or more of them, its attorneys-in-fact and agents, each with full power of
substitution and resubstitution for it in any and all capacities, to sign any
or all amendments or post-effective amendments to this Registration
Statement, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto each of such attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary in
connection with such matters and hereby ratifying and confirming all that each
of such attorneys-in-fact and agents or his substitute or substitutes may do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed at Cleveland,
Ohio on July 11, 1994.
MCDONALD & COMPANY INVESTMENTS, INC.
By: /S/ William B. Summers, Jr.
--------------------------------------
William B. Summers, Jr., President and
Chief Executive Officer
II-9
<PAGE> 11
EXHIBIT 24.1
(Continued)
MCDONALD & COMPANY INVESTMENTS, INC.
Certified Resolution
I, THOMAS F. McKEE, Secretary of McDonald & Company Investments, Inc., a
Delaware corporation (the "Company") do hereby certify that the following is
a true copy of a resolution adopted by the Board of Directors on July 27,
1993, and that the same has not been changed and remains in full force and
effect.
RESOLVED, that Thomas M. O'Donnell, William B. Summers, Jr., Robert T.
Clutterbuck, Thomas F. McKee and John J. Jenkins, be, and each of them
hereby is, appointed as the attorney of McDonald & Company Investments, Inc.,
with full power of substitution and resubstitution for and in the name, place
and stead of the Company to sign, attest and file a Registration Statement on
Form S-8, or any other appropriate form that may be used from time to time,
with respect to the issue and sale of its Common Stock, and any and all
amendments, post-effective amendments and exhibits to such Registration
Statement and any and all applications or other documents to be filed with
the Securities and Exchange Commission or any national securities exchange
pertaining to the listing thereon of the Common Stock covered by such
Registration Statement or pertaining to such registration and any and all
applications or other documents to be filed with any governmental or private
agency or official relative to the issuance of said Common Stock with full
power and authority to do and perform any and all acts and things whatsoever
requisite and necessary to be done in the premises, hereby ratifying and
approving the acts of such attorneys or any such substitute or substitutes
and, without implied limitation, including in the above authority to do the
foregoing on behalf and in the name of any duly authorized officer of the
Company; and the President and Chief Executive Officer of the Company be, and
hereby is authorized and directed for and on behalf of the Company to execute
a Power of Attorney evidencing the foregoing appointment.
/S/ Thomas F. McKee
----------------------------
Thomas F. McKee, Secretary
Dated: July 11, 1994
II-10
<PAGE> 12
<TABLE>
McDONALD & COMPANY SECURITIES, INC.
EXHIBIT INDEX
<CAPTION>
Exhibit Sequential
Number Description Page
- ------- ----------- ----------
<S> <C> <C>
4.1 Certificate of Incorporation of the Company, as amended. (1)
4.2 Amendment to the Certificate of Incorporation of the
Company. (2)
4.3 By-Laws of the Company, as amended. (1)
4.4 Specimen Stock Certificate, as amended. (1)
4.5 1993 Stock Bonus Plan
5.1 Opinion of Calfee, Halter & Griswold regarding the validity
of the securities being registered (see Page II-6 of this
Registration Statement).
23.1 Consent of Ernst & Young (see Page II-7 of this Registration
Statement).
23.2 Consent of Calfee, Halter & Griswold (see Page II-8 of this
Registration Statement).
24.1 Power of Attorney and related Certified Resolution (see Pages
II-9 and II-10 of this Registration Statement).
</TABLE>
_______________
1 Incorporated herein by reference to the appropriate exhibit to the
Company's Registration Statement on Form S-8 declared effective on
February 2, 1987 (Reg. No. 33-11335).
2 Incorporated herein by reference to the appropriate exhibit to the
Company's Annual Report on Form 10-K for the fiscal year ended March 26,
1993.
E-1
<PAGE> 1
EXHIBIT 4.5
MCDONALD & COMPANY INVESTMENTS, INC.
1993 STOCK BONUS PLAN
1. NAME AND PURPOSE.
1.1 The name of this plan is the McDonald & Company Investments, Inc. 1993
Stock Bonus Plan. The Plan amends and restates the McDonald & Company
Investments, Inc. 1992 Restricted Stock Bonus Plan in its entirety effective for
bonus payments determined with respect to fiscal years commencing March 27,
1993, and thereafter. The Plan will continue to be maintained by McDonald &
Company Investments, Inc. (herein referred to as the "Parent Corporation") to
further the growth, success and interest of the Parent Corporation, McDonald &
Company Securities, Inc. (herein referred to as the "Corporation") and the
stockholders of the Parent Corporation by enabling employees of the Corporation
who receive a Qualifying Bonus, as defined in Section 3.3 below, to acquire
shares of common stock of the Parent Corporation ("Shares") under the terms and
conditions of and in accordance with this Plan, thereby increasing their direct
involvement in the success of the Corporation.
