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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. __)
Atalanta/Sosnoff Capital Corporation
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
046499109
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(CUSIP Number)
Craig B. Steinberg Stephen C. Kahr, Esq.
c/o Atalanta/Sosnoff Capital Corporation Greenberg & Kahr
101 Park Avenue 230 Park Avenue, 26th Floor
New York, NY 10178 New York, NY 10169
(212) 867-5000 (212) 297-0130
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
September 30, 1997
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box: / /
Check the following box if a fee is being paid with the statement: / /
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CUSIP No. 046499109 SCHEDULE 13D Page 2 of 9 Pages
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Craig B. Steinberg
2. Check the Appropriate Box if a Member of a Group (a) / /
(b) /x/
3. SEC Use Only
4. Source of Funds
PF
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) / /
6. Citizenship or Place of Organization
United States of America
7. Sole Voting Power
640,800
Number of Shares
8. Shared Voting Power
Beneficially
Owned by Each
9. Sole Dispositive Power
Reporting Person
40,800
With
10. Shared Dispositive Power
600,000
11. Aggregate Amount Beneficially Owned by Each Reporting Person
640,800
12. Check Box if the Aggregate Amount in Row 11
Excludes Certain Shares / /
13. Percent of Class Represented by Amount in Row 11
6.7%
14. Type of Reporting Person
IN
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Item 1. Security and Issuer
This Statement on Schedule 13D of Craig B. Steinberg (the "Statement")
relates to the shares (the "Shares") of the Common Stock, par value $0.01 per
share (the "Common Stock"), of Atalanta/Sosnoff Capital Corporation (the
"Company"), 101 Park Avenue, New York, NY 10178.
Item 2. Identity and Background
(a) The name of the reporting person is Craig B. Steinberg.
(b) The business address of the reporting person is
c/o Atalanta/Sosnoff Capital Corporation, 101 Park Avenue,
New York, NY 10178.
(c) The reporting person is the President of the Company and its
subsidiaries. The address of the Company and its subsidiaries
is 101 Park Avenue, New York, NY 10178.
(d) The reporting person has not been convicted in a criminal
proceeding during the last five years.
(e) The reporting person during the last five years was not, nor
is he a party to a judicial or administrative proceeding
resulting in a judgement, decree or final order enjoining
future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any
violation with respect thereto.
(f) The reporting person is a citizen of the United States of
America.
Page 3 of 9 Pages
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Item 3. Source and Amount of Funds or Other Consideration.
Mr. Steinberg paid $6,000 of his personal funds for the purchase of
600,000 Shares granted as a Restricted Stock Award pursuant to a Restricted
Stock Award Agreement, dated as of September 17,1997, between the Company and
Mr. Steinberg (the "Award Agreement"). The Award became effective on September
17, 1997 upon Mr. Steinberg's execution of the Award Agreement on September 30,
1997, under the Company's 1996 Long Term Incentive Plan (the "Plan"). A copy of
the Plan is attached hereto as Exhibit A and incorporated herein by reference.
For a complete description of the transaction and the terms of the Plan,
reference is made to Exhibit A and to the Company's proxy statement for the 1996
Annual Meeting of Stockholders under the heading "Approval of 1996 Long Term
Incentive Plan" (at pages 12-14), and to the Award Agreement, which pages and
agreement are attached hereto as Exhibits B and C, respectively and
incorporated herein by reference.
Item 4. Purpose of Transaction.
Reference is made to Exhibit B for a discussion of the Company's
reasons for adopting the Plan. Mr. Steinberg acquired the Shares under the Award
Agreement for investment in order to become a significant equity participant in
the Company.
(a) Mr. Steinberg may acquire additional securities of the
Company from time to time and may, subject to applicable laws and the
Page 4 of 9 Pages
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agreements described under Items 5 and 6 hereof, dispose of securities
of the Company from time to time.
(b)-(j) Mr. Steinberg has no current plans or proposals which
relate to or would result in any of the events, actions or conditions
enumerated in paragraphs (b) through (j) of the instructions to this
Item 4, but reserves the right to participate, engage in or otherwise
act in a manner which would relate to or result in any of such events,
actions or conditions.
Reference is made to the Company's Current Report on Form 8-K as filed
with the Securities and Exchange Commission on August 18,1997 with respect to
the abandonment on August 15,1997 of an effort by Martin T. Sosnoff to take the
Company private, which Report is hereby incorporated herein by reference.
Item 5. Interest in Securities of the Issuer.
(a) Mr. Steinberg beneficially owns an aggregate of 640,800
Shares, constituting 6.7% of the outstanding Common Stock.* The Shares
beneficially owned by Mr. Steinberg include 40,000 Shares issuable upon
the exercise of currently exercisable options of a total of options to
purchase 100,000 Shares (the
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* Based on an aggregate of 8,812,401 shares of Common Stock outstanding
as reported in the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1997, plus 775,000 Shares issued under the Plan,
including the 600,000 Shares issued to Mr. Steinberg, subsequent to such date.
Page 5 of 9 Pages
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"Options") granted to Mr. Steinberg on December 7, 1995 pursuant to the
Company's 1987 Stock Option Plan (such Plan is referred to herein as the "Stock
Option Plan"). The Options are exercisable at $9.50 per Share.
The Stock Option Plan provides that each option granted to Mr.
Steinberg thereunder becomes exercisable with respect to 20% of the total number
of shares of Common Stock subject to such option six months after the date of
its grant and with respect to an additional 20% at the end of each twelve-month
period thereafter, during the succeeding four-year period. Reference is made to
the Stock Option Plan as filed with the Securities and Exchange Commission as an
Exhibit to its Registration Statement on Form S-8 on March 31,1987 (Registration
No. 33-13063), which is hereby incorporated herein by reference for the other
terms and conditions of the Stock Option Plan.
(b) Mr. Steinberg has sole voting power with respect to 640,800 Shares
(assuming in each case exercise of the currently exercisable options), and sole
dispositive power with respect to 40,800 Shares. In accordance with the Plan and
the Award Agreement, the 600,000 Shares purchased by Mr. Steinberg pursuant to
the Plan and the Award Agreement are subject to repurchase by the Company in the
event of the termination of Mr. Steinberg's employment if such termination is
voluntary, as defined therein. The Company's right to repurchase the Shares in
the event of such termination of Mr. Steinberg's employment shall lapse in
accordance with the following schedule:
Page 6 of 9 Pages
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If termination occurs Percent
prior to Repurchasable
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September 17, 1998 100%
September 17, 1999 75%
September 17, 2000 50%
September 17, 2001 25%
Under the Agreement, the Company shall upon request extend loans to Mr.
Steinberg for the purpose of discharging his personal tax liability incurred by
reason of the Restricted Stock awarded under the Agreement. In the event Mr.
Steinberg requests such loan, he will be required to pledge Shares of a fair
market value equivalent to the loan to secure his obligation to repay such
indebtedness. Reference is hereby made to the Award Agreement and its exhibits,
which agreement and exhibits are attached hereto as Exhibit C and incorporated
herein by reference for the terms and provisions of such loan and pledge.
During the period in which Shares are subject to repurchase by the
Company or are pledged to the Company, Mr. Steinberg shall not have dispositive
power over the Shares, except as provided in the Agreement and its exhibits.
Other than as set forth herein, there is no person or entity with dispositive
power with respect to the Shares owned by Mr. Steinberg.
The foregoing description of the Plan and the Award Agreement are
qualified in their entirety by reference to the term and conditions thereof as
set forth in the annexed exhibits hereto.
Page 7 of 9 Pages
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(c) Upon execution of the Agreement on September 30,1997, the
Restricted Stock Award of 600,000 Shares to Mr. Steinberg became effective as of
September 17, 1997. His purchase price therefor was $6,000 ($.01 per Share).
