<PAGE> 1
As filed with the Securities and Exchange Commission on September 3, 1997
Registration No. 333-
================================================================================
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)
McDonald Investment Center, 21st Floor
800 Superior Avenue
Cleveland, Ohio 44114-2603
(Address of Principal Executive Offices, including Zip Code)
------------------
MCDONALD & COMPANY INVESTMENTS, INC.
1995 STOCK OPTION PLAN FOR NON-OFFICER DIRECTORS
(Full Title of the Plan)
------------------
Thomas M. O'Donnell With a copy to:
Chairman of the Board ---------------
McDonald & Company Investments, Inc. Thomas F. McKee, Esq.
McDonald Investment Center, 21st Floor Calfee, Halter & Griswold LLP
800 Superior Avenue 1400 McDonald Investment Center
Cleveland, Ohio 44114-2603 800 Superior Avenue
(216) 443-2300 Cleveland, Ohio 44114-2688
(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, par value
$1.00 per share 100,000 (2) $43.40625 $4,340,625 $1,315.34
- ----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee and based upon the average of the high and
low sales prices of the Common Stock of McDonald & Company Investments,
Inc. reported on the New York Stock Exchange on August 26, 1997.
(2) The 100,000 shares of Common Stock registered hereby are issuable pursuant
to the McDonald & Company Investments, Inc. 1995 Stock Option Plan for
Non-Officer Directors.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by McDonald & Company
Investments, Inc. (the "Company") with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended March 28, 1997;
(2) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 27, 1997; and
(3) The description of the Company's Common Stock, par value $.01
per share (the "Common Stock"), contained in the Company's
Registration Statement on Form 8-A, dated July 1, 1983 (File
No. 1-8526), and any amendments and reports filed for the
purpose of updating that description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all the securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated in this Registration Statement by
reference and to be a part hereof from the date of filing of such documents,
other than the portions of such documents which by statute, by designation in
such documents or otherwise, are not deemed to be filed with the Commission or
are not required to be incorporated herein by reference.
Any statement contained in documents incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded, for purposes of this Registration Statement, to the
extent that a statement contained in this Registration Statement, or in any
other subsequently filed document that also is, or is deemed to be, incorporated
by reference in this Registration Statement, 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.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
II-1
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") sets forth the conditions and limitations governing the
indemnification of officers, directors and other persons.
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 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 DGCL 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.
II-2
<PAGE> 4
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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement.
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8, or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to
Sections 13 or 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 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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of
II-3
<PAGE> 5
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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 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
Securities Act of 1933 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 Cleveland, State of Ohio, on this 29th day of August,
1997.
MCDONALD & 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 by the following persons in the
capacities indicated on August 29, 1997.
<TABLE>
<CAPTION>
SIGNATURES TITLE
---------- -----
<S> <C>
/s/ William B. Summers, Jr. President and Chief Executive Officer and
- -------------------------------- Director (Principal Executive Officer)
William B. Summers, Jr.
/s/ Robert T. Clutterbuck Treasurer and Director (Principal Financial
- -------------------------------- Officer and Principal Accounting Officer)
Robert T. Clutterbuck
/s/ Thomas M. O'Donnell Chairman and Director
- --------------------------------
Thomas M. O'Donnell
/s/ Rena J. Blumberg Director
- --------------------------------
Rena J. Blumberg
/s/ Jeanette Grasselli Brown Director
- --------------------------------
Jeanette Grasselli Brown
/s/ Edward Fruchtenbaum Director
- --------------------------------
Edward Fruchtenbaum
</TABLE>
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<PAGE> 7
<TABLE>
<S> <C>
/s/ James A. Karman Director
- --------------------------------
James A. Karman
/s/ David N. McCammon Director
- --------------------------------
David N. McCammon
/s/ Frederick R. Nance Director
- --------------------------------
Frederick R. Nance
/s/ Donald E. Weston Director
- --------------------------------
Donald E. Weston
</TABLE>
II-6
<PAGE> 8
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------ -------------------
4.1 Certificate of Incorporation of the Company, incorporated
herein by reference to Exhibit 4(a) to Company's Registration
Statement on Form S-8 (Reg. No. 33-11335).
4.2 By-Laws of the Company, incorporated herein by reference to
Exhibit 4(b) to Company's Registration Statement on Form S-8
(Reg. No. 33-11335).
4.3 Certificate of Amendment to the Certificate of Incorporation
of the Company, incorporated herein by reference to Exhibit
3(c) to the Company's Annual Report on Form 10-K for the
fiscal year ended March 26, 1993.
