December 9, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
RE: The Sherwood Group, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
On behalf of our client The Sherwood Group, Inc. (the "Company"),
simultaneously herewith, we are filing pursuant to the Securities Act of 1933,
as amended, and the rules and regulations thereunder, the Company's Registration
Statement on Form S-8 (the "Registration Statement"), including exhibits
thereto.
The Company, by wire transfer in the amount of $1,606.82, has paid the
applicable registration fee in connection with the Registration Statement.
If you have any questions concerning the with respect to this filing or
require any further information, please call the undersigned at (973) 596-4637.
Very truly yours,
/s/ Frank E. Lawatsch, Jr.
Frank E. Lawatsch, Jr.
cc: Laura Singer, Esq.
(..continued)
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As filed with the Securities and Exchange Commission on
December 9, 1997.
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------
THE SHERWOOD GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-2394480
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
10 Exchange Place Centre, Jersey City, New Jersey 07032
(Address of principal executive offices) (Zip Code)
The Sherwood Group, Inc. 1995 Stock Option Plan
(Full title of the plan)
Mr. Dennis Marino, Executive Vice President and Chief Administrative
Officer, The Sherwood Group, Inc.,
10 Exchange Place Centre, Jersey City, New Jersey 07032
(Name and address of agent for service)
(201) 946-2200
(Telephone number, including area code, of agent for service)
Copy to:
Frank E. Lawatsch, Jr., Esq.
Crummy, Del Deo, Dolan, Griffinger & Vecchione
One Riverfront Plaza
Newark, New Jersey 07102-5497
(201) 596-4500
Calculation of Registration Fee
<TABLE>
<CAPTION>
- ----------------------------------------- ---------------- -------------------- ----------------- -------------------
Proposed Proposed
Title of Each Class Amount Maximum Offering Maximum Amount of
of Securities To Be Price Aggregate Registration
to be Registered Registered(1) Per Share(2) Offering Fee(2)
Price(2)
- ----------------------------------------- ---------------- -------------------- ----------------- -------------------
- ----------------------------------------- ---------------- -------------------- ----------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 420,000 $12.625 $5,302,500 $1,606.82
- ----------------------------------------- ---------------- -------------------- ----------------- -------------------
<FN>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this registration statement also covers additional shares of Common
Stock pursuant to the anti-dilution provisions of the Plan.
</FN>
<FN>
(2) Estimated solely for the purposes of calculating the registration
fee and based on the average of the last sale price for the Common Stock as
quoted on the New York Stock Exchange on December 3, 1997.
</FN>
</TABLE>
<PAGE>
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PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Sherwood Group, Inc.
(the "Company") with the Securities and Exchange Commission (the "Commission")
are incorporated by reference in this Registration Statement:
(1) The Company's Annual Report on Form 10-K for the fiscal
year ended May 31, 1997;
(2) The Company's Quarterly Report on Form 10-Q for the
quarter ended August 31, 1997;
(3) The Company's definitive Proxy Statement dated September
2, 1997 for its Annual Meeting of Stockholders;
(4) The Company's definitive Proxy Statement dated November
12, 1997 for a Special Meeting of Stockholders;
(5) The description of the Company's common stock, par value
$.01 per share (the "Common Stock"), contained in the
Company's Registration Statement filed on Form S-1 (File No.
33-12904) as filed under the Securities Act of 1933, as
amended, including any amendment or report filed for the
purpose of updating such description; and
(6) All documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered have
been sold or which deregisters 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
respective date of filing of such documents. Any statement
contained in a document incorporated by reference herein is
modified or superseded for all purposes to the extent that a
statement contained in this Registration Statement or in any
other subsequently filed document which is incorporated by
reference modifies or replaces such statement.
Item 4. Description of Securities
Not applicable.
Item 5 Interests of Named Experts and Counsel
Ralph N. Del Deo is a senior partner in the law firm of Crummy, Del
Deo, Dolan, Griffinger & Vecchione, P.C. which performs legal services for the
Company and is a director of the Company.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of officers and directors under certain
circumstances against expenses incurred in successfully defending against a
claim and authorizes Delaware corporations to indemnify their officers and
directors under certain circumstances against expenses and liabilities incurred
in legal proceedings involving such persons because of their being or having
been an officer or director.
