SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED
FAHNESTOCK VINER HOLDINGS INC.
(Exact name of Issuer as Specified in its Charter)
Ontario, Canada 98-0080034
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
P.O. Box 2015, Suite 1110
20 Eglinton Avenue West
Toronto, Ontario, Canada M4R 1K8
(Address, including zip code, of registrant's principal executive office)
FAHNESTOCK VINER HOLDINGS INC.
1996 EQUITY INCENTIVE PLAN
(Full title of the plan)
Elaine K. Roberts
Fahnestock Viner Holdings Inc.
P.O. Box 2015, Suite 1110
20 Eglinton Avenue West
Toronto, Ontario, Canada M4R 1K8
Telephone (416) 322-1515
(Name, address and telephone number, including area code, of agent for service)
Calculation of Registration Fee
Proposed Proposed
maximum maximum
offering aggregate Amount of
Title of Securities Amount to price offering registration
to be Registered(1) be registered per share(1) price fee(1)
Class A non-voting 1,130,000 $17.6875 $19,986,875 $5,276.54
shares
(1) Estimated solely for the purpose of computing the registration fee
pursuant to Rules 457(c) and (h) of the Securities Act of 1933 on
the basis of the average of the high and low prices of the Class A
non-voting shares on May 10, 2000 on The New York Stock
Exchange.
EXPLANATORY NOTE
This Registration Statement relates to additional shares of Class A
non-voting shares (the "Class A Shares") of Fahnestock Viner
Holdings Inc., an Ontario corporation (the "Company"), to be issued
upon exercise of employee stock option agreements granted pursuant
to the Company's 1996 Equity Incentive Plan, Amended and
Restated as at May 15, 2000 (the "Plan"). The contents of
Registration Statement on Form S-8 (Registration No. 333-22485)
and Registration Statement on Form S-8 (Registration No. 333-
53643, which also relates to Class A Shares of the Company that
have been or may be issued under the Plan), are incorporated herein
by reference.
Item 8. Exhibits
All exhibits are filed herewith unless otherwise indicated. For a list
of the exhibits required by this item, see the Exhibit Index
immediately following the signature pages.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Company 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
New York, State of New York, on this 15th day of May, 2000.
FAHNESTOCK VINER HOLDINGS INC.
(Registrant)
By: /s/ E. K. Roberts
E. K. Roberts,
President, Treasurer,
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Elaine K. Roberts, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and
his name, place and stead, in any and all capacities, to sign any or all
amendments or 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
necessary or appropriate to be done with respect to this Registration
Statement or any amendments or supplements hereto in 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 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, as
amended, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
Signature Title Date
/s/ A. G. Lowenthal Chairman of the Board, May 15, 2000
A. G. Lowenthal Chief Executive Officer,
Director
/s/ E. K. Roberts President, Treasurer, May 15, 2000
E. K. Roberts Chief Financial Officer,
Director
/s/A. W. Oughtred Secretary, Director May 15, 2000
A. W. Oughtred
/s/J. L. Bitove Director May 15, 2000
J.L. Bitove
/s/R. Crystal Director May 15, 2000
R. Crystal
/s/K. W. McArthur Director May 15, 2000
K. W. McArthur
/s/B. Winberg Director May 15, 2000
B. Winberg
INDEX TO EXHIBITS
Exhibits designated by an asterisk have been heretofore filed by the
Company pursuant to Section 13 or 15(d) of the Exchange Act and
are hereby incorporated herein by reference to the pertinent prior
filing.
Sequentially
Exhibit No. Description of Exhibit Numbered Page
4(a) Articles of Incorporation, as *
amended, of Fahnestock Viner
Holdings Inc. (previously filed
as an exhibit to Form 20-F for
fiscal years ended December 31,
1986 and 1988).
4(b) By-Laws, as amended (previously *
filed as an exhibit to Form 20-F
for the fiscal year ended
December 31, 1987)
5 Opinion of Borden Ladner Gervais LLP
regarding the legality of any
original issuance of common
stock being registered.
10(a) Fahnestock Viner Holdings Inc.
1996 Equity Incentive Plan , Amended
and Restated as at May 17, 1999 together
with Amendment No. 1 dated May 15, 2000
23(a) Consent of PricewaterhouseCoopers LLP
23(b) Borden Ladner Gervais LLP
(included in Exhibit 5)
24 Power of Attorney (included
on the signature pages of
the registration statement)
EXHIBITS 5 and 23(b)
OPINION OF COUNSEL
CONSENT OF COUNSEL
[Letterhead of Borden Ladner Gervais LLP)
May 15, 2000
Securities and Exchange Commission
450 Fifth Street N. W.
Judiciary Plaza
Washington, D. C. 20549
U. S. A.
Dear Sirs:
Re: Fahnestock Viner Holdings Inc.
