<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 28, 1997
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
PAXAR CORPORATION
(Exact Name of Registrant as Specified in its Charter)
NEW YORK 13-5670050
(State or other jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
105 Corporate Park Drive, White Plains, New York 10604
(Address of principal executive offices) (Zip Code)
AMENDED AND RESTATED 1997 INCENTIVE STOCK OPTION PLAN
(Full Title of the Plan)
ARTHUR HERSHAFT, CHAIRMAN
PAXAR CORPORATION
105 CORPORATE PARK DRIVE
WHITE PLAINS, NEW YORK 10604
(914) 697-6800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
A copy of all communications, including communications sent to the agent for
service should be sent to:
JACK BECKER, ESQ.
SNOW BECKER KRAUSS P.C.
605 THIRD AVENUE
NEW YORK, N.Y. 10158-0125
(212) 687-3860
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
Title of Each Class of Proposed Maximum Proposed
Securities to be Amount to be Offering Maximum Amount of
Registered Registered Price Aggregate Offering Registration
Per Share Price Fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options 5,000,000 (1) $ -- $ -- $ --(2)
- -------------------------------------------------------------------------------------------------------------------------
Common Shares, par value
$.10 per share 5,000,000 (3) (4) $ 19.97 (5) $99,850,000 $30,258
- -------------------------------------------------------------------------------------------------------------------------
Total ............... $30,258(6)
- -------------------------------------------------------------------------------------------------------------------------
=========================================================================================================================
</TABLE>
(1) Represents options granted or to be granted pursuant to the Amended
and Restated 1997 Incentive Stock Option Plan (the "Plan") of PAXAR
Corporation (the "Registrant").
(2) No registration fee is required pursuant to Rule 457(h)(3).
<PAGE> 2
(3) Shares issuable upon exercise of options granted or available for grant
under the Plan.
(4) Pursuant to Rule 416, includes an indeterminable number of shares of
Common Stock which may become issuable pursuant to the anti-dilution
provisions of the Plan and the Options.
(5) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457 (h) (1) based upon the average of the high and low
sales prices of the Registrant's Common Stock on the New York Stock
Exchange on October 23, 1997.
(6) Of such amount, $9,310 was paid on September 24, 1997 in connection
with the filing of the Registrant's Registration Statement on Form S-4,
File No. 333-36283, with respect to 1,852,053 shares of Common Stock
issuable under the Plan to holders of options to purchase shares of the
common stock, $.01 par value, of International Imaging Materials, Inc.,
a Delaware Corporation ("IIMAK"), pursuant to the merger of IIMAK with
a wholly-owned subsidiary of the Registrant.
NOTE
This Registration Statement includes a form of prospectus to be used by
certain persons who may be deemed to be affiliates of the Registrant in
connection with the resale of shares of Common Stock received by such persons
pursuant to the exercise of options granted under the Registrant's Amended and
Restated 1997 Incentive Stock Option Plan, which shares are subject to this
Registration Statement, and the Registrant's 1990 Employee Stock Option Plan,
which shares are subject to the Registrant's Registration Statement on Form S-8,
filed on November 29, 1991 (File No. 33-44299).
-ii-
<PAGE> 3
PROSPECTUS
PAXAR CORPORATION
2,369,025 SHARES
This Prospectus has been prepared by PAXAR Corporation, a New York
corporation (the "Company"), for use upon resale of shares of the Company's
common stock, par value $.10 per share (the "Common Stock"), by certain officers
and directors of the Company who may be considered "affiliates" (as defined in
Rule 405 under the Securities Act of 1933, as amended (the "Securities Act")) of
the Company (collectively, the "Selling Shareholders") who have acquired or may
acquire Common Stock upon exercise of options ("Options") granted or to be
granted under the PAXAR Corporation Amended and Restated 1997 Incentive Stock
Option Plan (the "1997 Plan") or the PAXAR Corporation 1990 Employee Stock
Option Plan (the "1990 Plan") to purchase an aggregate of 2,369,025 shares of
Common Stock (the "Shares"). The maximum number of Shares which may be offered
or sold hereunder is subject to adjustment in the event of stock splits or
dividends, recapitalizations and other similar changes affecting the Common
Stock. The Common Stock is listed on the New York Stock Exchange, and it is
anticipated that the Selling Shareholders will offer shares of Common Stock for
resale at prevailing prices on the New York Stock Exchange (or other market, if
the Common Stock is then trading thereon) on the date of sale. See "Plan of
Distribution." The Company will receive none of the proceeds from the sale of
the Common Stock offered hereby, but it will receive the exercise price upon
exercise of Options.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION; NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
No person is authorized to give any information or to make any
representations other than those contained in this Prospectus in connection with
any offer to sell or sale of the securities to which this Prospectus relates,
and if given or made, such information or representations must not be relied
upon as having been authorized. Neither the delivery of this Prospectus nor any
sale made hereunder shall, under any circumstances, imply that there has been no
change in the facts herein set forth since the date hereof. This Prospectus does
not constitute an offer to sell to or a solicitation of any offer to buy from
any person in any state in which any such offer or solicitation would be
unlawful.
The date of this Prospectus is October 28, 1997.
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information filed by the Company may be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Commission's regional offices located at Seven
World Trade Center, New York, New York 10048, and at Northwestern Atrium Center,
500 West Madison Street, Chicago, Illinois 60661. Copies of such material may be
obtained, at prescribed rates, by writing to the Commission, Public Reference
Section, 450 Fifth Street, N.W. Washington, D.C. 20549. The Commission maintains
a web site (http://www.sec.gov) that contains reports, proxy and information
statements and other information regarding registrants that file electronically.
The Common Stock is listed on the New York Stock Exchange. Copies of reports,
proxy statements and other information concerning the Company may also be
inspected at the office of such Exchange, 20 Broad Street, New York, New York
10005.
A registration statement on Form S-8 with respect to the Shares (the
"Registration Statement") has been filed with the Commission under the
Securities Act. This Prospectus constitutes the Prospectus of the Company that
is filed as part of such Registration Statement with respect to the sale of the
Shares by the Selling Shareholders. As permitted by the rules and regulations of
the Commission, this Prospectus omits certain information contained in the
Registration Statement and reference is hereby made to the Registration
Statement for further information with respect to the Company and the Common
Stock.
2
<PAGE> 5
DOCUMENTS INCORPORATED BY REFERENCE
The Company hereby incorporates by reference the documents listed below:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996 ("Form 10-K");
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, and June 30, 1996 ("Forms 10-Q");
(c) The Company's Current Reports on Form 8-K for December 22, 1996,
March 3, 1996 (as amended), and July 15, 1997.
(d) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed pursuant to Section 12(g) of the
Exchange Act, including any amendment or report filed for the purpose of
updating such information.
All documents subsequently filed by the Company after the date of this
Prospectus pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing of such documents. Any statement contained in a
previously filed document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement herein modifies or supersedes such statement; and any statement
contained herein shall be deemed to be modified or superseded to the extent that
a statement in any document subsequently filed, which is incorporated by
reference herein, modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon written or oral request of such person, a
copy of any or all of the information that has been incorporated by reference in
this Prospectus (not including exhibits to such information, unless such
exhibits are specifically incorporated by reference into the information which
this Prospectus incorporates) . Written requests for copies of such information
should be directed to the Company at 105 Corporate Park Drive, White Plains, New
York 10604, Attention: Secretary. Telephone requests may be directed to the
Secretary at (914) 697-6800.
THE COMPANY
The Company is a leading manufacturer and distributor of label systems,
bar code systems, labels, tags and related supplies and services for apparel
manufacturers and retailers. The Company's apparel products are manufactured in
North and South America, Europe and Asia and distributed in over 50 countries.
