<PAGE> 1
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PRIME HOSPITALITY CORP.
----------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 22-2640625
- ------------------------------------------- ------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
700 Route 46 East
Fairfield, New Jersey 07004
- ---------------------------------------- -------------
(Address of principal executive offices) (Zip Code)
Prime Hospitality Corp.
1992 Performance Incentive Plan
-------------------------------
(Full Title of Plan)
Joseph Bernadino
Secretary
Prime Hospitality Corp.
700 Route 46 East
Fairfield, New Jersey 07004
(201) 882-1010
--------------------------------------------------------------
(Name and address, including zip code, of agent for service)
(Telephone number, including area code, of agent for service)
---------------------
COPY TO:
William N. Dye, Esq.
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
(212) 935-8000
The Exhibit Index is located on page 12.
Page 1 of 28 Pages
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Amount maximum maximum Amount
Securities to be offering aggregate of reg-
to be regis- price offering istration
registered tered (1) per share (2) price (2) fee
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 330,000 $7.5625 $2,495,625 $860.56
par value
$0.01 per
share
- --------------------------
</TABLE>
(1) This Registration Statement covers the 330,000 shares authorized to be
issued under the 1992 Performance Incentive Plan.
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act of 1933, as amended
(the "Securities Act").
Page 2 of 28 Pages
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PART I
INFORMATION NOT REQUIRED
IN THE REGISTRATION STATEMENT
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange
Commission (the "Commission") by Prime Hospitality Corp., a Delaware
corporation (the "Company"), are incorporated herein by reference:
(a) The Company's latest Annual Report on Form 10-K
for the period ended December 31, 1993, filed
pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
(b) The Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1994, filed pursuant to
the Exchange Act.
(c) The description of the Company's Common Stock par
value $0.01 per share (the "Common Stock")
included in the Company's Application for
Registration on Form 8-A, dated June 5, 1992, as
amended in the Company's Amendments to Application
or Report on Form 8, filed pursuant to the
Exchange Act on July 9, 1992 and December 23,
1992.
In addition, all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all the securities offered hereby
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of the filing of such documents with the Commission.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable.
Page 3 of 28 Pages
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Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby is being
passed upon for the Company by Willkie Farr & Gallagher. As of the date of
this Registration Statement, Jack H. Nusbaum, a partner of Willkie Farr &
Gallagher, is a director of the company.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
A. The Company is incorporated under the laws of Delaware.
The general effect of Section 145 of the Delaware General Corporation Law is to
empower a corporation organized thereunder to indemnify its officers and
directors against expenses (including attorneys' fees), and in non-derivative
suits against judgments, fines and amounts paid in settlement resulting from
actions, suits or proceedings arising by reason of the fact of such officership
or directorship and to require indemnification for expenses (including
attorneys' fees) where such officer or director has been successful on the
merits in the defense of such action. Among the limitations imposed by this
statute are that the party to be indemnified has acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company, and that absent a court determination of fair and reasonable
entitlement, no indemnification may be made to him in respect of any claim by
or in the right of the Company itself if he is adjudged liable for negligence
or misconduct. The indemnification provided for by the statute is not
exclusive of any other rights to which those seeking indemnification may be
entitled under any by-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
B. Article Eighth of the Company's Restated Certificate of
Incorporation reads as follows:
(a) The Corporation shall indemnify to the fullest
extent permitted under and in accordance with the
laws of the State of Delaware any person who was
or is a party or is threatened to be made a party
to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal,
administrative or investigative by reason of the
fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a
director, officer, trustee, employee or agent of
or in any other capacity with
Page 4 of 28 Pages
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another corporation, partnership, joint venture,
trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and
amount paid in settlement actually and reasonably
incurred by him in connection with such action,
suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in, or
not opposed to, the best interests of the
Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to
believe his conduct was unlawful.
(b) Expenses incurred in defending a civil or criminal
action, suit or proceeding shall (in the case of
any action, suit or proceeding against a director
of the Corporation) or may (in the case of any
action, suit or proceeding against an officer,
trustee, employee or agent) be paid by the
Corporation in advance of the final disposition of
such action, suit or proceeding as authorized by
the Board upon receipt of an undertaking by or on
behalf of the indemnified person to repay such
amount if it shall ultimately be determined that
he is not entitled to be indemnified by the
Corporation as authorized in this Article Eighth.