Registration Statement on Form S-8
We have acted as Ontario counsel to Fahnestock Viner Holdings
Inc., an Ontario corporation (the "Corporation"), in connection with
the preparation and filing with the Securities and Exchange
Commission of a Registration Statement on Form S-8 dated May 15,
2000, registering an aggregate of 1,130,000 Class A non-voting
shares (the "Class A Shares") of the Corporation reserved for
issuance under the Corporation's 1996 Equity Incentive Plan (the
"Plan"), subject to compliance with applicable United States and
Ontario securities laws and the requirements of The Toronto Stock
Exchange.
We are qualified to practice in various Provinces of Canada
including the Province of Ontario. We have made no investigation of
the laws of any jurisdiction other than, and the opinions hereinafter
expressed are confined to the laws of Ontario and the laws of Canada
applicable to Ontario.
We have examined such corporate records of the Corporation and
other documents as we have deemed necessary and appropriate
under the circumstances to furnish the following opinions:
1. The Corporation is a corporation duly continued and
validly existing under the laws of the Province of Ontario.
2. When the 1,130,000 Class A Shares have been duly
issued and when the Corporation has received the issue
price for the 1,130,000 Class A Shares in the manner
contemplated by the Plan and the related option
agreements, the Class A Shares will be duly issued as
fully paid and non-assessable shares.
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement and all amendments thereto and to the
reference to our name under the heading "Interests of Named Experts
and Counsel" in the Registration Statement.
Yours very truly,
/s/ Borden Ladner Gervais LL
EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of Fahnestock Viner Holdings Inc. (the
"Company") of our report dated February 29, 2000 relating to the
financial statements which appear in the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1999.
/s/ PricewaterhouseCoopers LLP
New York New York
May 15, 200
EXHIBIT 23(b)
THE CONSENT OF BORDEN LADNER GERVAIS LLP IS
INCLUDED IN EXHIBIT 5 CONTAINED HEREIN.
EXHIBIT 10(a)
FAHNESTOCK VINER HOLDINGS INC.
1996 EQUITY INCENTIVE PLAN AMENDED AND RESTATED AS AT MAY 17, 1999
FAHNESTOCK VINER HOLDINGS INC.
1996 Equity Incentive Plan
Amended and Restated as at May 17, 1999
Table of Contents
Section Page
1. Purpose 1
2. Definitions 1
3. Shares Subject to the Plan 2
4. Grant of Awards and Award Agreements 4
5. Duration of the Plan 5
6. Terms and Conditions of Incentive Stock Options 5
7. Terms and Conditions of Nonqualified Options 6
8. Automatic Grant of Options to Directors of the Company
Who are not Employees of the Company. 6
9. Provisions Relating to Options 7
10. Other Stock Awards 9
11. Certificates for Awards of Class A Shares 9
12. Beneficiary 10
13. Administration of the Plan 10
14. Amendment or Discontinuance. 12
15. Adjustments in Event of Change in Class A Shares. 12
16. Miscellaneous. 12
17. Effective Date and Stockholder Approval. 15
FAHNESTOCK VINER HOLDINGS INC.
1996 Equity Incentive Plan
Amended and Restated as at May 17, 1999
1. Purpose
The purpose of the Fahnestock Viner Holdings Inc. 1996 Equity
Incentive Plan (the "Plan) is to provide additional compensation
incentives for high levels of performance and
productivity of key employees, officers and directors of the
Participating Companies. The Plan is intended to strengthen the
Participating Companies' existing operations and its ability to
attract and retain outstanding key employees, officers and directors
upon whose judgment, initiative and efforts the continued success,
growth and development of the Participating Companies is
dependent. Such incentive awards may consist of Class A
non-voting shares of the Company, incentive stock options or
nonqualified stock options.
2. Definitions
When used herein, the following terms shall have the following
meanings:
(a) "Award" means an award, in the form of Class A Shares or
Options, granted to any Eligible Employee in accordance with the
provisions of the Plan.
(b) "Award Agreement" means the written agreement or
certificate evidencing each Award granted to an Eligible Employee
under the Plan.
(c) "Beneficiary" means the beneficiary or beneficiaries
designated pursuant to Section 12 to receive the amount, if any,
payable under the Plan upon the death of an Eligible Employee.
(d) "Board" means the Board of Directors of the Company.
(e) "Class A Shares" means the Class A non-voting shares of
the Company.
(f) "Code" means the United States Internal Revenue Code of
1986, as amended.
(g) "Company" means Fahnestock Viner Holdings Inc. and its
successors and assigns.
(h) "Committee" means the Committee appointed by the Board
pursuant to Section 13.
(i) "Effective Date" means April 19, 1996.
(j) "Eligible Employee" means an employee, officer or director
of any Participating Company whose responsibilities and decisions,
in the judgment of the Committee, directly affect the management,
growth, performance or profitability of any Participating Company.
When required by the context, "Eligible Employee" includes an
individual who has been granted an Award but is no longer an
employee of any Participating Company. Except as provided in
Section 8, the directors of the Company who are not employees or
officers of the Company shall not be eligible for Awards
hereunder.