(d) Inapplicable
(e) Inapplicable
Item 6. Contracts. Arangements, Understandings of Relationships with Respect to
Securities of the Issuer.
Inapplicable.
Item 7. Material to be Filed as Exhibits.
Exhibit A. 1996 Long Term Incentive Plan
Exhibit B. "Approval of 1996 Long Term Incentive Plan" (pages 12-14 of
the Proxy Statement for the 1996 Annual Meeting of Stockholders of
Atalanta/Sosnoff Capital Corporation.)
Exhibit C. Restricted Stock Award Agreement.
Page 8 of 9 Pages
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth herein is true, complete and
correct.
/s/ Craig B. Steinberg
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Craig B. Steinberg
Dated: October 7, 1997
Page 9 of 9 Pages
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EXHIBIT A
ATALANTA/SOSNOFF CAPITAL CORPORATION
(and Subsidiaries)
1996 LONG TERM
INCENTIVE PLAN
I. Purpose
The purpose of the Atalanta/Sosnoff 1996 Long-Term Incentive Plan (the
"Plan") is to attract and retain and provide incentives to employees, officers,
and directors of the Corporation and its subsidiaries, and to thereby increase
stockholder value. The Plan generally provides for the granting of stock,
restricted stock, stock options, stock appreciation rights, or other stock based
awards, or any combination of the foregoing to the eligible participants.
II. Definitions
(a) "Award" includes, without limitation, stock options (including
incentive stock options within the meaning of Section 422(b) of the Code) with
or without stock appreciation rights, dividend equivalent rights, stock awards,
restricted stock awards, or other awards that are valued in whole or in part by
reference to, or are otherwise based on, the Common Stock ("other Common
Stock-based Awards") , all on a stand alone, combination or tandem basis, as
described in or granted under this Plan.
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(b) "Award Agreement" means a written agreement setting forth the terms
and conditions of each Award made under this Plan.
(c) "Board" means the Board of Directors of the Corporation.
(d) "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
(e) "Committee" means the Compensation and Stock Option Committee of the
Board or such other committee of the Board as may be designated by the Board
from time to time to administer this Plan, the members of which shall consist
solely of members of the Board who are "disinterested persons" within the
meaning of Rule 16b- 3 of the Exchange Act.
(f) "Common Stock" means the Common Stock, par value $.01 per share, of
the Corporation.
(g) "Corporation" means Atalanta/Sosnoff Capital Corporation, a Delaware
corporation.
(h) 'Employee" means an employee of the Corporation or a Subsidiary.
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(i) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(j) "Fair Market Value" means the closing sale price for the Common
Stock as quoted on The New York Stock Exchange, Inc. on the relevant valuation
date or, if there were no sales on the valuation date, on the next preceding
date on which such closing sales price was recorded; provided, however, that the
Committee may specify some other definition of Fair Market Value with respect to
any particular Award.
(k) "Participant" means an Employee, officer, or director who has been
granted an Award under the Plan.
(l) "Plan Year" means a twelve-month period beginning with January 1 of
each year.
(m) "Subsidiary" means any corporation or other entity, whether
domestic or foreign, in which the Corporation has or obtains, directly or
indirectly, a proprietary interest of more than 50% by reason of stock ownership
or otherwise.
III. Eligibility
Any Employee, officer or director of the Corporation or Subsidiary
selected by. the Committee is eligible to receive an Award.
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IV. Plan Administration
(a) Except as otherwise determined by the Board, the Plan shall be
administered by the Committee. The Committee shall periodically make
determinations with respect to the participation of Employees, officers and
directors in the Plan and, except as otherwise required by law or this Plan, the
grant terms of Awards, including vesting schedules, price, restriction or option
period, dividend rights, post-retirement and termination rights, payment
alternatives such as cash, stock, contingent awards or other means of payment,
consistent with the purposes of this Plan, and such other terms and conditions
as the Committee deems appropriate which shall be contained in an Award
Agreement with respect to a Participant.
(b) The Committee shall have authority to interpret and construe the
provisions of the Plan and any Award Agreement and make determinations pursuant
to any Plan provision or Award Agreement provision which shall be final and
binding on all persons. No member of the Committee shall be liable for any
action or determination made in good faith, and the members shall be entitled to
indemnification and reimbursement in the manner provided in the Corporation's
Certificate of Incorporation and By-laws, as they may be amended from time to
time.
(c) The Committee shall have the authority at any time to provide for
the conditions and circumstances under which Awards shall be forfeited.
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V. Capital Stock Subject to the Provisions of this Plan
(a) The capital stock subject to the provisions of this Plan shall be
shares of authorized but unissued Common Stock and shares of Common Stock held
as treasury stock. Subject to adjustment in accordance with the provisions of
Section X hereof, and subject to Section V(c) below, the total number of shares
of Common Stock available for grants of Awards shall not exceed 880,000.
(b) Any shares ceasing to be subject to an option because of the
surrender of such option in lieu of exercise shall become again available for
Awards under the Plan. The grant of a restricted stock Award shall be deemed to
be equal to the maximum number of shares which are issued under the Award.
Awards payable only in cash will not reduce the number of shares available for
Awards granted, under the Plan.
(c) There shall be carried forward and be available for Awards under the
Plan, in addition to shares available for grant under paragraph (a) of this
Section V, all of the following: (i) any unused portion of the limit set forth
in paragraph (a) of this Section V; (ii) shares represented by Awards which are
cancelled, forfeited, surrendered, terminated, paid in cash or expire
unexercised; and (iii) the excess amount of variable Awards which become fixed
at less than their maximum limitations.
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VI. Awards Under This Plan
As the Board or Committee may determine, the following types of Awards
and other Common Stock-based Awards may be granted under this Plan on a stand
alone, combination or tandem basis:
(i) Stock Option. A right to buy a specified number of shares of
Common Stock at a fixed exercise price during a specified time, all as the
Committee may determine; provided that the exercise price of any option shall
not be less than 100% of the Fair Market Value of the Common Stock on the date
of grant of the Award.
(ii) Incentive Stock Option. An Award in the form of a stock
option which shall comply with the requirements of Section 422 of the Code or
any successor section as it may be amended from time to time. Subject to
adjustment in accordance with the provisions of Section X, the aggregate number
of shares which may be subject to incentive stock option Awards under this Plan
shall not exceed 880,000 shares, subject to Section V above. To the extent that
Section 422 of the Code requires certain provisions to be set forth in a written
plan, said provisions are incorporated herein by this reference.
(iii) Stock Appreciation Right. A right contained in the grant of
a stock option or incentive stock option to receive the excess of the Fair
Market Value of Advisers Act share of Common Stock on the date the option is
surrendered over the option exercise price contained in the Award Agreement.
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(iv) Restricted Stock. A transfer of Common Stock to a
Participant subject to forfeiture until such restrictions, terms and conditions
as the Committee may determine are fulfilled.
(v) Dividend or Equivalent. A right to receive dividends or their
equivalent in value in Common Stock, cash or in a combination of both with
respect to any new or previously existing Award.
(vi) Stock Award. An unrestricted transfer of ownership of Common
Stock which may only be made to Employees other than Employees who are officers
or directors of the Corporation for purposes of Section 16 of the Exchange Act.
(vii) Other Stock-Based Awards. Other Common Stock based Awards
which are related to or serve a similar function to those Awards set forth in
this Section VI.
VII. Award Agreements
Each Award under the Plan shall be evidenced by an Award Agreement
setting forth the terms and conditions of the Award and executed by the
Corporation and Participant.
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VIII. Other Terms and Conditions
(a) Assignability. Unless provided to the contrary in any Award, no
Award shall be assignable or transferable except by will, by the laws
of descent and distribution and during the lifetime of a Participant,
the Award shall be exercisable only by such Participant.