Label systems, consisting mainly of hot-stamp printers and related supplies and
services, are sold to Company customers for in-plant label printing. Bar code
systems, consisting of electronic printers and related supplies, print data on
labels and tags to provide accurate product, inventory and point of sale
information for integration with sophisticated data systems. Labels and tags are
attached to apparel by manufacturers and retailers to identify and promote their
products, allow automated data collection and provide brand identification and
consumer information such as size, fabric content and care instructions. Labels
are attached to garments early in the manufacturing process and must withstand
all production processes and remain legible through washing and dry cleaning by
the end user. To a limited extent, the Company's products also include tags and
labels for sheets, towels, pillow cases and other white goods.
Through its wholly-owned subsidiary Monarch Marking Systems, Inc., a
Delaware corporation ("Monarch"), the Company markets and distributes (i)
tabletop label dispensers and hand-held, mechanical labeling guns ("IPS
labelers") that print pressure-sensitive (i.e., adhesive backed) price and other
identification labels and affix them onto merchandise for retailers, and (ii)
electronic bar code printers ("AIS printers"), which are used in a wide range of
retail and industrial applications, including inventory management and
distribution systems. Monarch also manufactures and markets supplies used in
both its IPS labelers and AIS printers and provides extensive service to its
installed base of machines. Monarch is a leading manufacturer and marketer of
retail price marking equipment and supplies in the United States. Monarch also
sells its products directly and through distributors in 75 countries.
3
<PAGE> 6
International Imaging Materials, Inc., a Delaware corporation and a
wholly owned subsidiary of the Company ("IIMAK"), is the largest manufacturer in
North America of thermal transfer ribbons for numerous diverse applications.
These thermal transfer ribbons are used in bar code printers to print
single-color and full-color tags and labels for use in manufacturing and factory
automation systems, shipping and distribution systems, retail price tag,
packaging and medical applications. Other thermal transfer ribbons produced by
IIMAK are used in full-color printers to print high quality color graphics for
business presentations, engineering and scientific drawings, graphic arts
prepress layouts, proofs and comps, signage and other full-color imaging
applications. IIMAK also manufactures MICR ribbons for thermal transfer proof
encoders used to encode checks for processing through the United States banking
system, as well as ribbons used in plain-paper thermal transfer facsimile
machines.
The executive offices of the Company are located at 105 Corporate Park
Drive, White Plains, New York 10604, and the Company's telephone number is (914)
697-6800.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares. However, the Company expects to use the proceeds from the exercise of
the Options to purchase such shares for working capital and other general
corporate purposes.
SELLING SHAREHOLDERS
The shares of Common Stock to which this Prospectus relates are being
registered for reoffers and resales by the Selling Shareholders who have
acquired or may acquire such shares pursuant to the exercise of Options. The
Selling Shareholders named below may resell all, a portion or none of such
shares from time to time.
The table below sets forth with respect to each Selling Shareholder,
based upon information available to the Company as of October 24, 1997, the
number of shares of Common Stock beneficially owned before and after the sale of
the shares offered hereby; the number of shares to be sold; and the percent of
the outstanding shares of Common Stock owned before and after the sale of the
Common Stock offered hereby.
<TABLE>
<CAPTION>
Number of Percentage of Number of Number of Percentage of
Shares Owned Shares Owned Shares to be Shares Owned Shares Owned
Selling Shareholders Before Sale (1) Before Sale (2) Sold (3) After Sale After Sale
- -------------------- --------------- --------------- ------------ ------------ -------------
<S> <C> <C> <C> <C> <C>
Arthur Hershaft
(Chairman, Chief
Executive Officer
and Director) 5,171,162 (4) 10.71% 182,075 4,984,087 10.32%
Victor Hershaft
President and
Director) 1,327,962 (5) 2.75% 98,449 1,229,513 2.55%
Jack Becker
(Director) 183,219 (6) (7) * 36,623 146,596 *
Leo Benatar
(Director) 24,584 (8) * 20,021 4,563 *
Robert Laidlaw
(Director) 54,644 (6) * 36,623 18,021 *
Thomas R. Loemker
(Director) 519,322 (9) 1.08% 18,312 501,010 1.04%
</TABLE>
4
<PAGE> 7
<TABLE>
<CAPTION>
Number of Percentage of Number of Number of Percentage of
Shares Owned Shares Owned Shares to be Shares Owned Shares Owned
Selling Shareholders Before Sale (1) Before Sale (2) Sold After Sale After Sale
- -------------------- --------------- --------------- ------------ ------------ -------------
<S> <C> <C> <C> <C> <C>
Sidney Merians
(Director) 214,619 (10) * 36,623 177,996 *
John W. Paxton
(Director) 538,788 (11) 1.11% 369,752 169,036 *
Walter W. Williams
(Director) 36,623 (6) * 36,623 0 *
</TABLE>
* Represents less than 1% of the issued and outstanding Common Stock.
(1) Unless indicated, the Company believes that all persons named in the
table have sole voting and investment power with respect to all shares
of the Company Common Stock beneficially owned by them. For purposes of
this table, a person is deemed to be the beneficial owner of all Common
Stock that he has the right to acquire, regardless of whether such right
is presently exercisable. Each beneficial owner's percentage ownership
is determined by assuming that rights to acquire shares of Common Stock
that are held by such person (but not those held by any other person)
have been exercised.
(2) Based on 35,686,884 shares of Common Stock outstanding as of October 27,
1997, and approximately 12,431,757 shares of Common Stock to be issued
to IIMAK stockholders pursuant to a merger of IIMAK with a wholly-owned
subsidiary of the Company that became effective on October 28, 1997.
(3) Does not include shares that may be acquired pursuant to the exercise of
Options to be granted under the 1997 Plan and subsequently sold pursuant
to this Prospectus.
(4) Includes 187,075 shares issuable upon the exercise of outstanding stock
options. Also includes 664,801 shares held by Mr. Hershaft in trust for
the benefit of his children, as to which shares Mr. Hershaft disclaims
beneficial ownership.
(5) Included 83,764 shares issuable upon the exercise of outstanding
exercisable stock options granted to Mr. Hershaft and 14,685 shares
issuable upon the exercise of stock options not yet exercisable. In
addition, includes 186,750 shares owned of record by Mr. Hershaft's
wife, as to which shares Mr. Hershaft disclaims beneficial ownership;
and 146,654 shares held by Mr. Hershaft as custodian for his children as
to which shares Mr. Hershaft disclaims beneficial ownership.
(6) Includes 18,311 options to acquire a like number of shares of the
Company Common stock at an exercise price of $5.63 per share, 6,104
options to acquire a like number of shares of the Company Common Stock
at an exercise price of $7.68 per share, 6,104 options to acquire a like
number of shares of the Company Common Stock at an exercise price of
$10.24 per share, and 6,104 options to acquire a like number of shares
of the Company Common stock at an exercise price of $15.60 per share.
(7) Includes 100,073 shares owned of record by Mr. Becker's wife, as to
which shares Mr. Becker disclaims beneficial ownership.
(8) Includes 7,813 options to acquire a like number of shares of Common
Stock at an exercise price of $6.70 per share and 6,104 options to
acquire a like number of shares of Common Stock at an exercise price of
$10.24 per share, and 6,104 options to acquire like number of shares of
the Company Common Stock at out exercise price of $15.60 per share.
(9) Includes 6,104 options to acquire a like number of shares of Common
Stock at an exercise price of $7.68 per share, 6,104 options to acquire
a like number of shares $10.24 per share, and 6,104 options to acquire a
like number of shares of the Company Common Stock at our exercise price
of $15.60 per share.
5
<PAGE> 8
(10) Includes 6,751 shares owned of record by Mr. Merians' wife, as to which
shares Mr. Merians disclaims beneficial ownership.
(11) Includes 363,648 options to acquire a like number of shares of the
Company Common Stock at an exercise price of $1.94 per share and 6,104
options to acquire a like number of shares of the Company Common Stock
at an exercise price of $15.60 per share.