2. ADMINISTRATION OF THE PLAN.
2.1 This Plan shall be administered by the Compensation Committee (the
"Committee") of the Board of Directors of the Parent Company which shall consist
of at least three directors, each of whom shall be a "disinterested person"
within the meaning of Rule 16b-3 promulgated under the Securities Exchange Act
of 1934 and any successor to such rule ("Rule 16b-3"). The Committee may, from
time to time, designate one or more persons or agents to carry out any or all of
its administrative duties hereunder; provided that none of the duties required
to be performed by the Committee under Rule 16b-3 or Section 2.3 of the Plan may
be delegated to any other person.
2.2 The Plan shall be administered and operated on the same annual
accounting period as the Parent Corporation (herein referred to as the "plan
year"), which presently is either the fifty-two (52) or fifty-three (53) week
period ending on the last Friday of each March. The first plan year will be
deemed to have commenced March 29, 1993 and to have ended March 25, 1994. In the
event that the Parent Corporation changes its annual accounting period, the plan
year shall automatically change and the Committee may make such adjustments to
the operation of the Plan as appropriate to reflect any short plan years,
adjustments to the dates that Shares are awarded or that restrictions lapse
hereunder or any other adjustments that may be appropriate to reflect the change
in the plan year.
2.3 The Committee shall interpret the Plan, and to the extent and in the
manner contemplated herein, it shall exercise the discretion granted to it. The
Committee shall issue from time to time such rules and interpretations as in its
judgment are necessary in order to administer the Plan effectively. The
Committee shall have the exclusive right in its sole discretion to determine the
number of Shares awarded to each participant, to determine the price or prices
at which Shares shall be awarded to each participant, to determine the time or
times when Shares may be awarded and to prescribe the form, which shall be
consistent with this Plan, of the instruments
1
<PAGE> 2
evidencing any award and issuance under this Plan and the legend, if any, to be
affixed to the certificates representing Shares issued under this Plan.
3. ELIGIBLE EMPLOYEES AND PARTICIPATION.
3.1 Any employee of the Corporation shall be eligible to participate in
the Plan if he satisfies all of the following conditions:
(a) he has been awarded a Qualifying Bonus, as defined in Section 3.3
below, for the plan year or any portion of the plan year or, if the
employee is a salesperson, for the calendar year or any portion of the
calendar year that ends in the plan year;
(b) he has not attained age fifty-seven (57) on the first day of the
relevant plan year or, if the employee is a salesperson, on the first day
of the calendar year; and
(c) he does not own at least the following number of Shares on the
first day of the relevant plan year:
(i) 25,000 Shares if he is awarded a Sales Bonus;
(ii) 75,000 Shares if he is awarded an Incentive Bonus; or
(iii) notwithstanding subparagraphs (i) and (ii) above to the
contrary, 125,000 Shares if the individual is the Chairman of the Board,
President or Senior Managing Director of the Parent Company.
3.2 No member of the Board of Directors of the Parent Corporation, unless
he is also an employee of the Corporation, and no member of the Committee, shall
be eligible to participate in the Plan.
3.3 The words "Qualifying Bonus" shall mean a bonus paid to an employee
under the Incentive Compensation Program or the Sales Compensation Programs as
adopted and operated by the Chairman and President of the Parent Corporation and
as such programs may be amended from time to time.
3.4 In the event an employee would not participate in the Plan as a result
of satisfying either of the conditions specified in paragraphs (b) or (c) in
Section 3.1 above, such an employee may elect to participate in the Plan for a
plan year or calendar year, as applicable, in which such conditions apply if he
delivers a written election to participate to the Committee within sixty (60)
days after the beginning of such plan year or calendar year. Such an election
shall be irrevocable for such year. The Shares awarded to such an employee shall
be subject to the same terms and restrictions hereunder as if the employee did
not satisfy such conditions.
