<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER __, 1994
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-----------------
ARROW ELECTRONICS, INC.
(Exact name of registrant as specified in its charter)
New York 11-1806155
(State of Incorporation) (I.R.S. Employer Identification No.)
25 Hub Drive, Melville, New York 11747
--------------------------------------
(Address of principal executive offices)
Gates/FA Distributing, Inc. 1985 Amended and Restated Stock Option Plan
Gates/FA Distributing, Inc. 1987 Stock Option Plan
Gates/FA Distributing, Inc. 1993 Stock Option Plan for Outside Directors
Option to Purchase 6,100 Shares of Gates/FA Distributing, Inc. Common Stock
Granted to James G. Foody
Option to Purchase 6,100 Shares of Gates/FA Distributing, Inc. Common Stock
Granted to Irwin Lieber
Option to Purchase 6,100 Shares of Gates/FA Distributing, Inc. Common Stock
Granted to Charles A. Luther
(Full title of Plans)
-----------------
Robert E. Klatell, Esq.
Senior Vice President and Chief Financial Officer
Arrow Electronics, Inc.
25 Hub Drive, Melville, New York 11747, (516) 391-1300
------------------------------------------------------
(Name and address of agent for service, including telephone number)
-----------------
Copy to:
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
(212) 858-1000
Attention: Howard S. Kelberg, Esq.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Amount Proposed maximum Proposed maximum Amount of
Title of securities to be offering price aggregate offering registration
to be registered registered per share (1) price (1) fee (2)
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1.00 par value (3) 131,436 $39.5625 $5,199,937 $1,794
===================================================================================================================
</TABLE>
- ----------------------------------
(1) Estimated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"), based on the average price of Arrow
Electronics, Inc. Common Stock on the New York Stock Exchange on
September 16, 1994 (the "Market Value").
(2) The registration fee for the securities registered hereby, $1,794, has
been calculated pursuant to Rule 457(c) under the Securities Act.
(3) This Registration Statement also pertains to rights to purchase
Participating Preferred Stock of the Registrant (the "Rights"). Until
the occurrence of certain prescribed events, the Rights are not
exercisable, are evidenced by the certificates for Arrow Electronics,
Inc. Common Stock and will be transferred together with and only with
such securities. Thereafter, separate Rights certificates will be
issued representing one Right for each share of Arrow Electronics,
Inc. Common Stock held subject to adjustment pursuant to
anti-dilution provisions.
<PAGE> 2
PART I
INFORMATION REQUIRED IN A SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents which have heretofore been filed by
Arrow Electronics, Inc. (the "Company") (File No. I- 4482) or Gates/FA
Distributing, Inc. with the Securities and Exchange Commission the
("Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), are incorporated by reference herein and shall be deemed to be a
part hereof:
1. The Company's Annual Report on Form 10-K for the year
ended December 31, 1993, the Company's Current Report on Form 8-K
filed September 13, 1994 and the Company's Quarterly Reports on Form
10-Q for the quarter ended March 31, 1994 and June 30, 1994.
2. The Company's pro forma financial information contained in
the Company's registration statement on Form S-4 pursuant to the
Securities Act of 1933 (Reg. No. 33-54413) including any amendment
or report for the purpose of updating such information.
3. Description of the Company's capital stock contained in
the Company's registration statement filed under the 1934 Act,
including any amendment of report filed for the purpose of updating
such description.
4. The description of the Company's Rights contained in the
Company's registration statement filed under the 1934 Act, including
any amendment or report filed for the purpose of updating such
description.
5. The Gates/FA Distributing, Inc. Annual Report on Form 10-K
for the fiscal year ended June 30, 1993, the Gates/FA Distributing,
Inc. Current Report on Form 8-K filed May 12, 1994, and the Gates/FA
Distributing, Inc. Quarterly Reports on Form 10-Q for the quarters
ended September 30, 1993 (as amended by Form 10-Q/A dated January
12, 1994), December 31, 1993 and March 31, 1994.
All documents filed by the Company and Gates/FA Distributing,
Inc. with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
1934 Act prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and made a part hereof
from their respective dates of filing (such documents, and the documents
enumerated above, being hereinafter referred to as "Incorporated Documents");
provided, however, that the documents enumerated above or subsequently filed by
the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act in
each year during which the offering made by this Registration Statement is in
effect prior to the filing with the Commission of the Company's Annual Report
on Form 10-K covering such year shall not be Incorporated Documents or be
incorporated by reference in this Registration Statement or be a part hereof
from and after the filing of such Annual Report on Form 10-K.
Any statement contained in an Incorporated Document shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed Incorporated Document modifies or supersedes such statement. Any such
statement so
2
<PAGE> 3
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 9 of the Registrant's Certificate of Incorporation
permits the indemnification of officers and directors under certain
circumstances to the full extent that such indemnification may be permitted by
law.
Such rights of indemnification are in addition to, and not in
limitation of, any rights to indemnification to which any officer or director
of the Company is entitled under the Business Corporation Law of the State of
New York (Sections 721 through 727), which provides for indemnification by a
corporation of its officers and directors under certain circumstances as stated
in the Business Corporation Law and subject to specified limitations set forth
in the Business Corporation Law.
The Registrant also maintains directors' and officers'
liability insurance coverage which insures directors and officers of the
Registrant against certain losses arising from claims made, and for which the
Registrant has not provided reimbursement, by reason of their being directors
and officers of the Registrant or its subsidiaries.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
4(a) - Amended and Restated Certificate of Incorporation of Arrow Electronics, Inc. (Designated as Exhibit 4(1) to the
Registrant's Registration Statement on Form S-3 filed February 21, 1992 (Reg. No. 33-45895)).
4(b) - Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Arrow Electronics, Inc.
(Designated as Exhibit 4(2) to the Registrant's Registration Statement on Form S-3 filed February 21, 1992 (Reg.
No. 33-45896)).
4(c) - By-Laws of Arrow Electronics, Inc. (Designated as Exhibit 3(b) in the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1986, Commission File No. 1-4482).
5 - Opinion of Winthrop, Stimson, Putnam & Roberts as to the legality of securities offered under the Gates/FA
Distributing, Inc. 1985 Amended and Restated Stock Option Plan; The Gates/FA Distributing, Inc. 1987 Stock Option
Plan; the Gates/FA Distributing, Inc. 1993 Stock Option Plan for Outside Directors; Gates/FA Distributing, Inc.
Option Granted to James G. Foody; the Gates/FA Distributing, Inc. Option Granted to Irwin Lieber; and the Gates/FA
Distributing, Inc. Option Granted to Charles A. Luther , including their consent.
23(a) - Consent of Ernst & Young LLP.
23(b) - Consent of KPMG Peat Marwick LLP.
</TABLE>
3
<PAGE> 4
<TABLE>
<S> <C>
23(e) - Consent of Counsel (contained in the Opinion of the Company's Counsel, Exhibit 5 hereto).
24 - Power of Attorney (contained in the signature page hereof).
99(a) - Gates/FA Distributing, Inc. 1985 Amended and Restated Stock Option Plan.
99(b) - Gates/FA Distributing, Inc. 1987 Stock Option Plan.
99(c) - Gates/FA Distributing, Inc. 1993 Stock Option Plan for Outside Directors.
99(d) - Option to Purchase 6,100 Shares of Gates/FA Distributing, Inc. Common Stock Granted to James G. Foody.
99(e) - Option to Purchase 6,100 Shares of Gates/FA Distributing, Inc. Common Stock Granted to Irwin Lieber.
99(f) - Option to Purchase 6,100 Shares of Gates/FA Distributing, Inc. Common Stock Granted to Charles A. Luther.
</TABLE>
ITEM 9. UNDERTAKINGS.
(1) The undersigned Registrant hereby undertakes:
(a) to file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(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 are contained in periodic reports
filed by the Registrant pursuant to Section 13(a) or Section 15(d)
of the 1934 Act that are incorporated by reference in the
registration statement.
(b) 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.
(c) 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.
(2) The undersigned Registrant hereby undertakes that, for
the purpose of determining any liability under the Securities Act of 1933, each
filing of the issuer's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual
4
<PAGE> 5
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 the time shall be deemed to be the initial
bona fide offering hereof.
(3) 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
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.
EXPERTS
The historical consolidated financial statements and related
schedules of Arrow Electronics, Inc. at December 31, 1993 and 1992, and for
each of the three years in the period ended December 31, 1993, incorporated by
reference from the Company's Annual Report on Form 10-K have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report appearing
elsewhere therein, and are incorporated in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
The financial statements and schedules of Gates/FA
Distributing, Inc. as of June 30, 1992 and 1993 and for each of the years in
the three-year period ended June 30, 1993, have been incorporated herein in
reliance upon the reports of KPMG Peat Marwick LLP, independent auditors, which
are incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing. The report of KPMG Peat Marwick LLP
covering the June 30, 1993 financial statements refers to a change in the
method of accounting for income taxes in 1993 to adopt the provisions of the
Financial Accounting Standards Board's Statement of Financial Accounting
Standards No. 109 "Accounting for Income Taxes."
LEGAL OPINION
The legality of the Common Stock offered pursuant to the
Registration Statement has been passed upon for the Company by Winthrop,
Stimson, Putnam & Roberts, Counsel for the Company, One Battery Park Plaza, New
York, New York 10004.
5
<PAGE> 6
SIGNATURES
The Registrant: 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 Melville, State of New
York, on the 21st day of September, 1994.
ARROW ELECTRONICS, INC.