Section 102(b) of the Delaware General Corporation Law permits a
corporation, by so providing in its certificate of incorporation, to eliminate
or limit director's liability to the corporation and its stockholders for
monetary damages arising out of certain alleged breaches of their fiduciary
duty. Section 102(b)(7) provides that no such limitation of liability may affect
a director's liability with respect to any of the following: (i) breaches the
director's duty of loyalty to the corporation or its stockholders; (ii) acts or
loyalty to the corporation or its stockholders; (ii) acts or omissions not made
in good faith or which involve intentional misconduct of knowing violations of
law; (iii) liability for dividends paid or stock repurchased or redeemed in
violation of the Delaware General Corporation Law; or (iv) any transaction from
which the director derived an improper personal benefit. Section 102(b)(7) does
not authorize any limitation on the ability of the corporation or its
stockholders to obtain injunctive relief, specific performance or other
equitable relief against directors.
Article 7 of the Company's Restated Certificate of Incorporation,
provides that no director shall be personally liable to the Company or any of
its stockholders for monetary damages for breach of his or her fiduciary duty as
a director except to the extent such elimination or limitation is prohibited by
the Delaware General Corporation Law. In addition, Article 7 of the Company's
Restated Certificate of Incorporation provides in substance that to the fullest
extent permitted by Delaware law, each director and officer shall be indemnified
by the Company against reasonable costs and expenses, including attorneys fees,
and any liabilities which he or she may incur in connection with any action to
which he or she may be made a party by reason of his or her having been a
director or officer of the Company. The indemnification provided by the
Company's Restated Certificate of Incorporation and By-laws is not deemed
exclusive of or in any way to limit any other rights to which any person seeking
indemnification may be entitled.
The Company has entered into Indemnification Agreements with the
directors and executive officers of the Company (the "Officers") whereby the
Company has agreed to indemnify and hold harmless the Officers to the fullest
extent permitted by the provisions of the Delaware General Corporation Law, and
pay any and all expenses, fines, costs, and judgments or awards which the
Officers may incur in connection with their service as officers of the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
4.1 The Sherwood Group, Inc. 1995 Stock Option Plan, as amended (the "Plan")
4.2 The Company's Restated Certificate of Incorporation, as amended, in
effect as of the date of this Registration Statement
4.3 Amendment to the Company's Restated Certificate of Incorporation
approved by the Company's Stockholders on October 21, 1997
4.4 By-laws of the Company, as amended
5 Opinion of Crummy, Del Deo, Dolan, Griffinger & Vecchione.
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Crummy, Del Deo, Dolan, Griffinger & Vecchione (included in
Exhibit 5)
24.1 Powers of Attorney (included on Page 6 of this Registration Statement)
</TABLE>
Item 9. Undertakings.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)
(3) of the Securities Act of 1933, as amended;
(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 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 (1)(i) and (1)(ii) above do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with the Commission
by the Company pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934, as amended, (and where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934, as amended) 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing procedures, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933, as amended, 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,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933, as amended, and will be governed by the final adjudication of such
issue.
<PAGE>
- 7 -
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Jersey City, State of New Jersey, on this 5th
day of December, 1997.
THE SHERWOOD GROUP, INC.
By: /s/ Dennis Marino
Dennis Marino,
Executive Vice President and
Chief Administrative Officer
Each person whose individual signature appears below hereby authorizes
each of or either of Arthur Kontos and Dennis Marino and each of them,
individually, as his true and lawful attorney-in-fact with full power of
substitution to execute in the name and on behalf of each person, individually
and in each capacity stated below, and to file, any and all amendments to this
Registration Statement, including any and all post-effective amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Arthur Kontos Director and Chief Executive Officer December 5, 1997
- ------------------------------------
Arthur Kontos
/s/ James H. Lynch, Jr. Chairman of the Board December 5, 1997
- ------------------------------------
James H. Lynch, Jr.