3.5 All of the Shares beneficially owned by an employee or his spouse,
beneficially owned by or held for the benefit of his children or grandchildren
who are under the age of nineteen (19) or held for the benefit of the employee
under any qualified retirement plan maintained by the Parent Corporation or the
Corporation including, but not limited to, the McDonald & Company Securities,
Inc. Retirement Savings Trust and Plan, shall be included in determining whether
the employee satisfies the condition set forth in paragraph (c) of Section 3.1
above. Shares subject to an unexercised stock option granted to the employee
shall not be included in such determination. For purposes of this section, and
except as provided in the immediately preceding sentence, a person's "beneficial
ownership" of Shares shall be determined in accor-
2
<PAGE> 3
dance with the provisions of Rule 16a-1(a)(2) promulgated under the Securities
Exchange Act of 1934 and any successor to such rule.
3.6 Subject to approval by the Board of Directors of the Parent
Corporation, the Committee shall have the specific right to amend the Plan to
include any class of employees that are excluded under Section 3.1 above upon
such terms and conditions as deemed appropriate by the Committee.
4. STOCK PORTION OF QUALIFYING BONUS.
4.1 The number of Shares that shall be awarded to a participant who is
entitled to receive a Qualifying Bonus shall be determined by dividing the Stock
Portion of a Participant's Qualifying Bonus by the Adjusted Purchase Price of
one Share. The Stock Portion of a Participant's Qualifying Bonus shall be
determined under a formula according to the Participant's Qualifying Bonus
amount. Such formula may be reflected in a chart which is adopted and approved
by the Compensation Committee each year and is attached hereto as Exhibit A to
incorporate such chart as if fully set forth herein. The Compensation Committee
may adopt as many different formulas and charts as it deems necessary for each
class of employees who receive a Qualifying Bonus.
4.2 The Stock Portion of a Participant's Qualifying Bonus shall be
determined for each Qualifying Bonus paid with respect to a plan year or
calendar year, as appropriate, by aggregating the amount of the current
Qualifying Bonus together with all the Qualifying Bonuses previously paid with
respect to such plan year or calendar year to determine the stock portion for
the current Qualifying Bonus.
4.3 The Adjusted Purchase Price for one Share shall be determined by
calculating the average closing price of one Share for the five (5) trading day
period ending on the last day of the month immediately preceding the month that
includes the date in which payment of the Qualifying Bonus is actually made to
the participant, and multiplying such average price by ninety-five percent
(95%).
5. SHARES SUBJECT TO THE PLAN.
5.1 The Shares which may be awarded and issued to employees under this
Plan shall be made available, at the discretion of the Board of Directors,
either from authorized and unissued Shares of the Parent Corporation or from
Shares reacquired by the Parent Corporation, including Shares purchased in the
open market.
5.2 Shares issued to employees under this Plan shall be subject to the
terms, conditions and restrictions specified in Section 6 and to such other
terms, conditions and restrictions as the Committee in its discretion may
provide.
5.3 Subject to the provisions of the succeeding paragraphs of this Section
5, the aggregate number of Shares which may be issued under this Plan shall not
exceed 800,000 Shares.
5.4 In the event that the outstanding Shares shall be changed by reason of
share splits or combinations, recapitalization or reorganizations, or share
dividends, the number of Shares and
3
<PAGE> 4
the class or classes of securities which may thereafter be issued under this
Plan may be appropriately adjusted as determined by the Committee so as to
reflect such change.
5.5 No fractional Shares shall be awarded under the Plan. In the event
that the determination of the number of Shares that a participant is entitled to
under the Plan results in a fractional Share, such participant shall be entitled
to the number of whole Shares that results from rounding up such determination
to the next larger whole Share.
6. TRANSFER RESTRICTIONS.
6.1 The Shares shall not be sold, transferred or otherwise disposed of and
shall not be pledged or otherwise hypothecated (and any such sale, transfer or
other disposition, pledge or other hypothecation being hereinafter referred to
as "to dispose of" or a "disposition") until the earliest of (a) the second
(2nd) anniversary of the June 1st immediately following the end of the plan year
for which such Shares were awarded; (b) a change in control that occurs with
respect to the Parent Company; or (c) the termination of the Plan.
6.2 In the event that a participant's employment with the Corporation
shall terminate by reason of death or total disability prior to the earliest of
(a) the second (2nd) anniversary of the June 1st immediately following the end
of the plan year for which such Shares were awarded; (b) a change in control
that occurs with respect to the Parent Company; or (c) the termination of the
Plan, then the restrictions imposed on such Shares by this Section 6 shall lapse
and be of no further force and effect.