/s/ Robert E. Klatell
-----------------------------------------------------
By: Robert E. Klatell
Senior Vice President and Chief Financial Officer
POWER OF ATTORNEY
Know all men by these presents, that each officer or director
of Arrow Electronics, Inc. whose signature appears below constitutes and
appoints Stephen P. Kaufman, Robert E. Klatell and John C. Waddell, and each
of them singly, his true and lawful attorney-in-fact and agent, with full and
several power of substitution, for him and in his name, place and stead, in any
and all capacities, to sign a Registration Statement on Form S-8 to be filed
pursuant to the Securities Act of 1933 in connection with the registration of
up to 131,436 shares of Common Stock, par value $1.00 per share, and any or all
amendments, including pre- and post-effective amendments and supplements to
this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or his substitute or substitutes, may
lawfully do or cause to be done. Each of said attorneys-in-fact shall have
power to act hereunder with or without the other.
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 and on dates indicated.
<TABLE>
<CAPTION>
Principal Executive Officer: Date
<S> <C>
/s/ Stephen P. Kaufman September 21, 1994
- --------------------------------------------------- --------------------------
Stephen P. Kaufman
Chairman and Chief Executive Officer
Principal Financial Officer:
/s/ Robert E. Klatell September 21, 1994
- --------------------------------------------------- --------------------------
Robert E. Klatell
Senior Vice President and Chief Financial Officer
</TABLE>
6
<PAGE> 7
<TABLE>
<CAPTION>
Principal Accounting Officer: Date
<S> <C>
/s/ Paul J. Reilly September 21, 1994
- --------------------------------------------------- --------------------------
Paul J. Reilly
Controller
Directors:
/s/ Daniel W. Duval September 21, 1994
- --------------------------------------------------- --------------------------
Daniel W. Duval
Director
/s/ Carlo Giersch September 21, 1994
- --------------------------------------------------- --------------------------
Carlo Giersch
Director
/s/ J. Spencer Gould September 21, 1994
- --------------------------------------------------- --------------------------
J. Spencer Gould
Director
/s/ Stephen P. Kaufman September 21, 1994
- --------------------------------------------------- --------------------------
Stephen P. Kaufman
Director
/s/ Lawrence R. Kem September 21, 1994
- --------------------------------------------------- --------------------------
Lawrence R. Kem
Director
/s/ Robert E. Klatell September 21, 1994
- --------------------------------------------------- --------------------------
Robert E. Klatell
Director
/s/ Stephen W. Menefee September 21, 1994
- --------------------------------------------------- --------------------------
Stephen W. Menefee
Director
/s/ Karen Gordon Mills September 21, 1994
- --------------------------------------------------- --------------------------
Karen Gordon Mills
Director
/s/ Anne Pol September 21, 1994
- --------------------------------------------------- --------------------------
Anne Pol
Director
</TABLE>
7
<PAGE> 8
<TABLE>
<CAPTION>
Date
<S> <C>
/s/ Richard S. Rosenbloom September 21, 1994
- --------------------------------------------------- --------------------------
Richard S. Rosenbloom
Director
/s/ John C. Waddell September 21, 1994
- --------------------------------------------------- --------------------------
John C. Waddell
Director
</TABLE>
8
<PAGE> 9
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
EXHIBITS
filed with
Registration Statement
on
Form S-8
under
The Securities Act of 1933
-------------------
Gates/FA Distributing, Inc. 1985 Amended and Restated Stock Option Plan
Gates/FA Distributing, Inc. 1987 Stock Option Plan
Gates/FA Distributing, Inc. 1993 Stock Option Plan for Outside Directors
Option to Purchase 6,100 Shares of Gates/FA Distributing, Inc. Common Stock
Granted to James G. Foody
Option to Purchase 6,100 Shares of Gates/FA Distributing, Inc. Option Granted
to Irwin Lieber
Option to Purchase 6,100 Shares of Gates/FA Distributing, Inc. Option Granted
to Charles A. Luther
(Full title of the Plans)
ARROW ELECTRONICS, INC.
(Exact name of registrant as specified in its charter)
================================================================================
<PAGE> 10
EXHIBIT INDEX
Gates/FA Distributing, Inc. 1985 Amended and Restated Stock Option Plan
Gates/FA Distributing, Inc. 1987 Stock Option Plan
Gates/FA Distributing, Inc. 1993 Stock Option Plan for Outside Directors
Option to Purchase 6,100 Shares of Gates/FA Distributing, Inc. Common Stock
Granted to James G. Foody
Option to Purchase 6,100 Shares of Gates/FA Distributing, Inc. Common Stock
Granted to Irwin Lieber
Option to Purchase 6,100 Shares of Gates/FA Distributing, Inc. Common Stock
Granted to Charles A. Luther
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
- ------- ----------- -----------
<S> <C> <C> <C>
4(a) - Amended and Restated Certificate of Incorporation of Arrow *
Electronics, Inc. (Designated as Exhibit 4(1) to the Registrant's
Registration Statement on Form S-3 filed February 21, 1992
(Reg. No. 33-45895)).
4(b) - Certificate of Amendment to the Amended and Restated Certificate of *
Incorporation of Arrow Electronics, Inc. (Designated as Exhibit 4(2)
to the Registrant's Registration Statement on Form S-3 filed
February 21, 1991 (Reg No. 33-45896)).
4(c) - By-Laws of Arrow Electronics, Inc. (Designated as Exhibit 3(b) in the *
Registrant's Annual Report on Form 10-K for the year ended December 31,
1986, Commission File No. 1-4482).
4(d) - Certificate of Amendment to the Amended and Restated Certificate of *
Incorporation of Arrow Electronics, Inc.
5 - Opinion of Winthrop, Stimson, Putnam & Roberts as to the legality of
securities offered under the Gates/FA Distributing, Inc. 1985 Amended and
Restated Stock Option Plan; the Gates/FA Distributing, Inc. 1987 Stock
Option Plan; the Gates/FA Distributing, Inc. 1993 Stock Option Plan for
Outside Directors; Option to Purchase 6,100 Shares of Gates/FA
Distributing, Inc. Common Stock Granted to James G. Foody; Option to
Purchase 6,100 Shares of Gates/FA Distributing, Inc. Common Stock Granted
to Irwin Lieber; and Option to Purchase 6,100 Shares of Gates/FA
Distributing, Inc. Common Stock Granted to Charles A. Luther , including
their consent.
23(a) - Consent of Ernst & Young LLP.
23(b) - Consent of KPMG Peat Marwick LLP.
23(c) - Consent of Counsel (contained in the Opinion of the Company's Counsel,
Exhibit 5 hereto).
24 - Power of Attorney (contained in the signature page hereof).
99(a) - Gates/FA Distributing, Inc. 1985 Amended and Restated Stock Option Plan.
99(b) - Gates/FA Distributing, Inc. 1987 Stock Option Plan.
</TABLE>
<PAGE> 11
<TABLE>
<S> <C> <C> <C>
99(c) - Gates/FA Distributing, Inc. 1993 Stock Option Plan for Outside Directors.
99(d) - Option to Purchase 6,100 Shares of Gates/FA Distributing, Inc. Common
Stock Granted to James G. Foody.
99(e) - Option to Purchase 6,100 Shares of Gates/FA Distributing, Inc. Common
Stock Granted to Irwin Lieber.
99(f) - Option to Purchase 6,100 Shares of Gates/FA Distributing, Inc. Common
Stock Granted to Charles A. Luther.
</TABLE>
- ------------------------------------
* Incorporated by reference.
<PAGE> 1
Exhibit 5
<PAGE> 2
September 21, 1994
Arrow Electronics, Inc.
25 Hub Drive
Melville, NY 11747
Re: Arrow Electronics, Inc. Registration Statement on Form S-8 --
Gates/FA Distributing, Inc. 1985 Amended and Restated Stock Option
Plan; Gates/FA Distributing, Inc. 1987 Stock Option Plan; Gates/FA
Distributing, Inc. 1993 Stock Option Plan for Outside Directors;
Option to Purchase 6,100 Shares of Gates/FA Distributing, Inc. Common
Stock Granted to James G. Foody; Option to Purchase 6,100 Shares of
Gates/FA Distributing, Inc. Common Stock Granted to Irwin Lieber; and
Option to Purchase 6,100 Shares of Gates/FA Distributing, Inc. Common
Stock Granted to Charles A. Luther (the "Plans")
Ladies and Gentlemen:
In connection with the proposed issuance of up to 131,436
shares of Arrow Electronics, Inc.'s common stock ($1.00 par value) (the
"Shares") for purchase pursuant to options granted under the Plan and with
respect to which a Registration Statement on Form S-8 has been prepared for
filing with the Securities and Exchange Commission pursuant to the Securities
Act of 1933, we have examined such corporate records, other documents and
questions of law as we considered necessary for the purposes of this opinion.
We are of the opinion that when:
(a) the applicable provisions of the Securities Act of
1933 and of State securities or blue sky laws shall have been
complied with; and
(b) your Board of Directors shall have duly authorized the
issuance of such Shares, and the Shares
<PAGE> 3
shall have been duly issued and paid for in an amount not less than
the par value thereof,
the shares will be legally issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an Exhibit
to the Registration Statement on Form S-8 and to the reference to us under the
caption "Legal Opinion" in the Registration Statement, and any amendments
thereto, filed in connection with the Plan.
Very truly yours,
/s/ Winthrop, Stimson, Putnam &
Roberts
<PAGE> 1
Exhibit 23(a)
<PAGE> 2
Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption
"Experts" in the Registration Statement (Form S-8) and related Prospectus of
Arrow Electronics, Inc. for the registration of 131,436 shares of its common
stock and to the incorporation by reference therein of our report dated
February 24, 1994, with respect to the consolidated financial statements and
schedules of Arrow Electronics, Inc. included in its Annual Report (Form 10-K)
for the year ended December 31, 1993, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
New York, New York
September 19, 1994
<PAGE> 1
Exhibit 23(b)
<PAGE> 2
Exhibit 23(b)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Arrow Electronics, Inc.
We consent to the use of our reports incorporated herein by
reference in the Form S-8 registration statement dated September 21, 1994, and
to the reference to our firm under the heading "Experts" in the registration
statement. Our reports refer to a change in accounting method for income taxes
in 1993 to adopt the provisions of the Financial Accounting Standards Board's
Statement of Financial Accounting Standards No. 109 "Accounting for Income
Taxes."