(b) Termination of Employment. The Committee shall determine the
disposition of the grant of each Award in the event of the
retirement, disability, death or other termination of a Participant's
employment or other relationship with the Corporation or a
Subsidiary.
(c) Rights as a Stockholder. A Participant shall have no rights as a
stockholder with respect to shares covered by an Award until the date
the Participant is the holder of record. No adjustment will be made
for dividends or other rights for which the record date is prior to
such date.
(d) No Obligation to Exercise. The grant of an Award shall impose no
obligation upon the Participant to exercise the Award.
(e) Payments by Participants. The Committee may determine that Awards
for which a payment is due from a Participant may be payable: (i) in
U.S. dollars by personal check, bank draft or money order payable to
the order of the
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Corporation, by money transfers or direct account debits; (ii)
through the delivery or deemed delivery based on attestation to the
ownership of shares of Common Stock with a Fair Market Value equal to
the total payment due from the Participant; (iii) pursuant to a
broker assisted "cashless exercise" program if established by the
Corporation; (iv) by a combination of the methods described in (i)
through (iii) above; or (v) by such other methods as the Committee
may deem appropriate.
(f) Withholding. Except as otherwise provided by the Committee, (i)
the deduction of withholding and any other taxes required by law will
be made from all amounts paid in cash and (ii) in the case of
payments of Awards in shares of Common Stock, the Participant shall
be required to pay the amount of any taxes required to be withheld
prior to receipt of such stock, or alternatively, a number of shares
the Fair Market Value of which equals the amount required to be
withheld may be deducted from the payment.
(g) Restrictions on Sale and Exercise. With respect to officers and
directors for purposes of Section 16 of the Exchange Act, and if
required to comply with rules promulgated thereunder, (i) no Award
providing for exercise, a vesting period, a restriction period or the
attainment of performance standards shall permit unrestricted
ownership of Common Stock by the Participant for at least six months
from the date of grant, and (ii) Common Stock acquired pursuant to
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this Plan ('other than Common Stock acquired as a result of the
granting of a "derivative security") may not be sold for at least six
months after acquisition.
(h) Maximum Awards. The maximum number of shares of Common Stock that
may be issued to any single Participant pursuant to options under
this Plan is 880,000.
IX. Termination, Modification and Amendments
(a) 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 the Common Stock of the Corporation present or represented and entitled to
vote at a duly held stockholders meeting or pursuant to a written consent of
stockholders in lieu of any such meeting.
(b) The Committee may at any time 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 Committee shall not make any material amendments to
the Plan without the approval of at least the affirmative vote of the holders of
a majority of the outstanding shares of the Common Stock of the Corporation
present or represented and entitled to vote at a duly held stockholders meeting
or pursuant to a written consent of stockholders in lieu of any such meeting.
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(c) No termination, modification or amendment of the Plan may
adversely affect the rights conferred by an Award without the consent of the
recipient thereof.
X. Recapitalization
The aggregate number of shares of Common Stock as to which Awards may
be granted to Participants, the number of shares thereof covered by each
outstanding Award and by each option award granted and the price per share
thereof in each such Award, shall all be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock resulting
from a subdivision or consolidation of shares or other capital adjustment, or
the payment of a stock dividend or other increase or decrease in such shares,
effected without receipt of consideration by the Corporation, or other change in
corporate or capital structure; provided, however, that any fractional shares
resulting from any such adjustment shall be eliminated. The Committee shall also
make the foregoing changes and any other changes, including changes in the
classes of securities available, to the extent necessary to preserve the
intended benefits of the Plan for the Corporation and the Participants in the
event of any other reorganization, recapitalization, merger, consolidation,
spin-off, extraordinary dividend, other distribution or similar transaction.
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XI. No Right to Employment
No person shall have any claim or right to be granted an Award and
the grant of an Award shall not be construed a giving a Participant the right to
be retained in the employ of, the Corporation or a Subsidiary. The Corporation
and each Subsidiary expressly reserve the right to dismiss a Participant free
from any liability or any claim under the Plan, except as provided herein or in
any Award Agreement issued hereunder.
Xll. Governing Law
To the extent that federal laws do not otherwise control, the Plan
shall be construed in accordance with and governed by the laws of the State of
Delaware.
XIIl. Savings Clause
This Plan is intended to comply in all aspects with applicable laws and
regulations, including, with respect to those Employees who are officers or
directors for purposes of Section 16 of the Exchange Act, Rule 16b-3 under the
Exchange Act. In case any one or more of the provisions of this Plan shall be
held invalid, illegal or unenforceable in any respect under applicable law and
regulation (including Rule 16b- 3), the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby
and the invalid, illegal or unenforceable provision shall be deemed null and
void; however, to the extent permissible by law, any provision which could be
deemed null and void shall first be construed, interpreted or revised
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retroactively to permit this Plan to be construed in compliance with all
applicable laws (including Rule 16b-3) so as to foster the intent of this Plan.
XIV. Effective Date and Term
The effective date of this Plan is July 29, 1996, subject to its
approval by the stockholders of the Corporation at the annual meeting to be held
on September 12, 1996. The Plan shall terminate on July 28, 2006. No awards
shall be granted after the termination of the Plan.
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EXHIBIT B
PROPOSAL 3
APPROVAL OF 1996 LONG TERM INCENTIVE PLAN
The Board of Directors of the Company proposes approval by stockholders of
the 1996 Long Term Incentive Plan (the "Long Term Plan"). It is intended to tie
participant awards under the Long Term Plan to increased stockholder value. The
proposed Long Term Plan permits awards of stock, restricted stock and options
(with and without stock appreciation rights) and other stock based awards. The
Board adopted the Long Term Plan on the recommendation of the Compensation and
Stock Option Committees on July 29, 1996, subject to stockholder approval. The
stock option plans and incentive stock purchase plan of the Company previously
approved by the stockholders will be terminated upon stockholder approval of the
Long Term Plan except with respect to any unexercised options or rights
outstanding thereunder.
The essential features of the Long Term Plan are summarized below.
General
The Long Term Plan will become effective upon stockholder approval and will
continue in effect until December 31, 2006. All full-time employees, officers
and directors of the Company and its subsidaries (currently approximately 45
people) are eligible to receive awards under the Long Term Plan.
The Compensation Committee of the Board, composed of three or more
disinterested members of the Board, will administer the Long Term Plan. The
Compensation Committee will select the employees, officers and directors whose
performance it determines significantly promotes the success of the Company to
receive discretionary awards under the Long Term Plan, grant the awards,
interpret and determine all questions of policy with respect thereto, adopt
rules, regulations, agreements and instruments deemed necessary for its proper
administration and take any and all other actions deemed necessary or desirable
for the proper administration of the Long Term Plan and the effectuation of its
purposes. Any such amendment may not materially alter or adversely affect any
outstanding award under the Long Term Plan without written consent of the award
recipient.
Awards
Non-Qualified and Incentive Stock Options. Stock options may be granted
under the Long Term Plan. Awards may be of incentive stock options ("ISOs")
(within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended) and non tax-qualified stock options (i.e., stock options which are not
ISOs). The exercise price of options will be set by the Compensation Committee
and stated in the option agreement and may not be less than 100% of fair market
value of the underlying shares of Common Stock on the date of grant. The
exercise price may be paid in cash or by delivery of shares of Common Stock or
pursuant to a broker-assisted "cashless exercise" program if established by the
Company. Options may also contain a stock appreciation right permitting the
recipient to receive the difference between the exercise price per share and the
market value on the date of surrender.
Restricted Stock. Awards of shares of Common Stock that are subject to
forfeiture until such restrictions, terms and conditions as the Compenstaion
Committee may determine are fulfilled may be granted under the Long Term Plan.