(k) Fair Market Value" means, the closing price of the Class A
Shares as reported by The Toronto Stock Exchange or the New
York Stock Exchange (or if such shares are not listed on The
Toronto Stock Exchange or the New York Stock Exchange,
or only on another national stock exchange or a national quotation
system, as reported or quoted by such exchange or system) on the
date of grant. (Amended effective January 7, 1997.)
(l) "Participating Company" means the Company and any
"subsidiary" within the meaning of Section 424 of the Code.
(m) "Plan" means the Fahnestock Viner Holdings Inc. 1996
Equity Incentive Plan, as the same may be amended, administered
or interpreted from time to time.
(n) "Option" means an option to purchase Class A Shares
subject to the applicable provisions of Sections 6, 7, 8 and 9 and
awarded in accordance with the terms of the Plan and which may
be an incentive stock option under Section 422 of the Code or a
nonqualified stock option.
(o) "Total Disability" means the complete and permanent
inability of an Eligible Employee to perform all of his or her duties
under the terms of his or her employment with any Participating
Company, as determined by the Committee upon the basis of such
evidence, including independent medical reports and data, as the
Committee deems appropriate or necessary.
3. Shares Subject to the Plan
(a) The maximum number of Class A Shares which may be
issued pursuant to Awards granted under the Plan and awards or
options granted under another plan or program of the Company
shall be 2,850,000 shares, except for adjustments as provided in
Section 15 of this Plan. Such shares shall be made available from
authorized and unissued shares or shares held by the Company in
its treasury. (Amended effective May 17, 1999)
(b) The maximum number of Class A Shares which may be
issuable in any one year period under the Plan or under another
Plan or program of the Company to Insiders as a group may not
exceed 10% of the issued Class A Shares and Class B voting
shares of the Company or to any one Insider may not exceed 5% of
the issued Class A Shares and Class B voting shares. For the
purposes hereof "Insider" means:
(i) every director or senior officer of the Company,
(ii) every director or senior officer of a company that is itself an
insider of the Company,
(iii) any person or company who beneficially owns, directly or
indirectly, voting securities of the Company or who exercises
control or direction over voting securities of the Company or a
combination of both carrying more than 10 per cent of the voting
rights attached to all voting securities of the Company for the time
being outstanding other than voting securities held by the person or
company as underwriter in the course of a distribution.
(iv) any company of which a person named in (i), (ii) and (iii)
beneficially owns, directly or indirectly, voting securities carrying
more than 10 per cent of the voting rights attached to all voting
securities of the company for the time being outstanding,
(v) any partner of a person or company named in (i), (ii), (iii)
and (iv), (vi) any trust or estate in which a person or company
named in (i), (ii), (iii) and (iv) has a substantial beneficial interest
or as to which such person or company serves as trustee or in a
similar capacity,
(vii) any relative of a person named in (i), (ii), (iii) and (iv) who
resides in the same home as that person, (viii) any person of the
opposite sex who resides in the same home as a person named in
(i), (ii), (iii) and (iv) and to whom that person is married or with
whom that person is living in a conjugal relationship outside
marriage, or
(ix) any relative of a person mentioned in (viii) who has the
same home as that person;
(c) The maximum number of Class A Shares which may be
issuable at any time to Insiders under Awards granted under the
Plan and awards or options granted under another plan or program
of the Company shall not exceed 10% of the then outstanding
Class A Shares and Class B voting shares of the Company.
(Amended effective July 16, 1996.)
(d) If, for any reason, any Class A Shares awarded or subject to
purchase or issuance under the Plan are not delivered or are
acquired by the Company for reasons including, but not limited to,
forfeiture, termination, expiration or a cancellation of an Award,
such Class A Shares shall be deemed not to have been issued
pursuant to Awards under the Plan.
(e) The Corporation shall, in granting options to purchase
Class A Shares, to any Eligible Employee under the Plan, assure
that the aggregate of the number of Class A Shares issuable under
options held by each Eligible Employee in any 60 month period not
exceed 500,000 Class A Shares (subject to adjustment pursuant to
Section 15). (Amended effective May 17, 1999).
4. Grant of Awards and Award Agreements
(a) Subject to the provisions of the Plan and the requirements
of The Toronto Stock Exchange (and in the case of Awards in the
form of Class A Shares to the prior approval of The Toronto Stock
Exchange), the Committee shall (i) determine and designate from
time to time those Eligible Employees or groups of Eligible
Employees to whom Awards are to be granted; (ii) grant awards to
Eligible Employees; (iii) determine the form or forms of Award to
be granted to any Eligible Employee; (iv) determine the amount or
number of Class A Shares subject to each Award; (v) determine the
terms and conditions (which need not be identical) of each Award;
(vi) determine the price at which Class A Shares may be offered
under each Award, which price may be zero; (vii) interpret,
construe and administer the Plan and any related Award Agreement
and define the terms employed therein; and (viii) make all of the
determinations necessary or advisable with respect to the Plan or
any Award granted thereunder. (Amended effective January 7,
1997.)