/s/ KPMG Peat Marwick LLP
Greenville, South Carolina
September 21, 1994
<PAGE> 1
Exhibit 99(a)
<PAGE> 2
EXHIBIT 99(a)
GATES/FA DISTRIBUTING, INC.
1985 AMENDED AND RESTATED INCENTIVE STOCK OPTION PLAN
ORIGINALLY ADOPTED OCTOBER 18, 1985
ADOPTED BY THE BOARD OF DIRECTORS, AS AMENDED AND RESTATED,
ON SEPTEMBER 5, 1991 AND REAPPROVED,
AS AMENDED AND RESTATED, BY THE SHAREHOLDERS NOVEMBER 15, 1991
1. PURPOSE
(a) The purpose of the Plan is to provide a means by which selected key
employees of Gates/FA Distributing, Inc. (the "Company") and its Affiliates, as
defined in subparagraph 1(b), may be given an opportunity to purchase stock of
the Company.
This Plan is the continuation of the Gates Distributing, Inc. 1985
Incentive Stock Option Plan and, after the adoption of the Plan, as amended and
restated, by the Board of Directors of the Company and approved, as amended and
restated, by the Shareholders of the Company, shall be known as the "Gates/FA
Distributing, Inc. 1985 Incentive Stock Option Plan."
(b) The word "Affiliate" as used in the Plan means any parent corporation
or subsidiary corporation of the Company, as those terms are defined in Sections
424(e) and (f), respectively, of the Internal Revenue Code of 1986, as amended
from time to time (the "Code").
(c) The Company, by means of the Plan, seeks to retain the services of
persons now holding key positions, to secure and retain the services of persons
capable of filling such positions, and to provide incentives for such persons to
exert maximum efforts for the success of the Company.
<PAGE> 3
(d) The Company intends that the options issued under the Plan be
"incentive stock options" as that term is used in Section 422 of the Code.
2. ADMINISTRATION
(a) The Plan shall be administered by the Board of Directors (the "Board")
of the Company unless and until the Board delegates administration to a
committee, as provided in subparagraph 2(c). Whether or not the Board has
delegated administration, the Board shall have the final power to determine all
questions of policy and expediency that may arise in the administration of the
Plan.
(b) The Board shall have the power, subject to, and within the limitations
of, the express provisions of the Plan:
(1) To determine from time to time which of the persons eligible under
the Plan shall be granted options; when and how the option shall be
granted; the provisions of each option granted (which need not be
identical), including the time or times during the term of each option
within which all or portions of such option may be exercised; and the
number of shares for which an option shall be granted to each such person.
(2) To construe and interpret the Plan and options granted under it,
and to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the Plan or in any option agreement,
in a manner and to the extent
2
<PAGE> 4
it shall deem necessary or expedient to make the Plan fully effective.
(3) To amend the Plan as provided in paragraph 10.
(4) Generally, to exercise such powers and to perform such acts as the
Board deems necessary or expedient to promote the best interests of the
Company.
(c) The board may delegate administration of the Plan to a committee
composed of not fewer than two (2) directors (the "Committee"), all of the
members of which Committee shall be disinterested persons, as defined by the
provisions of subparagraph 2(d). If administration is delegated to a Committee,
the Committee shall have, in connection with the administration of the Plan, the
powers theretofore possessed by the Board, subject, however, to such
resolutions, not inconsistent with the provisions of the Plan, as may be adopted
from time to time by the Board. The Board may abolish the Committee at any time
and revest in the Board the administration of the Plan.
(d) The term "disinterested person," as used in this Plan, shall mean an
administrator of the Plan who has not at any time within one year prior to
his/her service as an administrator of the Plan received, and who will not
during the term of his/her service receive, a discretionary grant or award of a
stock option or stock appreciation rights under this Plan or any other plan or
practice of the Company or any of its Affiliates. Any such person shall
otherwise comply with the requirements of Rule 16b-3
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<PAGE> 5
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as from time to time in effect.
3. SHARES SUBJECT TO THE PLAN
(a) Subject to the provisions of paragraph 9 relating to adjustments upon
changes in stock, the stock that may be sold pursuant to options granted under
the Plan shall not exceed in the aggregate One Million (1,000,000) shares of the
Company's Common Stock. If any option granted under the Plan shall for any
reason expire or otherwise terminate without having been exercised in full, the
stock not purchased under such option shall again become available for the Plan.
(b) The stock subject to the Plan may be unissued shares or reacquired
shares, bought on the market or otherwise.
(c) An option may be granted to an eligible person under the Plan only if
the aggregate fair market value (determined at the time the option is granted)
of the stock with respect to which incentive stock options are exercisable for
the first time by such optionee during any calendar year under all incentive
stock option plans of the Company and its Affiliates does not exceed one hundred
thousand dollars ($100,000). Should it be determined that an option granted
under the Plan exceeds such maximum for any reason other than the failure of a
good faith attempt to value the stock subject to the option, such option shall
be considered a nonstatutory stock option to the extent, but only to the extent,
of such excess; provided, however, that should it be determined that an entire
option or any portion thereof does not qualify for
4
<PAGE> 6
treatment as an incentive stock option by reason of exceeding such maximum, such
option or the applicable portion shall be considered a nonstatutory stock
option.
4. ELIGIBILITY
(a) Options may be granted only to key employees (including officers) of
the Company or its Affiliates. A director of the Company shall not be eligible
for the benefits of the Plan unless such director is also a key employee
(including an officer) of the Company or any Affiliate.
(b) A director shall in no event be eligible for the benefits of the Plan
unless and until such director is expressly declared eligible to participate in
the Plan by action of the Board or the Committee, and only if, at any time
discretion is exercised by the Board in the selection of a director as a person
to whom options may be granted, or in the determination of the number or maximum
number of shares which may be covered by options granted to a director, a
majority of the Board and a majority of the directors acting in such matter are
disinterested persons, as defined in subparagraph 2(d). The Board shall
otherwise comply with the requirements of Rule 16b-3 promulgated under the
Exchange Act, as from time to time in effect.
(c) No person shall be eligible for the grant of an option under the Plan
if, at the time of grant, such person owns (or is deemed to own pursuant to the
attribution rules of Section 424(d) of the Code) stock possessing more than ten
percent (10%) of the total combined voting power of all classes of stock of the
5
<PAGE> 7
Company or of any of its Affiliates unless the option price is at least one
hundred ten percent (110%) of the fair market value of such stock at the date of
grant and the term of the option does not exceed five (5) years from the date of
grant.
5. OPTION PROVISIONS
Each option shall be in such form and shall contain such terms and
conditions as the Board or the Committee shall deem appropriate. The provisions
of separate options need not be identical, but each option shall include
(through incorporation of provisions hereof by reference in the option or
otherwise) the substance of each of the following provisions:
(a) The term of any option shall not be greater than ten (10) years from
the date it was granted.
(b) The exercise price of each option shall be not less than one hundred
percent (100%) of the fair market value of the stock subject to the option on
the date the option is granted.
(c) The purchase price of stock acquired pursuant to an option shall be
paid, to the extent permitted by applicable statutes and regulations, either (i)
in cash at the time the option is exercised, or (ii) at the discretion of the
Board or the Committee, either at the time of grant or exercise of the option
(A) by delivery to the Company of other common stock of the Company, (B)
according to a deferred payment or other arrangement (which may include, without
limiting the generality of the foregoing, the use of other common stock of the
Company) with the person to whom the option is granted or to whom the option is
6
<PAGE> 8
transferred pursuant to subparagraph 5(d), or (C) in any other form of legal
consideration that may be acceptable to the Board or the Committee.
(d) An option shall not be transferable, except by will or by the laws of
descent and distribution, and shall be exercisable during the lifetime of the
person to whom the option is granted only by such person.
(e) The total number of shares of stock subject to an option may, but need
not, be allotted in periodic installments (which may, but need not, be equal).
From time to time during each of such installment periods, the option may be
exercised with respect to some or all of the shares allotted to that period,
and/or with respect to some or all of the shares allotted to any prior period as
to which the option was not fully exercised. During the remainder of the term of
the option (if its term extends beyond the end of the installment periods), the
option may be exercised from time to time with respect to any shares then
remaining subject to the option. The provisions of this subparagraph 5(e) are
subject to any option provisions governing the minimum number of shares as to
which an option may be exercised.
(f) The Company may require any optionee, or any person to whom an option
is transferred under subparagraph 5(d), as a condition of exercising any such
option: (1) to give written assurances satisfactory to the Company as to the
optionee's knowledge and experience in financial and business matters and/or
7
<PAGE> 9
to employ a purchaser representative reasonably satisfactory to the Company who
is knowledgeable and experienced in financial and business matters, and that he
or she is capable of evaluating, alone or together with the purchaser
representative, the merits and risks of exercising the option; and (2) to give
written assurances satisfactory to the Company stating that such person is
acquiring the stock subject to the option for such person's own account and not
with any present intention of selling or otherwise distributing the stock. These
requirements, and any assurances given pursuant to such requirements, shall be
inoperative if (i) the issuance of the shares upon the exercise of the option
has been registered under a then currently effective registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), or (ii), as
to any particular requirement, a determination is made by counsel for the
Company that such requirement need not be met in the circumstances under the
then applicable securities laws.
