<PAGE> 1
REGISTRATION NO. _______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1993
THE STROBER ORGANIZATION, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-2822910
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
550 HAMILTON AVENUE, BROOKLYN, NEW YORK 11232 (718) 832-1212
(Address including zip code and telephone number, including area code of
Registrants Principal Executive Offices)
THE STROBER ORGANIZATION, INC.
1995 OUTSIDE DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
Stanley U. North III, Esq.
Sills Cummis Zuckerman Radin Tischman Epstein & Gross, P.A.
One Riverfront Plaza
Newark, New Jersey 07102
(201) 643-7000
(Name, address including zip code and telephone number, including
area code, of agent for service)
Calculation Of Registration Fee
<TABLE>
<CAPTION>
Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of registration
Registered Registered(1) offering price per unit(2) aggregate offering price fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 75,000 $3.625 $271,875 $93.75
par value
</TABLE>
(1) This registration statement also includes an indeterminate number of
shares as may become issuable by reason of the anti-dilution provisions
of the Plan.
(2) Estimated, pursuant to Rule 457(h), solely for the purpose of
calculating the registration fee.
<PAGE>
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of Form S-8 and Form S-3. The Form S-8 portion of this
Registration Statement will be used for offers of Common Stock of the
Registrant pursuant to the Registrant's 1995 Outside Director Stock Option
Plan. The Prospectus filed as part of this Registration Statement has been
prepared in accordance with the requirements of Part I of Form S-3 and will be
used for reofferings or resales of Common Stock to be acquired by the class of
persons named therein pursuant to the Registrant's 1995 Outside Director Stock
Option Plan. A cross reference sheet is provided for such prospectus.
<PAGE>
THE STROBER ORGANIZATION, INC.
_________________
Cross-Reference Sheet
Pursuant to Item 501(b) of Regulation S-K
FORM S-3 ITEM AND HEADING LOCATION IN PROSPECTUS
I. Forepart of Registration Statement and Front Cover Page
Outside Front Cover Page of Prospectus
II. Inside Front and Outside Back Cover Inside Front Cover Page
Pages of Prospectus
III. Summary Information, Risk Factors and The Company
Ratio of Earnings to Fixed Charges
IV. Use of Proceeds Not applicable
V. Determination of Offering Price Not applicable
VI. Dilution Not applicable
VII. Selling Security Holders Selling Stockholders
VIII. Plan of Distribution Plan of Distribution
IX. Description of Securities to be Not applicable
Registered
X. Interests of Named Experts and Counsel Legal Matters; Experts
XI. Material Changes Not applicable
XII. Incorporation of Certain Information by Incorporation of Certain
Reference Documents by Reference
XIII. Disclosure of Commission Position on Indemnification
Indemnification for Securities Act
Liabilities
<PAGE>
PROSPECTUS
THE STROBER ORGANIZATION, INC.
75,000 Shares of Common Stock
(par value $.01 per share)
This Prospectus relates to the offer and sale of shares of Common Stock
of THE STROBER ORGANIZATION, INC. (the "COMPANY"), par value $.01 per share
(the "COMMON STOCK"), which may be offered hereby from time to time by any
and/or all of the selling stockholders as described herein (the "SELLING
STOCKHOLDERS") for their own benefit. The Company will receive no part of the
proceeds of sales made hereunder. All expenses of registration incurred in
connection with this offering are being borne by the Company, but all selling
and other expenses incurred by the Selling Stockholders will be borne by such
Selling Stockholders. None of the shares offered pursuant to this Prospectus
have been registered prior to the filing of the Registration Statement of which
this Prospectus is a part.
All or a portion of the shares of Common Stock offered hereby may be
offered for sale, from time to time, on the National Association of Securities
Dealers Automated Quotation (NASDAQ) system, or otherwise, at prices and terms
then obtainable. All brokers' commissions, concessions or discounts will be
paid by the Selling Stockholders.
The Selling Stockholders and any broker executing selling orders on
behalf of the Selling Stockholders may be deemed to be an "underwriter" within
the meaning of the Securities Act of 1933, as amended (the "SECURITIES ACT"),
in which event commissions received by such broker may be deemed to be
underwriting commissions under the Securities Act.
The Common Stock of the Company is listed on the NASDAQ National Market
System under the symbol STRB. On January 29, 1996, the last reported closing
price of the Company's Common Stock on the NASDAQ National Market System was
$3.875.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR BY ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THE PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
No person has been authorized to give any information or to make any
representations, other than those contained in this Prospectus, and, if given
or made, such information or representation should not be relied upon as having
been authorized by the Company. This prospectus does not constitute an offer
to sell or a solicitation of an offer to buy any security in any jurisdiction
in which, or to any person to whom such offer or solicitation would be
unlawful. Neither the delivery of this Prospectus nor any distribution of the
securities made under this Prospectus shall under any circumstances create any
implication that there has been no change in the affairs of the Company or in
any other information contained herein since the date of the Prospectus.