/s/ Dennis Marino Director December 5, 1997
- ------------------------------------
Dennis Marino
/s/ Richard J. Marino Director December 5, 1997
- ------------------------------------
Richard J. Marino
/s/ Thomas Neumann Director December 5, 1997
- ------------------------------------
Thomas Neumann
/s/ Ralph N. Del Deo Director December 5, 1997
- ------------------------------------
Ralph N. Del Deo
<PAGE>
/s/ John Duffy Director December 5, 1997
- ------------------------------------
John P. Duffy
/s/ Carl H. Hewitt Director December 5, 1997
- ------------------------------------
Carl H. Hewitt
/s/ Stephen J. DiLascio Director December 5, 1997
- ------------------------------------
Stephen J. DiLascio
/s/ Denise Isaac Chief Financial Officer and December 5, 1997
- ------------------------------------ Principal Accounting Officer
Denise Isaac
</TABLE>
<PAGE>
Exhibit 4.1
THE SHERWOOD GROUP, INC.
1995 STOCK OPTION PLAN
SECTION 1. PURPOSE
The purpose of The Sherwood Group, Inc. Stock Option Plan (the "Plan")
is to provide an additional incentive to employees, independent contractors,
agents and consultants of The Sherwood Group, Inc. (the "Company") and its
subsidiaries, to aid in attracting and retaining employees, independent
contractors, agents and consultants, and to closely align their interests with
those of shareholders.
SECTION 2. DEFINITIONS
Unless the context clearly indicates otherwise, the following terms,
when used in this Plan, shall have the meanings set forth in this Section 2.
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Change in Control". A change in control of the Company shall be
deemed to have occurred if, over the initial opposition of the then-incumbent
Board (whether or not such Board ultimately acquiesces therein), (i) any person
or group of persons shall acquire, directly or indirectly, stock of the Company
having at least 25% of the combined voting power of the Company's
then-outstanding securities, or (ii) any shareholder or group of shareholders
shall elect a majority of the members of the Board in each case after January 1,
1995 (except persons or entities which as of January 1, 1995 are identified as
holders of 5% or more beneficial owners of the Company's securities in the
Company's filings under the Exchange Act).
(c) "Code" shall mean the Internal Revenue Code of 1986 and the rules
and regulations thereunder, as it or they may be amended from time to time.
(d) "Committee" shall mean the Compensation Committee of the Board or
such other committee as may be designated by the Board. The Committee shall
consist of two or more members of the Board who are Non-Employee Directors as
such term is defined in Rule 16b-3 of the Exchange Act.
(e) "Date of Exercise" shall mean the earlier of the date on which
written notice of exercise, together with payment in full, is received at the
office of the Secretary of the Company or the date on which such notice and
payment are mailed to the Secretary of the Company at its principal office by
certified or registered mail.
(f) "Employee" shall mean any employee or any officer of the Company or
any of its Subsidiaries, or any other person, who is an independent contractor,
agent or consultant of the Company or any of its Subsidiaries, and excluding any
director of the Company who is not otherwise an employee of the Company. For the
purposes of any provision of this Plan relating to Incentive Stock Options, the
term "Employee" shall be limited to mean any employee (as that term is defined
under Code Section 3401(c)) or officer of the Company or any of its
Subsidiaries, but not any person who is merely an independent contractor, agent
or consultant of the Company or any of its subsidiaries.
(g) "Exchange Act" shall mean the Securities and Exchange Act of 1934,
as amended.
(h) "Fair Market Value" shall mean for any day the mean of the highest
and lowest selling prices of the Stock as reported on the Composite Tape for
securities traded on the New York Stock Exchange.
(i) "Grantee" shall mean an Employee granted a Stock Option.
(j) "Granting Date" shall mean the date on which the Committee
authorizes the issuance of a Stock Option for a specified number of shares of
Stock to a specified Employee.
(k) "Incentive Stock Option" shall mean a Stock Option granted under
the Plan which is properly qualified under the provisions of Section 422 of the
Code.
(l) "Nonqualified Stock Option" shall mean a Stock Option granted
within the Plan which is not an Incentive Stock Option or otherwise qualified
under similar tax provisions.