(b) Each Award granted under the Plan shall be evidenced by a
written Award Agreement, in a form approved by the Committee.
Such agreement shall be subject to and incorporate the express
terms and conditions, if any, required under the Plan or as required
by the Committee for the form of Award granted and such other
terms and conditions as the Committee may specify.
(c) Subject to the applicable policies and requirements of The
Toronto Stock Exchange, the Committee may permit the voluntary
surrender of all or a portion of any Award granted under the Plan to
be conditioned upon the granting of a new Award, or may require
such voluntary surrender as a condition to a grant of a new Award.
Any such new Award shall be subject to such terms and conditions
as are specified by the Committee at the time the new Award is
granted, determined in accordance with the provisions of the Plan
without regard to the terms of the surrendered Award. (Amended
effective January 7, 1997.)
5. Duration of the Plan
Subject to the provisions of Section 14, the Plan shall remain in
effect until April 19, 2006.
6. Terms and Conditions of Incentive Stock Options
Incentive stock options shall be evidenced by Award Agreements,
which agreements shall be subject to the terms and conditions set
forth in Section 9 of this Plan and shall contain in substance the
following terms and conditions and such other terms and
conditions not inconsistent therewith as the Committee may
approve:
(a) Option Price. Except as hereinafter provided, the option
price per Class A Share underlying each incentive stock option
shall be 100% of the Fair Market Value of a Class A Share at the
time such Option is granted.
(b) Ten Percent Shareholders. The option price per Class A
Share underlying any incentive stock option granted to any
individual who, at the time of the grant, owns shares possessing
more than ten (10) percent of the total combined voting power of
all classes of shares of the Company or any of its subsidiary
corporations shall be 110% of the Fair Market Value of a Class A
Share at the time such Option is granted.
(c) Annual Limit. No incentive stock option may be granted
under this Plan if such grant, together with applicable prior grants
which are incentive stock options within the meaning of Section
422 of the Code, would exceed any maximum established under
the Code for incentive stock options that may be granted to an
individual employee. To the extent such maximum is exceeded,
the Option shall be treated as a nonqualified option.
(d) Medium and Time of Payment. An Option shall be
exercised by giving written notice of exercise to the Company.
Such notice shall specify the number of Class A Shares to be
purchased and shall be accompanied by a certified cheque,
cashier's cheque, money order or bank draft for the full purchase
price therefor. In addition, the employee shall, upon notification of
the amount due and prior to, or concurrently with, the delivery to
the employee of a certificate representing the Class A Shares, pay
promptly any amount necessary to satisfy applicable federal,
provincial, state or local tax requirements with respect to the issue
or transfer of shares.
(e) Withholding. It shall be a condition to the performance of
the Company's obligation to issue or transfer Class A Shares upon
exercise of an Option or Options that the optionee pay, or make
provision satisfactory to the Company for the payment of, any
taxes (other than stock transfer taxes) which the Company is
obligated to collect with respect to the issue or transfer of Class A
Shares upon such exercise.
(f) Exercise. No Option granted which is an incentive stock
option shall be exercisable unless the grantee remains in the
employ of a Participating Company for at least two years from
the date of grant, and until the expiration of such two-year
period, except as provided in Section 9 hereof.
7. Terms and Conditions of Nonqualified Options
Nonqualified options shall be evidenced by Award Agreements
which shall be subject to the terms and conditions set forth in
Section 9 of this Plan and shall contain in substance the terms and
conditions set forth in subparagraphs (d) and (e) of Section 6 of
this Plan and the following terms and such other terms and
conditions not inconsistent therewith as the Committee may
approve. The option price per Class A Share under a nonqualified
option shall be determined by the Committee at the time of the
grant of each Option in accordance with the requirements of any
stock exchange upon which the Class A Shares are listed.
8. Automatic Grant of Options to Directors of the Company
Who are not Employees of the Company
Subject to:
(a) compliance by the Company with all applicable securities
regulatory requirements; and
(b) there being a sufficient number of Class A Shares issuable
under the Plan to accommodate the automatic grant of Options
provided for in this Section 8;
Options to purchase Class A Shares shall be granted to directors of
the Company who are not employees of the Company ("Non-
Employee Directors"), including members of the Committee as
follows:
(i) Commencing on December 31 of the year in which a Non-
Employee Director shall have first been elected as a director of the
Company and on each December 31 thereafter (provided that such
person shall continue to be a Non-Employee Director), each Non-
Employee Director shall be granted automatically an Option
(a "Director's Option") to purchase 5,000 Class A Shares for each
year of service as a director; provided, however, the total number
of Class A Shares subject to Options granted to a Non-Employee
Director with respect to any five-year period shall not exceed
25,000 shares (reduced by the number of shares subject to any
option granted to such Director under another plan or program of
the Company). On the fifth anniversary of the date of each grant of
a Director's Option or a Director's Option under the Company's
1986 Employee Stock Option Plan (collectively, a "Prior Option")
each Non-Employee Director shall be granted automatically a new
Director's Option to purchase the same number of Class A
Shares that were subject to the Prior Option. Each Director's
Option shall be exercisable on a cumulative basis as to 25% of the
Class A Shares covered by each such Director's Option
commencing on the last days of each of the 24th, 36th,
42nd and 48th months after the date of grant and shall expire on
the fifth anniversary of the grant of each Director's Option.