Grants may consist of newly issued shares of Common Stock, shares of Common
Stock held in treasury or a combination thereof. The Compensation Committee will
determine how the price for the shares of Common Stock, if any, may be paid.
Generally a participant obtaining a restricted stock award will have all the
rights of a stockholder while the shares of Common Stock are subject to
restrictions, including the right to vote the shares of Common Stock and to
receive dividends. Restricted shares of Common Stock will be issued in the name
of the participant and held in escrow until the restrictions lapse. Until the
restrictions are eliminated, restricted shares of Common Stock may not be
transferred.
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Dividend Equivalent Award. The Compensation Committee may grant an award
that represents the right to receive a dividend or its equivalent with respect
to any new or previously existing award which will entitle the recipient to
receive at the time of settlement an amount equal to the actual dividends paid
on the shares of Common Stock delivered to the recipient, calculated from the
date of award and accounted for as if reinvested in shares of Common Stock on
the divident payment dates. This type of award may be paid in the form of shares
of Common Stock, cash or a combination of both.
Stock Appreciation Rights ("SARs"). The Compensation Committee may award
SARs together with stock options under the Long Term Plan. Generally, SARs
permit the holder thereof to receive an amount (in cash, shares of Common Stock
or a combination thereof) equal to the number of shares of Common Stock with
respect to which such SARs are exercised multiplied by the excess of the fair
market value of shares of Common Stock on the exercise date over the exercise
price of the related options. In general, the exercise of any portion of the
stock option or the related SAR will cause a corresponding reduction in the
number of shares of Common Stock remaining subject to such stock option and SAR.
Other Stock Based Awards. The Compensation Committee may grant other Common
Stock based awards that are related to or similar to the awards described above.
Shares of Common Stock Available for Awards. The maximum number of shares
of Common Stock available for awards under the Long Term Plan is 880,000.
Federal Income Tax Consequences of Options, SARs and Restricted Shares.
The following summary generally describes the principal federal (and not
state and local) income tax consequences of awards granted under the Long Term
Plan. It is general in nature and is not intended to cover all tax consequences
that may apply to a particular employee or to the Company. The provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), and the regulations
thereunder relating to these matters are complicated and their impact in any one
case may depend upon the particular circumstances. This discussion is based on
the Code as currently in effect.
Stock Options. If an option is granted to an employee, officer, director or
consultant in accordance with the terms of the Long Term Plan, no income will be
recognized by such employee, officer, director or consultant at the time the
option is granted.
On exercise of a non-qualified stock option, the amount by which the fair
market value of the shares of Common Stock on the date of exercise exceeds the
purchase price of such shares will generally be taxable to the holder as
ordinary income, and will be deductible for tax purposes by the Company in the
year in which the employee, officer, director or consultant recognizes the
ordinary income. The disposition of shares acquired upon exercise of a
non-qualified stock option will ordinarily result in long-term or short-term
capital gain or loss (depending on the applicable holding period) in an amount
equal to the difference between the amount realized on such disposition and the
sum of the purchase price and the amount of ordinary income recognized in
connection with the exercise of the non-qualified stock options.
On exercise of an ISO, an employee will generally not recognize any income
and the Company will generally not be entitled to a deduction for tax purposes.
However, the difference between the purchase price and the fair market value of
the shares received on the date of exercise will be treated as a positive
adjustment in determining alternative minimum taxable income, which may subject
the holder to the alternative minimum tax. The disposition of shares acquired
upon exercise of an ISO will ordinarily result in long-term or short-term
capital gain or loss (depending on the applicable holding period). However, if
the employee disposes of shares acquired upon exercise of an ISO within two
years after the date of grant or within one year after the date of exercise (a
"disqualified disposition"), the employee will generally recognize ordinary
income, and the Company will generally be entitled to a deduction for tax
purposes, in the amount of the excess of the fair market value of the shares of
Common Stock on the date the ISO is exercised over the purchase price (or, in
certain circumstances, the gain on sale, if less). Any excess of the amount
realized by the employee on the disqualifying disposition over the fair market
value of the shares on the date of exercise of the ISO will ordinarily
constitute capital gain.
-13-
<PAGE>
Stock Appreciation Rights. The amount of any cash (or the fair market
value of any shares of Common Stock) received upon the exercise of SARs under
the Long Term Plan will be includible in the holder's ordinary income and the
Company (or one of its subsidiaries) will be entitled to a deduction for such
amount. However, if the holder receives shares of Common Stock upon the
exercise of SARs and is then subject to Section 16(b) of the Exchange Act (which
generally prohibits officers and directors from buying and selling the shares of
Common Stock within a six month period), unless the employee elects otherwise,
the amount of ordinary income and deduction will generally be measured at the
time such restrictions lapse.
Restricted Shares. If restricted stock is awarded to an employee,
officer, director or consultant in accordance with the terms of the Long Term
Plan, no income will be recognized by such holder at the time the award is
made. A holder who is awarded restricted stock will be required to include in
his ordinary income as compensation the fair market value of such restricted
stock, less any amount paid therefor, except that the holder may elect to
include in his ordinary income as compensation at the time the restricted stock
is first issued the fair market value of such restricted stock at the time of
receipt, less any amount paid therefor. Absent the making of the election
referred to in the preceding sentence, any cash dividends or other distributions
paid with respect to restricted stock prior to lapse of the applicable
restriction will be includible in the holder's ordinary income as compensation
at the time of receipt. In each case, the Company (or one of its subsidiaries)
will be entitled to a deduction in the same amount as the holder realizes
compensation income.
On the basis of the recommendations of the Compensation and Stock Option
Committees, the Board of Directors of the Company recommends that stockholders
vote "FOR" approval of the 1996 Long Term Incentive Plan.
-14-
<PAGE>
EXHIBIT C
---------
ATALANTA/SOSNOFF CAPITAL CORPORATION
1996 LONG TERM INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
AWARD AGREEMENT made as of this 17th day of September 1997 by and
between Atalanta/Sosnoff Capital Corporation, a Delaware corporation (the
"Corporation"), and Craig B. Steinberg, President of the Corporation (the
"Participant").
R E C I T A L S
WHEREAS, the Compensation and Stock Option Committee (the "Committee")
of the Board of Directors on September 17, 1997, granted to the Participant a
Restricted Stock Award (the "Award") of 600,000 shares (the "Restricted Shares")
of Common Stock, par value $0.01 per share, of the Corporation under the terms
and conditions of the Corporation's 1996 Long Term Incentive Plan (the "Plan")
and
WHEREAS, the Committee instructed the Corporation to embody the
Restricted Stock Award in an Award Agreement containing the terms and conditions
determined by the Committee consistent with the Plan and such other terms not
inconsistent therewith as determined by the Chairman of the Board of the
Corporation.
NOW THEREFORE, this Agreement
<PAGE>
W I T N E S S E T H:
Section 1. Acceptance of the Award; Payment of Purchase Price.
The Participant hereby accepts the Award and agrees to be
bound in all respects by this Agreement and the Plan. In payment for the Award
the Participant hereby tenders payment in the amount of $6,000 in full payment
of the purchase price for the Award, the receipt whereof is hereby acknowledged
by the Corporation.
Section 2. Definitions
All terms not otherwise defined herein shall have the meanings
ascribed to them in the Plan. The following terms shall have the meanings set
forth herein for purposes of this Agreement:
A. "Award" shall mean the Award of Restricted Stock granted by
the Committee under the provisions of this Agreement.