(g) An option shall terminate three (3) months after termination of the
optionee's employment with the Company or an Affiliate, unless (i) the
termination of employment of the optionee is due to such person's permanent and
total disability, within the meaning of Section 422(c)(6) of the Code, in which
case the option shall provide that it may be exercised at any time within one
(1) year following such termination of employment; or (ii) the optionee dies
while in the employ of the Company or an Affiliate, or within not more than
three (3) months after termination of such employment, in which case the option
shall provide that it may be
8
<PAGE> 10
exercised at any time within eighteen (18) months following the death of the
optionee by the person or persons to whom the optionee's rights under such
option pass by will or by the laws of descent and distribution; or (iii) the
option by its terms specifies either (a) that it shall terminate sooner than
three (3) months after termination of the optionee's employment, or (b) that it
may be exercised more than three (3) months after termination of the optionee's
employment with the Company or an Affiliate. This subparagraph 5(g) shall not be
construed to extend the term of any option or to permit anyone to exercise the
option after expiration of its term, nor shall it be construed to increase the
number of shares as to which any option is exercisable from the amount
exercisable on the date of termination of the optionee's employment.
(h) The option may, but need not, include a provision whereby the optionee
may elect at any time during the term of his or her employment with the Company
or any Affiliate to exercise the option as to any part or all of the shares
subject to the option prior to the stated vesting date of the option or of any
installment or installments specified in the option. Any shares so purchased
from any unvested installment or option may be subject to a repurchase right in
favor of the Company or to any other restriction the Board or the Committee
determines to be appropriate.
6. COVENANTS OF THE COMPANY
(a) During the terms of the options granted under the
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<PAGE> 11
Plan, the Company shall keep available at all times the number of shares of
stock required to satisfy such options.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required to
issue and sell shares of stock upon exercise of the options granted under the
Plan; provided, however, that this undertaking shall not require the Company to
register under the Securities Act either the Plan, any option granted under the
Plan or any stock issued or issuable pursuant to any such option. If, after
reasonable efforts, the Company is unable to obtain from any such regulatory
commission or agency the authority that counsel for the Company deems necessary
for the lawful issuance and sale of stock under the Plan, the Company shall be
relieved from any liability for failure to issue and sell stock upon exercise of
such options unless and until such authority is obtained.
7. USE OF PROCEEDS FROM STOCK
Proceeds from the sale of stock pursuant to options granted under the Plan
shall constitute general funds of the Company.
8. MISCELLANEOUS
(a) The Board or the Committee shall have the power to accelerate the time
during which an option may be exercised or the time during which an option or
any portion thereof will vest pursuant to subparagraph 5(e), notwithstanding the
provisions in the option stating the time during which it may be exercised or
the
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<PAGE> 12
time during which it will vest.
(b) Neither an optionee nor any person to whom an option is transferred
under subparagraph 5(d) shall be deemed to be the holder of, or to have any of
the rights of a holder with respect to, any shares subject to such option unless
and until such person has satisfied all requirements for exercise of the option
pursuant to its terms.
(c) Throughout the term of any option granted pursuant to the Plan, the
Company shall make available to the holder of such option, not later than one
hundred twenty (120) days after the close of each of the Company's fiscal years
during the option term, upon request, such financial and other information
regarding the Company as comprises the annual report to the shareholders of the
Company provided for in the bylaws of the Company and such other information
regarding the Company as the holder of such option may reasonably request.
(d) Nothing in the Plan or any instrument executed or option granted
pursuant thereto shall confer upon any eligible employee or optionee any right
to continue in the employ of the Company or any Affiliate or shall affect the
right of the Company or any Affiliate to terminate the employment of any
eligible employee or optionee with or without cause.
9. ADJUSTMENTS UPON CHANGES IN STOCK
(a) If any change is made in the stock subject to the Plan, or subject to
any option granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock
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<PAGE> 13
dividend, dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate
structure or otherwise), the Plan and outstanding options will be appropriately
adjusted in the class(es) and maximum number of shares subject to the Plan and
the class(es) and number of shares and price per share of stock subject to
outstanding options.
(b) In the event of: (1) a dissolution or liquidation of the Company; (2) a
merger or consolidation in which the Company is not the surviving corporation;
(3) a reverse merger in which the Company is the surviving corporation but the
shares of the Company's common stock outstanding immediately preceding the
merger are converted by virtue of the merger into other property, whether in the
form of securities, cash or otherwise; or (4) any other capital reorganization
in which more than fifty percent (50%) of the shares of the Company entitled to
vote are exchanged, then, at the sole discretion of the Board and to the extent
permitted by applicable law; (i) any surviving corporation shall assume any
options outstanding under the Plan or shall substitute similar options for those
outstanding under the Plan, or (ii) the time during which such options may be
exercised shall be accelerated and the option terminated if not exercised prior
to such event, or (iii) such options shall continue in full force and effect.
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<PAGE> 14
10. AMENDMENT OF THE PLAN
(a) The Board at any time, and from time to time, may amend the Plan.
However, except as provided in paragraph 9 relating to adjustments upon changes
in stock, no amendment shall be effective unless approved by the vote of a
majority of the outstanding shares of the Company entitled to vote, or by the
written consent of the holders of the outstanding shares of the Company entitled
to vote to the extent necessary under applicable laws to obtain incentive stock
option treatment under Section 422 of the Code, within twelve (12) months before
or after the adoption of the amendment, where the amendment will:
(i) Increase the number of shares reserved for options under the Plan;
(ii) Materially modify the requirements as to eligibility for
participation in the Plan; or
(iii) Materially increase the benefits accruing to participants under
the Plan.
(b) It is expressly contemplated that the Board may amend the Plan in any
respect the Board deems necessary or advisable to provide optionees with the
maximum benefits provided or to be provided under the provisions of the Code and
the regulations promulgated thereunder relating to employee incentive stock
options and/or to bring the Plan and/or options granted under it into compliance
therewith.
(c) Rights and obligations under any option granted before amendment of the
Plan shall not be altered or impaired by
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<PAGE> 15
any amendment of the Plan unless (i) the Company requests the consent of the
person to whom the option was granted and (ii) such person consents in writing.
11. TERMINATION OR SUSPENSION OF THE PLAN
(a) The Board may suspend or terminate the Plan at any time. Unless sooner
terminated, the Plan shall terminate on October 18, 1995. No options may be
granted under the Plan while the Plan is suspended or after it is terminated.
(b) Rights and obligations under any option granted while the Plan is in
effect shall not be altered or impaired by suspension or termination of the
Plan, except with the consent of the person to whom the option was granted.
12. EFFECTIVE DATES
(a) The Plan shall become effective as determined by the Board, but no
options granted under the Plan shall be exercised unless and until the Plan has
been approved by the vote of the holders of a majority of the outstanding shares
of the Company entitled to vote, or by the written consent of the holders of the
outstanding shares of the Company entitled to vote to the extent necessary under
applicable laws to obtain incentive stock option treatment under Section 422 of
the Code.
(b) The 1991 amendments to the Plan shall become effective as of the date
of shareholder approval and adoption of the Plan, as amended and restated, with
the exception of the amendments contained in subparagraphs 2(c) and (d), which
shall become effective as of September 1, 1992.
14
<PAGE> 1
Exhibit 99(b)
<PAGE> 2
EXHIBIT 99(b)
GATES/FA DISTRIBUTING, INC.
1987 STOCK OPTION PLAN
ORIGINALLY ADOPTED OCTOBER 12, 1987
ADOPTED BY THE BOARD OF DIRECTORS, AS AMENDED AND RESTATED,
ON SEPTEMBER 5, 1991 AND REAPPROVED BY THE SHAREHOLDERS AS
AMENDED AND RESTATED ON NOVEMBER 15, 1991
1. PURPOSE
(a) The purpose of the Plan is to provide a means by which selected
employees of Gates/FA Distributing, Inc. (the "Company") and its Affiliates, as
defined in subparagraph 1(b), may be given an opportunity to Purchase stock of
the Company.
This Plan is the continuation of the Gates Distributing, Inc. 1987 Stock
Option Plan and after the adoption of this Plan as amended and restated herein
by the Board of the Company and approved as amended and restated by the
Shareholders, shall be known as the "Gates/FA Distributing, Inc. 1987 Stock
Option Plan."
(b) Plan is designed to strengthen the Company by providing an additional
means of attracting and retaining key personnel and providing an incentive to
key employees of the Company to encourage them to devote their abilities and
industry to the success of the Company's business enterprise. It is intended
that this purpose be achieved by extending to key employees an added long-term
incentive for high levels of performance and unusual efforts designed to improve
the financial performance of the Company through the grant of options to
purchase shares of the Company's Common Stock under this Plan.
<PAGE> 3
(c) The word "Affiliate" as used in the Plan means any parent corporation
or subsidiary corporation of the Company as those terms are defined in Sections
424(e) and (f), respectively, of the Internal Revenue Code of 1954, as amended
(the "Code").
(d) The Company intends that the options issued under the Plan not be
incentive stock options as that term is used in Section 422A of the Code.
2. ADMINISTRATION
(a) The Plan shall be administered by the Board of Directors (the "Board")
of the Company unless and until the Board delegates administration to a
committee, as provided in subparagraph 2(c). Whether or not the Board has
delegated administration, the Board shall have the final power to determine all
questions of policy and expediency that may arise in the administration of the
Plan.
(b) The Board shall have the power, subject to, and within the limitations
of, the express provisions of the Plan:
(1) To determine from time to time which of the persons eligible
under the Plan shall be granted options; when and how the option shall be
granted; the provisions of each option granted (which need not be
identical), including the time or times during the term of each option
within which all or portions of such option may be exercised; and the
number of shares for which an option shall be granted to each such person.
(2) To construe and interpret the Plan and options granted under it,
and to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of
2
<PAGE> 4
this power, may correct any defect, omission or inconsistency in the Plan or in
any option agreement, in a manner and to the extent it shall deem necessary or
expedient to make the Plan fully effective.
(3) To amend the Plan as provided in paragraph 10.
(4) Generally, to exercise such powers and to perform such acts as the
Board deems necessary or expedient to promote the best interests of the
Company.