(m) "Progressive Stock Options" shall mean either Incentive Stock
Options or Nonqualified Stock Options granted pursuant to Section 5(j) of this
Plan.
(n) "Stock" shall mean the Common Stock, as par value $.01 per share,
of the Company.
(o) "Stock Appreciation Right" shall mean a right granted pursuant to
the Plan to receive Stock, cash, or a combination thereof, upon the surrender of
the right to purchase all or part of the shares of Stock covered by a Stock
Option.
(p) "Stock Option" shall mean an Incentive Stock Option or Nonqualified
Stock Option granted pursuant to the Plan to purchase shares of Stock.
(q) "Subsidiary" shall mean any subsidiary corporation as defined in
Section 424 of the Code.
SECTION 3. SHARES OF STOCK SUBJECT TO THE PLAN
Subject to adjustment pursuant to Section 9, 1,187,200 shares of Stock
shall be reserved for issuance upon the exercise of Stock Options granted
pursuant to this Plan. Shares delivered under the Plan may be authorized and
unissued shares or issued shares held by the Company in its treasury. If any
Stock Options expire or terminate without having been exercised, the shares of
Stock covered by such Stock Option shall become available again for the grant of
Stock Options hereunder. Similarly, if any Stock Options are surrendered for
cash pursuant to the provisions of Section 7, the shares of Stock covered by
such Stock Options shall also become available again for the grant of Stock
Options hereunder. Shares of Stock covered by Stock Options surrendered for
Stock pursuant to Section 7, however, shall not become available again for the
grant of Stock Options hereunder.
SECTION 4. ADMINISTRATION OF THE PLAN
(a) The Plan shall be administered by the Committee. Subject to the
express provisions of the Plan, the Committee shall have authority to interpret
the Plan, to prescribe, amend and rescind rules and regulations relating to it,
to determine the terms and provisions of Stock Option grants, and to make all
other determinations necessary or advisable for the administration of the Plan.
(b) It is intended that the Plan and any transaction hereunder meet all
of the requirements of Rule 16b-3 promulgated by the Securities and Exchange
Commission, as such rule is currently in effect or as hereafter modified or
amended, and all other applicable laws. If any provision of the Plan or any
transaction would disqualify the Plan or such transaction under, or would not
comply with, Rule 16b-3 or other applicable laws, such provision or transaction
shall be construed or deemed amended to conform to Rule 16b-3 or such other
applicable laws or otherwise shall be deemed to be null and void, in each case
to the extent permitted by law and deemed advisable by the Committee.
(c) Any controversy or claim arising out of or related to this Plan
shall be determined unilaterally by and at the sole discretion of the Committee.
SECTION 5. GRANTING OF STOCK OPTIONS
(a) Only Employees shall be eligible to receive Stock Options under the
Plan. Directors of the Company who are not also employees of the Company or one
of its Subsidiaries shall not be eligible for Stock Options.
(b) The option price of each share of Stock subject to an Incentive
Stock Option shall be at least 100% of the Fair Market Value of a share of the
Stock on the Granting Date.
(c) The option price of each share of Stock subject to a Nonqualified
Stock Option shall be 100% of the Fair Market Value of a share of the Stock on
the Granting Date, or such other price either greater than or less than the Fair
Market Value (but in no event less than the par value of the Stock) as the
Committee shall determine appropriate to the purposes of the Plan and to the
Company's total compensation program.
(d) The Committee shall determine and designate from time to time those
Employees who are to be granted Stock Options and whether the particular Stock
Options are to be Incentive Stock Options or Nonqualified Stock Options, and
shall also specify the number of shares covered by and the option price per
share of each Stock Option. Each Stock Option granted under the Plan shall be
clearly identified as to its status as a Nonqualified Stock Option or an
Incentive Stock Option.
(e) The aggregate Fair Market Value (determined at the time the Stock
Option is granted) of the Stock with respect to which Incentive Stock Options
are exercisable for the first time by any individual during any calendar year
(under all plans of the individual's employer corporation and its parent and
subsidiary corporations) shall not exceed $100,000.