(c) The indemnification and other rights set forth in
this Article Eighth shall not be exclusive of any
provisions with respect thereto in the Bylaws or
any other contract or agreement between the
Corporation and any officer, director, employee or
agent of the Corporation.
(d) Neither the amendment nor repeal of subparagraphs
(a), (b) or (c) of this Article Eighth, nor the
adoption of any provision of this Restated
Certificate of Incorporation inconsistent with
subparagraphs (a), (b) or (c) of this Article
Eighth, shall eliminate or reduce the effect of
subparagraphs (a), (b) and (c) of this Article
Eighth in respect of any matter occurring before
such amendment, repeal or adoption of an
inconsistent provision or
Page 5 of 28 Pages
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in respect of any cause of action, suit or claim
relating to any such matter which would have given
rise to a right of indemnification or right to
receive expenses pursuant to subparagraph (a), (b)
or (c) of this Article Eighth, if such provision
had not been so amended or repealed or if a
provision inconsistent therewith had not been so
adopted.
(e) No director shall be personally liable to the
Corporation or to any stockholder for monetary
damages for breach of fiduciary duty as a
director, except for any matter in respect of
which such director (a) shall be liable under
Section 174 of the DGCL or any amendment thereto
or successor provision thereto, or (b) shall be
liable by reason that, in addition to any and all
other requirements for liability, he:
(i) shall have breached his duty of loyalty to
the Corporation or its stockholders;
(ii) shall not have acted in good faith or, in
failing to act, shall not have acted
in good faith;
(iii) shall have acted in a manner involving
intentional misconduct or a knowing
violation of law or, in failing to act,
shall have acted in a manner involving
intentional misconduct or a knowing
violation of law; or
(iv) shall have derived an improper personal
benefit.
If the DGCL is amended after the date of incorporation to
authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of
a director of the Corporation shall be eliminated or
limited to the fullest extent permitted by the DGCL, as so
amended.
C. Section 8 of Article VIII of the Company's Bylaws reads as
follows: Indemnification of Officers and Directors. The
Corporation will indemnify any and all of its Directors or
officers, including former Directors or officers, and any
employee, who shall serve as an officer or director of any
corporation at the request of the Corporation, to
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the fullest extent permitted under and in accordance with
the laws of the State of Delaware.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
Item 8. EXHIBITS
Exhibit No.
4.1 Specimen certificate for shares of the Common Stock (incorporated
by reference to the Company's Exchange Act Registration Statement
on Form 8-A, Registration Number 1-6869, dated June 5, 1992,
Exhibit 1(a))
4.2 Copy of the Company's Restated Certificate of Incorporation
(incorporated by reference to the Company's Annual Report on Form
10-K for the fiscal year ended June 30, 1992, Exhibit (3)(e))
4.3 Copy of the Company's Restated Bylaws (incorporated by reference to
the Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1992, Exhibit (3)(f)
5.1 Opinion of Willkie Farr & Gallagher, counsel to the Company, as to
the legality of the shares being registered
23.1 Consent of Arthur Andersen & Co., Inc.
23.2 Consent of J. H. Cohn & Company
23.3 Consent of Willkie Farr & Gallagher (contained in Exhibit 5)
99.1 Copy of Prime Hospitality Corp. 1992 Performance Incentive Plan
Item 9. UNDERTAKINGS
1. The Company hereby undertakes:
(a) To file, during any period in which offers or
sales are being made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the
Page 7 of 28 Pages
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Registration Statement;
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(b) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
2. The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent,
Page 8 of 28 Pages
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submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
Page 9 of 28 Pages
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Township of Fairfield, State of New Jersey, on the 5th day
of August, 1994.
PRIME HOSPITALITY CORP.