PLAN OF DISTRIBUTION
The Shares may be sold or transferred for value by the Selling
Shareholders, or by pledgees, donees, transferees or other successors in
interest to the Selling Shareholders, in one or more transactions on the New
York Stock Exchange (or any successor stock exchange), in negotiated
transactions or in a combination of such methods of sale, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at prices otherwise negotiated. The Selling Shareholders may effect
such transactions by selling the Shares to or through brokers-dealers, and such
broker-dealers may receive compensation in the form of underwriting discounts,
concessions or commissions from the Selling Shareholders and/or the purchasers
of the Securities for whom such broker-dealers may act as agent (which
compensation may be less than or in excess of customary commissions). The
Selling Shareholders and any broker-dealers that participate in the distribution
of the Shares may be deemed to be "underwriters" within the meaning of Section
2(11) of the Securities Act, and any commissions received by them and any profit
on the resale of the Shares sold by them may be deemed to be underwriting
discounts and commissions under the Securities Act. All selling and other
expenses incurred by individual Selling Shareholders will be borne by such
Selling Shareholders.
Upon the Company's being notified by a Selling Shareholder that any
material arrangement has been entered into with a broker or dealer for the sale
of shares through a secondary distribution, or a purchase by a broker or dealer,
a supplemented Prospectus will be filed, if required, pursuant to Rule 424(b)
under the Securities Act, disclosing (a) the name of each of such Selling
Shareholder and the participating broker-dealers, (b) the number of Shares
involved, (c) the price at which such Shares are being sold, (d) the commissions
paid or the discounts or concessions allowed to such broker-dealers, (e) where
applicable, that such broker-dealers did not conduct any investigation to verify
the information set out or incorporated by reference in the Prospectus, as
supplemented, and (f) other facts material to the transaction.
In addition to any such number of Shares sold hereunder, a Selling
Shareholder may, at the same time, sell any shares of Common Stock, including
the Shares, owned by him in compliance with all of the requirements of Rule 144
under the Securities Act, regardless of whether such shares are covered by this
Prospectus.
There is no assurance that any of the Selling Shareholders will sell
any or all of the Shares offered hereby.
The Company will pay all expenses in connection with this offering,
other than commissions and discounts of underwriters, dealers or agents.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby has been
passed upon for the Company by Snow Becker Krauss P.C., 605 Third Avenue, New
York, New York 10158. Jack Becker, a member of Snow Becker Krauss P.C. and a
director of the Company, beneficially owns, directly and indirectly, an
aggregate of 183,219 shares of Common Stock, and certain other members of Snow
Becker Krauss P.C. also beneficially own shares of Common Stock.
EXPERTS
The financial statements incorporated in this Prospectus by reference
to the Annual Report on Form 10-K of PAXAR Corporation for the three years ended
December 31, 1996, have been so incorporated in reliance upon the report of
Arthur Andersen LLP, independent public accountants, given upon the authority of
such firm as experts in accounting and auditing for the year.
6
<PAGE> 9
COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
7
<PAGE> 10
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by PAXAR Corporation, a New York corporation (the
"Registrant"), pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated by reference in this registration statement.
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996.
(2) The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997, and June 30, 1997;
(3) The Registrant's Current Reports on Form 8-K for December 22, 1996,
March 3, 1997 (as amended), and July 15, 1997;
(4) The description of the Registrant's common stock, par value $.10
per share (the "Common Stock"), contained in the Registrant's Registration
Statement on Form 8-A pursuant to Section 12(g) of the Exchange Act, including
any amendment or report filed for the purpose of updating such information.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment 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 herein and to be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Jack Becker, a member of Snow Becker Krauss P.C., counsel to the
Registrant and a Director of the Company, beneficially owns, directly and
indirectly, an aggregate of 183,219 shares of Common Stock, and certain other
member of Snow Becker Krauss P.C. also beneficially own shares of the
Registrant's Common Stock. Snow Becker Krauss P.C. is rendering an opinion upon
the validity of the securities being registered hereby.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the New York Business Corporation Law (the "NYBCL"), a
corporation may indemnify any person made, or threatened to be made, a party to
any action or proceeding, except for shareholder derivative suits, by reason of
the fact that he or she was a director or officer of the corporation, provided
such director or officer acted in good faith for a purpose which he or she
reasonably believed to be in the best interests of the corporation and, in
criminal proceedings, had no reasonable cause to believe his or her conduct was
unlawful. Indemnification may be provided against judgments, fines, amounts paid
in settlement and reasonable expenses, including attorney's fees actually and
necessarily incurred as a result of such action, proceeding or appeal therefrom.
New York law also provides that expenses incurred in defending a civil or
criminal action may be paid by the corporation in advance of the final
disposition of such proceedings upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it is ultimately determined
that such person was not entitled to such indemnification.
II-1
<PAGE> 11
In the case of shareholder derivative suits, the corporation may
indemnify any person by reason of the fact that he or she was a director or
officer of the corporation if he or she acted in good faith for a purpose which
he or she reasonably believed to be in the best interest of the corporation,
except that no indemnification may be made in respect of (i) a threatened
action, or a pending action which is settled or otherwise disposed of, or (ii)
any claim, issue or matter as to which such person has been adjudged to be
liable to the corporation, unless and only to the extent that the court in which
the action was brought, or, if no action was brought, any court of competent
jurisdiction, determines upon application that, in view of all the circumstances
of the case, the person is fairly and reasonably entitled to indemnity for such
portion of the settlement amount and expenses as the court deems proper.
The indemnification and advancement of the expenses described above
under the NYBCL is not exclusive of other indemnification rights to which a
director or officer may be entitled, whether contained in the certificate of
incorporation or by-laws or when authorized by (i) such certificate of
incorporation or by-laws, (ii) a resolution of shareholders, (iii) a resolution
of directors, or (iv) an agreement providing for such indemnification, provided
that no indemnification may be made to or on behalf of any director or officer
if a judgment or other final adjudication adverse to the director or officer
establishes that his or her acts were committed in bad faith or were the result
of active and deliberate dishonesty and were material to the cause of action so
adjudicated, or that he or she personally gained in fact a financial profit or
other advantage to which he or she was not legally entitled.
Any person who has been successful on the merits or otherwise in the
defense of a civil or criminal action or proceeding will be entitled to
indemnification. Except as provided in the preceding sentence, unless ordered by
a court pursuant to the NYBCL, any indemnification under the NYBCL pursuant to
the above paragraphs may be made only if authorized in the specific case and
after a finding that the director or officer met the requisite standard of
conduct (i) by the disinterested directors if a quorum is available or (ii) in
the event a quorum of disinterested directors is not available, if so directed
by either (A) the board upon the written opinion of independent legal counsel or
(B) by the shareholders.
Article Sixteen of the Registrant's By-Laws provides that the
Registrant shall indemnify directors and officers and their heirs, executors and
administrators to the full extent permitted by Sections 722 and 723 of the
NYBCL. The Registrant, by appropriate action of its Board of Directors, may
indemnify directors and officers and their heirs, executors and administrators
to the full extent permitted by subsections (b) and (c) of Section 724 of the
NYBCL.
INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE SECURITIES
ACT MAY BE PERMITTED TO DIRECTORS, OFFICERS AND CONTROLLING PERSONS OF THE
REGISTRANT PURSUANT TO THE FOREGOING PROVISIONS, OR OTHERWISE, THE REGISTRANT
HAS BEEN ADVISED THAT IN THE OPINION OF THE SECURITIES AND EXCHANGE COMMISSION
SUCH INDEMNIFICATION IS AGAINST PUBLIC POLICY AS EXPRESSED IN THE SECURITIES ACT
AND IS, THEREFORE, UNENFORCEABLE.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
----------- ----------------------
<S> <C>
4.1 Amended and Restated 1997 Incentive Stock Option Plan (the "Plan").
4.2 Form of Stock Option Agreement under the Plan between the Registrant
and the holders of stock options.