(c) The Board may delegate administration of the Plan to a committee
composed of not fewer than two (2) directors (the "Committee"), all of the
members of which Committee shall be disinterested persons, as defined by the
provisions of subparagraph 2(d). If administration is delegated to a Committee,
the Committee shall have, in connection with the administration of the Plan, the
powers theretofore possessed by the Board, subject, however, to such
resolutions, not inconsistent with the provisions of the Plan, as may be adopted
from time to time by the Board.
The Board may abolish the Committee at any time and revest in the Board the
administration of the Plan.
(d) The term "disinterested person," as used in this Plan, shall mean an
administrator of the Plan who has not at any time within one year prior to his
or her service as administrator of the Plan received, and who will not during
the term of his or her service receive a discretionary grant or award of a stock
option or a stock appreciation right under this Plan or any other plan or
practice of the Company or any of its affiliates. Any such person
3
<PAGE> 5
shall otherwise comply with the requirements of Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as from time
to time in effect.
3. SHARES SUBJECT TO THE PLAN
(a) Subject to the provisions of paragraph 9 relating to adjustments upon
changes in stock, the stock that may be sold pursuant to options granted under
the Plan shall not exceed in the aggregate One Million Three Hundred Fifty
Thousand (1,350,000) shares of the Company's Common Stock. If any option granted
under either this Plan shall for any reason expire or otherwise terminate
without having been exercised in full, the stock not purchased under such option
shall again become available for the Plan.
(b) The stock subject to the Plan may be unissued shares or reacquired
shares, bought on the market or otherwise.
(c) There is no maximum limit on the aggregate fair market value of the
stock for which any eligible person may be granted options under this Plan in
any calendar year.
4. ELIGIBILITY
(a) Options may be granted only to key employees (including officers) of
the Company or its Affiliates. A director of the Company shall not be eligible
for the benefits of the Plan unless such director is also a key employee
(including an officer) of the Company or any Affiliate.
(b) A director shall in no event be eligible for the benefits of the Plan
unless and until such director is expressly declared eligible to participate in
the Plan by action of the Board or the
4
<PAGE> 6
Committee, and only if, at any time discretion is exercised by the Board in the
selection of a director as a person to whom options may be granted, or in the
determination of the number or maximum number of shares which may be covered by
options granted to a director, a majority of the Board and a majority of the
directors acting in such matter are disinterested persons, as defined in
subparagraph 2(d). The Board shall otherwise comply with the requirements of
Rule 16b-3 promulgated under the Exchange Act, as from time to time in effect.
(c) No person shall be eligible for the grant of an option under the Plan
if, at the time of grant, such person owns stock possessing more than ten
percent (10%) of the total combined voting power of all classes of stock of the
Company or of any of its Affiliates unless the option price is at least one
hundred ten percent (110%) of the fair market value of such stock at the date of
grant and the term of the option does not exceed five (5) years from the date of
grant.
5. OPTION PROVISIONS
Each option shall be in such form and shall contain such terms and
conditions as the Board or the Committee shall deem appropriate. The provisions
of separate options need not be identical, but each option shall include
(through incorporation of provisions hereof by reference in the option or
otherwise) the substance of each of the following provisions:
(a) The term of any option shall not be greater than ten (10) years from
the date it was granted.
5
<PAGE> 7
(b) The exercise price of each option shall be not less than
eighty-five percent (85%) of the fair market value of the stock subject to
the option on the date the option is granted.
(c) The purchase price of stock acquired pursuant to an option shall
be paid, to the extent permitted by applicable statutes and regulations,
either (i) in cash at the time the option is exercised, or (ii) at the
discretion of the Board or the Committee, either at the time of grant or
exercise of the option (A) by delivery to the Company of other Common Stock
of the Company, (B) according to a deferred payment or other arrangement
(which may include, without limiting the generality of the foregoing, the
use of other Common Stock of the Company) with the person to whom the
option is granted or to whom the option is transferred pursuant to
subparagraph 5(d), or (C) in any other form of legal consideration that may
be acceptable to the Board or the Committee.
(d) An option shall not be transferable except by will or by the laws
of descent and distribution, and shall be exercisable during the lifetime
of the person to whom the option is granted only by such person.
(e) The total number of shares of stock subject to an option may, but
need not, be allotted in periodic installments (which may, but need not, be
equal). From time to time during each of such installment periods, the
option may be exercised with respect to some or all of the shares allotted
to that period, and/or with respect to some or all of the shares allotted
to any prior period
6
<PAGE> 8
as to which the option was not fully exercised. During the remainder of the term
of the option (if its term extends beyond the end of the installment periods),
the option may be exercised from time to time with respect to any shares then
remaining subject to the option. The provisions of this subparagraph 5(e) are
subject to any option provisions governing the minimum number of shares as to
which an option may be exercised.
(f) The Company may require any optionee, or any person to whom an option
is transferred under subparagraph 5(d), as a condition of exercising any such
option: (1) to give written assurances satisfactory to the Company as to the
optionee's knowledge and experience in financial and business matters and/or to
employ a purchaser representative reasonably satisfactory to the Company who is
knowledgeable and experienced in financial and business matters that he or she
is capable of evaluating, alone or together with the purchaser representative,
the merits and risks of exercising the option; and (2) to give written
assurances satisfactory to the Company stating that such person is acquiring the
stock subject to the option for such person's own account and not with any
present intention of selling or otherwise distributing the stock. These
requirements, and any assurances given pursuant to such requirements, shall be
inoperative if (i) the issuance of the shares upon the exercise of the option
has been registered under a then currently effective registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), or (ii), as
to any particular requirement, a determination is made by
7
<PAGE> 9
counsel for the Company that such requirement need not be met in the
circumstances under the then applicable securities laws.
(g) An option shall terminate three (3) months after termination of the
optionee's employment with the Company or an Affiliate, unless (i) the
termination of employment of the optionee is due to such person's permanent and
total disability, within the meaning of Section 422(c)(6) of the Code, in which
case the option shall provide that it may be exercised at any time within one
(1) year following such termination of employment; or (ii) the optionee dies
while in the employ of the Company or an Affiliate, or within not more than
three (3) months after termination of such employment, in which case the option
shall provide that it may be exercised at any time within eighteen (18) months
following the death of the optionee by the person or persons to whom the
optionee's rights under such option pass by will or by the laws of descent and
distribution; or (iii) the option by its terms specifies either (a) that it
shall terminate sooner than three (3) months after termination of the optionee's
employment, or (b) that it may be exercised more than three (3) months after
termination of the optionee's employment with the Company or an Affiliate. This
subparagraph 5(g) shall not be construed to extend the term of any option or to
permit anyone to exercise the option after expiration of its term, nor shall it
be construed to increase the number of shares as to which any option is
exercisable from the amount exercisable on the date of termination of the
optionee's employment.
8
<PAGE> 10
(h) The option may, but need not, include a provision whereby the optionee
may elect at any time during the term of his or her employment with the Company
or any Affiliate to exercise the option as to any part or all of the shares
subject to the option prior to the stated vesting date of the option or of any
installment or installments specified in the option. Any shares so purchased
from any unvested installment or option may be subject to a repurchase right in
favor of the Company or to any other restriction the Board or the Committee
determines to be appropriate.
6. COVENANTS OF THE COMPANY
(a) During the terms of the options granted under the Plan, the Company
shall keep available at all times the number of shares of stock required to
satisfy such options.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required to
issue and sell shares of stock upon exercise of the options granted under the
Plan; provided, however, that this undertaking shall not require the Company to
register under the Securities Act either the Plan, any option granted under the
Plan or any stock issued or issuable pursuant to any such option. If, after
reasonable efforts, the Company is unable to obtain from any such regulatory
commission or agency the authority which counsel for the Company deems necessary
for the lawful issuance and sale of stock under the Plan, the Company shall be
relieved from any liability for failure to issue and sell stock upon exercise of
such options unless and until such authority is
9
<PAGE> 11
obtained.
7. USE OF PROCEEDS FROM STOCK
Proceeds from the sale of stock pursuant to options granted under the Plan
shall constitute general funds of the Company.
8. MISCELLANEOUS
(a) The Board or the Committee shall have the power to accelerate the time
during which an option may be exercised of the time during which an option or
any portion thereof will vest pursuant to subparagraph 5(e), notwithstanding the
provisions in the option stating the time during which it may be exercised or
the time during which it will vest.
(b) Neither an optionee nor any person to whom an option is transferred
under subparagraph 5(d) shall be deemed to be the holder of, or to have any of
the rights of a holder with respect to, any shares subject to such option unless
and until such person has satisfied all requirements for exercise of the option
pursuant to its terms.
(c) Throughout the term of any option granted pursuant to the Plan, the
Company shall make available to the holder of such option, not later than one
hundred twenty (120) days after the close of each of the Company's fiscal years
during the option term, upon request, such financial and other information
regarding the Company as comprises the annual report to the shareholders of the
Company provided for in the bylaws of the Company.
(d) Nothing in the Plan or any instrument executed or option granted
pursuant thereto shall confer upon any eligible person or
10
<PAGE> 12
optionee any right to continue in the employ of the Company or any Affiliate or
shall affect the right of the Company or any Affiliate to terminate the
employment of any eligible person or optionee with or without cause.
9. ADJUSTMENTS UPON CHANGES IN STOCK
(a) If Any change is made in the stock subject to the Plan, or subject to
any option granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or otherwise), the Plan and outstanding
options will be appropriately adjusted in the class(es) and maximum number of
shares subject to the Plan and the class(es) and number of shares and price per
share of stock subject to outstanding options.
(b) In the event of (1) a dissolution or liquidation of the Company; (2) a
merger or consolidation in which the Company is not the surviving corporation;
(3) a reverse merger in which the Company is the surviving corporation but the
shares of the Company's common stock outstanding immediately preceding the
merger are converted by virtue of the merger into other property, whether in the
form of securities, cash or otherwise; or (4) any other capital reorganization
in which more than fifty percent (50%) of the shares of the Company entitled to
vote are exchanged, then, at the sole discretion of the Board and to the extent
permitted by applicable law (i) any surviving corporation shall assume any
options outstanding under the Plan or shall substitute similar
11
<PAGE> 13
options for those outstanding under the Plan, or (ii) the time during which such
options may be exercised shall be accelerated and the options terminated if not
exercised prior to such event, or (iii) such options shall continue in full
force and effect.