By:/s/ David A. Simon
---------------------------------------------
David A. Simon, Chairman
of the Board of Directors
Page 10 of 28 Pages
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SIGNATURES
Pursuant to the requirements of the Securities Act this Registration
Statement has been signed below by the following persons in the capacities
indicated on August 5, 1994.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/David A. Simon Chairman of the Board of Directors,
- ---------------------------------------------------------------- President, Chief Executive Officer and
David A. Simon Director (Principal Executive Officer)
/s/John Elwood Director, Executive Vice President, Chief
- ---------------------------------------------------------------- Financial Officer (Principal Financial and
John Elwood Accounting Officer)
Director
- ----------------------------------------------------------------
Allen J. Ostroff
/s/Herbert Lust, II Director
- ----------------------------------------------------------------
Herbert Lust, II
/s/A. F. Petrocelli Director
- ----------------------------------------------------------------
A.F. Petrocelli
/s/Jack H. Nusbaum Director
- --------------------------------------------------------------
Jack H. Nusbaum
/s/Howard M. Lorber Director
- -------------------------------------------------------------
Howard M. Lorber
</TABLE>
Page 11 of 28 Pages
<PAGE> 12
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. PAGE
- ----------- ----
<S> <C> <C>
5.1 Opinion of Willkie Farr & Gallagher
counsel to the Company 14
23.1 Consent of Arthur Andersen & Co., Inc. 16
23.2 Consent of J. H. Cohn & Co., Inc. 18
23.3 Consent of Willkie Farr & Gallagher 20
(contained in Exhibit 5.1)
99.1 Copy of Prime Hospitality Corp. 1992 22
Performance Incentive Plan
</TABLE>
Page 12 of 28 Pages
<PAGE> 1
Exhibit 5.1
Page 13 of 28 Pages
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August 5, 1994
Prime Hospitality Corp.
700 Route 46 East
Fairfield, New Jersey 07004
Ladies and Gentlemen:
We have acted as counsel to Prime Hospitality Corp., a Delaware corporation
(the "Company"), with respect to the Company's Registration Statement on Form
S-8 (the "Registration Statement") to be filed by the Company with the
Securities and Exchange Commission on or about August 5, 1994 in connection
with the registration under the Securities Act of 1933, as amended (the "Act"),
by the Company of an aggregate of 330,000 shares (the "Shares") of the
Company's Common Stock, par value $0.01 per share (the "Common Stock"),
issuable upon exercise of stock options granted or to be granted under the
Prime Hospitality Corp. 1992 Performance Incentive Plan (the "Plan").
As counsel for the Company, we have examined, among other things, such federal
and state laws and originals and/or copies (certified or otherwise identified
to our satisfaction) of such documents, certificates and records as we deemed
necessary and appropriate for the purpose of preparing this opinion.
Based on the foregoing, we are of the opinion that the shares have been duly
and validly authorized for issuance and, when issued in accordance with the
terms of the Plan for consideration in excess of $0.01 per share, will be
validly issued, fully paid, and nonassessable.
We hereby consent to the inclusion of this opinion as part of the Registration
Statement.
We are members of the Bar of the State of New York and do not purport to be
experts in the laws of jurisdictions other than the State of New York, the
General Corporation Law of the State of Delaware and the federal laws of the
United States of America.
Very truly yours,
s/Willkie Farr & Gallagher
Page 14 of 28 Pages
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Exhibit 23.1
Page 15 of 28 Pages
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated March 17, 1994
included in Prime Hospitality Corp.'s Form 10-K for the year ended
December 31, 1993 and to all references to our Firm included in this
registration statement.
/s/ARTHUR ANDERSEN & CO.
Roseland, New Jersey
August 5, 1994
Page 16 of 28 Pages
<PAGE> 1
Exhibit 23.2
Page 17 of 28 Pages
<PAGE> 2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 being filed by Prime Hospitality Corp. (formerly Prime Motor Inns,
Inc.) of our report dated September 24, 1992 (appearing in the Annual Report on
Form 10-K for the fiscal year ended December 31, 1993 of Prime Hospitality
Corp.) on the consolidated financial statements and financial statement
schedules (also appearing in the aforementioned Annual Report) of Prime Motor
Inns, Inc. and Subsidiaries (Debtors-in-Possession).