5.1 Opinion of Snow Becker Krauss P.C.
23.1 Consent of Snow Becker Krauss P.C. (included in Exhibit 5.1 hereto).
23.2 Consent of Arthur Andersen LLP.
</TABLE>
II-2
<PAGE> 12
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10
(a) (3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represents 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;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13 (a) or Section 15 (d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15 (d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or controlling
persons of the Registrant pursuant to any arrangement, provision or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-3
<PAGE> 13
SIGNATURES
In accordance with 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 White Plains, State of New York, on this 27th
day of October 1997.
PAXAR CORPORATION
By: /s/ Arthur Hershaft
-----------------------------------------
Arthur Hershaft, Chief Executive
Officer and Chairman of the Board of
Directors
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Arthur Hershaft and Jack Becker and each
of them as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) and supplements to this Registration Statement, and to file the same
with the Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933 this
registration statement has been signed below by the following persons, in the
capacities indicated, on October 27, 1997:
<TABLE>
<CAPTION>
<S> <C>
/s/ Arthur Hershaft /s/ Victor Hershaft
- ---------------------------------- ---------------------------------
Arthur Hershaft, Chairman, Chief Victor Hershaft, Director
Executive Officer and Director
/s/ Joseph Fetzner /s/ Jack Becker
- ---------------------------------- ---------------------------------
Joseph Fetzner, Vice President and Jack Becker, Director
Controller (Principal Financial and
Accounting Officer)
/s/ Robert Laidlaw /s/ Thomas R. Loemker
- ---------------------------------- ---------------------------------
Robert Laidlaw, Director Thomas R. Loemker, Director
/s/ David E. McKinney /s/ Walter W. Williams
- ---------------------------------- ---------------------------------
David E. McKinney, Director Walter W. Williams, Director
/s/ Leo Benatar /s/ Sidney Merians
- ---------------------------------- ---------------------------------
Leo Benatar, Director Sidney Merians, Director
/s/ John W. Paxton
- ----------------------------------
John W. Paxton, Director
</TABLE>
II-4
<PAGE> 1
EXHIBIT 4.1
PAXAR CORPORATION
AMENDED AND RESTATED
1997 INCENTIVE STOCK OPTION PLAN
1. Purposes.
The PAXAR CORPORATION 1997 INCENTIVE STOCK OPTION PLAN (the "Plan") is
intended to provide the employees, directors, independent contractors and
consultants of Paxar Corporation (the "Company") and/or any subsidiary or parent
thereof with an added incentive to commence and/or continue their services to
the Company and to induce them to exert their maximum efforts toward the
Company's success. By thus encouraging employees, directors, independent
contractors and consultants and promoting their continued association with the
Company, the Plan may be expected to benefit the Company and its stockholders.
The Plan allows the Company to grant Incentive Stock Options ("ISOs") (as
defined in Section 422(b) of the Internal Revenue Code of 1986, as amended (the
"Code"), Non-Qualified Stock Options ("NQSOs") not intended to qualify under
Section 422(b) of the Code and Stock Appreciation Rights ("SARs") (collectively
the "Options"). The vesting of one or more Options granted hereunder may be
based on the attainment of specified performance goals of the participant or the
performance of the Company, one or more subsidiaries, parent and/or division of
one or more of the above.
2. Shares Subject to the Plan.
The total number of shares of Common Stock of the Company, $0.10 par
value per share, that may be subject to Options granted under the Plan shall be
five million (5,000,000) in the aggregate, subject to adjustment as provided in
Paragraph 8 of the Plan; however, the grant of an ISO to an employee together
with a tandem SAR or any NQSO to an employee together with a tandem SAR shall
only require one share of Common Stock available subject to the Plan to satisfy
such joint Option. The Company shall at all times while the Plan is in force
reserve such number of shares of Common Stock as will be sufficient to satisfy
the requirement of outstanding Options granted under the Plan. In the event any
Option granted under the Plan shall expire or terminate for any reason without
having been exercised in full or shall cease for any reason to be exercisable in
whole or in part, the unpurchased shares subject thereto shall again be
available for granting of Options under the Plan.
<PAGE> 2
3. Eligibility.
ISO's or ISO's in tandem with SAR's (provided the SAR meets the
requirements set forth in Temp. Reg. Section 14a.422A-1, A-39 (a) through (e)
inclusive) may be granted from time to time under the Plan to one or more
employees of the Company or of a "subsidiary" or "parent" of the Company, as the
quoted terms are defined within Section 424 of the Code. An Officer is an
employee for the above purposes. However, a director of the Company who is not
otherwise an employee is not deemed an employee for such purposes. NQSOs and
NQSO's in tandem with SARs may be granted from time to time under the Plan to
one or more employees of the Company, Officers, members of the Board of
Directors, independent contractors, consultants and other individuals who are
not employees of, but are involved in the continuing development and success of
the Company and/or of a subsidiary of the Company, including persons who have
previously been granted Options under the Plan.
4. Administration of the Plan.
(a) The Plan shall be administered by the Board of Directors of the
Company as such Board of Directors may be composed from time to time and/or by a
Stock Option Committee or Compensation Committee (the "Committee") which shall
be comprised of solely of at least two Outside Directors (as such term is
defined in regulations promulgated from time to time with respect to Section
162(m)(4)(C)(i) of the Code) appointed by such Board of Directors of the
Company. As and to the extent authorized by the Board of Directors of the
Company, the Committee may exercise the power and authority vested in the Board
of Directors under the Plan. Within the limits of the express provisions of the
Plan, the Board of Directors or Committee shall have the authority, in its
discretion, to determine the individuals to whom, and the time or times at
which, Options shall be granted, the character of such Options (whether ISOs,
NQSOs, and/or SARs in tandem with NQSOs, and/or SARs in tandem with ISOs) and
the number of shares of Common Stock to be subject to each Option, the manner
and form in which the optionee can tender payment upon the exercise of his
Option, and to interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to the Plan, to determine the terms and provisions of
Option agreements that may be entered into in connection with Options (which
need not be identical), subject to the limitation that agreements granting ISOs
must be consistent with the requirements for the ISOs being qualified as
"incentive stock options" as provided in Section 422 of the Code, and to make
all other determinations and take all other actions necessary or
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<PAGE> 3
advisable for the administration of the Plan. In making such determinations, the
Board of Directors and/or the Committee may take into account the nature of the
services rendered by such individuals, their present and potential contributions
to the Company's success, and such other factors as the Board of Directors
and/or the Committee, in its discretion, shall deem relevant. The Board of
Directors' and/or the Committee's determinations on the matters referred to in
this Paragraph shall be conclusive.
(b) Notwithstanding anything contained herein to the contrary, at
anytime during the period the Company's Common Stock is registered pursuant to
Section 12(g) of the Securities Exchange Act of 1934 (the "1934 Act"), the
Committee, if one has been appointed to administer all or part of the Plan,
shall have the exclusive right to grant Options to Covered Employees as defined
under Section 162(m)(3) of the Code (generally persons subject to Section 16 of
the 1934 Act) and set forth the terms and conditions thereof. With respect to
persons subject to Section 16 of the 1934 Act, transactions under the Plan are
intended, to the extent possible, comply with all applicable conditions of Rule
16b-3, as amended from time to time, (and its successor provisions, if any)
under the 1934 Act and Section 162(m)(4)(C) of the Code of 1986, as amended. To
the extent any provision of the Plan or action by the Board of Directors or
Committee fails to so comply, it shall be deemed null and void, to the extent
permitted by law and deemed advisable by the Board of Directors and/or such
Committee.