B. "Cause" shall mean, in the context of termination of the
employment of the Participant, any person for any of the
following events or conditions as determined by the Board of
Directors of the Corporation: (i) such person's failure to
perform, or negligence in the performance of, his duties and
responsibilities to the Corporation as a director or officer
or employee (other than by reason of death or disability),
(ii) fraud, embezzlement, the commission of a felony or other
material dishonesty with respect to the Corporation or any of
its affiliates, (iii) in the written opinion of counsel to
2
<PAGE>
the Corporation, the Participant's conduct shall require that
the Corporation answer "yes" to any of the "Disciplinary
Questions" set forth in Part I, Question 11 of Form ADV
promulgated under the Investment Advisers Act of 1940, as
currently in effect or as hereafter amended, and (iv) other
conduct that is materially harmful to the business, interests
or reputation of the Corporation.
C. "Disability" shall mean with respect to the Participant the
failure to perform his duties as an employee of the
Corporation or any subsidiary or affiliate by reason of
physical or emotional illness for a consecutive period of six
months or a non-consecutive period totalling six months in any
twelve month period. A Disability determination shall be made
by the Board of Directors of the Corporation on the basis of
competent medical advice from a physician or physicians
consulted by the Board.
D. "Change in Control" shall mean a Change in Control of a nature
that would be required to be reported in response to item I of
a Current Report on Form 8-K, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Exchange Act; provided
that, without limitation, such a Change in Control shall be
deemed to have occurred at such time as (a) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Exchange
Act) is or becomes the "beneficial owner" (as defined in Rule
13D-3 under the Exchange Act), directly or indirectly, of
securities of the Corporation representing twenty-five (25%)
percent or more of the
3
<PAGE>
combined voting power of the Corporation's outstanding
securities ordinarily having the right to vote at elections of
directors other than any such person that is an affiliate (as
such term is defined in Rule 12b-2 under the Exchange Act) on
the effective date of the Award; or (b) individuals who
constitute the Board of Directors of the Corporation on the
date hereof (the "Incumbent Board") cease for any reason to
constitute at least one half of the members thereof, provided
that any person becoming a director subsequent to the date
hereof whose election or nomination for election by the
Corporation's stockholders was approved by a vote of a
majority of the directors comprising the Incumbent Board,
shall be, for purposes of this clause (b), considered as
though he were a member of the Incumbent Board; or (c) a sale
by the Corporation of all or substantially all of its assets
or the liquidation of the Corporation. Notwithstanding
anything in the foregoing to the contrary, no Change in
Control shall be deemed to have occurred for purposes of this
Agreement by virtue of any transaction which results in the
ownership by the Participant, or by a group of persons,
including the holders of a majority of the outstanding Common
Stock of the Corporation, directly or indirectly, of a
majority of the voting securities of any corporation which
acquires all or substantially all of the assets of the
Corporation, whether by way of merger, consolidation, sale of
such assets or otherwise.
4
<PAGE>
E. "Effective Date" shall mean with respect to any Award, the
date on which the Award is approved by the Committee.
F. "Involuntary Termination" shall mean termination of the
Participant's employment by reason of a Change in Control, death, Disability or
termination without cause or the death of Martin T. Sosnoff.
G. "Voluntary Termination" shall mean the termination of the
Participant's employment by reason of resignation or termination for Cause.
3. Rights as a Shareholder
3.1 Upon the Award of Restricted Stock to a Participant and
from and after the date of issuance of certificate(s) representing such
Restricted Stock, such Participant shall, subject to the restrictions set forth
in Sections 3.2, 4 and 8 hereof(or in any promissory note and/or pledge
agreement entered into pursuant to this Agreement) have all of the rights of a
shareholder with respect to such Restricted Stock, including but not limited to:
(a) the right to vote the Restricted Shares and the right; (b) to receive all
dividends paid thereon, if any; and (c) subject to Section 3.2 hereof, to sell,
transfer or otherwise dispose of such Restricted Stock.
3.2 Subject to Sections 3.2(c), 4 and 8 hereof:
(a) If at any time on or after the Effective Date
of this Award the Participant, shall wish to transfer or otherwise dispose of
(other than in a transaction contemplated under Section 3.2(c) hereof) all or
any portion of such Participant's
5
<PAGE>
shares of Restricted Stock as to which the Corporation's right of repurchase
shall have lapsed pursuant to Sections 4 and 5 hereof, he shall deliver written
notice (the "Offer Notice") to the Corporation stating his wish to make such
transfer and the number of Restricted Shares he wishes to be transferred (the
"Offered Shares"), and certifying that such transfer which he wishes to make is
pursuant to a bona fide third party offer to acquire the Offered Shares for
consideration (a "Bona Fide Third-Party Offer"). The Offer Notice shall further
state the name of the person who made the Bona Fide Third-Party Offer and the
terms thereof, including a description and a statement of the aggregate cash
value of all consideration, including any consideration other than cash (the
"Offered Price"). The Corporation shall have the irrevocable and exclusive
right of first refusal, as hereinafter provided, to purchase all (but not less
than all) of the Offered Shares at the Offered Price. Any exercise of the right
of first refusal to purchase the Offered Shares pursuant to this Section 3.2(a)
shall be by a written notice (the "Acceptance Notice") delivered by the
Corporation to the Participant within 15 days after delivery by the Participant
of an Offer Notice. An Acceptance Notice shall fix a date for the closing of
such purchase (the "Closing Date"), which date shall be not less than 10 and not
more than 20 business days after the date on which the Acceptance Notice is
given.
(b) Failure to furnish the Acceptance Notice within
the 15 day period set forth in Section 3.2(a) shall constitute a waiver of the
Corporation's right of first refusal with respect to the Bona Fide Third-Party
Offer which may be accepted by the Participant provided that the sale of the
Offered Shares pursuant thereto is
6
<PAGE>
consummated in accordance with its terms within 30 days after the expiration of
such 15 day period.
(c) Notwithstanding the foregoing, the right of first
refusal set forth in Section 3.2(a) shall not apply to open-market transactions
effected on a national securities exchange or in the over-the-counter market in
Broker's Transactions as defined in Rule 144 under the Securities Act of 1933,
as amended, whether or not such Rule would otherwise be applicable to such sale.
Section 4. Repurchase Option Upon Voluntary Termination
At any time prior to a Change in Control of the
Corporation or in the case of a Change in Control where the Participant does not
agree to remain an employee of the Corporation or its successor for a period of
18 months from the effective date of such Change in Control under a binding
agreement with the Corporation or its successor in the same capacity at the same
compensation level as then in effect, the Corporation shall have the right to
repurchase from a Participant, upon written notice to such Participant, all or a
part of the following percentages of the number of Restricted Shares issued
pursuant to this Award made to the Participant upon Voluntary Termination of the
Participant's employment.
(i) 100%, provided such Voluntary Termination occurs prior
to the first anniversary of the Effective Date of the Award.
7
<PAGE>
(ii) 75%, provided such Voluntary Termination occurs on or
after the first anniversary but prior to the second anniversary of
the Effective Date of the Award.
(iii) 50%, provided such Voluntary Termination occurs on
or after the second anniversary but prior to the third anniversary
of the Effective Date of the Award.
(iv) 25%, provided such Voluntary Termination occurs on or
after the third anniversary but prior to the fourth anniversary of
the Effective Date of the Award.
In the event the Corporation elects to exercise its right, pursuant
to the preceding paragraph, to repurchase a percentage of the Restricted Shares
issued pursuant to this Award made to the Participant, the purchase price shall
be the aggregate price paid by the Participant for such Restricted Shares
pursuant to Section 1 of this Agreement. During such time Restricted Shares are
subject to the option to repurchase pursuant to this Section 4, such Restricted
Shares may not be sold, transferred or otherwise disposed of by the Participant.