/s/J.H. Cohn & Company
Roseland, New Jersey
August 5, 1994
Page 18 of 28 Pages
<PAGE> 1
Exhibit 23.3
Page 19 of 28 Pages
<PAGE> 2
Consent of Willkie Farr & Gallagher
(Contained in Exhibit 5.1)
Page 20 of 28 Pages
<PAGE> 1
Exhibit 99.1
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<PAGE> 2
PRIME HOSPITALITY CORP.
1992 PERFORMANCE INCENTIVE PLAN
1. Purposes.
The 1992 Performance Incentive Plan (the "Plan") is intended to attract
and retain the best available personnel for positions for substantial
responsibilities with Prime Hospitality Corp. (the "Company") or any of its
subsidiary corporations, and to provide additional incentive to such employees
to exert their maximum efforts toward the success of the Company and its
subsidiary corporations. The above aims will be effectuated through the
granting of certain stock options. Under the Plan, options may be granted
which are not intended to qualify as Incentive Stock Options (such options
hereinafter referred to as "Options").
2. Administration of the Plan.
The Plan shall be administered by a committee (the "Committee") consisting
of David A. Simon, or such other person who is then serving as Chief Executive
Officer of the Company. The Committee may exercise the power and authority
vested in the Board of Directors under the Plan. Within the limits of the
express provisions of the Plan, the Committee shall have the authority, in its
discretion, to take the following actions under the Plan:
(i) to determine the individuals to whom, and the time or times
at which, Options to purchase the Company's shares of Common Stock, par value
$.01 per share ("Common Shares"), shall be granted, and the number of Common
Shares to be subject to each Option;
(ii) to interpret the Plan;
(iii) to prescribe, amend and rescind rules and regulations
relating to the Plan;
(iv) to determine the terms and provisions of the respective
stock option agreements granting Options (which need not be identical and may,
in the Committee's discretion, contain provisions more favorable to the
Optionee (as hereinafter defined) relating to the matters covered under
Paragraphs 5, 6, 8 or 9 hereof); and
(v) to make all other determinations and take all other actions
necessary or advisable for the administration of the Plan. In making such
determinations, the Committee may take into account the nature of the services
rendered by such individuals, their present and potential contributions to the
Company's success, and such other factors
Page 22 of 28 Pages
<PAGE> 3
as the Committee, in its discretion, shall deem relevant. An individual to
whom an option has been granted under the Plan is referred to herein as an
"Optionee." The Committee's determinations on the matters referred to in this
paragraph shall be conclusive. Any determination by a majority of the members
of the Committee shall be deemed to have been made by the whole Committee.
3. Shares Subject to the Plan.
The total number of Common Shares which shall be subject to Options
granted under the Plan shall be 330,000 in the aggregate, subject to adjustment
as provided in Paragraph 8 or in any related stock option agreement. The
Company shall at all times while the Plan is in force reserve such number of
Common Shares as will be sufficient to satisfy the requirements of outstanding
Options. The Common Shares to be issued upon exercise of Options shall in
whole or in part be authorized and unissued or reacquired Common Shares. The
unexercised portion of any expired, terminated or cancelled Option shall again
be available for the grant of Options under the Plan.
4. Eligibility.
(a) Options may be granted only to key employees, officers or directors
of the Company or of a subsidiary corporation, as determined by the Committee.
(b) Nothing contained in the Plan shall be construed to limit the right
of the Company to grant options otherwise than under the Plan for proper
corporate purposes.
(c) Nothing contained in the Plan shall be construed to limit the right
of the Committee to grant additional Options from time to time to the Optionee
holding such Options, and options may be granted from time to time to one or
more employees who have not previously been granted Options.
5. Terms of Options.
The terms of each Option granted under the Plan shall be determined by the
Committee consistent with the provisions of the Plan, including the following:
(a) The purchase price of the Common Shares subject to each Option
shall be fixed by the Committee, in its discretion, at the time such Option is
granted.
(b) The dates on which each Option (or portion thereof) shall be
exercisable shall be fixed by the Committee, in its discretion, at the time
such Option is granted.