5. Terms of Options.
Within the limits of the express provisions of the Plan, the Board of
Directors or the Committee may grant either ISOs or NQSOs or SARs in tandem with
NQSOs or SARs in tandem with ISOs. An ISO or an NQSO enables the optionee to
purchase from the Company, at any time during a specified exercise period, a
specified number of shares of Common Stock at a specified price (the "Option
Price"). The optionee, if granted a SAR in tandem with a NQSO or ISO, may
receive from the Company, in lieu of exercising his option to purchase shares
pursuant to his NQSO or ISO, at one of the certain specified times during the
exercise period of the NQSO or ISO as set by the Board of Directors or the
Committee, the excess of the fair market value upon such exercise (as determined
in accordance with subparagraph (b) of this Paragraph 5) of one share of Common
Stock over the Option Price per share specified upon grant of the NQSO or
ISO/SAR multiplied by the number of shares of Common Stock covered by the SAR so
exercised. The character and terms of each Option granted under the Plan shall
be determined by the Board of
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<PAGE> 4
Directors and/or the Committee consistent with the provisions of the Plan,
including the following:
(a) An Option granted under the Plan must be granted within 10 years
from the date the Plan is adopted, or the date the Plan is approved by the
stockholders of the Company, whichever is earlier.
(b) The Option Price of the shares of Common Stock subject to each ISO
and each SAR issued in tandem with an ISO shall not be less than the fair market
value of such shares of Common Stock at the time such ISO is granted. Such fair
market value shall be determined by the Board of Directors and, if the shares of
Common Stock are listed on a national securities exchange or traded on the
over-the-counter market, the fair market value shall be the closing price on
such exchange, or the mean of the closing bid and asked prices of the shares of
Common Stock on the over-the-counter market, as reported by the Nasdaq Stock
Market, the National Association of Securities Dealers OTC Bulletin Board or the
National Quotation Bureau, Inc., as the case may be, on the day on which the
Option is granted or, if there is no closing price or bid or asked price on that
day, the closing price or mean of the closing bid and asked prices on the most
recent day preceding the day on which the Option is granted for which such
prices are available. If an ISO or SAR in tandem with an ISO is granted to any
individual who, immediately before the ISO is to be granted, owns (directly or
through attribution) more than 10% of the total combined voting power of all
classes of capital stock of the Company or a subsidiary or parent of the
Company, the Option Price of the shares of Common Stock subject to such ISO
shall not be less than 110% of the fair market value per share of the shares of
Common Stock at the time such ISO is granted.
(c) The Option Price of the shares of Common Stock subject to an NQSO
or an SAR in tandem with a NQSO granted pursuant to the Plan shall be determined
by the Board of Directors or the Committee, in its sole discretion, but in no
event less than 85% of the fair market value per share of the shares of Common
Stock at the time of grant.
(d) In no event shall any Option granted under the Plan have an
expiration date later than 10 years from the date of its grant, and all Options
granted under the Plan shall be subject to earlier termination as expressly
provided in Paragraph 6 hereof. If an ISO or an SAR in tandem with an ISO is
granted to any individual who, immediately before the ISO is granted, owns
(directly or through attribution) more that 10% of the total combined voting
power of all classes of capital stock of the Company or of a subsidiary or
-4-
<PAGE> 5
parent of the Company, such ISO shall by its terms expire and shall not be
exercisable after the expiration of five (5) years from the date of its grant.
(e) An SAR may be exercised at any time during the exercise period of
the ISO or NQSO with which it is granted in tandem and prior to the exercise of
such ISO or NQSO. Notwithstanding the foregoing, the Board of Directors and/or
the Committee shall in their discretion determine from time to time the terms
and conditions of SAR's to be granted, which terms may vary from the
afore-described conditions, and which terms shall be set forth in a written
stock option agreement evidencing the SAR granted in tandem with the ISO or
NQSO. The exercise of an SAR granted in tandem with an ISO or NQSO shall be
deemed to cancel such number of shares subject to the unexercised Option as were
subject to the exercised SAR. The Board of Directors or the Committee has the
discretion to alter the terms of the SARS if necessary to comply with Federal or
state securities law. Amounts to be paid by the Company in connection with an
SAR may, in the Board of Director's or the Committee's discretion, be made in
cash, Common Stock or a combination thereof.
(f) An Option granted under the Plan shall become exercisable,
in whole at any time or in part from time to time, but in no event may an Option
(i) be exercised as to less than one hundred (100) shares of Common Stock at any
one time, or the remaining shares of Common Stock covered by the Option if less
than one hundred (100), and (ii) except with respect to performance based
Options, become fully exercisable more than five years from the date of its
grant nor shall less than 20% of the Option become exercisable in any of the
first five years of the Option, if not terminated as provided in Section 6
hereof. The Board of Directors or the Committee, if applicable, shall, in the
event it so elects in its sole discretion, set one or more performance standards
with respect to one or more Options upon which vesting is conditioned (which
performance standards may vary among the Options).
(g) An Option granted under the Plan shall be exercised by the
delivery by the holder thereof to the Company at its principal office (to the
attention of the Secretary) of written notice of the number of full shares of
Common Stock with respect to which the Option is being exercised, accompanied by
payment in full, which payment at the option of the optionee shall be in the
form of (i) cash or certified or bank check payable to the order of the Company,
of the Option Price of such shares of Common Stock, or, (ii) if permitted by the
Committee or the Board of Directors, as determined by the Committee or the Board
of Directors in its
-5-
<PAGE> 6
sole discretion at the time of the grant of the Option with respect to an ISO
and at or prior to the time of exercise with respect to a NQSO, by the delivery
of shares of Common Stock having a fair market value equal to the Option Price
or the delivery of an interest-bearing promissory note having an original
principal balance equal to the Option Price and an interest rate not below the
rate which would result in imputed interest under the Code (provided, in order
to qualify as an ISO, more than one year shall have passed since the date of
grant and one year from the date of exercise), or (iii) at the option of the
Committee or the Board of Directors, determined by the Committee or the Board of
Directors in its sole discretion at the time of the grant of the Option with
respect to an ISO and at or prior to the time of exercise with respect to a
NQSO, by a combination of cash, promissory note and/or such shares of Common
Stock (subject to the restriction above) held by the employee that have a fair
market value together with such cash and principal amount of any promissory note
that shall equal the Option Price, and, in the case of a NQSO, at the discretion
of the Committee or Board of Directors by having the Company withhold from the
shares of Common Stock to be issued upon exercise of the Option that number of
shares having a fair market value equal to the exercise price and/or the tax
withholding amount due, or otherwise provide for withholding as set forth in
Paragraph 9(c) hereof, or in the event an employee is granted an ISO or NQSO in
tandem with an SAR and desires to exercise such SAR, such written notice shall
so state such intention. To the extent allowed by applicable Federal and state
securities laws, the Option Price may also be paid in full by a broker-dealer to
whom the optionee has submitted an exercise notice consisting of a fully
endorsed Option, or through any other medium of payment as the Board of
Directors and/or the Committee, in its discretion, shall authorize.
(h) The holder of an Option shall have none of the rights of a
stockholder with respect to the shares of Common Stock covered by such holder's
Option until such shares of Common Stock shall be issued to such holder upon the
exercise of the Option.
(i) All ISOs or SARs in tandem with ISOs granted under the Plan
shall not be transferable otherwise than by will or the laws of descent and
distribution and may be exercised during the lifetime of the holder thereof only
by the holder. The Board or the Committee, in its sole discretion, shall
determine whether an Option other than an ISO or SAR in tandem with an ISO shall
be transferable. No Option granted under the Plan shall be subject to execution,
attachment or other process.
-6-
<PAGE> 7
(j) The aggregate fair market value, determined as of the time
any ISO or SAR in tandem with an ISO is granted and in the manner provided for
by Subparagraph (b) of this Paragraph 5, of the shares of Common Stock with
respect to which ISOs granted under the Plan are exercisable for the first time
during any calendar year and under incentive stock options qualifying as such in
accordance with Section 422 of the Code granted under any other incentive stock
option plan maintained by the Company or its parent or subsidiary corporations,
shall not exceed $100,000. Any grant of Options in excess of such amount shall
be deemed a grant of a NQSO.