4.4 Certificate of Amendment to the Certificate of Incorporation
of the Company.
4.5 Specimen certificate for the Common Stock, par value $.01 per
share, of the Company, incorporated herein by reference to
Exhibit 4 to the Company's Registration Statement on Form S-1
(Reg. No. 2-84300).
4.6 McDonald & Company Investments, Inc. 1995 Stock Option Plan
for Non-Officer Directors.
5.1 Opinion of Calfee, Halter & Griswold LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Calfee, Halter & Griswold LLP, included in Exhibit
5.1.
E-1
<PAGE> 1
EXHIBIT 4.4
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "MCDONALD & COMPANY INVESTMENTS, INC.", FILED IN THIS OFFICE ON
THE THIRTIETH DAY OF JULY, A.D. 1997, AT 9 0'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEE FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
-------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION:
8583898
DATE: 07-30-97
<PAGE> 2
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF MCDONALD & COMPANY INVESTMENTS, INC.
-------------------------------------
Pursuant to Section 242 of the
Delaware General Corporation Law
-------------------------------------
The undersigned, Thomas F. McKee, being the Secretary of McDonald &
Company Investments, Inc., a Delaware corporation, does hereby certify that a
meeting of the stockholders of McDonald & Company Investments, Inc. was duly
called and held on July 30, 1997, at which meeting an amendment to the
Certificate of Incorporation was duly adopted in accordance with Section 242 of
the Delaware General Corporation Law through the adoption of the following
resolution:
RESOLVED, that Article IV of the Certificate of Incorporation is amended
by deleting the first full sentence in its entirety and substituting in lieu
thereof the following:
"The total authorized capital stock of the Corporation consists
of fifty million two hundred thousand (50,200,000) shares, of which
number two hundred thousand (200,000) are shares of Preferred Stock,
without par value ("Preferred Stock"), and fifty million (50,000,000)
are shares of Common Stock, par value $1.00 per share ("Common
Stock")."
IN WITNESS WHEREOF, the undersigned hereunto subscribes this
Certificate of Amendment and affirms that the facts stated herein are true
under penalties of perjury, this 30th day of July, 1997.
/s/ Thomas F. McKee
-----------------------
Thomas F. McKee
Secretary
<PAGE> 1
EXHIBIT 4.6
1995 STOCK OPTION PLAN FOR NON-OFFICER DIRECTORS
McDonald & Company Investments, Inc., hereinafter referred to as the
"Company," hereby adopts a stock option plan for eligible Directors of the
Company (hereinafter referred to sometimes as "Optionees") pursuant to the
following terms and provisions:
1. PURPOSE OF THE PLAN. The purpose of this plan, hereinafter referred to
as the "Plan," is to provide additional incentive to those Directors of the
Company who are not officers of the Company or any of its subsidiaries or
affiliates by encouraging them to acquire a new or an additional share ownership
in the Company, thus increasing their proprietary interest in the Company's
business and providing them with an increased personal interest in the Company's
continued success and progress. These objectives will be promoted through the
grant of options to acquire Common Stock, par value $1.00 per share (the "Common
Stock"), of the Company pursuant to the terms of the Plan. Only those Directors
who meet the qualifications stated above are eligible for and shall receive
options under this Plan.
2. EFFECTIVE DATE OF THE PLAN. The Plan shall become effective upon the
date the Plan is adopted by the Board of Directors, subject to the approval of
the Plan by holders of a majority of the outstanding shares of voting capital
stock of the Company present and entitled to vote thereon at a meeting or
otherwise. If the Company's stockholders have not approved the Plan within
twelve (12) months after the date the Plan is adopted by the Board of Directors,
the Plan and the options granted hereunder shall be null and void.
3. SHARES SUBJECT TO THE PLAN. The shares to be issued upon the exercise of
the options granted under the Plan shall be shares of Common Stock of the
Company. Either treasury or authorized and unissued shares of Common Stock, or
both, as the Board of Directors shall from time to time determine, may be so
issued. No shares of Common Stock which are subject of any lapsed, expired or
terminated options may be made available for reoffering under the Plan. If an
option granted under this Plan is exercised pursuant to the terms and conditions
of subsection 5(b), any shares of Common Stock which are the subject thereof
shall not thereafter be available for reoffering under the Plan.
Subject to the provisions of the next succeeding paragraph of this Section
3, the aggregate number of shares of Common Stock for which options may be
granted under the Plan shall be Fifty Thousand (50,000) shares of Common Stock.