10. AMENDMENT OF THE PLAN
(a) The Board at any time, and from time to time, may amend the Plan.
However, except as provided in paragraph 9 relating to adjustments upon changes
in stock, no amendment shall be effective unless approved by the vote or written
consent of a majority of the outstanding shares of the Company entitled to vote
within twelve (12) months before or after the adoption of the amendment, where
the amendment will:
(i) Increase the number of shares reserved for options under the Plan;
(ii) Materially modify the requirements as to eligibility for
participation in the Plan; or
(iii) Materially increase the benefits accruing to participants
under the Plan.
(b) Rights and obligations under any option granted before amendment of the
Plan shall not be altered or impaired by any amendment of the Plan, except with
the consent of the person to whom the option was granted.
11. TERMINATION OR SUSPENSION OF THE PLAN
(a) The Board may suspend or terminate the Plan at any time. Unless sooner
terminated, the Plan shall terminate on October 12, 1997. No options may be
granted under the Plan while the Plan is
12
<PAGE> 14
suspended or after it is terminated.
(b) Rights and obligations under any option granted while the Plan is in
effect shall not be altered or impaired by suspension or termination of the
Plan, except with the consent of the person to whom the option was granted.
12. EFFECTIVE DATES
(a) The Plan shall become effective as determined by the Board, but no
options granted under the Plan shall be exercised unless and until the Plan has
been approved by the vote or written consent of the holders of a majority of the
outstanding shares of the Company entitled to vote.
(b) The 1991 amendments to the Plan shall become effective as of the date
of shareholder approval and adoption of the Plan, as amended and restated, with
the exception of the amendments contained in subparagraphs 2(c) and (d), which
shall become effective as of September 1, 1992.
13
<PAGE> 1
Exhibit 99(c)
<PAGE> 2
EXHIBIT 99(c)
GATES/FA DISTRIBUTING, INC.
1993 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
1. Purpose. The purpose of the Gates/FA Distributing Inc. 1993 Stock
Option Plan for Outside Directors (the "Plan") is to advance the interests of
Gates/FA Distributing, Inc. (the "Company") by encouraging ownership of the
Company's $.01 par value common stock (the "Common Stock") by non-employee
directors of the Company, thereby giving such directors an increased incentive
to devote their efforts to the success of the Company.
2. Administration. Grants of options under this Plan are automatic. This
Plan is intended to be a "formula plan" as recognized by Rule 16b-3(e)(2)(ii)
promulgated under the Securities Exchange Act of 1934, as amended and shall be
interpreted accordingly.
3. Eligibility. Except as provided otherwise in this paragraph 3, options
under the Plan shall be granted in accordance with paragraph 5 to each member of
the Company's Board of Directors who is not an employee of the Company ("Outside
Director"), provided that shares of the Company's Common Stock remain available
for grant hereunder in accordance with paragraph 4. In the event that a new
Outside Director is appointed by the Board of Directors to fill a directorship
position, the new Outside Director shall not be eligible for an option grant
until elected as a director by the stockholders of the Company. A person to whom
an option is granted under the Plan shall be referred to hereinafter as a
"Grantee".
4. Shares Subject to Plan. The shares subject to the Plan shall be
authorized but unissued or reacquired shares of the Company's Common Stock.
Subject to adjustment in accordance with the provisions of paragraph 6 of the
Plan, the maximum number of shares of Common Stock for which options may be
granted under the Plan shall be 90,000, and the initial adoption of the Plan by
the Board of Directors of the Company shall constitute a reservation of 90,000
authorized but unissued, or reacquired, shares of Common Stock for issuance only
upon the exercise of options granted under the Plan. In the event that any
outstanding option granted
<PAGE> 3
under the Plan for any reason expires or is terminated prior to the end of the
period during which options may be granted under the Plan, the shares of Common
Stock allocable to the unexercised portion of such option may again be subject
in whole or in part to any option granted under the Plan.
5. Terms and Conditions of Options. Options granted pursuant to the Plan
shall be evidenced by Stock Option Agreements in such form as shall comply with
and be subject to the following terms and conditions:
(a) Grant. Each Outside Director who is serving in such capacity as
of the day following the 1993 annual meeting of the Company's shareholders
("Annual Meeting") shall be granted an option to purchase 5,000 shares of
the Company's Common Stock, subject to adjustment as provided in
Section 6. As of the day following each subsequent Annual Meeting, each
Outside Director who is serving in such capacity as of such date shall be
granted an option to purchase 5,000 shares of Common Stock, subject to
adjustment pursuant to Section 6.
If the shares of Common Stock are not available under this Plan to
grant to Outside Directors the full amount of a grant contemplated by the
immediately preceding paragraph, then each Outside Director shall receive
an option to purchase shares of Common Stock in an amount equal to the
number of shares of Common Stock then available under the Plan divided by
the number of Outside Directors as of the day following the applicable
Annual Meeting. Fractional shares shall be ignored and not granted.
If at an Annual Meeting (and during the term of this Plan) there are
not sufficient shares of Common Stock available under the Plan to grant
each Outside Director an option to purchase the full amount of shares of
Common Stock, the provisions of this paragraph shall apply. If during the
term of this Plan, additional shares of Common Stock become available for
grant (e.g., because of the forfeiture or lapse of an option) each person
who was both an Outside Director during such Annual Meeting and on the
date the additional shares of Common Stock become available ("Continuing
Outside Director") shall receive an additional option to
2
<PAGE> 4
purchase shares of Common Stock. The number of available shares shall be divided
equally among the options granted to the Continuing Outside Directors. However,
the aggregate number of shares of Common Stock subject to the Continuing Outside
Director's new option and any prior option granted to the Continuing Outside
Director during the applicable Annual Meeting shall not exceed 5,000 shares of
Common Stock (subject to adjustment pursuant to paragraph 6). If Outside
Directors have not received the full amount of shares of Common Stock during two
or more Annual Meetings, available options shall be granted beginning with the
earliest Annual Meeting.
(b) Option Price. The option price for each option granted under the Plan
shall be the Fair Market Value (as defined below) of the shares of Common Stock
subject to the option on the date of grant of the option. For purposes of the
Plan, the "Fair Market Value" of the shares of Common Stock shall mean the
closing "asked" price of the shares in the over-the-counter market on the day on
which such value is to be determined or, if such "asked" price is not available,
the last sales price on such day or, if no shares were traded on such day, on
the next preceding day on which the shares were traded, as reported by the
National Association of Securities Dealers Automatic Quotation System (NASDAQ)
or other national quotation service. If the shares are listed on a national
securities exchange, "Fair Market Value" means the closing price of the shares
on such national securities exchange on the day on which such value is to be
determined or, if no shares were traded on such day, on the next preceding day
on which shares were traded, as reported by National Quotation Bureau, Inc. or
other national quotation service.
(c) Medium and Time of Payment. The option price shall be payable in full
upon the exercise of an option in cash, by check, in shares of Common Stock
already held by the Grantee or any combination thereof. In the event that all or
part of the option price is paid in shares of Common Stock, the value of such
shares shall be equal to the Fair Market Value of such shares on the date of
exercise of the option (determined as provided in paragraph 5(b) of the Plan),
and the Grantee shall deliver to the Company a certificate or certificates
representing such
3
<PAGE> 5
shares duly endorsed to the Company or accompanied by a duly-executed separate
instrument of transfer satisfactory to the Board of Directors.
(d) Term. Each option granted under the Plan shall, to the extent not
previously exercised, terminate and expire on the date five years after the date
of grant of the option, unless earlier terminated as provided hereinafter in
Section 5(g).
(e) Exercisability. Six months after the option is granted, the option may
be exercised from time to time, in whole or in part.
(f) Method of Exercise. All options granted under the Plan shall be
exercised by an irrevocable written notice directed to the Secretary of the
Company at the Company's principal place of business. Such written notice shall
specify the form of payment made by the Grantee or his successor as provided by
paragraph 5(c) of the Plan and shall be accompanied by payment in full of the
option price for the shares for which such option is being exercised. The
Company shall make delivery of certificates representing the shares for which an
option has been exercised within a reasonable period of time; provided, however,
that if any law, regulation or agreement requires the Company to take any action
with respect to the shares for which an option has been exercised before the
issuance thereof, then the date of delivery of such shares shall be extended for
the period necessary to take such action. Certificates representing shares for
which options are exercised under the Plan may bear such restrictive legends as
may be necessary or desirable in order to comply with applicable federal and
state securities laws. Nothing contained in this Plan shall be construed to
require the Company to register any shares of Common Stock underlying options
granted under this Plan.
(g) Effect of Termination of Directorship or Death
(i) Termination of Directorship. Upon termination of the directorship
of any Grantee with the Company for any reason other than for cause, the
option held by the Grantee under the Plan shall terminate one year
following the date of
4
<PAGE> 6
the Grantee's termination or, if earlier, on the date of expiration of the
option as provided by paragraph 5(d) of the Plan. If the Grantee exercises
the option after termination of the Grantee's directorship, the Grantee
may exercise the option only with respect to the shares which were
otherwise exercisable on the termination date of the Grantee's
directorship. Such exercise shall otherwise be subject to the terms and
conditions of the Plan. If the Outside Director's membership on the Board
of Directors is terminated for cause, all options granted to such Outside
Director shall expire upon such termination.