(k) Notwithstanding anything contained herein to the contrary,
an SAR which was granted in tandem with an ISO shall (i) expire no later than
the expiration of the underlying ISO; (ii) be for no more than 100% of the
spread at the time the SAR is exercised; (iii) shall only be transferable when
the underlying ISO is transferable; (iv) only be exercised when the underlying
ISO is eligible to be exercised; and (v) only be exercisable when there is a
positive spread.
(l) In no event shall an employee be granted Options for more
than 300,000 shares of Common Stock during any calendar year period; provided,
however, that the limitation set forth in this Section 5(l) shall be subject to
adjustment as provided in Section 8 herein.
6. Death or Termination of Employment/Consulting Relationship.
(a) Except as provided herein, or otherwise determined by the
Board of Directors or the Committee in its sole discretion, upon termination of
employment with the Company voluntarily by the employee or termination of a
consulting relationship with the Company prior to the termination of the term
thereof, a holder of an Option under the Plan may exercise such Options to the
extent such Options were exercisable as of the date of termination at any time
within thirty (30) days after termination, subject to the provisions of
Subparagraph (d) of this Paragraph 6. Except as provided herein, or otherwise
determined by the Board of Directors or the Committee in its sole discretion, if
such employment or consulting relationship shall terminate for any reason other
than death, voluntary termination by the employee or for cause, then such
Options may be exercised at anytime within three (3) months after such
termination. Notwithstanding anything contained herein to the contrary, unless
otherwise determined by the Board of Directors or the Committee in its sole
discretion, any options
-7-
<PAGE> 8
granted hereunder to an Optionee and then outstanding shall immediately
terminate in the event the Optionee is terminated for cause, and the other
provisions of this Section 6 shall not be applicable thereto. For purposes of
this Section 6, termination for cause shall be deemed the decision of the
Company, in its sole discretion, that Optionee has not adequately performed the
services for which he/she/it was hired.
(b) If the holder of an Option granted under the Plan dies (i)
while employed by the Company or a subsidiary or parent corporation or while
providing consulting services to the Company or a subsidiary or parent
corporation or (ii) within three (3) months after the termination of such
holder's employment/consulting, such Options may, subject to the provisions of
subparagraph (d) of this Paragraph 6, be exercised by a legatee or legatees of
such Option under such individual's last will or by such individual's personal
representatives or distributees at any time within such time as determined by
the Board of Directors or the Committee in its sole discretion, but in no event
less than six months after the individual's death, to the extent such Options
were exercisable as of the date of death or date of termination of employment,
whichever date is earlier.
(c) If the holder of an Option under the Plan becomes disabled
within the definition of section 22(e)(3) of the Code while employed by the
Company or a subsidiary or parent corporation, such Option may, subject to the
provisions of subparagraph (d) of this Paragraph 6, be exercised at any time
within six months less one day after such holder's termination of employment due
to the disability.
(d) Except as otherwise determined by the Board of Directors or
the Committee in its sole discretion, an Option may not be exercised pursuant to
this Paragraph 6 except to the extent that the holder was entitled to exercise
the Option at the time of termination of employment, consulting relationship or
death, and in any event may not be exercised after the original expiration date
of the Option. Notwithstanding anything contained herein which may be to the
contrary, such termination or death prior to vesting shall, unless otherwise
determined by the Board of Directors or Committee, in its sole discretion, be
deemed to occur at a time the holder was not entitled to exercise the Option.
(e) The Board of Directors or the Committee, in its sole
discretion, may at such time or times as it deems appropriate, if ever,
accelerate all or part of the vesting provisions with respect
-8-
<PAGE> 9
to one or more outstanding options. The acceleration of one Option shall not
infer that any Option is or to be accelerated.
7. Leave of Absence.
For the purposes of the Plan, an individual who is on military
or sick leave or other bona fide leave of absence (such as temporary employment
by the Government) shall be considered as remaining in the employ of the Company
or of a subsidiary or parent corporation for ninety (90) days or such longer
period as such individual's right to reemployment is guaranteed either by
statute or by contract.
8. Adjustment Upon Changes in Capitalization.
(a) In the event that the outstanding shares of Common Stock are
hereafter changed by reason of recapitalization, reclassification, stock
split-up, combination or exchange of shares of Common Stock or the like, or by
the issuance of dividends payable in shares of Common Stock, an appropriate
adjustment shall be made by the Board of Directors, as determined by the Board
of Directors and/or the Committee, in the aggregate number of shares of Common
Stock available under the Plan, in the number of shares of Common Stock issuable
upon exercise of outstanding Options, and the Option Price per share. In the
event of any consolidation or merger of the Company with or into another
company, or the conveyance of all or substantially all of the assets of the
Company to another company for solely stock and/or securities, each then
outstanding Option shall upon exercise thereafter entitle the holder thereof to
such number of shares of Common Stock or other securities or property to which a
holder of shares of Common Stock of the Company would have been entitled to upon
such consolidation, merger or conveyance; and in any such case appropriate
adjustment, as determined by the Board of Directors of the Company (or successor
entity) shall be made as set forth above with respect to any future changes in
the capitalization of the Company or its successor entity. In the event of the
proposed dissolution or liquidation of the Company, or, except as provided in
(b) below, the sale of substantially all the assets of the Company for other
than stock and/or securities, all outstanding Options under the Plan will
automatically terminate, unless otherwise provided by the Board of Directors of
the Company or any authorized committee thereof.
(b) Any Option granted under the Plan, may, at the discretion of
the Board of Directors of the Company and said other corporation, be exchanged
for options to purchase shares of capital
-9-
<PAGE> 10
stock of another corporation which the Company, and/or a subsidiary thereof is
merged into, consolidated with, or all or a substantial portion of the property
or stock of which is acquired by said other corporation or separated or
reorganized into. The terms, provisions and benefits to the optionee of such
substitute option(s) shall in all respects be identical to the terms, provisions
and benefits of optionee under his Option(s) prior to said substitution. To the
extent the above may be inconsistent with Sections 424(a)(1) and (2) of the
Code, the above shall be deemed interpreted so as to comply therewith.
(c) Any adjustment in the number of shares of Common Stock shall
apply proportionately to only the unexercised portion of the Options granted
hereunder. If fractions of shares of Common Stock would result from any such
adjustment, the adjustment shall be revised to the next higher whole number of
shares of Common Stock.
9. Further Conditions of Exercise.
(a) Unless the shares of Common Stock issuable upon the exercise
of an Option have been registered with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended, prior to the exercise of the
Option, an optionee must represent in writing to the Company that such shares of
Common Stock are being acquired for investment purposes only and not with a view
towards the further resale or distribution thereof, and must supply to the
Company such other documentation as may be required by the Company, unless in
the opinion of counsel to the Company such representation, agreement or
documentation is not necessary to comply with said Act.
(b) The Company shall not be obligated to deliver any shares of
Common Stock until they have been listed on each securities exchange on which
the shares of Common Stock may then be listed or until there has been
qualification under or compliance with such state or federal laws, rules or
regulations as the Company may deem applicable.
(c) The Board of Directors or Committee may make such provisions
and take such steps as it may deem necessary or appropriate for the withholding
of any taxes that the Company is required by any law or regulation of any
governmental authority, whether federal, state or local, domestic or foreign, to
withhold in connection with the exercise of any Option, including, but not
limited to, (i) the withholding of payment of all or any portion of such Option
and/or SAR until the holder reimburses the Company for
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<PAGE> 11
the amount the Company is required to withhold with respect to such taxes, or
(ii) the cancelling of any number of shares of Common Stock issuable upon
exercise of such Option and/or SAR in an amount sufficient to reimburse the
Company for the amount it is required to so withhold, (iii) the selling of any
property contingently credited by the Company for the purpose of exercising such
Option, in order to withhold or reimburse the Company for the amount it is
required to so withhold, or (iv) withholding the amount due from such employee's
wages if the employee is employed by the Company or any subsidiary thereof.