(ii) Each Director's Option shall be exercisable at a price per
share equal to 100% of the Fair Market Value.
(iii) Except as specifically otherwise provided in this Section 8,
all Director's Options shall be subject to the provisions of the Plan
as if the Non-Employee director were an officer or employee of the
Company. (Amended effective May 17, 1999).
9. Provisions Relating to Options
Except as otherwise provided in Section 8 with respect to
Director's Options, all Options granted under this Plan shall be
subject to the following provisions:
(a) Term. An Option shall have such term as is fixed by the
Committee, provided that no Option may be exercised after the
expiration of ten (10) years from the date of grant of such Option,
further provided that no incentive stock option granted to any
individual who, at the time of the grant, owns shares of the
Company possessing more than ten per cent of the total combined
voting power of all classes of shares of the Company or any of its
subsidiary companies may be exercised after the expiration of five
(5) years from the date of grant of such Option.
(b) Exercise. Each Option granted under the Plan shall be
exercisable with respect to such number of Class A Shares and,
subject to the provisions of Section 9 hereof, at such time or times,
including periodic instalments, as may be determined by the
Committee at the time of the grant.
(c) Rights as a Shareholder. A recipient of Options shall have
no rights as a shareholder with respect to any shares issuable or
transferable upon exercise thereof until the date of issuance of a
stock certificate to him for such shares. Except as otherwise
expressly provided in the Plan, no adjustment shall be made
for dividends or other rights for which the record date is prior to
the date such stock certificate is issued.
(d) Non-Assignability of Options. No Option shall be assignable
or transferable by the recipient except by will or by the laws of
descent and distribution. During the lifetime of a recipient,
Options shall be exercisable only by him.
(e) Effect of Termination of Employment, Disability or Death.
Subject to the other provisions of Section 9 hereof, any
unexercised portion of any Option granted under the Plan
automatically shall terminate and have no further force or
effect whatsoever upon the grantee's ceasing to be employed by a
Participating Company, (or by a corporation or subsidiary of such
corporation issuing a new stock option or assuming such stock
option in a transaction to which Section 424 of the Code is
applicable), unless (i) such cessation of employment shall be
because of (a) involuntary termination of employment by the
employer corporation which the board of directors of the employer
corporation in its sole discretion shall determine to be without
cause, or (b) retirement in accordance with and as permitted by the
terms and conditions of a retirement plan adopted by the employer
corporation, in each of which cases the Option shall be exercisable
within a period of three (3) months following the date of such
cessation of employment, (ii) such cessation of employment shall
be because of Total Disability (as determined by the Committee in
its discretion), in which case the Option shall be exercisable within
a period of one (1) year following the date of cessation of
employment by the grantee, his guardian, committee or other
authorized representative, or (iii) such cessation of employment
shall be because of death, in which case an incentive stock option
shall be exercisable within a period of three (3) months, and a non-
qualified stock option shall be exercisable within a period of one
(1) year following the date of death by the estate of the grantee or
by the person or persons to whom the grantee's rights under the
Option shall pass by the grantee's will or the laws of descent and
distribution; provided, however, that in no event may an Option be
exercised after the expiration date thereof. (Amended effective
October 17, 1996.)
(f) Acceleration. Notwithstanding anything to the contrary set
forth in this Plan, but subject to Section 3(b) of this Plan, the Board
of Directors of the Company shall have the power to cause all
Options then outstanding to be deemed to have been amended to
permit the exercise hereof in whole or in part by the holder at
any time or from time to time. To the extent that an acceleration of
the exercisability of an incentive stock option pursuant to this
paragraph causes the aggregate Fair Market Value of Class A
Shares (determined as of the time the Option with respect to such
stock was granted) with respect to which incentive stock options
are exercisable for the first time by an employee during any
calendar year under the Plan (or any other plan of the Company or
a parent or subsidiary thereof providing for the grant of incentive
stock options) to exceed US$100,000, such Options shall be
treated as nonqualified options. (Amended effective
January 7, 1997.)
(g) General Restriction. Each Option granted under the Plan
shall be subject to the requirement that, if at any time the Board of
Directors shall determine, in its discretion, that the listing,
registration, or qualification of the Class A Shares issuable or
transferable upon exercise thereof upon any securities exchange or
under any state, provincial or federal law, or the consent or
approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the granting of
such Option or the issue or transfer of Class A Shares thereunder,
such Option may not be exercised in whole or in part unless
such listing, registration, qualification, consent, or approval shall
have been effected or obtained free of any conditions not
acceptable to the Board of Directors.