The date of this Prospectus is February 2, 1996.
<PAGE>
TABLE OF CONTENTS
PAGE
Available Information....................................................3
Incorporation of Certain Documents By Reference..........................3
The Company..............................................................4
Selling Stockholders.....................................................4
Plan of Distribution.....................................................6
Legal Matters............................................................6
Experts..................................................................6
Indemnification..........................................................7
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "SEC"). Such reports, proxy
statements and other such information filed by the Company with the SEC can be
inspected and copied at the public reference facilities maintained by the SEC
at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the regional offices
of the SEC, located at 75 Park Place, 14th Floor, New York, New York 10007 and
at Room 1204, Kluczynski Federal Building, 230 South Dearborn Street, Chicago,
Illinois 60604. Copies of such material can also be obtained at prescribed
rates from the Public Reference Section of the SEC, 450 Fifth Street, N.W.,
Washington, D.C. 20549.
In addition, the Company's Common Stock is listed on the NASDAQ National
Market System and similar information concerning the Company can be inspected
and copied at the National Association of Securities Dealers offices at its
Corporate Financing Department, Executive Office, 1735 K Street, N.W.,
Washington, D.C.
This Prospectus does not contain all of the information set forth in the
Registration Statement of which this Prospectus is a part and which the Company
has filed with the SEC. For further information with respect to the Company
and the securities offered hereby, reference is made to the Registration
Statement, including the exhibits filed as a part thereof, copies of which may
be inspected at or obtained at prescribed rates from the Public Reference
Section of the SEC.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the SEC are
incorporated hereby by reference:
A. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994, filed pursuant to Section 13(a) of the Exchange
Act.
B. The Company's Quarterly Report on Form 10-Q for the period ended
March 31, 1995, filed pursuant to Section 13(a) of the Exchange Act.
C. The Company's Quarterly Report on Form 10-Q for the period ended
June 30, 1995, filed pursuant to Section 13(a) of the Exchange Act.
D. The Company's Quarterly Report on Form 10-Q for the period ended
September 30, 1995, filed pursuant to Section 13(a) of the Exchange
Act.
E. The description of the Common Stock of the Company contained in the
Registration Statement on Form 8-A (SEC File No. 0-15339) filed by
the Company under the Exchange Act on January 27, 1987.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the filing of a post-effective amendment which indicates that all such
securities offered hereby have been sold or which deregisters all securities
then remaining to be sold shall be deemed to be incorporated by reference into
this Prospectus and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained
herein, or in any other subsequently filed document that also is or is deemed
to be incorporated by reference herein, modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus is delivered, upon written or oral request of
such person, a copy of any and all of the information that has been
incorporated by reference (other than the exhibits to such documents unless
such exhibits are specifically incorporated by reference into such documents).
Requests should be directed to David J. Polishook, Chief Financial Officer, THE
STROBER ORGANIZATION, INC., 550 Hamilton Avenue, Brooklyn, New York 11232,
telephone number (718) 832-1212.
THE COMPANY
The Corporation was incorporated in the state of Delaware in 1986. The
executive offices of The Strober Organization, Inc. are located at 550 Hamilton
Avenue, Brooklyn, New York 11232 and its telephone number is (718) 832-1212.
SELLING STOCKHOLDERS
The shares of Common Stock covered by this Prospectus are being
registered for reoffers and resales by Selling Stockholders of the Company who
may acquire such shares pursuant to the exercise of options granted or to be
granted under the Company's 1995 Outside Director Stock Option Plan (the
"Plan"). The Selling Stockholders named below may reoffer and resell all, a
portion, or none of the shares that they acquire pursuant to the exercise of
options under the Plan.
Nonemployee directors of the Company who may acquire Common Stock under
the Plan may be added, from time to time, to the table of Selling Stockholders
listed below, either by a post-effective amendment hereto or by a prospectus
supplement filed pursuant to Rule 424(c) under the Securities Act.
<PAGE>
The following table shows the names of the Selling Stockholders, their
positions with the Company, the number of shares of Common Stock known by the
Company to be beneficially owned by each of the Selling Stockholders as of the
date hereof, the number of shares owned by each of the Selling Stockholders
covered by this Prospectus and the amount of and the percentage of (if one
percent or more) the class to be owned by each Selling Stockholder if such
Selling Stockholder were to sell all of the shares of Common Stock covered by
this Prospectus:
<TABLE>
<CAPTION>
Amount to be held after the
Offering(1)(4)
---------------------------
Shares Shares Percentage
Selling Position with Beneficially Covered by Number of Of
Stockholder the Corporation Owner(1) this Prospectus Shares Class
- ----------- --------------- ----------- --------------- --------- ---------
<S> <C> <C> <C> <C> <C>
David W. Bernstein Director 37,850(2) 18,750 19,100(2) *
Joseph Mangino. Sr. Director 19,250 18,750 500 *
Alvin Murstein Director 23,750 18,750 5,000 *
Emil W. Solimine Director 27,250 18,750 8,500(3) *
</TABLE>
________________________
*Less than one percent of the outstanding shares of Common Stock.