10. Termination, Modification and Amendment.
(a) The Plan (but not Options previously granted under the Plan)
shall terminate ten (10) years from the earliest of the date of its adoption by
the Board of Directors, or the date the Plan is approved by the stockholders of
the Company, or such date of termination, as hereinafter provided, and no Option
shall be granted after termination of the Plan.
(b) The Plan may from time to time be terminated, modified or
amended by the affirmative vote of the holders of a majority of the outstanding
shares of capital stock of the Company entitled to vote thereon.
(c) The Board of Directors of the Company may at any time, prior
to ten (10) years from the earlier of the date of the adoption of the Plan by
such Board of Directors or the date the Plan is approved by the stockholders,
terminate the Plan or from time to time make such modifications or amendments of
the Plan as it may deem advisable; provided, however, that the Board of
Directors shall not, without approval by the affirmative vote of the holders of
a majority of the outstanding shares of capital stock of the Company entitled to
vote thereon, increase (except as provided by Paragraph 8) the maximum number of
shares of Common Stock as to which Options or shares may be granted under the
Plan, or materially change the standards of eligibility under the Plan. Any
amendment to the Plan which, in the opinion of counsel to the Company, will be
deemed to result in the adoption of a new Plan, will not be effective until
approved by the affirmative vote of the holders of a majority of the outstanding
shares of capital stock of the Company entitled to vote thereon.
(d) No termination, modification or amendment of the Plan may
adversely affect the rights under any outstanding Option without the consent of
the individual to whom such Option shall have been previously granted.
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<PAGE> 12
11. Effective Date of the Plan.
The Plan shall become effective upon adoption by the Board of
Directors of the Company. The Plan shall be subject to approval by the
affirmative vote of the holders of a majority of the outstanding shares of
capital stock of the Company entitled to vote thereon within one year before or
after adoption of the Plan by the Board of Directors.
12. Not a Contract of Employment.
Nothing contained in the Plan or in any option agreement
executed pursuant hereto shall be deemed to confer upon any individual to whom
an Option is or may be granted hereunder any right to remain in the employ of
the Company or of a subsidiary or parent of the Company or in any way limit the
right of the Company, or of any parent or subsidiary thereof, to terminate the
employment of any employee.
13. Other Compensation Plans.
The adoption of the Plan shall not affect any other stock option
plan, incentive plan or any other compensation plan in effect for the Company,
nor shall the Plan preclude the Company from establishing any other form of
stock option plan, incentive plan or any other compensation plan.
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EXHIBIT 4.2
AGREEMENT, made as of this ______ day of ____________, by and between
PAXAR Corporation, a corporation having its principal executive offices at 105
Corporate Park Drive, White Plains, New York 10604 ("Grantor"), and
_________________, residing at ___________ (address) ("Optionee").
W I T N E S S E T H:
WHEREAS, Optionee is presently employed by Grantor; and
WHEREAS, Grantor is desirous of increasing the incentive of Optionee to
exert his utmost efforts to improve the business and increase the assets of the
Grantor.
NOW, THEREFORE, in consideration of the promises of the Optionee to
remain in the continuous service of the Grantor or any of its subsidiaries, and
for other good and valuable consideration, the Grantor hereby grants the
Optionee options to purchase Common Stock of the Grantor upon the following
terms and conditions:
1. OPTIONS. Pursuant to its Amended and Restated 1997 Incentive Stock
Option Plan, the Grantor hereby grants to the Optionee incentive stock options
("Incentive Stock Options"), as provided in Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), to purchase, at any time commencing as of
the date hereof, and terminating as of 5:00 P.M. New York City time, on
___________ ("Termination Date"), up to __________ fully paid and non-assessable
shares of the Common Stock of the Grantor, par value $.10 per share.
2. PURCHASE PRICE. The purchase price ("Purchase Price") shall be
_________ per share. The Grantor shall pay all original issue or transfer taxes
on the exercise of the Incentive Stock Options and all other fees and expenses
necessarily incurred by the Grantor in connection therewith.
3. EXERCISE OF OPTION. (a) The Optionee shall notify the Grantor by
registered or certified mail, return receipt requested, addressed to its
principal office (Attn: Chief Financial Officer), as to the number of shares of
Common Stock which Optionee desires to purchase pursuant to the options herein
granted, which notice
<PAGE> 2
shall be accompanied by payment (by bank check, certified check or by delivery
of shares of the Grantor's Common Stock having a fair market value equal to the
purchase price) of the option price therefor as specified in Paragraph 2 above.
As soon as practicable thereafter, the Grantor shall cause to be delivered to
the Optionee certificates issued in the Optionee's name evidencing the shares of
Common Stock purchased by the Optionee.
(b) If the aggregate fair market value of all the stock with respect to
which Incentive Stock Options are exercisable for the first time by the Optionee
during any calendar year and all Incentive Stock Option plans of the Grantor,
any predecessor of the Grantor, its parent or subsidiaries, exceeds $100,000.00,
the grant of the Incentive Stock Options hereunder shall not, to the extent of
such excess, be deemed a grant of Incentive Stock Options but will instead be
deemed the grant of Non-Qualified Stock Options under the Plan. For purposes of
this paragraph, the fair market value of the stock with respect to which an
Incentive Stock Option is exercisable shall be the value of such stock at the
time that specific option is granted as provided for in Section 422(c)(7) of the
Code.
(c) Subject to Paragraph 4 below, the Incentive Stock Options granted
hereunder may be exercised by the Optionee as follows: options corresponding to
twenty-five percent (25%) of the shares are exercisable at any time after the
first anniversary date hereof and through the Termination Date; options
corresponding to the next twenty-five percent (25%) of the shares are
exercisable at any time after the second anniversary date hereof and through the
Termination Date; options corresponding to the next twenty-five percent (25%) of
the shares are exercisable at any time after the third anniversary date hereof
and through the Termination Date; and options corresponding to the last
twenty-five percent (25%) are exercisable at any time after the fourth
anniversary date hereof and through the Termination Date.
4. OPTION CONDITIONED ON CONTINUED EMPLOYMENT.
(a) If the employment of the Optionee shall be terminated voluntarily
by the Optionee or for cause, the Incentive Stock Options granted to the
Optionee hereunder shall expire within thirty (30) days after such termination.
If such employment shall terminate otherwise than by reason of death,
disability,
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<PAGE> 3
voluntarily by the Optionee or for cause, such options may be exercised at any
time within three (3) months after such termination, subject to the provisions
of subparagraph (d) of this Paragraph 4. For the purposes of this subparagraph
(a), the retirement of an individual either pursuant to a pension or retirement
plan adopted by the Grantor or at the normal retirement date prescribed from
time to time by the Grantor shall be deemed to be a termination of such
Optionee's employment other than voluntarily the the Optionee or for cause.
(b) If the Optionee dies (i) while employed by the Grantor or a
subsidiary or parent corporation, or (ii) within three (3) months after the
termination of Optionee's employment other than voluntarily by the Optionee or
for cause, such Incentive Stock Options may, subject to the provisions of
subparagraph (d) of this Paragraph 4, be exercised by a legatee or legatees of
such Incentive Stock Options under such individual's last will or by his
personal representatives or distributees at any time within one year after his
death.
(c) If the Optionee becomes disabled within the definition of Section
22(e) of the Code while employed by the Grantor or a subsidiary or parent
corporation, such Incentive Stock Options may, subject to the provisions of
subparagraph (d) of this Paragraph 4, be exercised at any time within one year
after Optionee's termination of employment due to the disability.
(d) Incentive Stock Options may not be exercised pursuant to this
Paragraph 4 except to the extent that the Optionee was entitled to exercise the
options at the time of termination of employment or death pursuant to Paragraph
3, and in any event may not be exercised after the original expiration date of
the options.