10. Other Stock Awards
The Committee may grant other Awards under the Plan which are
denominated in stock units or pursuant to which Class A Shares
may be acquired, including Awards valued using measures other
than market value, if deemed by the Committee in its discretion to
be consistent with the purposes of the Plan and in compliance with
applicable securities laws and the requirements of any stock
exchange on which the Class A Shares are listed. Subject to the
terms of the Plan, the Committee shall determine the form of such
Awards, the number of Class A Shares to be granted or covered
pursuant to such Awards and all other terms and conditions of such
Awards.
11. Certificates for Awards of Class A Shares
(a) Subject to Section 6(d), each Eligible Employee entitled to
receive Class A Shares under the Plan shall be issued a certificate
for such shares. Such certificate shall be registered in the name of
the Eligible Employee, and shall bear an appropriate legend
reciting the terms, conditions and restrictions, if any, applicable to
such shares and shall be subject to appropriate stop-transfer orders.
(b) The Company shall not be required to issue or deliver any
certificates for Class A Shares prior to (i) the listing of such shares
on any stock exchange or quotation system on which the Class A
Shares may then be listed or quoted and (ii) the completion of any
registration, qualification, approval or authorization of such
Class A Shares under any federal, provincial or state law, or any
ruling or regulation or approval or authorization of any
governmental body which the Company shall, in its sole discretion,
determine to be necessary or advisable.
(c) All certificates for Class A Shares delivered under the Plan
shall also be subject to such stop-transfer orders and other
restrictions as the Committee may deem advisable under the rules,
regulations, and other requirements of the Securities and Exchange
Commission, any stock exchange upon which the Class A Shares
are then listed and any applicable federal, provincial or state
securities laws, and the Committee may cause a legend or legends
to be placed on any such certificates to make appropriate reference
to such restrictions. The foregoing provisions of this Section 11(c)
shall not be effective if and to the extent that the Class A Shares
delivered under the Plan are covered by an effective and current
registration statement under the Securities Act of 1933, or if and so
long as the Committee determines that application of such
provisions is no longer required or desirable. In making such
determination, the Committee may rely upon an opinion of counsel
for the Company.
(d) Each Eligible Employee who receives an award of Class A
Shares shall have all of the rights of a shareholder with respect to
such shares, including the right to vote the shares and receive
dividends and other distributions. No Eligible Employee
shall have any right as a shareholder with respect to any shares
subject to such Award prior to the date of issuance to him or her of
a certificate or certificates for such shares.
12. Beneficiary
(a) Each Eligible Employee shall file with the Committee a
written designation of one or more persons as the Beneficiary who
shall be entitled to receive the Award, if any, payable under the
Plan upon his or her death. An Eligible Employee may from time
to time revoke or change his or her Beneficiary designation without
the consent of any prior Beneficiary by filing a new designation
with the Committee. The last such designation, or change or
revocation thereof, shall be controlling; provided, however, that no
designation, or change or revocation thereof, shall be effective
unless received by the Committee prior to the Eligible Employee's
death, and in no event shall it be effective as of a date prior to such
receipt.
(b) If no such Beneficiary designation is in effect at the time of
an Eligible Employee's death, or if no designated Beneficiary
survives the Eligible Employee or if such designation conflicts
with law, the Eligible Employee's estate shall be entitled to
receive the Award, if any, payable under the Plan upon his or her
death. If the Committee is in doubt as to the right of any person to
receive such Award, the Company may retain such Award, without
liability for any interest thereon, or the Company may pay such
Award into any court of appropriate jurisdiction and such
payment shall be a complete discharge of the liability of the
Company therefor.
13. Administration of the Plan
(a) The Plan shall be administered by the Committee, which
shall consist of two or more persons, as appointed by the Board
and serving at the Board's pleasure. Each member of the
Committee shall be a member of the Board and a "disinterested
person" within the meaning of Rule 16b-3(c)(2) under the
Securities Exchange Act of 1934 or any successor rule or
regulation. Except as provided in Section 8, no member of the
Committee shall have been granted Options under the Plan or
have been granted or awarded an Option or other right with respect
to equity securities of the Company pursuant to any other plan of
the Company at the time within the one-year period immediately
preceding the member's appointment to the Committee.
(b) All decisions, determinations or actions of the Committee
made or taken pursuant to grants of authority under the Plan shall
be made or taken in the sole discretion of the Committee and shall
be final, conclusive and binding on all persons for all purposes.
(c) The Committee shall have full power, discretion and
authority to interpret, construe and administer the Plan and nay part
thereof and any related Award agreement, and its interpretations
and constructions thereof and actions taken thereunder shall be,
except as otherwise determined by the Board, final, conclusive and
binding on all persons for all purposes.
(d) The Committee shall have full power, discretion and authority
to prescribe and rescind rules, regulations and policies for the
administration of the Plan.
(e) The Committee's decisions and determinations under the
Plan and with respect to any Award granted thereunder need not be
uniform and may be made selectively among Eligible Employees,
whether or not such Eligible Employees are similarly situated.