(c) The expiration of each Option shall be fixed by the Committee,
in its discretion, at the time such Option is granted. No Option shall be
exercisable after the
Page 23 of 28 Pages
<PAGE> 4
expiration of six (6) years from the date of its grant and each Option shall be
subject to earlier termination as expressly provided in Paragraph 6 hereof or
as determined by the Committee, in its discretion, at the date such Option is
granted.
(d) Options shall be exercised by the delivery by the Optionee
thereof to the Company at its principal office or at such other address as may
be established by the Committee (Attention: Administrator, 1992 Stock Option
Plan) of written notice of the number of shares with respect to which the
Option is being exercised accompanied by payment in full of the purchase price
of such shares. Payment for such shares may be made (as determined by the
Committee) (i) in cash, (ii) by certified check or bank cashier's check payable
to the order of the Company in the amount of such purchase price, (iii) by
promissory note issued by the Optionee in favor of the Company in an amount
equal to such purchase price and payable on terms prescribed by the Committee
and which provides for the payment of interest at a fair market rate, as
determined by the Committee, (iv) by delivery of capital stock to the Company
having a fair market value equal to said purchase price, (v) by irrevocable
instructions to a broker to deliver promptly to the Company the amount of sale
or loan proceeds necessary to pay the aggregate purchase price of the Common
Shares as to which such exercise relates and to sell the Common Shares to be
issued upon exercise of the Option and deliver the cash proceeds less
commissions and brokerage fees to the Optionee or to deliver the remaining
Common Shares to the Optionee, or (vi) by any combination of the methods of
payment described in (i) through (v) above.
(f) An Optionee shall not have any of the rights of a shareholder
with respect to the Common Shares subject to his Option until such shares are
issued to him upon the exercise of his Option as provided herein.
(g) No Option shall be transferable, except by will or the laws of
descent and distribution, and any Option may be exercised during the lifetime
of the Optionee only by him. No Option granted under the Plan shall be subject
to execution, attachment or other process.
6. Death or Termination of Employment.
(a) If the employment or other relationship of an Optionee with the
Company or any of its subsidiary corporations shall be terminated voluntarily
by the employee and without the consent of the Company or a subsidiary
corporation, as the case may be, or for cause,
Page 24 of 28 Pages
<PAGE> 5
and immediately after such termination such Optionee shall not then be employed
by the Company or any of its subsidiary corporations, as the case may be, any
Option or Options granted to such Optionee to the extent not theretofore
exercised shall expire forthwith.
(b) If such employment or other relationship of an Optionee with the
Company shall terminate other than (i) by reason of death, (ii) voluntarily by
the employee and without the consent of the Company or any of its subsidiary
corporations, as the case may be, or (iii) for cause, and immediately after
such termination such Optionee shall not then be employed by the Company or any
of its subsidiary corporations, as the case may be, any Option or Options
granted to such Optionee may be exercised at any time within three months after
such termination, subject to the provisions of subparagraph (d) of this
Paragraph 6. For the purposes of the Plan, the retirement of an Optionee
either pursuant to a pension or retirement plan adopted by the Company or a
subsidiary corporation, as the case may be, on the normal retirement date
prescribed from time to time by the Company or such subsidiary corporation, and
the termination of employment as a result of a disability (as defined in
Section 22(e)(3) of the Internal Revenue Code of 1986, as amended) shall be
deemed to be a termination of such Optionee's employment other than voluntarily
by the Optionee or for cause.
(c) If an Optionee dies (i) while employed by, or while engaged in
another relationship with, the Company or a subsidiary corporation or (ii)
within three months after the termination of his employment or other
relationship other than voluntarily by the Optionee and without the consent of
the Company or a subsidiary corporation or for cause, any Option or Options
granted to such Optionee may be exercised at any time within six months after
such Optionee's death, subject to the provisions of subparagraph (d) of this
Paragraph 6.
(d) An Option may not be exercised pursuant to this Paragraph 6 except to
the extent that the Optionee was entitled to exercise the Option at the time of
termination of employment or such other relationship, or death, and in any
event may not be exercised after the expiration of six (6) years from the date
the Option was granted.