(1) Excludes 10,000 and 12,500 shares of Common Stock subject to presently
exercisable options owned by the Selling Stockholders granted at an exercise
price of $1.75 and $4.75 per share which expire on March 4, 1996 and March 9,
1997, respectively.
(2) Includes 100 shares owned by Mr. Bernstein's wife as to which he
disclaims beneficial ownership. Excludes shares of Common Stock subject to
presently exercisable warrants held by Mr. Bernstein for 100,000 shares at an
exercise price of $12.00 per share which expire on November 7, 1996.
(3) The record owner of these shares is Emar, Ltd. of which Mr. Solimine is
the sole shareholder.
(4) These amounts are based on the assumption that no additional shares are
purchased or sold by, or awarded to, any Selling Stockholder.
<PAGE>
PLAN OF DISTRIBUTION
Any shares of Common Stock sold pursuant to this Prospectus will be sold
by the Selling Stockholders for their own accounts and they will receive all
proceeds from any such sales. The Company will receive none of the proceeds
from the sale of shares which may be offered hereby but may receive funds upon
the exercise of the options pursuant to which the Selling Stockholders will
acquire the shares covered by this Prospectus, which funds, if any, will be
used for working capital or other corporate purposes. The Selling Stockholders
have not advised the Company of any specific plans for the distribution of the
shares of Common Stock covered by this Prospectus, but, if and when shares are
sold, it is anticipated that the shares will be sold from time to time
primarily in transactions on the NASDAQ National Market System at the market
price then prevailing, although sales may also be made in negotiated
transactions or otherwise, at prices related to such prevailing market price or
otherwise. If shares of Common Stock are sold through brokers, the Selling
Stockholders may pay customary brokerage commissions and charges. The Selling
Stockholders may effect such transactions by selling shares to or through
broker-dealers, and such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the Selling Stockholders and/or the
purchasers of shares for whom such broker-dealers may act as agent or to whom
they may sell as principal, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions). The Selling
Stockholders and any broker-dealers that act in connection with the sale of the
shares hereunder might be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act, and any commissions received by them and
any profit on the resale of shares as principal might be deemed to be
underwriting discounts and commissions under the Securities Act.
There can be no assurances that the Selling Stockholders will sell any or
all of the shares of Common Stock offered hereunder.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Sills Cummis Zuckerman Radin Tischman Epstein & Gross,
P.A., Newark, New Jersey.
EXPERTS
The consolidated financial statements and schedule of the Company as of
December 31, 1994 and 1993, and for each of the years in the three-year period
ended December 31, 1994 have been incorporated by reference herein in reliance
upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
<PAGE>
INDEMNIFICATION
The Company's Certificate of Incorporation (the "CERTIFICATE OF
INCORPORATION") provides that the Company shall, to the fullest extent
permitted by the Delaware General Corporation Law, as it is now or hereafter
may be in effect, indemnify each person (including the heirs, executors,
administrators and other personal representatives of such person) against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement, actually and reasonably incurred by such person in connection with
any threatened, pending or completed suit, action or proceeding (whether civil,
criminal, administrative or investigative in nature or otherwise) in which such
person may be involved by reason of the fact that he or she is or was a
director, officer, employee or agent of the Company or is or was serving any
other incorporated or unincorporated enterprise in any of such capacities at
the request of the Company. The Certificate of Incorporation further provides
that to the fullest extent permitted by the Delaware General Corporation Law,
as it is now or may hereafter be in effect, any such expenses (including
attorneys' fees) may be paid by the Company in advance of the final disposition
of such suit, action or proceeding.
The Company's By-laws provide that the Company may implement the
provisions of the Certificate of Incorporation respecting indemnification of
directors, officers, employees and agents of the Company and advancement of
expenses (including attorneys' fees) actually and reasonably incurred by the
directors and officers in connection with any threatened, pending or completed
action, suit or proceeding by adopting such resolutions or by-laws, or causing
the Company to enter into such agreements, as the Company's Board of Directors
shall, from time to time, deem necessary.
The Company currently maintains policies of insurance under which the
directors and officers of the Company are insured, within the limits and
subject to the limitations of the policies, against certain expenses in
connection with the defense of actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such actions, suits or
proceedings, to which they are parties by reason of being or having been such
directors and/or officers.