Section 5. No Repurchase Option Upon Involuntary Termination
The Corporation shall not have the right to repurchase
from a Participant any Restricted Stock issued pursuant to this Award Agreement
made to the
8
<PAGE>
Participant upon Involuntary Termination of the Participant's employment
provided, however, that
(a) in the event the Involuntary Termination arises as a
result of a Change in Control, Participant shall have agreed with the
Corporation or its successor under a binding agreement to remain in the same
capacity at the same compensation level for a period of 18 months from the
effective date of the Change in Control, and
(b) in the event the Involuntary Termination arises as a
result of the death of Martin T. Sosnoff, Participant shall agree to serve the
Corporation under a binding agreement for a period from the date of such death
to the earliest to occur of (i) Participant's death, (ii) Participant's
Disability or (iii) a Change in Control..
Section 6. Payment of Taxes; Loan Agreement
The Participant shall be required to discharge any and all federal,
state and local taxes, if any, incurred as a result of his receipt of the Award
and any such taxes related to the lapse of the Corporation's right to purchase
Restricted Shares issued pursuant to the Award. The Corporation shall lend the
Participant, at his request, funds to defray such taxes on the following basis:
(a) If, and to the extent, that the earnings distributed to a
Participant attributable to the Restricted Shares (whether in the form of
dividends or other distributions to the Participant) after the payment of his
personal income taxes thereon (as determined by the Participant's personal
federal, state and local tax returns for the tax year in question) are not
sufficient to defray such Participant's personal tax liability
9
<PAGE>
as set forth in the Participant's returns arising solely from the taxable
compensation, if any, attributable to the grant of the Award of Restricted
Shares to the Participant or to the lapse of the Corporation's right to
repurchase the Restricted Shares of the Participant at such Participant's cost
in the applicable tax year, any such deficiency shall be loaned by the
Corporation to the Participant. Such loans shall be made at the Participant's
request at any time within 90 days from the date the Corporation is required to
withhold and deposit funds from the Participant's cash compensation in respect
of the tax liability associated with Restricted Shares, and shall be adjusted,
if necessary, based upon the Participant's returns. Each such loan shall be
evidenced by a note (in the form annexed hereto as Exhibit A) maturing in four
years from the date of issue and shall bear simple interest, which shall accrue
to maturity, at the "applicable federal rate" as defined in Section 1274(d) of
the Code. Any such note shall be secured by a pledge of the portion of the
Restricted Shares to which such tax liability is attributable equal at the date
of the loan to the Fair Market Value of the Restricted Shares to the value
thereof under a pledge agreement (in the form annexed hereto as Exhibit B).
(b) The payment period for any such notes will be adjusted in
the following events.
(i) In the event the Participant's employment by the
Corporation terminates as a result of the death or Disability of
such Participant, no outstanding note shall have a payment period
ending sooner than one year
10
<PAGE>
from the date of such Participant's death or the determination of
his Disability, as applicable.
(ii) In the event Participant's employment by the
Corporation terminates as a result of Participant's voluntary
resignation such note shall have a payment period ending no sooner
than (i) two years from such voluntary resignation, if the
Participant's Restricted Shares are not subject to repurchase by
the Corporation at such date or (ii) the later of (A) two years
from the date of such voluntary resignation and (B) the date upon
which the Participant's Restricted Shares would have been no longer
subject to the Corporation's right of repurchase had such resigned
Participant remained an employee of the Corporation until the date
upon which such Restricted Shares would have been no longer subject
to repurchase by the Corporation hereunder.
(iii) In no event shall the payment period be longer than
a period ending on the date upon which the Participant sells his
Restricted Shares for cash.
(iv) The Participant may, at his option, apply Restricted
Shares at their fair market value to the repayment of principal or
interest on all or any part of a note, if such Restricted Shares,
at the time of such application, are not subject to repurchase by
the Corporation.
11
<PAGE>
Section 7. Adjustment Upon Changes in Common Stock
In the event that there is any change in the Common Stock, through
merger, consolidation, reorganization, recapitalization or otherwise, or if
there shall be any dividend on the Common Stock payable in such Common Stock or
if there shall be a stock split, combination of shares or other changes in
Atalanta/Sosnoff Capital Corporation's capital structure, the number of shares
in the Award shall be appropriately adjusted by the Committee to reflect any
such changes. Neither the issuance of Common Stock for adequate consideration,
nor the issuance of rights or options with respect to the Common Stock or any
other stock based awards to employees of the Corporation under the Plan or a
comparable benefit plan shall be considered a change in Atalanta/Sosnoff Capital
Corporation's capital structure. No adjustment provided for in this Section 7
shall require the issuance of any fractional share.
Section 8. Compliance with Securities and Exchange Commission Requirements
No certificate for Restricted Shares awarded under this Agreement
shall be issued until the Corporation shall have taken such action, if any, as
is then required, in its opinion, in order to comply with the provisions of the
Securities Act of 1933, as amended, the Exchange Act, as amended, and any other
applicable laws, as well as with the requirements of any exchange on which the
Common Stock may, at the time, be listed. Such action may include, but is not
limited to, the registration of the Restricted Shares or the delivery to the
Corporation with respect to the Restricted
12
<PAGE>
Shares awarded to a Participant of a written representation by the Participant,
in form satisfactory to the Corporation, that it is the Participant's intention
to acquire the Restricted Shares for investment and not for resale. If such a
written representation is requested, the Corporation shall not be required to
transfer any shares to the Participant until the representation is received in
form satisfactory to the Corporation, and any certificate for Restricted Shares
issued upon receipt of such a representation shall bear a legend to the effect
that such shares have been acquired for investment and have not been registered
under the Securities Act of 1933, as amended, and may not be disposed of except
in compliance therewith.
Section 9. Conflicting Terms.
To the extent that there may be any conflict between any term or
condition of the Plan and term or condition of this Award Agreement, the term or
condition of this Award Agreement shall control.
Section 10. Legend.
Each certificate representing Restricted Shares awarded pursuant to
this Agreement shall bear a legend referring hereto and to the Plan and to the
restrictions on disposition contained herein and therein.
13
<PAGE>
Section 11. Shares Acquired for Investment.
The Participant hereby acknowledges that the Restricted Shares
constituting the Award have not been registered under the Securities Act of
1933, as amended, or any applicable state securities law, and represent that he
is acquiring the Restricted Shares for his own account and not with a view to
the distribution thereof. He further acknowledges that he has been informed by
the Corporation that the certificate representing the Restricted Shares will
bear a restrictive legend to the following effect:
"The Shares represented by this Certificate have not been
registered under the Securities Act of 1933, as amended (the
'Act'), and no disposition thereof may be made in violation of the
Act and the rules and regulations promulgated thereunder and unless
the Corporation shall have received an opinion of counsel
reasonably satisfactory to it that such disposition may be effected
without violating the Act."
Section 12. Continued Validity.
Participant agrees that in the event of invalidity of any part or
provision of the Plan, or this Award Agreement, such invalidity shall not affect
the validity of any other part or provision of the Plan, of this Agreement.
Section 13. Choice of Law.
This Award Agreement shall be construed and enforced in accordance
with the laws of the State of New York.
14
<PAGE>
Section 14. Notices and Deliveries
All notices hereunder shall be in writing. Any notices, payments,
or deliveries to the Corporation or the Committee shall be directed to the
Corporation or the Committee, as the case may be, at the following address:
Atalanta/Sosnoff Capital Corporation
101 Park Avenue
New York, New York 10178
Attention: Martin T. Sosnoff, Chairman
Any notices, payments or deliveries (other than to the Corporation or the Board)
shall be directed to the addressee at the address designated by said addressee
by notice to the Committee. The Corporation may designate a new address for
purposes of this Agreement by notice to the Participant. Any Participant or
beneficiary may designate a new address for the purposes of this Agreement by
notice to the Committee. If no address is designated by the Participant or
beneficiary, all notices may be sent to his last known address. Unless otherwise
specified herein, notices shall be delivered by hand or sent by registered or
certified mail, return receipt requested.