7. Leave of Absence.
For purposes of the Plan, an individual who is on military or sick leave
or other bona fide leave of absence (such as temporary employment by the United
States or any state government) shall be considered as remaining in the employ
of the Company or of a
Page 25 of 28 Pages
<PAGE> 6
subsidiary corporation for 90 days or such longer period as shall be determined
by the Committee.
8. Adjustment upon Changes in Capitalization.
(a) In the event that the outstanding Common Shares are hereafter changed
by reason of reorganization, merger, consolidation, recapitalization,
reclassification, stock split-up, combination or exchange of shares and the
like, or dividends payable in Common Shares, an appropriate adjustment shall be
made by the Committee in the aggregate number of shares available under the
Plan and in the number of shares and price per share subject to outstanding
Options. If the Company shall be reorganized, consolidated, or merged with
another corporation, or if all or substantially all of the assets of the
Company shall be sold or exchanged, an Optionee shall at the time of issuance
of the stock under such corporate event be entitled to receive upon the
exercise of his Option the same number and kind of shares of stock or the same
amount of property, cash or securities as he would have been entitled to
receive upon the occurrence of any such corporate event as if he had been,
immediately prior to such event, the holder of the number of shares covered by
his Option.
(b) Any adjustment under this Paragraph 8 in the number of Common Shares
subject to Options shall apply proportionately to only the unexercised portion
of any Option granted hereunder. If fractions of a share would result from any
such adjustment, the adjustment shall be revised to the next lower whole number
of shares.
9. Further Conditions of Exercise.
(a) Unless prior to the exercise of an Option the Common Shares issuable
upon such exercise are the subject of a registration statement filed with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended (the "Securities Act"), and there is then in effect a prospectus filed
as part of such registration statement meeting the requirements of Section
10(a)(3) of the Securities Act, the notice of exercise with respect to such
Option shall be accompanied by a representation or agreement of the Optionee to
the Company to the effect that such shares are being acquired for investment
only and not with a view to the resale or distribution thereof, or such other
documentation as may be required by the Company, unless, in the opinion of
counsel to the Company, such representation, agreement or documentation is not
necessary to comply with the Securities Act.
Page 26 of 28 Pages
<PAGE> 7
(b) Anything in subparagraph (a) of this Paragraph 9 to the contrary
notwithstanding, the Company shall not be obligated to issue or sell any Common
Shares until they have been listed on each securities exchange on which the
Common Shares may then be listed and until and unless, in the opinion of
counsel to the Company, the Company may issue such shares pursuant to a
qualification or an effective registration statement, or an exemption from
registration, under such state and federal laws, rules or regulations as such
counsel may deem applicable. The Company shall use reasonable efforts to
effect such listing, qualification and registration, as the case may be.
10. Termination, Modification and Amendment.
(a) The Plan (but not Options previously granted under the Plan) shall
terminate ten (10) years from the date of its adoption by the Board of
Directors, and no Option shall be granted after termination of the Plan.
(b) The Plan may from time to time be terminated, modified or amended by
the affirmative vote of the holders of a majority of the outstanding shares of
the capital stock of the Company entitled to vote thereon.
(c) The Board of Directors of the Company 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 Board of Directors shall
not, without approval by the affirmative vote of the holders of a majority of
the outstanding shares of the capital stock of the Company be entitled to vote
thereon, increase (except as provided by Paragraph 8) the maximum number of
Common Shares as to which Options may be granted under the Plan or change the
class of persons eligible to receive Options under the Plan.
(d) No termination, modification or amendment of the Plan may adversely
affect the rights conferred by any Options without the consent of the Optionee
thereof.
11. Effectiveness of the Plan.
The Plan is adopted pursuant to authorization of the U.S. Bankruptcy Court
for the Southern District of Florida, after disclosure and approval of the
Second Amended Joint Plan of Reorganization by Creditors and Shareholders.
Accordingly, the Plan shall become effective upon adoption by the Board of
Directors of the Company.
12. Not a Contract of Employment.
Nothing contained in the Plan or in any stock option agreement executed
pursuant hereto shall be deemed to confer upon Optionee any right to remain in
the employ of the
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<PAGE> 8
Company or subsidiary corporation.
Page 28 of 28 Pages