5. DIVISIBILITY AND NON-ASSIGNABILITY OF THE OPTIONS.
(a) The Optionee may exercise the Incentive Stock Options herein
granted from time to time during the period of their effectiveness with respect
to any whole number of shares included therein.
(b) The Optionee may not give, grant, sell, exchange, transfer legal
title, pledge, assign or otherwise encumber or dispose of the Incentive Stock
Options herein granted or any
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<PAGE> 4
interest therein, otherwise than by will or the laws of descent and
distribution, and the Incentive Stock Options herein granted, or any of them,
shall be exercisable during the Optionee's lifetime only by the Optionee.
6. STOCK AS INVESTMENT. By accepting the Incentive Stock Options herein
granted, the Optionee agrees for himself, his heirs and legatees that any and
all shares of Common Stock purchased hereunder shall be acquired for investment
purposes only and not for sale or distribution, and upon the issuance of any or
all of the shares of Common Stock issuable under the options granted hereunder,
the Optionee, or his heirs or legatees receiving such shares of Common Stock,
shall deliver to the Grantor a representation in writing, that such shares of
Common Stock are being acquired in good faith for investment purposes only and
not for sale or distribution. Grantor may place a "stop transfer" order with
respect to such shares of Common Stock with its transfer agent and place an
appropriate restrictive legend on the stock certificate evidencing such shares
of Common Stock.
7. RESTRICTION ON ISSUANCE OF SHARES. The Grantor shall not be required
to issue or deliver any certificate for shares of Common Stock purchased upon
the exercise of any Incentive Stock Options granted hereunder unless (a) the
issuance of such shares of Common Stock has been registered with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, or counsel
to the Grantor shall have given an opinion that such registration is not
required; (b) approval, to the extent required, shall have been obtained from
any state regulatory body having jurisdiction thereof; and (c) permission for
the listing of such shares of Common Stock, if required, shall have been given
by any national securities exchange on which the shares of Common Stock of the
Grantor are at the time of issuance listed.
8. NOTIFICATION OF TRANSFER FOR TAX PURPOSES. In the event that the
Optionee disposes (whether by sale, exchange, gift or any other transfer) of any
shares of Common Stock acquired pursuant to the exercise of the Incentive Stock
Options granted hereunder, either within two years after the effective date of
the grant of the Incentive Stock Options to the Optionee hereunder or within one
year of the purchase of the shares of Common Stock by the Optionee upon the
exercise of the Incentive Stock Options, the Optionee will
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<PAGE> 5
notify the Grantor in writing, within thirty days after such disposition.
9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
(a) In the event of changes in the outstanding Common Stock of the
Grantor by reason of stock dividends, stock splits, recapitalizations, mergers,
consolidations, combinations, exchanges of shares, reorganizations or
liquidations, the number of shares of Common Stock as to which the options may
be exercised shall be correspondingly adjusted by the Grantor, and the Purchase
Price shall be adjusted so that the product of the Purchase Price immediately
after such event multiplied by the number of options subject to this Agreement
immediately after such event shall be equal to the product of the Purchase Price
multiplied by the number of shares subject to this Agreement immediately prior
to the occurrence of such event. No adjustment shall be made with respect to
stock dividends or splits which do not exceed 5% in any fiscal year, cash
dividends or the issuance to shareholders of the Grantor of rights to subscribe
for additional shares of Common Stock or other securities. Anything to the
contrary contained herein notwithstanding, the Board of Directors of the Grantor
shall have the discretionary power to take any action necessary or appropriate
to prevent these options from being disqualified as "Incentive Stock Options"
under the United States Income Tax laws then in effect.
(b) Any adjustment in the number of shares of Common Stock shall apply
proportionately to only the unexercised portion of the Incentive Stock Options
granted hereunder. If fractions of a share of Common Stock would result from any
such adjustment, the adjustment shall be revised to the next higher whole number
of shares of Common Stock so long as such increase does not result in the holder
of the options being deemed to own more than 5% of the total combined voting
power or value of all classes of shares of capital stock of the Grantor or
subsidiaries.
10. NO RIGHTS IN OPTION STOCK. Optionee shall have no rights as a
shareholder in respect of shares of Common Stock as to which the options granted
hereunder shall not have been exercised and payment made as herein provided.
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<PAGE> 6
11. EFFECT UPON EMPLOYMENT. This Agreement does not give the Optionee
any right to continued employment by the Grantor.
12. BINDING EFFECT. Except as herein otherwise expressly provided, this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their legal representatives and assigns.
13. AGREEMENT SUBJECT TO PLAN. Notwithstanding anything contained
herein to the contrary, this Agreement is subject to, and shall be construed in
accordance with, the terms of the Grantor's 1990 Employee Stock Option Plan, and
in the event of any inconsistency between the terms hereof and the terms of such
Plan, the terms of the Plan shall govern.
14. MISCELLANEOUS. This Agreement shall be construed under the laws of
the State of New York, without application to the principles of conflicts of
law. Headings have been included herein for convenience of reference only, and
shall not be deemed a part of this Agreement.
PAXAR CORPORATION
By:_____________________________________
ACCEPTED AND AGREED TO:
________________________________________
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<PAGE> 1
EXHIBIT 5.1
SNOW BECKER KRAUSS P.C.
605 THIRD AVENUE
NEW YORK, NY 10158
October 28, 1997
PAXAR Corporation
105 Corporate Park Drive
White Plains, NY 10604
Re: Registration Statement on Form S-8 Relating to
5,000,000 Shares of Common Stock, Par Value $.10 Per
Share, of PAXAR Corporation Issuable Under Amended
and Restated 1997 Incentive Stock Option Plan
Gentlemen:
We are counsel to PAXAR Corporation, a New York corporation (the
"Company"), in connection with the filing by the Company with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), of a registration statement on Form S-8 (the "Registration
Statement") relating to 5,000,000 shares (the "Shares") of the Company's common
stock, par value $.10 per share (the "Common Stock"), issuable upon the
exercise of options granted, as well as stock options to be granted, pursuant to
the Company's Amended and Restated 1997 Incentive Stock Option Plan (the
"Plan").
We have examined and are familiar with originals or copies, certified
or otherwise identified to our satisfaction, of the Certificate of Incorporation
and By-Laws of the Company, as each is currently in effect, the Registration
Statement, the Plan, resolutions of the Board of Directors of the Company
relating to the adoption of and amendments to the Plan and the proposed
registration and issuance of the Shares and such other corporate documents and
records and other certificates, and we have made such investigations of law as
we have deemed necessary or appropriate in order to render the opinions
hereinafter set forth.
<PAGE> 2
PAXAR Corporation
October 28, 1997
Page 2
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to any facts material
to the opinions expressed herein which were not independently established or
verified, we have relied upon statements and representations of officers and
other representatives of the Company and others.
Based upon and subject to the foregoing, we are of the opinion that the
Shares to be issued upon exercise of any options duly granted pursuant to the
terms of the Plan have been duly and validly authorized and, when the Shares
have been paid for in accordance with the terms of the Plan and certificates
therefore have been duly executed and delivered, such Shares will be duly and
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference in the Registration Statement to
this firm under the heading "Interests of Named Experts and Counsel." In giving
this consent, we do not hereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act, or the rules
and regulations of the Securities and Exchange Commission thereunder.
Jack Becker, a member of this firm and a director of the Company,
beneficially owns, directly and indirectly, an aggregate of 183,219 shares of
Common Stock, and certain other members of Snow Becker Krauss P.C. also
beneficially own shares of Common Stock.
Very truly yours,
/s/ Snow Becker Krauss P.C.
SNOW BECKER KRAUSS P.C.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
February 10, 1997, included in PAXAR Corporation's Form 10-K for the year ended
December 31, 1996, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Stamford, Connecticut
October 28, 1997