(f) A Stock Option shall be exercisable during such period or periods
and in such installments as shall be fixed by the Committee at the time the
Stock Option is granted or in any amendment thereto; but each Stock Option shall
expire not later than ten years from the Granting Date.
(g) The Committee shall have the authority to grant both transferable
Stock Options and nontransferable Stock Options, and to amend outstanding
nontransferable Stock Options to provide for transferability. Each
nontransferable Stock Option intended to qualify under Rule 16b-3 or otherwise
shall provide by its terms that it is not transferable otherwise than by will or
the laws of descent and distribution and is exercisable, during the Grantee's
lifetime, only by the Grantee. Each transferable Stock Option may provide for
such limitations on transferability and exercisability as the Committee may
designate at the time a Stock Option is granted or is otherwise amended to
provide for transferability.
(h) Stock Options may be granted to an Employee who has previously
received Stock Options or other options whether such prior Stock Options or
other options are still outstanding, have previously been exercised or
surrendered in whole or in part, or are canceled in connection with the issuance
of new Stock Options.
(i) Subject to adjustment pursuant to Section 9, the aggregate number
of shares of Stock subject to Stock Options granted to an Employee under the
Plan during any calendar year shall not exceed 300,000 shares.
(j) Without in any way limiting the authority of the Committee to make
grants of Stock Options under the Plan, and in order to induce Employees to
retain ownership of Stock, the Committee shall have the authority (but not the
obligation) to include within any agreement reflecting a Stock Option a
provision entitling the Grantee of such Stock Option to a further Stock Option
(a "Progressive Stock Option") in the event the Grantee exercises such
Nonqualified Stock Option evidenced by such agreement, in whole or in part, by
surrendering other shares of Stock in accordance with this Plan and the terms
and conditions of such agreement. Any such Progressive Stock Option shall be for
a number of shares of Stock equal to the number of surrendered shares, shall
become exerciseable no sooner than six months after the Granting Date of the
Stock Option or such longer period as the Committee may establish, shall have an
option price per share equal to one hundred percent (100%) of the Fair Market
Value of a share of Stock on the Granting Date of the Progressive Stock Option,
and shall be subject to such other terms and conditions as the Committee may
determine.
(k) Notwithstanding the foregoing, the option price of an Incentive
Stock Option in the case of a Grantee who owns more than ten percent of the
total combined voting power of all classes of stock of the Company or any of its
Subsidiaries, will not be less than one-hundred-ten percent (110%) of the Fair
Market Value of the Stock at the Granting Date and in the case of such a
Grantee, the Incentive Stock Option may be exercised no more than five years
after the Granting Date.
SECTION 6. EXERCISE OF STOCK OPTIONS
(a) Except as provided in Section 8, no Stock Option may be exercised
at any time unless the Grantee is an Employee on the Date of Exercise and, in
the case of holders of Incentive Stock Options, has been an Employee at all
times during the period beginning on the Granting Date and ending on the day 3
months before the date of such exercise.
(b) The Grantee shall pay the option price in full on the Date of
Exercise of a Stock Option in cash, by check, or by delivery of full shares of
Stock of the Company, duly endorsed for transfer to the Company with signature
guaranteed, or by any combination thereof. Stock will be accepted at its Fair
Market Value on the Date of Exercise.
(c) Subject to the approval of the Committee, or of such person to whom
the Committee may delegate such authority ("its designee"), the Company may loan
to the Grantee a sum equal to an amount which is not in excess of 100% of the
purchase price of the shares of Stock acquired upon exercise of a Stock Option,
such loan to be evidenced by the execution and delivery of a promissory note.
Interest shall be paid on the unpaid balance of the promissory note at such
times and at such rate as shall be determined by the Committee or its designee.