The Company has entered into Fiduciary Reimbursement and Indemnification
Agreements (the "AGREEMENTS") with three of its officers (the "INDEMNITEES") in
connection with their roles as fiduciaries of the Company's Profit Sharing
Plan. Pursuant to the Agreements, the Company shall, to the fullest extent
provided by the Delaware General Corporate Law, indemnify and hold the
Indemnitees (including their heirs, executors, administrators and other
personal representatives) harmless against expenses (including reasonable
attorneys' fees) incurred by the Indemnitees, and all judgments, fines and
amounts paid in settlement actually and reasonably incurred by the Indemnitees
in connection with claims, actions, suits, arbitrations or other proceedings,
whether civil, criminal, administrative or investigative in nature or otherwise
(other than by an action by or in the right of the Company), by reason of any
alleged breach of fiduciary responsibility, error or omission, or failure to
act in the manner prescribed by the Employee Retirement Income Security Act of
1974, in the Indemnitees' capacity as fiduciaries under the Company's Profit
Sharing Plan.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. DOCUMENTS INCORPORATED BY REFERENCE
The Strober Organization, Inc. ("STROBER" or the "COMPANY") hereby
incorporates by reference into this Registration Statement the following
documents which have been filed by the Company with the Securities and Exchange
Commission (the "SEC"):
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT").
(b) The Company's Quarterly Report on Form 10-Q for the period
ended March 31, 1995, filed pursuant to Section 13(a) of the Exchange Act.
(c) The Company's Quarterly Report on Form 10-Q for the period
ended June 30, 1995, filed pursuant to Section 13(a) of the Exchange Act.
(d) The Company's Quarterly Report on Form 10-Q for the period
ended September 30, 1995, filed pursuant to Section 13(a) of the Exchange Act.
(e) The description of the Common Stock of the Company contained
in the Registration Statement on Form 8-A (Commission File No. 0-15339) filed
by the Company under the Exchange Act on January 27, 1987.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be deemed to
be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation (the "CERTIFICATE OF
INCORPORATION") provides that the Company shall, to the fullest extent
permitted by the Delaware General Corporation Law, as it is now or hereafter
may be in effect, indemnify each person (including the heirs, executors,
administrators and other personal representatives of such person) against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement, actually and reasonably incurred by such person in connection with
any threatened, pending or completed suit, action or proceeding (whether civil,
criminal, administrative or investigative in nature or otherwise) in which such
person may be involved by reason of the fact that he or she is or was a
director, officer, employee or agent of the Company or is or was serving any
other incorporated or unincorporated enterprise in any of such capacities at
the request of the Company. The Certificate of Incorporation further provides
that to the fullest extent permitted by the Delaware General Corporation Law,
as it is now or may hereafter be in effect, any such expenses (including
attorneys' fees) may be paid by the Company in advance of the final disposition
of such suit, action or proceeding.
The Company's By-laws provide that the Company may implement the
provisions of the Certificate of Incorporation respecting indemnification of
directors, officers, employees and agents of the Company and advancement of
expenses (including attorneys' fees) actually and reasonably incurred by the
directors and officers in connection with any threatened, pending or completed
action, suit or proceeding by adopting such resolutions or by-laws, or causing
the Company to enter into such agreements, as the Company's Board of Directors
shall, from time to time, deem necessary.
The Company currently maintains policies of insurance under which the
directors and officers of the Company are insured, within the limits and
subject to the limitations of the policies, against certain expenses in
connection with the defense of actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such actions, suits or
proceedings, to which they are parties by reason of being or having been such
directors and/or officers.
The Company has entered into Fiduciary Reimbursement and Indemnification
Agreements (the "AGREEMENTS") with three of its officers (the "INDEMNITEES") in
connection with their roles as fiduciaries of the Company's Profit Sharing
Plan. Pursuant to the Agreements, the Company shall, to the fullest extent
provided by the Delaware General Corporate Law, indemnify and hold the
Indemnitees (including their heirs, executors, administrators and other
personal representatives) harmless against expenses (including reasonable
attorneys' fees) incurred by the Indemnitees, and all judgments, fines and
amounts paid in settlement actually and reasonably incurred by the Indemnitees
in connection with claims, actions, suits, arbitrations or other proceedings,
whether civil, criminal, administrative or investigative in nature or otherwise
(other than by an action by or in the right of the Company), by reason of any
alleged breach of fiduciary responsibility, error or omission, or failure to
act in the manner prescribed by the Employee Retirement Income Security Act of
1974, in the Indemnitees' capacity as fiduciaries under the Company's Profit
Sharing Plan.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
EXHIBIT NUMBER EXHIBIT
4.1 The Strober Organization, Inc. 1995 Outside Director Stock
Option Plan
4.2 Form of Outside Director Stock Option Agreement
5.1 Opinion of Sills Cummis Zuckerman Radin Tischman Epstein &
Gross, P.A. as to Legality
23.1 Consent of Sills Cummis Zuckerman Radin Tischman Epstein &
Gross, P.A. (included in Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP
24 Powers of Attorney (included in the signature pages of this
Registration Statement)
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes to file, during any period
in which offers or sales are being made, post-effective amendments to this
Registration Statement: (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1993, as amended (the "SECURITIES ACT");
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-
effective amendment hereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in this Registration
Statement; and (iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that (i) and (ii) above shall not apply if the information
required to be included in a post-effective amendment is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each such post-effective
amendment, and each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in this 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.