6.3 The Committee, in its sole discretion, shall decide whether a change
in control has occurred. If the Committee shall decide that a change in control
has occurred it shall issue written notice to participants of such fact and
shall issue all Shares which have become unrestricted to participants as soon as
possible after such notice. In determining whether a change in control has
occurred, the Committee shall consider, but shall not be limited to, the
occurrence of the following events: (i) the first purchase of Shares pursuant to
a tender offer or exchange (other than a tender offer or exchange by the Parent
Corporation) for all or part of the Parent Corporation's common stock of any
class or any securities convertible into such common stock; (ii) the receipt by
the Parent Corporation of a Schedule 13D or other advice indicating that a
person is the "beneficial owner" (as that term is defined in Rule 13d-3 under
the Securities Exchange Act of 1934) of twenty percent (20%) or more of the
Parent Corporation's Shares of common stock calculated as provided in paragraph
(d) of said Rule 13d-3; (iii) the date of approval by shareholders of the Parent
Corporation of an agreement providing for any consolidation or merger of the
Parent Corporation or the Corporation in which the Parent Corporation or the
Corporation will not be the continuing or surviving corporation or pursuant to
which shares of capital stock, of any class or any securities convertible into
such capital stock, of the Parent Corporation would be converted into cash,
securities, or other property, other than a merger of the Parent Corporation in
which the holders of shares of all classes of the Parent Corporation's common
stock immediately prior to the merger would have the same proportion of
ownership of common stock of the surviving corporation immediately after the
merger; (iv) the date of the approval by shareholders of the Parent Corporation
of any sale, lease, exchange, or other transfer (in one transaction or a series
of related transactions) of all or substantially all the assets of the Parent
Corporation or the Corporation; or (v) the
4
<PAGE> 5
adoption of any plan or proposal for the liquidation (but not a partial
liquidation) or dissolution of the Parent Corporation or the Corporation.
6.4 The Committee may require that the Parent Corporation retain
possession of the certificates for Shares with respect to which the restrictions
have not lapsed. Notwithstanding retention of certificates by the Parent
Corporation, the employee in whose name certificates are issued shall have all
rights (including dividend and voting rights) with respect to the Shares
represented by such certificates, subject to the terms, conditions and
restrictions specified under this Plan, and the Shares represented by such
certificates shall be considered as issued and outstanding for all purposes.
7. OTHER RESTRICTIONS.
7.1 The Committee may impose such other restrictions on any Shares awarded
pursuant to the Plan as it may deem advisable, including, without limitation,
restrictions under the Securities Act of 1933 as amended, under the requirements
of any stock exchange upon which such Shares are then listed and under any state
blue sky or securities laws applicable to such Shares.
8. ESCROW OR LEGEND.
8.1 In order to enforce the restrictions imposed upon Shares issued
hereunder, the Committee also may require any participant to enter into an
Escrow Agreement providing that the certificates representing Shares issued
pursuant to this Plan shall remain in the physical custody of any escrow holder
until any or all of the restrictions imposed pursuant to this Plan have
terminated. In addition, the Committee may cause a legend or legends to be
placed on any certificates representing Shares issued pursuant to this Plan,
which legend or legends shall make appropriate reference to the various
restrictions imposed hereunder.
9. AMENDMENTS.
9.1 This Plan may be amended at any time by the Board of Directors of the
Parent Corporation, provided, that if this Plan shall have been approved by the
stockholders of the Parent Corporation no such amendment shall increase the
maximum number of Shares that may be issued pursuant to this Plan, except
pursuant to Section 5 hereof, without the further approval of such stockholders;
and provided further, that no amendment to this Plan shall modify or impair the
rights of participants who have been awarded Shares, or who have been granted
the right to an award of Shares hereunder prior to any such amendment.
10. DURATION.
10.1 This Plan became effective upon its adoption by the Board of
Directors for the Plan Year ended March 25, 1994 and shall terminate on June 30,
1998 or such earlier date as may be determined by the Board of Directors;
provided, however, that the Plan, as amended and restated, shall terminate and
all awards of Shares under the Plan, as amended and restated, shall be revoked
if, within 12 months of the date of its adoption by the Board of Directors, the
Plan, as amended and restated, does not receive the approval of a majority of
the outstanding Shares present in person or by proxy and entitled to vote at a
meeting of stockholders of the
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Parent Corporation. In the event the Plan, as amended and restated, does not
receive such majority shareholder approval, the Plan, as previously constituted
and approved, shall be restated in its entirety. Notwithstanding anything herein
to the contrary, the Committee's right to award any new Shares shall terminate
immediately after the last award of Shares with respect to the plan year ending
in 1996.