(f) The Committee shall keep minutes of its actions under the
Plan. The act of a majority of the members present at a meeting
duly called and held shall be the act of the Committee. Any
decision or determination reduced to writing and signed
by all members of the Committee shall be fully as effective as if
made by unanimous vote at a meeting duly called and held.
(g) The Committee may employ such legal counsel, including
without limitation independent legal counsel and counsel regularly
employed by the Company, consultants and agents as the
Committee may deem appropriate for the administration of the
Plan and may rely upon any opinion received from any such
counsel or consultant and any computations received from any
such consultant or agent. All expenses incurred by the Committee
in interpreting and administering the Plan, including without
limitation, meeting fees and expenses and professional
fees, shall be paid by the Company.
(h) No member or former member of the Committee or the
Board shall be liable for any action or determination made in good
faith with respect to the Plan or any Award granted or not granted
under it. Each member of former member of the Committee or the
Board shall be indemnified and held harmless by the Company
against all cost or expense (including counsel fees and expenses) or
liability (including any sum paid in settlement of a claim with the
approval of the Board) arising out of an act or omission to act in
connection with the Plan unless arising out of such member's or
former member's own fraud or bad faith. Such indemnification
shall be in addition to any rights of indemnification or insurance
the members or former members may have as directors or under
the by-laws of the Company or otherwise.
14. Amendment or Discontinuance
The Board may, at any time, amend or terminate the Plan, except
that no amendment shall increase the maximum number of shares
which may be optioned (except in accordance wit the provisions of
Section 15 hereof), change the class of employees eligible
to receive Options, decrease the option price, or extend the terms
of the Plan without the prior approval of a simple majority of the
votes cast by the holders of the Class B voting shares of the
Company at a meeting duly called for such purpose. All such
amendments to the Plan, whether or not requiring shareholder
approval, shall be subject to the approval, if applicable, or any
stock exchange upon which the shares of the Company are
listed. The Plan may also be amended by the Committee, provided
that all such amendments shall be reported to the Board. No
amendment shall become effective unless approved by affirmative
vote of the Company's shareholders if such approval is necessary or
desirable for the continued validity of the Plan or if the failure to
obtain such approval would adversely affect the compliance of the
Plan with Rule 16b-3 or any successor rule under the Securities
Exchange Act of 1934, or any other rule or regulation. No
amendment or termination shall, when taken as a whole, adversely
and materially affect the rights of any recipient of a previously
granted award without his or her consent unless the amendment or
termination is necessary of desirable for the continued validity
of the Plan or its compliance with Rule 16b-3 or any successor rule
under the Securities Exchange Act of 1934 or any other rule or
regulation.
15. Adjustments in Event of Change in Class A Shares
In the even of any recapitalization, reclassification, stock dividend,
split-up or consolidation of Class A Shares, amalgamation, merger
or consolidation of the Company, or other event affecting the Class
A Shares as determined by the Committee, the Committee shall
make appropriate adjustments in the number and kind of securities
which may be issued pursuant to Awards under the Plan, including
Awards then outstanding, and the Committee may make such
adjustments to the terms, conditions or restrictions on securities or
Awards as the Committee deems equitable.
16. Miscellaneous
(a) Nothing in this Plan or any Award granted hereunder shall
confer upon any employee any right to continue in the employee of
any Participating Company or interfere in any way with the right of
any Participating Company to terminate his or her employment at
any time.
(b) No Award payable under the Plan shall be deemed salary or
compensation for the purpose of computing benefits under any
employee benefit plan or other arrangement of any Participating
Company for the benefit of its employees unless the Company shall
determine otherwise.
(c) No Eligible Employee shall have any claim to an Award
until it is actually granted under the Plan. To the extent that any
person acquires a right to receive payments from the Company
under this Plan, such right shall be no greater than the right of an
unsecured general creditor of the Company. All payments of
Awards provided for under the Plan shall be paid by the Company
either by issuing Class A Shares or by delivering cash from the
general funds of the Company or other property of the Company;
provided, however, that such payments shall be reduced by the
amount of any payments made to the participant or his or her
dependents, beneficiaries or estate from any trust or special or
separate fund established in connection with this Plan. The
Company shall not be required to establish a special or separate
fund or other segregation of assets to assure any payments, and, if
the Company shall make any investments to aid it in meeting its
obligations hereunder the participant shall have no right, title or
interest whatever in or to any such investments except as may
otherwise be expressly provided in a separate written instrument
relating to such investments.
(d) At the time of any exercise of any Option under the Plan,
the Committee may, if it shall deem it necessary or desirable for
any reason connected with any applicable law or regulation of any
governmental authority relating to the regulation of securities,
require as a condition to the issuance of any Class A Shares to the
optionee that the optionee represent in writing to the Company that
it is his then intention to acquire the shares for investment and not
with a view to the distribution thereof. In the event such a
representation is required and made, no shares shall be issued to
the optionee unless and until the Company is satisfied with the
correctness of such representation. Certificates for shares as to
which such representation is required and made may, in the
discretion of the Committee, and subject to any applicable
securities laws or the requirements of any stock exchange upon
which the Class A Shares are listed, be endorsed with a legend
noting such representations.