Section 14. Binding Upon Heirs. Etc,
This Agreement shall be binding upon, and shall inure to the
benefit of, the Corporation, its successors and assigns, and each Participant,
his heirs, executors, administrators and legal representatives.
15
<PAGE>
IN WITNESS WHEREOF, the Corporation and the Participant have
executed this Award Agreement as of the day first above written.
Atalanta/Sosnoff Capital Corporation
by: /S/ Martin T. Sosnoff
--------------------------------
Martin T. Sosnoff
Chairman of the Board
/S/ Craig B. Steinberg
--------------------------------
Craig B. Steinberg
<PAGE>
EXHIBIT A
THIS NOTE IS SECURED UNDER THE TERMS OF A PLEDGE AGREEMENT
DATED: , 1998
PROMISSORY NOTE
$ [Date]
New York, New York
FOR VALUE RECEIVED, the undersigned, ("Payor"),
promises to pay to the order of ATALANTA/SOSNOFF CAPITAL CORPORATION, a Delaware
Corporation ("Payee"), the principal sum of ___________ Dollars ($___) , or as
much thereof as may be outstanding or unpaid, in lawful money of the United
States, on _______________ 199__, and to pay interest thereon on on the unpaid
principal balance hereof at an annual rate of interest of ________% (equal to
the applicable federal rate as announced by the Internal Revenue Service
("Federal Rate") in effect on the date of issue. Terms used herein not otherwise
defined herein have the meanings set forth in Payee's 1996 Long Term Incentive
Plan and in the Award Agreement between Payor and Payee dated September 17,
1997.
<PAGE>
The payment of principal and interest hereunder shall be made at the
offices of Payee, which are located at 101 Park Avenue, New York, N.Y. 10178 or
at such other place as Payee or any other holder hereof may designate from time
to time.
The following events shall constitute an "Event of Default" hereunder,
namely, if Payor fails to pay when due any amount payable under this Note, or if
proceedings under any bankruptcy or insolvency law are commenced by or against
Payor, or if a general assignment for the benefit of creditors in made, or if a
trustee or receiver of Payor's property is appointed.
The holder hereof shall be entitled, upon the occurrence of an Event of
Default to accelerate payment of the unpaid balance of this Note, in which event
the entire unpaid principal balance hereof shall immediately be due and payable
to the holder hereof.
Upon a Change in Control of Payee or the sale of Restricted Shares by
the Payor, the holder hereof shall be entitled to accelerate payment of that
percentage (the "Accelerated Percentage") of the unpaid balance of the Note
which the cash portion of the consideration paid, if any, for the Restricted
Shares in connection with a Change in Control or sale bears to the total
consideration paid for such Restricted Stock. In such event the Accelerated
Percentage of the unpaid balance of the Note shall be due and immediately
payable to the holder hereof.
2
<PAGE>
In the event the Payor's employment by the Payee terminates as a result
of the death or Disability of the Payor, this Note's maturity shall be adjusted
so that it ends no sooner than one year from the date of the Payor's death or
the determination of his Disability, as applicable.
In the event Payor's employment by the Payee terminates as a result of
Payor's voluntary resignation this Note's maturity shall be adjusted so that it
ends no sooner than (i) two years from such voluntary resignation, if the
Payor's Restricted Shares are not subject to repurchase by the Payee at such
date or (ii) the later of (A) two years from the date of such voluntary
resignation and (B) the date upon which the Payor's Restricted Shares would have
been no longer subject to the Payee's right of repurchase had such resigned
Payor remained an employee of the Payee until the date upon which such
Restricted Shares would have been no longer subject to repurchase by the Payee
at Payor's cost.
Notwithstanding the preceding two paragraphs, in no event shall the
maturity of this Note be longer than a period ending on the date upon which the
Payor sells his Restricted Shares for cash.
Payor may at any time and without penalty or premium, prepay this Note
in whole or in part, provided that on any such prepayment Payor shall pay
accrued interest on the principal amount so prepaid to the date of such
prepayment. Upon a
3
<PAGE>
Change in Control of Payee, all amounts payable to Payor in consideration for or
otherwise in respect of Restricted Stock held by Payor shall be paid to or held
by Payee and applied toward the prepayment of this Note in accordance with the
preceding sentence, provided, however, that any excess of such amounts over the
principal amount of and accrued interest on this Note shall be paid to Payor.
The Payor may, at his option, apply Restricted Shares at their Fair
Market Value to the repayment of principal or interest on all or any part of
this Note, if such Restricted Shares, at the time of such application, are not
subject to repurchase by the Payee at Payor's cost.
Payor does hereby waive any right of reduction of or offset against any
payment of principal, interest or other sums owing hereunder. In addition, Payor
waives presentment, demand for payment, notice of dishonor, notice of protest,
and all other notices or demands in connection with the delivery, acceptance,
performance, default, endorsement or guarantee of any installment of this Note.
In the event this Note is not promptly paid when due, Payor shall pay
(i) interest on such unpaid principal amount at a rate equal to the lesser of
20% per annum or the highest lawful rate in the State of New York and (ii) all
costs of enforcement and collection of this Note, including reasonable
attorneys' fees and expenses.
4
<PAGE>
Payor does hereby agree and understand that if any term, condition,
clause or provision of this Note shall be determined or declared to be void or
invalid in law or otherwise, then only that term, condition, clause or provision
shall be stricken from this Note and in all other respects this Note shall be
valid and continue in full force, affect and operation.
Notwithstanding the place where this Note may be executed, Payor
expressly agrees that all the terms and provisions hereof shall be governed by
and construed in accordance with the laws of the State of New York. Payor hereby
consents to the jurisdiction of the United States District Court for the
Southern District of New York and the Supreme Court of the State of New York,
County of New York, to resolve any dispute or disputes which might arise under
this Note.
Any failure by Payee or any other holder hereof to exercise any right
hereunder shall not be construed a waiver of the right to exercise the same or
any other right at any other time and from time to time thereafter.
Payor does hereby agree and understand that all terms and provisions of
this Note shall be binding upon, and inure to the benefit of, and be enforceable
by, the parties hereto, and their respective heirs, successors and assigns.
---------------------------------
(Payor)
<PAGE>
EXHIBIT B
PLEDGE AGREEMENT
----------------
PLEDGE AGREEMENT (the "Agreement"), dated as of this _____ day of 19__,
by and between Atalanta/Sosnoff Capital Corporation (the "Corporation"), a
Delaware corporation, and ___________________ (the "Participant").
WHEREAS, , the Corporation and Participant have entered into an Award
Agreement (the "Award Agreement") pursuant to which the Participant was awarded
__________________ shares (the "Restricted Shares") of Common Stock of the
Corporation (the "Award") in accordance with the terms of the Corporation's 1996
Long Term Incentive Plan (the "Plan"); and
WHEREAS, , pursuant to the Award Agreement, the Corporation has agreed
to loan to the Participant $_____________ (the "Loan") to defray the federal,
state and local taxes incurred by the Participant acting as a result of the
Award; and
WHEREAS, , simultaneously with the execution and delivery of this
Agreement, the Participant will execute and deliver to the Corporation a
promissory note (the "Note") evidencing the Loan; and
WHEREAS, , as a condition to the making of the Loan, the Corporation
and the Participant have agreed and are willing to enter into this Agreement;
<PAGE>
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Pledge
1.1 The Participant hereby pledges, assigns and hypothecates
Restricted Shares (the "Shares") to the Corporation and hereby grants to the
Corporation a lien on, and security interest in, the Shares and in all proceeds
thereof, as collateral security for the due performance of all of the
Participant's obligations under the Note, the Award Agreement and the Plan. The
Note, the Award Agreement, the Plan, this Agreement and all other documents
delivered in connection therewith shall be referred to collectively as the "Loan
Documents".