Such promissory note shall be secured by the pledge to the Company of shares of
Stock having an aggregate purchase price on the date of purchase equal to or
greater than the amount of such note. A Grantee shall have, as to such pledged
shares of Stock, all rights of ownership including the right to vote such shares
of Stock and to receive dividends paid on such shares of Stock, subject to the
security interest of the Company. Such shares of Stock shall not be released by
the Company from the pledge unless the proportionate amount of the note secured
thereby has been repaid to the Company; provided, however that shares of Stock
subject to a pledge may be used to pay all or part of the purchase price of any
other option granted hereunder or under any other stock incentive plan of the
Company under the terms of which the purchase price of an option may be paid by
the surrender of shares of Stock, subject to the terms and conditions of this
Plan relating to the surrender of shares of Stock in payment of the exercise
price of an option. In such event, that number of the newly purchased shares of
Stock equal to the shares of Stock previously pledged shall be immediately
pledged as substitute security for the pre-existing debt of the Grantee to the
Company, and thereupon shall be subject to the provisions hereof relating to
pledged shares of Stock. All notes executed hereunder shall be payable at such
times and in such amounts and shall contain such other terms as shall be
specified by the Committee or its designee or stated in the option agreement;
provided, however, that such terms shall conform to requirements contained in
any applicable regulations which are issued by any governmental authority.
SECTION 7. STOCK APPRECIATION RIGHTS
(a) The Committee may grant to any Employee, Stock Appreciation Rights
in connection with any Stock Option. Stock Appreciation Rights may be granted at
the time the related Stock Option is granted or at any time thereafter up to six
months prior to the expiration of the related Stock Option.
(b) Stock Appreciation Rights shall be exercisable at such times and to
the extent that the related Stock Option shall be exercisable and only to the
extent the Stock Appreciation Right has a positive value, unless the Committee
specifies a more restrictive period.
(c) Upon the exercise of a Stock Appreciation Right, the Grantee shall
surrender the related Stock Option or a portion thereof and shall be entitled to
receive payment of an amount determined by multiplying the number of shares as
to which the Stock Option rights are surrendered by the difference obtained by
subtracting the exercise price per share of the related Stock Option from the
Fair Market Value of a share of Stock on the Date of Exercise of the Stock
Appreciation Right.
(d) Payment of the amount determined under Section 7(c) shall be made
in Stock, in cash, or partly in cash and partly in Stock as the Committee shall
determine in its sole discretion.
(e) Except as provided in Section 10(b), the exercise of a Stock
Appreciation Right for cash may be made only during the period beginning on the
third business day following the release of quarterly or annual financial data
and ending on the twelfth business day following such date.
SECTION 8. TERMINATION OF EMPLOYMENT
Except as otherwise provided by the Committee at the time the Stock
Option is granted or any amendment thereto, if a Grantee ceases to be an
Employee then:
(a) if termination of employment is voluntary or involuntary without
cause, the Grantee may exercise each Stock Option held by the Grantee within
three months after such termination (but not after the expiration date of the
Stock Option) to the extent of the number of shares subject to the Stock Option
which are purchasable pursuant to its terms at the date of termination;
(b) if termination is for cause, all Stock Options held by the Grantee
shall be canceled as of the date of termination;
(c) subject to the provisions of Section 8(d), if termination is (i) by
reason of retirement at a time when the Grantee is entitled to the current
receipt of benefits under any retirement plan maintained by the Company or any
Subsidiary, or (ii) by reason of disability, each Stock Option held by the
Grantee may be exercised by the Grantee at any time (but not after the
expiration date of the Stock Option) (within one year of termination in the case
of Incentive Stock Options) to the extent of the number of shares subject to the
Stock Option which were purchasable pursuant to its terms at the date of
termination;
(d) if termination is by reason of the death of the Grantee, or if the
Grantee dies after retirement or disability as referred to in Section 8(c), each
Stock Option held by the Grantee may be exercised by the Grantee's estate, or by
any person who acquires the right to exercise the Stock Option by reason of the
Grantee's death, at any time within a period of three years after death (but not
after the expiration date of the Stock Option) to the extent of the total number
of shares subject to the Stock Option which were purchasable pursuant to its
terms at the date of termination; or
(e) if the Grantee should die within three months after voluntary
termination of employment or involuntary termination without cause, as
contemplated in Section 8(a), each Stock Option held by the Grantee may be
exercised by the Grantee's estate, or by any person who acquires the right to
exercise by reason of the Grantee's death, at any time within a period of one
year after death (but not after the expiration date of the Stock Option) to the
extent of the number of shares subject to the Stock Option which were
purchasable pursuant to its terms at the date of termination.