(e) Any optionee who disposes of any Class A Shares acquired
through the exercise of an option granted under the Plan either (a)
within two years from the date of the grant of the Option pursuant
to which the subject shares were acquired or (b) within one year
after the issue of such shares of the optionee, shall promptly notify
the Company of such disposition and the amount of consideration
realized upon such disposition.
(f) If the Committee shall find that any person to whom any
Award, or portion thereof, is payable under the Plan is unable to
care for his or her affairs because of illness or accident, or is a
minor, then any payment due him or her (unless a prior claim
therefor has been made by a duly appointed legal representative)
may, if the Committee so directs the Company, be paid to his or
her spouse, a child, a relative, an institution maintaining or having
custody of such person, or any other person deemed by the
Committee to be a proper recipient on behalf of such person
otherwise entitled to payment. Any such payment shall be a
complete discharge of the liability of the Company therefor.
(g) The right of any Eligible Employee or other person to any
Award under the Plan may not be assigned, transferred, pledged or
encumbered, either voluntarily or by operation of law, except as
provided in Section 9 with respect to the designation of a
Beneficiary or as may otherwise be required by law. If, by reason
of any attempted assignment, transfer, pledge or encumbrance or
any bankruptcy or other event happening at any time, any amount
payable under the Plan would be made subject to the debts or
liabilities of the Eligible Employee or his or her Beneficiary or
would otherwise devolve upon anyone else and not be enjoyed by
the Eligible Employee or his or her Beneficiary, then the
committee may terminate such person's interest in any such
payment and direct that the same be held and applied to or for the
benefit of the Eligible Employee, his or her Beneficiary or any
other persons deemed to be the natural objects of his or her
bounty, taking into account the expressed wishes of the Eligible
Employee, (or, in the event of his or her death, those of his or her
Beneficiary) in such manner as the Committee may deem proper.
(h) Copies of the Plan and all amendments, administrative rules
and procedures and interpretations shall be made available for
review to all Eligible Employees at all reasonable times at the
Company's administrative offices.
(i) The Committee may cause to be made, as a condition
precedent to the payment of any Award, or otherwise, appropriate
arrangements with the Eligible Employee or his or her Beneficiary,
for the withholding of any federal, provincial, state or local taxes.
The Committee may in its discretion permit the payment of such
withholding taxes by authorizing the Company to withhold Class A
Shares to be issued, or by delivering to the Company shares of
Class A Shares owned by the Eligible Employee or Beneficiary, in
either case having a Fair Market Value equal to the amount of such
taxes.
(j) The Plan and the grant of Awards shall be subject to all
applicable federal, state and provincial laws, rules and regulations
and to such approvals by any governmental or regulatory agency as
may be required.
(k) All elections, designations, requests, notices, instructions
and other communications from an Eligible Employee, Beneficiary
or other person to the Committee, required or permitted under the
Plan, shall be in such form as is prescribed from time to time by
the Committee and shall be mailed by first class mail or delivered
to such location as shall be specified by the Committee.
(l) The terms of the Plan shall be binding upon the Company
and its successors and assigns.
(m) Absence on leave approved by a duly constituted officer of
the Company shall not be considered interruption or termination of
employment for any purposes of the Plan; provided, however, that
no Award may be granted to an employee while he or she is absent
on leave.
(n) Captions preceding the sections hereof are inserted solely
as a matter of convenience and in no way define or limit the scope
or intent of any provisions hereof.
17 Effective Date and Stockholder Approval
The Effective Date of the Plan shall be April 19, 1996, subject to
approval by the holders of a majority of Class B voting Shares
present in person or by proxy at the Company's 1996 Annual
Meeting of Shareholders. No Awards will be granted under the
Plan after the expiration of ten years from the Effective Date.
THIS DOCUMENT CONSTITUTES PART OF THE PROSPECTUS COVERING SECURITIES
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OF THE UNITED
STATES.
December 16/99
AMENDMENT NO.1
(MAY 15, 2000)
TO
FAHNESTOCK VINER HOLDINGS INC.
1996 EQUITY INCENTIVE PLAN
AMENDED AND RESTATED
AS AT MAY 17, 1999
Effective May 15, 2000, the Fahnestock Viner Holdings Inc. 1996 Equity
Incentive Plan (Amended and Restated as at May 17, 1999) be further
amended by increasing the number of Class A Shares which may be
issued pursuant to the Awards granted under the Plan and awards or
options granted under other Plans of the Company from 2,850,000
Class A Shares to 3,230,000 Class A Shares.
____________________________________________________________
The foregoing amendment was approved by the Board of Directors of the
Corporation on February 29, 2000 and confirmed by holders of Class B
voting shares of the Corporation at the Annual and Special Meeting of
Shareholders of the Corporation held on May 15, 2000.
/s/ A.W. Oughtred
A. Winn Oughtred, Secretary
Fahnestock Viner Holdings Inc.