In the event that subsequent to the date of effectiveness of the Plan, the
Common Stock should, as a result of a stock split, stock dividend, combination
or exchange of shares, exchange for other securities, reclassification,
reorganization, redesignation, merger, consolidation, recapitalization or other
such change, be increased or decreased or changed into or exchanged for a
different number or kind of shares of stock or other securities of the Company
or of another corporation, then (i) there shall automatically be substituted for
each share of Common Stock subject to an unexercised option (in whole or in
part) granted under the Plan, each share of Common Stock available for
additional grants of options under the Plan and each share of Common Stock made
available for grant to each eligible Director pursuant to Section 4 hereof, the
number and kind of shares of stock or other securities into which each
outstanding share of Common Stock shall be changed or for which each such share
of Common Stock shall be exchanged, (ii) the option price per share of Common
Stock or unit of securities shall be increased or decreased proportionately so
that the aggregate purchase price for the securities subject to the option shall
remain the same as immediately prior to such event and (iii) the Board shall
make such other adjustments as may be appropriate and equitable to prevent
enlargement or dilution of option rights. Any such adjustment may provide for
the elimination of fractional shares.
<PAGE> 2
4. GRANT OF OPTIONS.
(a) Automatic Grants. Subject to the terms of the Plan (including without
limitation the receipt of shareholder approval contemplated by Section 2
hereof), each eligible Director shall be granted a non-qualified stock option
for 1,000 shares of Common Stock on the later of (1) the date of the Plan's
adoption by the Board of Directors or (2) the effective date of such Director's
initial election as a member of the Board of Directors. In addition, subject to
the terms of the Plan, each Director shall be granted a non-qualified stock
option for 1,000 shares of Common Stock on the first day of each fiscal year of
the Company commencing with the fiscal year beginning in 1996. Such grant shall
occur automatically without any further action by the Board of Directors.
(b) Option Price. The price at which each share of Common Stock may be
purchased pursuant to an option granted under the Plan shall be equal to the
"fair market value" (as determined pursuant to Section 7) for each such share as
of the date on which the option is granted (the "Date of Grant"), but in no
event shall such price be less than the par value of such shares of Common
Stock. Anything contained in this subsection (b) to the contrary
notwithstanding, in the event that the number of shares of Common Stock subject
to any option is adjusted pursuant to Section 3, a corresponding adjustment
shall be made in the price at which the shares of Common Stock subject to such
option may thereafter be purchased.
(c) Duration of Options. Each option granted under the Plan shall expire
and all rights to purchase shares of Common Stock pursuant thereto shall cease
on the date (the "Expiration Date") which shall be the tenth anniversary of the
Date of Grant of such option.
(d) Vesting of Options. Each option granted under the Plan shall become
fully vested and exercisable on the first anniversary of the Date of Grant.
5. OPTION PROVISIONS.
(a) Limitation on Exercise and Transfer of Options. Only the Director to
whom the option is granted may exercise the same except where a guardian or
other legal representative has been duly appointed for such Director and except
as otherwise provided in the case of such Director's death. No option granted
hereunder shall be transferable otherwise than by the Last Will and Testament of
the Director to whom it is granted or, if the Director dies intestate, by the
applicable laws of descent and distribution. No option granted hereunder may be
pledged or hypothecated, nor shall any such option be subject to execution,
attachment or similar process.
(b) Exercise of Option. Each option granted hereunder may be exercised in
whole or in part (to the maximum extent then exercisable) from time to time
during the option period, but this right of exercise shall be limited to whole
shares. Options shall be exercised by the Optionee (i) giving written notice to
the Secretary of the Company at its principal business office, by certified
mail, return receipt requested, of intention to exercise the same and the number
of shares with respect to which the Option is being exercised (the "Notice of
Exercise of Option") accompanied by full payment of the purchase price in cash
or, with the consent of the Board, in whole or in part in shares of Common Stock
having a fair market value on the date the option is exercised equal to that
portion of the purchase price for which payment in cash is not made and (ii)
making appropriate arrangements with the Company with respect to income tax
withholding, as required, which arrangements may include, in lieu of other
withholding arrangements, (a) the Company withholding from issuance to the
Optionee such number of shares of Common Stock otherwise issuable upon exercise
of the option as the Company and the Optionee may agree; provided that such
Optionee has had on file with the Board of Directors, for at least six (6)
months prior thereto, an effective standing election to satisfy said Optionee's
tax withholding obligations in such a fashion, which election form by its terms
shall not be revocable or amendable for at least six (6) months or (b) with the
consent of the Board of Directors, the Optionee's delivery to the Company of all
of Common Stock having a fair market value on the date the option is exercised
equal to that portion of the withholding obligation for which
<PAGE> 3
payment in cash is not made. Such Notice of Exercise of Option shall be deemed
delivered upon deposit into the mails.