11. WITHHOLDING.
11.1 On the date that the Shares are first taxable for federal income tax
purposes (the "Tax Date") to an employee, the Committee may require that the
employee make such provision, or furnish the Parent Corporation with such
authorization, as the Committee in its sole discretion determines necessary or
desirable so that the Parent Corporation may satisfy its obligations, under
applicable income tax laws, to withhold for income or other taxes due upon or
incident to the award of Shares to the employee. Unless otherwise determined by
the Committee, employees shall be permitted to elect (hereinafter an "Election")
either:
(a) to have the Parent Corporation withhold from cash compensation or
commissions payable to the employee, or
(b) to surrender to the Parent Corporation such number of whole Shares
previously acquired by such employee, other than Shares as to which the
restrictions of Section 6 under the Plan have not lapsed,
which is equal to (i) an amount of money or the number of whole Shares having a
fair market value, as appropriate, nearest to, but at least equal to, the amount
sufficient to satisfy the Parent Corporation's withholding obligation with
respect to income realized by such employee with respect to the award of his
Shares (the "Minimum Withholding Amount"); (ii) an amount of money or the number
of whole Shares having a fair market value nearest the amount sufficient to
satisfy the employee's aggregate maximum federal, state and local income tax
liability with respect to income realized by such employee with respect to the
award of his Shares (the "Maximum Withholding Amount"), or (iii) such other
amount of money or number of whole Shares having a fair market value
approximately equal to any amount specified by the Committee or permitted by the
Committee to be specified by the employee, provided that such amount is not in
excess of the Maximum Withholding Amount and such amount, together with any cash
paid by or on behalf of the employee, is at least equal to the Minimum
Withholding Amount.
11.2 An Election by an employee who is not subject to Section 16(b) of the
Securities Exchange Act of 1934 may be made at any time, provided the
appropriate form is received by the Parent Corporation prior to the Tax Date
pertaining to such Shares, and such election may be changed or revoked by the
employee at any time prior to the Tax Date. The restrictions of Section 11.3
shall not apply to such an employee.
11.3 Any Election by an employee to surrender Shares under Section 11.1(b)
above and who is subject to Section 16(b) shall meet the following requirements:
(a) The Election, once made, shall be irrevocable.
(b) The Election
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(i) may not be made with respect to any Shares within six months
after the award of such Shares (except that this limitation will not
apply in the event death or disability of the employee occurs prior to
the expiration of the six-month period);
(ii) must be made prior to the Tax Date; and
(iii) must be made, and delivery of the appropriate form received
by the Parent Corporation, either during one of the ten business-day
periods beginning on the third business day following the date of
release of the Parent Corporation's quarterly or annual summary
statement of sales and earnings and ending on the twelfth business day
following such date, or at least six months prior to the Tax Date for
receipt of Shares as to which such Election applies.
(c) The Committee shall have sole discretion to consent to or
disapprove any Election made by such employee and, if the Committee
disapproves such an Election, the Committee shall request prior to the
release of such Shares to which the disapproved Election applies that the
employee furnish the Parent Corporation with an amount in cash or
authorization to obtain such an amount sufficient to satisfy the Parent
Corporation's income tax withholding obligation with respect to the award
of such Shares. The Committee by resolution may approve in advance
specified classes of Elections, whether by a given employee or category of
employees, or by type of Election, provided such resolution expressly
reserves to the Committee the right both to disapprove any individual
Election and to revoke or modify its advance approval of any such class of
Elections.
11.4 The Committee may adopt such rules, forms and procedures as it
considers necessary or desirable to implement this Section 11, which rules,
forms and procedures shall be applied uniformly to all employees similarly
situated.
12. BENEFICIARY DESIGNATION.
12.1 Unless an employee has designated a beneficiary in accordance with
the provisions of the following sentence, any Shares that become unrestricted
and payable on account of the death of an employee shall be paid to the person
or persons in the first of the following classes in which there are any
survivors of such employee:
(a) his or her spouse at the time of death;
(b) his or her issue per stirpes;
(c) his or her parents; and
(d) the executor or administrator of his or her estate.
Instead of having any Shares that become payable on account of an employee's
death paid to a beneficiary as determined above, an employee may sign a document
designating a beneficiary or beneficiaries to receive such Shares and filing
such designation with the Corporation.
13. CONTINUING EFFECT OF 1992 RESTRICTED STOCK BONUS PLAN.
13.1 Notwithstanding anything in this Plan to the contrary, all of the
terms and conditions contained in the Plan prior to its amendment and
restatement herein shall continue in effect and shall apply to Shares awarded
under the Plan in accordance with such terms and conditions prior to the
effective date of this amendment and restatement. The terms and conditions of
the Plan, as amended and restated, shall have no force or effect on such
previously awarded Shares.
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