(ii) Death. In the event of the death of a Grantee, the Grantee's
personal representatives, heirs or legatees (the "Grantee's Successors")
may exercise the option held by the Grantee on the date of his death, to
the extent then exercisable, upon proof satisfactory to the Company of
their authority. The Grantee's Successors must exercise any such option
within one year after the date of the Grantee's death and in any event
prior to the date on which the option expires as provided by paragraph
5(e) of the Plan. Such exercise otherwise shall be subject to the terms
and conditions of the Plan.
(h) Nonassignability of Option Rights. No option shall be assignable or
transferable by the Grantee except by will, by the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined in
Title I of ERISA and the Internal Revenue Code of 1986. During the lifetime of
the Grantee, the option shall be exercisable only by the Grantee.
(i) Rights as Stockholder. Neither the Grantee nor the Grantee's
Successors shall have rights as a stockholder of the Company with respect to
shares of Common Stock covered by the Grantee's option until the Grantee or the
Grantee's Successors become the holder of record of such shares.
(j) No Options in Certain Cases. No options shall be granted except within
a period of three years after the effective date of the Plan.
5
<PAGE> 7
6. Adjustments
(a) If any change is made in the stock subject to the Plan, or subject to
any option granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or otherwise), the Plan and outstanding
options will be automatically and appropriately adjusted including the maximum
number of shares subject to the Plan and the number of shares and price per
share of stock subject to outstanding options.
(b) In the event of: (1) a dissolution or liquidation of the Company; (2) a
merger or consolidation in which the Company is not the surviving corporation;
(3) a reverse merger in which the Company is the surviving corporation but the
shares of the Company's common stock outstanding immediately preceding the
merger are converted by virtue of the merger into other property, whether in the
form of securities, cash or otherwise; or (4) any other capital reorganization
in which more than fifty percent (50%) of the shares of the Company entitled to
vote are exchanges, then any surviving corporation shall assume any options
outstanding under the Plan or shall substitute similar options for those
outstanding under the Plan. If there is no surviving corporation, all
outstanding options shall continue in full force and effect.
7. Effective Date and Termination of Plan
(a) Effective Date. The Plan shall become effective as of the day
following the 1993 Annual Meeting, provided that the stockholders of the Company
shall approve the Plan during the 1993 Annual Meeting.
(b) Termination. The Plan shall terminate four years after its effective
date, but the Board of Directors may terminate the Plan at any time prior to
such date. Termination of the Plan shall not alter or impair any of the rights
or obligations under any option theretofore granted under the Plan unless the
Grantee shall so consent.
6
<PAGE> 8
8. Application Funds. The proceeds received by the Company from the sale
of shares of Common Stock pursuant to options granted under the Plan may be used
for general corporate purposes.
9. No Obligation to Exercise Options. The granting of an option shall
impose no obligation upon the Grantee to exercise such option.
10. Amendment. The Board of Directors of the Company by majority vote may
amend the Plan; provided, however, that without the approval of the stockholders
of the Company, no such amendment shall change:
(a) The maximum number of shares of Common Stock as to which options
may be granted under the Plan (except by operation of the adjustment
provisions of the Plan); or
(b) The date on which the Plan will terminate as provided by
paragraph 7(b) of the Plan; or
(c) The number of shares of Common Stock subject to each option; or
(d) The option price as provided under paragraph 5(b) of the Plan; or
(e) The provisions of paragraph 3 of the Plan relating to the
determination of Outside Directors to whom options may be granted; or
(f) The provisions of the Plan in such a manner so as to increase
materially (within the meaning of Rule 16b-3 under the Securities
Exchange Act of 1934, as amended) the benefits accruing under the Plan.
The provisions of the Plan determining (i) the persons eligible to receive
grants of options, (ii) the timing of option grants, (iii) the number of shares
subject to options, (iv) the exercise price of options, (v) the periods during
which options are exercisable, and (vi) the dates on which options terminate,
may not be amended more than once every six months other than to comport with
changes in the Internal Revenue Code, the Employee Retirement Income Security
Act of 1974, or the rules thereunder.
7
<PAGE> 9
Any amendment to the Plan shall not, without the written consent of the
Grantee, affect such Grantee's rights under any option theretofore granted to
such Grantee.
8
<PAGE> 1
Exhibit 99(d)
<PAGE> 2
Exhibit 99(d)
Optionee: James G. Foody
Effective Date: December 17, 1992 Certificate No.: NQ11
OPTION TO PURCHASE COMMON SHARES
OF
GATES/FA DISTRIBUTING, INC.
Option to Purchase
6,100 Common Shares
VOID AFTER 5:00 P.M., JULY 23, 1998, AS PROVIDED HEREIN
Gates/FA Distributing, Inc. (the "Company"), intending to be legally
bound, hereby grants to the Optionee named above an option (the "Option" or
"Options") to purchase all or any part of an aggregate of 6,100 Common Shares,
$.01 par value ("Option Shares") of the Company.
6. The Option shares may be purchased pursuant to this Option
at a price of $8.69 per share, subject to adjustment as hereinafter provided.
7. This Option shall be exercisable on July 23, 1993, and
shall expire at 5:00 p.m. Eastern Time on July 23, 1998 (the "Expiration"
date).
8. This Option may be exercised in whole or in part, from time
to time, in lots of not less than Fifty (50) Common Shares. To exercise this
option, or any part hereof, the Optionee shall (i) surrender this Option
Certificate to the Company at its principal office; (ii) deliver a notice (the
"Exercise Notice") specifying the number of Option Shares to be purchased;
(iii) pay the full purchase price for the Option Shares to be purchased, by
certified or bank cashier's check to the order of the Company; and (iv) furnish
to the Company such other instruments or documents as its legal counsel may
reasonably require. If less than all Option Shares are purchased, the Company
will issue, in addition to the Option Shares, a certificate evidencing the
number of Option Shares still covered by this option, or shall mark notation on
this Option Certificate setting forth the number of Option Shares remaining
unexercised.
9. (a) The aggregate of shares of Common Stock with
respect to which Options may be granted hereunder and the number of shares of
Common Stock subject to each outstanding Option, may all be appropriately
adjusted, as the Board of Directors may determine, for any increase or decrease
in the number of shares of issued Common Stock of the Company resulting from a
subdivision or consolidation of shares whether through reorganization, payment
of a share dividend or other increase or decrease in the number of such shares
outstanding effected without receipt of consideration by the Company; provided,
however, that no adjustment in the number of shares subject to outstanding
Options shall be made in the event, and then only to the extent, that such
adjustment together with all respective prior adjustments which were not made
as a result of this provision, involves a net change of more than ten percent
with respect to each outstanding Option from the respective number of shares of
Common Stock subject thereto on the date of grant thereof.
(b) Subject to any required action by the
stockholders, if the Company shall be a party to a transaction involving a sale
of substantially all its assets, a merger or a consolidation, any Option
granted hereunder shall pertain to and apply to the securities to which a
holder of the number of shares of Common Stock subject to the Option would have
been entitled if he actually owned the stock
<PAGE> 3
subject to the Option immediately prior to the time any such transaction became
effective; provided, however, that all unexercised Options may be cancelled by
the Company as of the effective date of any such transaction by exercise,
during the 30-day period preceding the effective date of such transaction of
all partly or wholly unexercised Options in full (without regard to installment
exercise limitations).
10. Rights Prior to Exercise of Option: The Option is not
transferable except as provided in paragraph 6 hereof, and during the lifetime
of the Optionee is exercisable only by the Optionee; the Optionee shall have no
rights as a stockholder until the date of delivery of a stock certificate for
such shares.
11. Termination of Option: In the event an Optionee shall
cease to be a member of the Board of Directors of the Company for any reason
other than death, the Optionee shall have the right to exercise his Option at
any time within three months after such cessation, but only as to such number
of shares as to which his option was exercisable at the date of such cessation.
Notwithstanding the provisions of the preceding sentence, (i) if cessation of
membership on the Board of Directors occurs by reason of the disability (within
the meaning of Section 105(d)(4) of the Internal Revenue Code), such three
month period shall be extended to six months; and (ii) if Optionee resigns or
is removed from the Board of Directors at the request of the Company fur
substantial cause, the participant's right to exercise his Option shall
terminate at the time such removal is effective. For purposes of this
provision, substantial cause shall include: (i) the commission of a criminal
act against, or in derogation of the interest of the Company; (ii) divulging
confidential information about the Company to the public; (iii) interference
with the relationship between the Company and any supplier, client, customer or
similar person; or (iv) the performance of any similar action that the Board of
Directors, in its sole discretion may deem to be sufficiently injurious to the
interest of the Company to constitute substantial cause for termination. If
the Optionee dies while a member of the Board of Directors of the Company or
its subsidiaries or within three months after his resignation, his estate,
personal representative or the person that acquires his Option by bequest or
inheritance or by reason of his death shall have the right to exercise his
Option at any time within six months from the date of his death, but only as to
the number of shares as to which his Option was exercisable on the date of his
death. In any such event, unless so exercised within the period as aforesaid,
the Option shall terminate at the expiration of said period.
12. Binding Effect: This Option shall be binding upon the
parties hereto, and their heirs, executors, administrators, successors and
assigns.
GATES/FA DISTRIBUTING, INC.
/s/ Philip D. Ellett
---------------------------
Philip D. Ellett
President/CEO
/s/ Susan F. Smith
---------------------------
Susan F. Smith
Secretary
<PAGE> 1
Exhibit 99(e)
<PAGE> 2
Exhibit 99(e)
Optionee: Irwin Lieber
Effective Date: December 17, 1992 Certificate No.: NQ12
OPTION TO PURCHASE COMMON SHARES
OF
GATES/FA DISTRIBUTING, INC.
Option to Purchase
6,100 Common Shares
VOID AFTER 5:00 P.M., JULY 23, 1998, AS PROVIDED HEREIN
Gates/FA Distributing, Inc. (the "Company"), intending to be legally
bound, hereby grants to the Optionee named above an option (the "Option" or
"Options") to purchase all or any part of an aggregate of 6,100 Common Shares,
$.01 par value ("Option Shares") of the Company.