The undersigned Registrant hereby undertakes 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Brooklyn, New York, on the 31st day of January, 1996.
THE STROBER ORGANIZATION, INC.
By:/S/ ROBERT J. GAITES
--------------------------------------
Robert J. Gaites
President and Chief Executive Officer
POWERS OF ATTORNEY
Each person whose signature appears below hereby authorizes and appoints
Robert J. Gaites, David J. Polishook and each of them, his true and lawful
attorneys-in-fact, with full power of substitution and resubstitution, to sign
and file on his behalf individually and in each such capacity stated below any
and all amendments (including post-effective amendments) to this Registration
Statement, as fully as such person could do in person, hereby ratifying and
confirming all that said attorneys-in-fact, or their substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
/S/ ROBERT J. GAITES Chairman of the Board, January 31, 1996
Robert J. Gaites President and Chief Executive
Officer (Principal Executive Officer)
/S/ DAVID J. POLISHOOK Chief Financial Officer, January 31, 1996
David J. Polishook Secretary and Treasurer (Principal
Accounting and Financial Officer)
/S/ DAVID W. BERNSTEIN Director January 31, 1996
David W. Bernstein
/S/ JOSEPH MANGINO, SR. Director January 31, 1996
Joseph Mangino, Sr.
/S/ ALVIN MURSTEIN Director January 31, 1996
Alvin Murstein
/S/ EMIL W. SOLIMINE Director January 31, 1996
Emil W. Solimine
<PAGE>
/S/ JOHN YANUKLIS Executive Vice President January 31, 1996
John Yanuklis and Director
/S/ ELIOTT S. ZIEKY Senior Vice President January 31, 1996
Eliott S. Zieky and Director
<PAGE>
EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NO. CAPTION PAGE NO.
4.1 The Strober Organization, Inc. 1995
Outside Director Stock Option Plan
4.2 Form of Outside Director Stock Option
Agreement
5.1 Opinion of Sills Cummis Zuckerman Radin Tischman
Epstein & Gross, P.A. as to Legality
23.1 Consent of Sills Cummis Zuckerman Radin Tischman
Epstein & Gross, P.A.
(included in Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP
24 Powers of Attorney (included in the signature pages
of this Registration Statement)
<PAGE>
EXHIBIT 4.1
THE STROBER ORGANIZATION, INC.
1995 OUTSIDE DIRECTOR
STOCK OPTION PLAN
<PAGE>
AS ADOPTED AT THE COMPANY STOCKHOLDER MEETING HELD MAY 25, 1995
THE STROBER ORGANIZATION, INC.
1995 OUTSIDE DIRECTOR STOCK OPTION PLAN
I. PURPOSE
The purpose of the Strober Organization, Inc. 1995 Outside Director
Stock Option Plan (the "PLAN") is to provide additional incentive to
exceptional persons to serve as outside directors on the Board of Directors
(the "BOARD") of The Strober Organization, Inc. (the "COMPANY") or its
subsidiaries. The purposes of the Plan are to encourage ownership in the
Company by non-employee members of the Board in order to promote long-term
Stockholder value and to provide non-employee members of the Board with an
incentive to continue as directors of the Company.
II. GRANT OF OPTIONS
A. As of March 8, 1995, each of the four (4) nonemployee directors
will be granted an option ("OPTION") to purchase 18,750 shares of the Company's
Common Stock, par value $.01 per share ("SHARES").
B. The maximum number of Shares that may be issued upon the
exercise of Options shall not exceed 75,000 Shares, subject to adjustment as
provided in paragraph 8. Shares issued under this Plan may be authorized but
unissued or held in treasury. If any outstanding Options, or any portion
thereof, expire, lapse, terminate for any reason (other than the exercise
thereof) or are exchanged or substituted, the Shares subject to the unexercised
portion of such Options may again be the subject of Options under this Plan.
In no event will any Options be granted under this Plan after March 8, 2000.
III. TERMS AND CONDITIONS OF OPTIONS
Each Option will be evidenced by an agreement executed by the Company
and the recipient which will include the following terms and conditions:
A. EXERCISE PRICE
The exercise price of the Option was established at $3.625, the fair
market value determined on the date of grant of the Option as the closing sales
price as quoted by the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") on the date of the grant.
B. TERM OF OPTIONS
Each Option will be outstanding for a term expiring on March 8,
2000 and will be exercisable in the manner set forth in paragraph
3(e).
<PAGE>
C. NON-TRANSFERABILITY OF OPTIONS
Options will not be transferable by the optionee other than by
will or by the laws of descent and distribution and may be exercised
during the optionee's lifetime only by the optionee.