1.2 The Participant shall on the date hereof deliver the
certificates for the Shares to the Corporation, to be held by the Corporation
pursuant to Section 4 hereof, together with stock powers duly endorsed in blank.
2. Stock Dividends, Distributions, Etc. If, prior to the termination of
this Agreement, the Corporation shall authorize the issuance of any stock
dividend or shall make any distribution in connection with any reclassification,
increase or reduction of capital, whether as an addition to, in substitution of,
or in exchange for any of the Shares or otherwise, the Participant agrees to
deliver or to cause same to be delivered to the Corporation, in the exact form
received, with the endorsement of the Participant
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when necessary, and appropriate stock powers duly endorsed in blank, to be held
by the Corporation, subject to the terms hereof, as additional security for the
Participant's obligations under the Loan Documents. Any sums of money paid in
respect of the Shares pursuant to a cash dividend declared by the Corporation's
Board of Directors based solely upon the Corporation's earnings ("Ordinary
Dividends") shall be paid to the Participant. Any sums of money and property
paid or distributed upon or in respect of the Shares upon the liquidation or
dissolution of the Corporation and any sum to be paid in respect of the Shares
pursuant to a dividend, distribution, or the like, other than Ordinary
Dividends, shall, subject to the terms of this Agreement, be paid to the
Participant provided, however, that if following such payment the amount of
cash, if any, plus the fair market value (as determined by the Board of
Directors of the Corporation) of the Shares and any other property then held
pursuant to the terms of this Agreement is less than the remaining principal
balance on the Note plus accrued interest thereon, such sums of money and
property shall be held by the Corporation as additional security for the
Participant's obligations under the Loan Documents.
3. Voting Rights. So long as the Participant is not in default
hereunder and under the Loan Documents, the Participant shall be entitled to
exercise all voting rights with respect to the Shares.
4. Transfer.
4.1 Upon execution and delivery of this Agreement, the
Corporation shall receive all Certificates representing the pledged Shares and
stock powers duly
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endorsed in blank, in forms satisfactory to the Corporation. No subsequent
transfer of any of the Participant's rights in the Shares shall be made without
the prior written consent of the Corporation.
4.2 In the event that the Participant shall have made all
payments due under the Note and provided the Participant is not otherwise in
default under the Loan Documents, then the Corporation shall, within three (3)
business days after payment in full of the Note, deliver the certificates for
the Shares to the Participant along with the blank stock powers, whereupon this
Agreement shall terminate.
4.3 In the event that the Participant desires to sell or
otherwise transfer less than the total number of Shares to a third party, the
Corporation, upon written notice to the Corporation by the Participant, shall
deliver the certificates) representing such lesser number of Shares to the
Participant for such purpose, provided the Participant repays or has previously
repaid to the Corporation (together with any interest due under the Note) that
percentage of the Loan which in at least equal to the percentage such lesser
number of Shares bears to the total number of Shares.
4.4 The obligation of the Participant under this Agreement are
absolute and unconditional, and are not subject to any counterclaim, set-off,
deduction or defense that the Participant may have against the Corporation. The
Participant unconditionally waives (a) notice of any event of default under the
Loan Documents; (b) all notices, which may be required by statute, rule of law
or otherwise, to preserve intact any rights of the Corporation against the
Participant, including, without limitation, any demand, presentment and protect,
proof of notice of non-payment under the Note,
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and notice of any failure on the part of the Participant to perform and comply
with any agreement, term or condition of the Loan Documents, or any requirement
on the part of the Corporation to mitigate the damages resulting from any
default under the Loan Documents.
5. Default.
5.1 In the event of the Participant's default under the Loan
Documents, the Corporation may then cause the Shares to be registered in its
name or the name of its nominees, and the Corporation or its nominee may
thereafter exercise all of the rights attendant to a holder of such stock.
5.2 The Corporation may forthwith collect, receive,
appropriate and realize upon the Shares in accordance with the provisions of the
New York Uniform Commercial Code governing transactions secured by the pledge of
stock. In addition, the Participant agrees that the Corporation need not give
more than ten (10) days notice of the time and place of any public sale or of
the time after which a private sale or other intended disposition is to take
place and that such notice is deemed to constitute reasonable notification of
such matters.
5.3 In addition to the rights and remedies granted to the
Corporation and under the Loan Documents, the Corporation shall have all the
rights and remedies of a secured party under the Uniform Commercial Code of the
State of New York.
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6. Representations warranties and Covenants of the Participant. The
Participant represents and warrants that (a) he is the legal record holder and
beneficial owner of, and has good title to the Shares and the Shares are not
subject to any pledge, lien, mortgage, hypothecation, security interest, charge,
or other encumbrance whatsoever, except pursuant to the Loan Documents; (b) he
has full power, authority and legal right to pledge all the Shares pursuant to
this Agreement; (c) this Agreement has been duly executed and delivered by the
Participant and constitutes a legal, valid and binding obligation of the
Participant enforceable in accordance with its terms; (d) no consent of any
other party and no consent, license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing, declaration with,
any governmental authority, domestic or foreign, is required to be obtained by
the Participant in connection with the execution, delivery and performance of
this Agreement; (e) the execution, delivery and performance of this Agreement
will not violate any provision of any applicable law or regulation or of any
order, judgment, writ, award or decree of any court, arbitrator or governmental
authority, domestic or foreign, or of any mortgage, indenture, lease, contract,
or other agreement, instrument or undertaking to which the Participant is a
party or which purports to be binding upon the Participant or upon any of his
assets and will not result in the creation or imposition of any lien, charge or
encumbrance on, or security interest in, any of the assets of the Participant
except as contemplated by this Agreement; and (f) the pledge, assignment and
hypothecation of the Shares pursuant to this Agreement upon delivery of the
Shares to the Corporation, creates a valid first priority lien on, and security
interest in,
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the Shares and the proceeds thereof and is not subject to any pledge, lien,
mortgage, hypothecation, security interest, charge, option or encumbrance or to
any agreement purporting to grant to any third party a security interest in the
property or assets of the Participant which would include the Shares, other
than, and except to the extent provided by, the Loan Documents.
7. Further Assurances. Participant agrees that at any time and from
time to time upon the written request of the Corporation, the Participant will
execute and deliver such further documents and do such further acts and things
as the Corporation may reasonably request in order to effect the purposes of
this Agreement.
8. Termination. This Agreement shall terminate upon the delivery by the
Corporation to the Participant of the certificates for the Shares and the
related stock powers in accordance with Section 4.2 hereof.
9. Waivers, Amendments, Applicable Law; Miscellaneous. None of the
terms and provisions of this Agreement may be waived, altered, modified or
amended except by an instrument in writing, duly executed by the Corporation and
the Participant.
10. Successors and Assigns. This Agreement and all obligations of the
Participant hereunder shall be binding upon the Participant and his heirs, legal
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representatives, legatees, descendants and assigns and shall, together with the
rights and remedies of the Corporation hereunder, inure to the benefit of the
Corporation and its successor& and assigns.
11. Governing Law. This Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York.
12. Severability of Provisions. If any provision or any portion of any
provision of this Agreement or the application of any such provision or any
portion thereof to any person or circumstance shall be hold invalid or
unenforceable, the remaining portion of such provision and the remaining
provisions of this Agreement shall not be affected thereby and shall remain in
full force and effect.
13. Headings. Section headings herein are includes for the convenience
of reference only and shall not constitute a part of this document for any other
purpose.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed this _____ day of _ 1998.
ATALANTA/SOSNOFF CAPITAL CORPORATION
By:
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Title
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(Participant)