13. The Option shares may be purchased pursuant to this Option
at a price of $8.69 per share, subject to adjustment as hereinafter provided.
14. This Option shall be exercisable on July 23, 1993, and
shall expire at 5:00 p.m. Eastern Time on July 23, 1998 (the "Expiration"
date).
15. This Option may be exercised in whole or in part, from time
to time, in lots of not less than Fifty (50) Common Shares. To exercise this
option, or any part hereof, the Optionee shall (i) surrender this Option
Certificate to the Company at its principal office; (ii) deliver a notice (the
"Exercise Notice") specifying the number of Option Shares to be purchased;
(iii) pay the full purchase price for the Option Shares to be purchased, by
certified or bank cashier's check to the order of the Company; and (iv) furnish
to the Company such other instruments or documents as its legal counsel may
reasonably require. If less than all Option Shares are purchased, the Company
will issue, in addition to the Option Shares, a certificate evidencing the
number of Option Shares still covered by this option, or shall mark notation on
this Option Certificate setting forth the number of Option Shares remaining
unexercised.
16. (a) The aggregate of shares of Common Stock with
respect to which Options may be granted hereunder and the number of shares of
Common Stock subject to each outstanding Option, may all be appropriately
adjusted, as the Board of Directors may determine, for any increase or decrease
in the number of shares of issued Common Stock of the Company resulting from a
subdivision or consolidation of shares whether through reorganization, payment
of a share dividend or other increase or decrease in the number of such shares
outstanding effected without receipt of consideration by the Company; provided,
however, that no adjustment in the number of shares subject to outstanding
Options shall be made in the event, and then only to the extent, that such
adjustment together with all respective prior adjustments which were not made
as a result of this provision, involves a net change of more than ten percent
with respect to each outstanding Option from the respective number of shares of
Common Stock subject thereto on the date of grant thereof.
(b) Subject to any required action by the
stockholders, if the Company shall be a party to a transaction involving a sale
of substantially all its assets, a merger or a consolidation, any Option
granted hereunder shall pertain to and apply to the securities to which a
holder of the number of shares of Common Stock subject to the Option would have
been entitled if he actually owned the stock
<PAGE> 3
subject to the Option immediately prior to the time any such transaction became
effective; provided, however, that all unexercised Options may be cancelled by
the Company as of the effective date of any such transaction by exercise,
during the 30-day period preceding the effective date of such transaction of
all partly or wholly unexercised Options in full (without regard to installment
exercise limitations).
17. Rights Prior to Exercise of Option: The Option is not
transferable except as provided in paragraph 6 hereof, and during the lifetime
of the Optionee is exercisable only by the Optionee; the Optionee shall have no
rights as a stockholder until the date of delivery of a stock certificate for
such shares.
18. Termination of Option: In the event an Optionee shall
cease to be a member of the Board of Directors of the Company for any reason
other than death, the Optionee shall have the right to exercise his Option at
any time within three months after such cessation, but only as to such number
of shares as to which his option was exercisable at the date of such cessation.
Notwithstanding the provisions of the preceding sentence, (i) if cessation of
membership on the Board of Directors occurs by reason of the disability (within
the meaning of Section 105(d)(4) of the Internal Revenue Code), such three
month period shall be extended to six months; and (ii) if Optionee resigns or
is removed from the Board of Directors at the request of the Company fur
substantial cause, the participant's right to exercise his Option shall
terminate at the time such removal is effective. For purposes of this
provision, substantial cause shall include: (i) the commission of a criminal
act against, or in derogation of the interest of the Company; (ii) divulging
confidential information about the Company to the public; (iii) interference
with the relationship between the Company and any supplier, client, customer or
similar person; or (iv) the performance of any similar action that the Board of
Directors, in its sole discretion may deem to be sufficiently injurious to the
interest of the Company to constitute substantial cause for termination. If
the Optionee dies while a member of the Board of Directors of the Company or
its subsidiaries or within three months after his resignation, his estate,
personal representative or the person that acquires his Option by bequest or
inheritance or by reason of his death shall have the right to exercise his
Option at any time within six months from the date of his death, but only as to
the number of shares as to which his Option was exercisable on the date of his
death. In any such event, unless so exercised within the period as aforesaid,
the Option shall terminate at the expiration of said period.
19. Binding Effect: This Option shall be binding upon the
parties hereto, and their heirs, executors, administrators, successors and
assigns.
GATES/FA DISTRIBUTING, INC.
/s/ Philip D. Ellett
---------------------------
Philip D. Ellett
President/CEO
/s/ Susan F. Smith
---------------------------
Susan F. Smith
Secretary
<PAGE> 1
Exhibit 99(f)
<PAGE> 2
Exhibit 99(f)
Optionee: Charles A. Luther
Effective Date: December 17, 1992 Certificate No.: NQ10
OPTION TO PURCHASE COMMON SHARES
OF
GATES/FA DISTRIBUTING, INC.
Option to Purchase
6,100 Common Shares
VOID AFTER 5:00 P.M., JULY 23, 1998, AS PROVIDED HEREIN
Gates/FA Distributing, Inc. (the "Company"), intending to be legally
bound, hereby grants to the Optionee named above an option (the "Option" or
"Options") to purchase all or any part of an aggregate of 6,100 Common Shares,
$.01 par value ("Option Shares") of the Company.
20. The Option shares may be purchased pursuant to this Option
at a price of $8.69 per share, subject to adjustment as hereinafter provided.
21. This Option shall be exercisable on July 23, 1993, and
shall expire at 5:00 p.m. Eastern Time on July 23, 1998 (the "Expiration"
date).
22. This Option may be exercised in whole or in part, from time
to time, in lots of not less than Fifty (50) Common Shares. To exercise this
option, or any part hereof, the Optionee shall (i) surrender this Option
Certificate to the Company at its principal office; (ii) deliver a notice (the
"Exercise Notice") specifying the number of Option Shares to be purchased;
(iii) pay the full purchase price for the Option Shares to be purchased, by
certified or bank cashier's check to the order of the Company; and (iv) furnish
to the Company such other instruments or documents as its legal counsel may
reasonably require. If less than all Option Shares are purchased, the Company
will issue, in addition to the Option Shares, a certificate evidencing the
number of Option Shares still covered by this option, or shall mark notation on
this Option Certificate setting forth the number of Option Shares remaining
unexercised.
23. (a) The aggregate of shares of Common Stock with
respect to which Options may be granted hereunder and the number of shares of
Common Stock subject to each outstanding Option, may all be appropriately
adjusted, as the Board of Directors may determine, for any increase or decrease
in the number of shares of issued Common Stock of the Company resulting from a
subdivision or consolidation of shares whether through reorganization, payment
of a share dividend or other increase or decrease in the number of such shares
outstanding effected without receipt of consideration by the Company; provided,
however, that no adjustment in the number of shares subject to outstanding
Options shall be made in the event, and then only to the extent, that such
adjustment together with all respective prior adjustments which were not made
as a result of this provision, involves a net change of more than ten percent
with respect to each outstanding Option from the respective number of shares of
Common Stock subject thereto on the date of grant thereof.
(b) Subject to any required action by the
stockholders, if the Company shall be a party to a transaction involving a sale
of substantially all its assets, a merger or a consolidation, any Option
granted hereunder shall pertain to and apply to the securities to which a
holder of the number of shares of Common Stock subject to the Option would have
been entitled if he actually owned the stock
<PAGE> 3
subject to the Option immediately prior to the time any such transaction became
effective; provided, however, that all unexercised Options may be cancelled by
the Company as of the effective date of any such transaction by exercise,
during the 30-day period preceding the effective date of such transaction of
all partly or wholly unexercised Options in full (without regard to installment
exercise limitations).
24. Rights Prior to Exercise of Option: The Option is not
transferable except as provided in paragraph 6 hereof, and during the lifetime
of the Optionee is exercisable only by the Optionee; the Optionee shall have no
rights as a stockholder until the date of delivery of a stock certificate for
such shares.
25. Termination of Option: In the event an Optionee shall
cease to be a member of the Board of Directors of the Company for any reason
other than death, the Optionee shall have the right to exercise his Option at
any time within three months after such cessation, but only as to such number
of shares as to which his option was exercisable at the date of such cessation.
Notwithstanding the provisions of the preceding sentence, (i) if cessation of
membership on the Board of Directors occurs by reason of the disability (within
the meaning of Section 105(d)(4) of the Internal Revenue Code), such three
month period shall be extended to six months; and (ii) if Optionee resigns or
is removed from the Board of Directors at the request of the Company fur
substantial cause, the participant's right to exercise his Option shall
terminate at the time such removal is effective. For purposes of this
provision, substantial cause shall include: (i) the commission of a criminal
act against, or in derogation of the interest of the Company; (ii) divulging
confidential information about the Company to the public; (iii) interference
with the relationship between the Company and any supplier, client, customer or
similar person; or (iv) the performance of any similar action that the Board of
Directors, in its sole discretion may deem to be sufficiently injurious to the
interest of the Company to constitute substantial cause for termination. If
the Optionee dies while a member of the Board of Directors of the Company or
its subsidiaries or within three months after his resignation, his estate,
personal representative or the person that acquires his Option by bequest or
inheritance or by reason of his death shall have the right to exercise his
Option at any time within six months from the date of his death, but only as to
the number of shares as to which his Option was exercisable on the date of his
death. In any such event, unless so exercised within the period as aforesaid,
the Option shall terminate at the expiration of said period.
26. Binding Effect: This Option shall be binding upon the
parties hereto, and their heirs, executors, administrators, successors and
assigns.
GATES/FA DISTRIBUTING, INC.
/s/ Philip D. Ellett
---------------------------
Philip D. Ellett
President/CEO
/s/ Susan F. Smith
---------------------------
Susan F. Smith
Secretary