(c) Termination of Directorship. If the Optionee ceases to be a Director of
the Company, his or her option shall terminate three (3) months after the
effective date of termination of his or her directorship and neither he or she
nor any other person shall have any right after such date to exercise all or any
part of such option. If the termination of the directorship is due to death,
then the option may be exercised within three (3) months after the Optionee's
death by the Optionee's estate or by the person designated in the Optionee's
Last Will and Testament or to whom transferred by the applicable laws of descent
and distribution (the "Personal Representative"). Notwithstanding the foregoing,
in no event shall any option be exercisable after the expiration of the option
period and not to any greater extent than the Optionee would have been entitled
to exercise the option at the time of death.
(d) Acceleration of Exercise of Options in Certain Events. Notwithstanding
anything in the foregoing to the contrary, in the event of a "change in control"
the eligible Director shall have the immediate right and option (notwithstanding
the provisions of Section 4) to exercise the option with respect to all shares
of Common Stock covered by the option, which exercise, if made, shall be
irrevocable. The term "change in control" shall include, but not be limited to:
(i) the first purchase of shares pursuant to a tender offer or exchange (other
than a tender offer or exchange by the Company) for all or part of the Company's
shares of any class of common stock or any securities convertible into such
common stock; (ii) the receipt by the Company 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 Company's shares of capital stock calculated as provided in
paragraph (d) of said Rule 13d-3; (iii) the date of approval by stockholders of
the Company of an agreement providing for any consolidation or merger of the
Company in which the Company 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 Company would be converted into
cash, securities, or other property, other than a merger of the Company in which
the holders of shares of all classes of the Company's capital 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 stockholders of the Company 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 Company; or (v) the adoption of any plan or
proposal for the liquidation (but not a partial liquidation) or dissolution of
the Company.
(e) Option Agreements. Options granted under the Plan shall be subject to
the further terms and provisions of an Option Agreement, a copy of which is
attached hereto as Exhibit A, the execution of which by each Optionee shall be a
condition to the receipt of an option.
6. INVESTMENT REPRESENTATION; APPROVALS AND LISTING. The options to be
granted hereunder shall be further conditioned upon receipt of the following
investment representation from the Optionee:
"I further agree that any shares of Common Stock of McDonald & Company
Investments, Inc. which I may acquire by virtue of this option shall be
acquired for investment purposes only and not with a view to distribution
or resale; provided, however, that this restriction shall become
inoperative in the event the said shares of Common Stock subject to this
option shall be registered under the Securities Act of 1933, as amended, or
in the event McDonald & Company Investments, Inc. is otherwise satisfied
that the offer or sale of the shares of Common Stock subject to this option
may be lawfully made without registration of the said shares of Common
Stock under the Securities Act of 1933, as amended."
The Company shall not be required to issue any certificate or certificates for
shares of Common Stock upon the exercise of an option granted under the Plan
prior to (i) the obtaining of any
<PAGE> 4
approval from any governmental agency which the Company shall, in its sole
discretion, determine to be necessary or advisable, (ii) the admission of such
shares of Common Stock to listing on any national securities exchange on which
the Common Stock may be listed, (iii) the completion of any registration or
other qualification of the shares of Common Stock under any state or federal law
or ruling or regulations of any governmental body which the Company shall, in
its sole discretion, determine to be necessary or advisable or the determination
by the Company, in its sole discretion, that any registration or other
qualification of the shares of Common Stock is not necessary or advisable and
(iv) the obtaining of an investment representation from the Optionee in the form
stated above or in such other form as the Company, in its sole discretion, shall
determine to be adequate.