D. TERMINATION OF OPTIONS
If an optionee's service as a director ends for any reason, such
optionee's Option will immediately terminate.
E. EXERCISE OF OPTIONS
Each Option will be fully exercisable on the date of grant. The
optionee, upon written notice to the Company, may exercise an Option
in accordance with any procedure that the Company may establish. Any
exercise of an Option will be effected by payment of the full exercise
price, either by payment in cash, payment by delivery of previously
owned Shares or a combination of payment in cash or delivery of
Shares, and any required withholding tax shall be paid by the optionee
in full at the time an Option is exercised.
IV. AMENDMENT OR TERMINATION
The Committee may at any time amend or terminate this Plan, including
extending the term of the Plan; provided that no such amendment or termination
shall adversely affect or impair the rights of optionees. In addition, the
Committee may accept the surrender of outstanding options (up to the extent not
theretofore exercised) and authorize the granting of new options in
substitution therefor (to the extent not theretofore exercised).
V. INDEMNIFICATION OF THE COMMITTEE
In addition to such other rights or indemnification as they may have,
the members of the Committee shall be indemnified by the Company against all
costs and expenses (including legal fees) reasonably incurred by them (or any
of them) in connection with any action, suit or proceeding to which they (or
any of them) may be a party by reason of any action taken or any failure to act
under or in connection with the Plan or any award granted pursuant thereto and
against all amounts paid by them in settlement thereof, provided such
settlement is approved by legal counsel selected by the Company or is paid by
them in satisfaction of a judgment in any action, suit or proceeding. Upon
institution of any such action, suit or proceeding, the person desiring
indemnification will give the Company an opportunity, at its own expense, to
defend the same.
VI. EXPENSES
All expenses and costs in connection with the administration of the
Plan will be paid by the Company.
VII. ADJUSTMENTS
In the event of any change in the Shares by reason of a stock
dividend, recapitalization, reclassification, stock split, combination of
shares, corporate transaction, or similar event, the number of Shares covered
by an Option and the exercise price will be adjusted to reflect such change as
the Committee, in its sole discretion, deems appropriate.
VIII. LIABILITY OF COMPANY
The liability of the Company under this Plan and any sale made
hereunder is limited to the obligations set forth with respect to such transfer
and nothing herein contained shall be construed to impose any liability on the
Company in favor of any optionee with respect to any loss, cost or expense
which an optionee may incur in connection with or arising out of any
transaction in connection therewith.
IX. NOTICES
Any notice or other communication required or permitted to be made or
given hereunder shall be sufficiently made or given if sent by certified mail
addressed to an optionee at his address as set forth in the regular books and
records of the Company, or its subsidiaries, and if to the Company, addressed
to it at its principal office.
X. APPLICATION OF FUNDS
The proceeds received by the Company from the sale of Shares subject
to Options may be commingled with any other corporate funds and used for any
corporate purpose.
XI. GOVERNING LAW
All questions arising with respect to the provisions of the Plan will
be determined by application of the laws of the State of New York, except to
the extent that New York law is preempted by federal statute. The obligation
of the Company to sell and deliver Options or Shares hereunder is subject to
the approval of any governmental authority required in connection with the
authorization, issuance or sale of such Options or Shares and compliance with
all applicable laws, and may be deferred pending such approval and compliance.
<PAGE>
EXHIBIT 4.2
FORM OF OUTSIDE DIRECTOR
STOCK OPTION AGREEMENT
<PAGE>
OUTSIDE DIRECTOR STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (this "AGREEMENT") dated as of March 8, 1995
(the "GRANT DATE") and effective as of May 25, 1995 (the "OUTSIDE DIRECTOR
EFFECTIVE DATE") between THE STROBER ORGANIZATION, INC., a Delaware corporation
(the "COMPANY"), and the non-employee director of the Company identified on the
signature page of this Agreement (the "OPTIONEE").
BACKGROUND
A. The Strober Organization, Inc. 1995 Outside Director Stock
Option Plan annexed hereto as EXHIBIT A (the "PLAN") was adopted
by the Board of Directors of the Company on March 8, 1995
subject to subsequent stockholder approval and provides for the
issuance of a stock option for the purchase of eighteen thousand
seven hundred fifty (18,750) shares of the Company's common
stock, par value $.01 per share (the "COMMON STOCK"), to each of
the Company's non-employee directors.
B. The closing price of the Common Stock on the Grant Date was
$3.625 per share.
C. The Plan was approved by the Company's stockholders on the
Effective Date.
D. Optionee represents and warrants to the Company that Optionee is
currently a non-employee director of the Company and is eligible
to participate in the Plan.