7. GENERAL PROVISIONS. For all purposes of this Plan the fair market value
of a share of Common Stock shall be determined as follows: so long as the Common
Stock of the Company is listed upon an established stock exchange or exchanges
such fair market value shall be determined to be the highest closing price of a
share of such Common Stock on such stock exchange or exchanges on the day the
option is granted (or the date the shares of Common Stock are tendered as
payment, in the case of determining fair market value for that purpose) or if no
sale of such Common Stock shall have been made on any stock exchange on that
day, then on the closest preceding day on which there was a sale of such Common
Stock; and during any period of time as such Common Stock is not listed upon an
established stock exchange the fair market value per share shall be the mean
between dealer "Bid" and "Ask" prices of such Common Stock in the
over-the-counter market on the day the option is granted (or the day the shares
of Common Stock are tendered as payment, in the case of determining fair market
value for that purpose), as reported by the National Association of Securities
Dealers, Inc.
The liability of the Company under the Plan and any distribution of Common
Stock made hereunder is limited to the obligations set forth herein with respect
to such distribution and no term or provision of the Plan shall be construed to
impose any liability on the Company in favor of any person with respect to any
loss, cost or expense which the person may incur in connection with or arising
out of any transaction in connection with the Plan, including, but not limited
to, any liability to any federal, state, or local tax authority and/or any
securities regulatory authority.
Nothing in the Plan or in any option agreement shall confer upon any
Optionee any right to continue as a Director of the Company, or to be entitled
to any remuneration or benefits not set forth in the Plan or such option.
Nothing contained in the Plan or in any option agreement shall be construed
as entitling any Optionee to any rights of a stockholder as a result of the
grant of an option until such time as shares of Common Stock are actually issued
to such Optionee pursuant to the exercise of an option.
The Plan may be assumed by the successors and assigns of the Company.
The Plan shall not be amended more than once every six (6) months, other
than to comport with changes in the Internal Revenue Code, the Employee
Retirement Income Security Act, or the rules thereunder.
The cash proceeds received by the Company from the issuance of Common Stock
pursuant to the Plan will be used for general corporate purposes or in such
other manner as the Board of Directors deems appropriate.
The expense of administering the Plan shall be borne by the Company.
The captions and section numbers appearing in the Plan are inserted only as
a matter of convenience. They do not define, limit, construe or describe the
scope or intent of the provisions of the Plan.
<PAGE> 5
8. TERMINATION OF THE PLAN. The Plan shall terminate ten (10) years from
the date of its adoption by the Board of Directors of the Company and thereafter
no options shall be granted hereunder. All options outstanding at the time of
termination of the Plan shall continue in full force and effect in accordance
with and subject to their terms and the terms and conditions of the Plan.
9. TAXES. Appropriate provisions shall be made for all taxes required to be
withheld and/or paid in connection with the options or the exercise thereof, and
the transfer of shares of Common Stock pursuant thereto, under the applicable
laws or other regulations of any governmental authority, whether federal, state,
or local and whether domestic or foreign.
10. GOVERNING LAW. The Plan shall be governed by and construed in
accordance with the laws of the State of Delaware and any applicable federal
law.
11. VENUE. The venue of any claim brought hereunder by an eligible Director
shall be Cleveland, Ohio.
12. CHANGES IN GOVERNING RULES AND REGULATIONS. All references herein to
the Internal Revenue Code, or sections thereof, or to rules and regulations of
the Department of Treasury or of the Securities and Exchange Commission, shall
mean and include the Code sections thereof and such rules and regulations as are
now in effect or as they may be subsequently amended, modified, substituted or
superseded.
<PAGE> 1
EXHIBIT 5.1
August 29, 1997
McDonald & Company Investments, Inc.
McDonald Investment Center, 21st Floor
800 Superior Avenue
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 100,000 shares of Common Stock, par value $.01 per
share (the "Shares"), of the Company, to be offered and sold from time to time
pursuant to the McDonald & Company Investments, Inc. 1995 Stock Option Plan for
Non-Officer Directors (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 Company's Amended and
Restated Certificate of Incorporation and By-Laws, 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 are duly authorized and, when issued pursuant to the
terms and conditions of the Plan, will be validly issued, fully paid and
nonassessable.
This opinion is intended solely for your use in the
above-described transaction and may not be reproduced, filed publicly, or relied
upon by any other person for any purpose without the express written consent of
the undersigned.
This opinion is limited to matters of the Delaware General
Corporation Law, 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 LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) and in the related Prospectus pertaining to the McDonald & Company
Investments, Inc. 1995 Stock Option Plan for Non-Officer Directors of our report
dated May 6, 1997, with respect to the financial statements of McDonald &
Company Investments, Inc. included and incorporated by reference in its Annual
Report (Form 10-K) for the year ended March 28, 1997, filed with the Securities
and Exchange Commission.
Ernst & Young LLP
Cleveland, Ohio
August 29, 1997