NOW THEREFORE, in consideration of the agreements hereinafter set
forth and subject to the terms of the Plan, the Company and the Optionee hereby
agree as follows:
1. GRANT OF OPTION. The Company hereby grants to the Optionee, as
of the Grant Date, the right to purchase an aggregate of 18,750
shares of the Company's Common Stock (the "OPTION SHARES") at
the price of $3.625 per share (the "EXERCISE PRICE") on the
terms and conditions set forth herein and subject to the
provisions of the Plan (the "OPTION"). The parties hereto
acknowledge and agree that the Option is not an Incentive Stock
Option governed by the provisions of Section 422 of the Internal
Revenue Code of 1986, as amended (the ("CODE") and that the
Optionee shall be subject to taxation upon the exercise of the
Option.
2. TERM OF OPTION. The Option shall expire five (5) years from the
Grant Date; PROVIDED HOWEVER, that the Option shall terminate
immediately if the Optionee's service as a director of the
Company ends for any reason.
3. EXERCISE OF OPTION. The Option is fully exercisable as of the
Grant Date and may be exercised by written notice to the Company
at its principal office indicating the number of Option Shares
which are being purchased. Such notice shall be signed by the
Optionee and shall be accompanied by full payment of the
Exercise Price. Payment of the Exercise Price shall be made
either in cash or by certified check or by delivery of shares of
Common Stock having a fair market value on the date of exercise
equal to the Exercise Price or a combination of cash or
certified check and delivery of shares of Common Stock having a
total value equal to the Exercise Price.
4. HOLDING PERIOD. Pursuant to Rule 16b-3(c)91) of the Securities
Exchange Act of 1934, as amended (the "1934 ACT"), the Optionee
covenants and agrees that if the Option is exercised, Optionee
shall not dispose of the Option Shares for at least six (6)
months from the Grant Date.
5. RECAPITALIZATIONS, MERGERS, CONSOLIDATIONS AND SIMILAR
TRANSACTIONS. In the event the Shares, as presently
constituted, shall be changed into or exchanged for a different
number of kind of shares or other securities of the Company or
of another corporation (whether by reason of merger,
consolidation, recapitalization, reclassification, split,
reverse split, combination of shares, or otherwise) or if the
number of such Shares shall be increased through the payment of
a share dividend, the Optionee shall have the right to receive
upon exercise of the Option the number and kind of shares or
other securities into which each outstanding Share shall be so
changed, or for which each such Share shall be exchanged, or to
which each such Shares shall be entitled, as the case may be.
The option price and other terms of the Option shall be
appropriately amended to reflect the foregoing events. In the
event there shall be any other change in the number of kind of
the outstanding Shares, or of any shares or other securities
into which such Shares shall have been changed, or for which
such Shares shall have been exchanged, then, if the Plan
Committee, in its sole discretion, determines that such change
equitably requires an adjustment in the Option, such adjustment
shall be made in accordance with such determination. Notice of
any adjustment pursuant to this Section may be settled in cash
or otherwise as the Plan Committee shall determine.
6. NO LIMITATION ON RIGHTS OF THE COMPANY. The grant of this
Option shall not in any way affect the right or power of the
Company to make adjustments, reclassifications or changes in its
capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its
business or assets.
7. RIGHTS AS A STOCKHOLDER. The Optionee shall have no rights as a
stockholder with respect to any Shares covered by the Option
until the date as of which a stock certificate is issued
following exercise of the Option. Except as may be expressly
permitted by the Plan Committee, no adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash,
securities or other property) or distributions or other rights
for which the record date is prior to the date on which such
stock certificate is issued.
8. COMPLIANCE WITH SECURITIES LAWS. If at any time the Company
determines, in its discretion, that the listing, registration or
qualification of the Shares upon any securities exchange or
under any state or federal law or the consent or approval of any
governmental regulatory body is necessary as a condition of, or
in connection with, the issuance of Shares hereunder, the Option
may not be exercised unless such listing, registration,
qualification, consent or approval shall have been effected.
Without limiting the foregoing, the Option shall not be
exercised until a registration of the Shares has been effected
under the Securities Act of 1933, as amended, unless, in the
opinion of counsel for the Company, such registration is not
required under such Act. Any stock certificates issued upon the
exercise of the Option may bear an appropriate restrictive
legend, if deemed necessary by the Company. The Company shall
at all times during the term of the Option reserve and keep
available for issuance such number of shares of Common Stock as
will be sufficient to satisfy the requirements of this Option
Agreement.
9. TAXES. The Company may take such actions as it deems
appropriate to ensure that, if necessary, all applicable federal
or state withholding income or other taxes are withheld or
collected from the Optionee. At the time the Option is
exercised applicable withholding tax, if any, shall be paid in
full by the Optionee, in cash or by certified check.
10. TIME. Any right granted hereunder to the Company or the
Optionee that expires by its terms on any date shall expire at
the close of business of the Company at its principal office on
such date, unless such date is a Saturday, Sunday or legal
holiday in the State in which case such right shall expire at
the close of business on the next business day.
11. NO OBLIGATION TO EXERCISE OPTION. The granting of the Option
shall impose no obligation upon the Optionee to exercise the
Option.
12. AGREEMENT NOT A CONTRACT OF APPOINTMENT. This Agreement is not
a contract of appointment, and the terms of the Optionee's
service as a director of the Company shall not be affected in
any way by this Agreement, nor shall it interfere in any way
with the governance of such directorship pursuant to the
Company's Certificate of Incorporation, By-laws or applicable
law. The execution of this Agreement shall not be construed as
conferring any legal rights upon the Optionee for a continuation
as a director of the Company and to treat him without regard to
the effect which such treatment might have upon him as an
Optionee. Neither the Optionee nor his legal representatives,
administrators, executors, guardians, legatees or distributees
or any other person shall have any of the rights of a
stockholder with respect to the Option Shares until such shares
shall be issued to the Optionee upon exercise of the Option.
this Option shall not be transferable and may be exercised by
the Optionee only during the Optionee's lifetime.
13. NOTICE. Notice to the Company shall be deemed given if in
writing and mailed to the Company to the attention of the
Corporate Secretary, 550 Hamilton Avenue, Brooklyn, New York
11232 by registered or certified mail, return receipt requested.
Notice to the Optionee shall be deemed given if in writing and
mailed to the Optionee at the most recent address available to
the Company by registered or certified mail, return receipt
requested.
14. ENTIRE AGREEMENT. This Agreement together with the Plan
evidences the entire understanding and agreement of the parties
thereto, supersedes any and all other agreements and
understandings, whether written or oral, relative to the matters
set forth herein, and may be amended only by a written document
signed by both the Company and the Optionee.
15. GOVERNING LAW. Except to the extent preempted by applicable
federal law, this Agreement shall be construed and enforced in
accordance with, and governed by, the laws of New York without
giving effect to the principles of conflicts of law thereof.
16. COMPLIANCE WITH RULE 16-B3. Transactions under this Agreement
are intended to comply with all applicable conditions of Rule
16b-3 or it successors under the 1934 Act. To the extent any
provision of this Agreement or action by the Plan Committee with
respect to this Agreement fails to so comply, it shall be deemed
null and void to the extent permitted by law and deemed
advisable by the Plan Committee.
IN WITNESS WHEREOF, the Company and the Optionee have duly executed
this Agreement.
THE STROBER ORGANIZATION, INC.
By:
----------------------------
------------------------------
Optionee Signature
------------------------------
Optionee Name Printed
<PAGE>
The Strober Organization Inc.
November 1, 1995
Page 2
EXHIBIT 5.1
OPINION OF SILLS CUMMIS ZUCKERMAN RADIN TISCHMAN EPSTEIN & GROSS, P.A. AS TO
LEGALITY
<PAGE>
February 2, 1996
The Strober Organization, Inc.
550 Hamilton Avenue
Brooklyn, New York 11232
Gentlemen:
We serve as your general outside counsel and are familiar with the
Certificate of Incorporation, Bylaws and corporate proceedings generally of The
Strober Organization, Inc. (the "COMPANY"). We have reviewed the corporate
records as to the establishment of the Company's 1995 Outside Director Stock
Option Plan which calls for the issuance of up to 75,000 shares of Common Stock
to the non-employee directors upon their exercise of options that may be
granted to them. Based upon such examination and considerations, we are of the
opinion:
1. That the Company is a duly organized and validly existing
corporation under the laws of the State of Delaware; and
2. That the Company has taken all necessary and required corporate
actions in connection with the proposed issuance of 75,000 shares of Common
Stock and that Common Stock, when issued and delivered, will be validly issued,
fully paid and non-assessable shares of Common Stock of the Company.
This letter is furnished by us solely for your benefit in connection
with the transactions referred to in the Registration Statement and may not be
circulated to, or relied upon by, any other person. We hereby consent to be
named in the Registration Statement and the Prospectus which constitutes a part
thereof as the attorneys who have passed upon legal matters in connection with
the issuance of the aforesaid Common Stock and to the filing of this opinion as
an exhibit to the Registration Statement.
Yours truly,
SILLS CUMMIS ZUCKERMAN RADIN TISCHMAN
EPSTEIN & GROSS, P.A.
By:
------------------------------------
<PAGE>
EXHIBIT 23.2
CONSENT OF KPMG PEAT MARWICK LLP
<PAGE>
Independent Auditors' Consent
The Board of Directors
The Strober Organization, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of The Strober Organization, Inc. of our report dated March 1, 1995,
relating to the consolidated balance sheets of The Strober Organization, Inc.
and subsidiaries as of December 31, 1994 and 1993, and the related consolidated
statements of operations, stockholders' equity and cash flows for each of the
years in the three-year period ended December 31, 1994, and the related
schedule, which report appears in the December 31, 1994 annual report on Form
10-K of The Strober Organization, Inc. and to the reference to our firm under
the heading "Experts".
KPMG PEAT MARWICK LLP
Jericho, New York
February 2, 1996