SECTION 9. ADJUSTMENTS
In the event of any merger, consolidation, reorganization,
recapitalization, stock dividend, stock split or other change in the corporate
structure or capitalization affecting the Stock, there shall be an appropriate
adjustment made by the Board in the number and kind of shares that may be
granted in the aggregate and to individual Employees under the Plan, the number
and kind of shares subject to each outstanding Stock Option and Stock
Appreciation Right and the option prices.
SECTION 10. TENDER OFFER; CHANGE IN CONTROL
(a) A Stock Option shall become immediately exercisable to the extent
of the total number of shares subject to the Stock Option in the event of (i) a
tender offer by a person or persons other than the Company for all or any part
of the outstanding Stock if, upon consummation of the purchases contemplated,
the offeror or offerors would own, beneficially or of record, an aggregate of
more than 25% of the outstanding Stock, or (ii) a Change in Control of the
Company.
(b) The Committee may authorize the payment of cash upon the exercise
of a Stock Appreciation Right during a period (i) beginning on the date on which
a tender offer as described in (a), above, is first published or sent or given
to holders of Stock and ending on the date which is seven days after its
termination or expiration, or (ii) beginning on the date on which a Change in
Control of the Company occurs and ending on the twelfth business day following
such date.
SECTION 11. GENERAL PROVISIONS
(a) Each Stock Option shall be evidenced by a written instrument
containing such terms and conditions, not inconsistent with this Plan, as the
Committee shall approve.
(b) The granting of a Stock Option in any year shall not give the
Grantee any right to similar grants in future years or any right to be retained
in the employ of the Company or any Subsidiary or interfere in any way with the
right of the Company or such Subsidiary to terminate an Employee's employment at
any time.
(c) Notwithstanding any other provision of the Plan, the Company shall
not be required to issue or deliver any certificate or certificates for shares
of Stock under the Plan prior to fulfillment of all of the following conditions:
(i) The listing, or approval for listing upon notice of
issuance, of such shares on the New York Stock Exchange;
(ii) Any registration or other qualification of such shares
under any state or federal law or regulation, or the maintaining in effect of
any such registration or other qualification which the Committee may, in its
discretion upon the advice of counsel, deem necessary or advisable; and
(iii) The obtaining of any other consent, approval or permit
from any state or federal governmental agency which the Committee may, in its
discretion upon the advice of counsel, determine to be necessary or advisable.
(d) The Company shall have the right to deduct from any payment or
distribution under the Plan any federal, state or local taxes of any kind
required by law to be withheld with respect to such payments or to take such
other action as may be necessary to satisfy all obligations for the payment of
such taxes. In case distributions are made in shares of Stock, the Company shall
have the right to retain the value of sufficient shares of Stock to equal the
amount of tax to be withheld for such distributions or require a recipient to
pay the Company for any such taxes required to be withheld on such terms and
conditions prescribed by the Committee.
(e) No Grantee shall have any of the rights of a shareholder by reason
of a Stock Option until it is exercised.
(f) This Plan shall be construed and enforced in accordance with the
laws of the State of Delaware (without regard to the legislative or judicial
conflict of laws rules of any state), except to the extent superseded by federal
law.
SECTION 12. AMENDMENT AND TERMINATION
(a) The Plan shall terminate on August 1, 2005 and no Stock Option
shall be granted hereunder after that date, provided that the Board may
terminate the Plan at any time prior thereto.
(b) The Board may amend the Plan at any time without notice, provided
however, that the Board may not, without prior approval by the shareholders, (i)
increase the maximum number of shares of Stock for which Stock Options may be
granted (except as contemplated by the provisions of Section 9), (ii) materially
increase the benefits accruing to participants under the Plan or (iii)
materially modify the requirements as to eligibility for participation in the
Plan.
(c) No termination or amendment of the Plan may, without the consent of
a Grantee to whom a Stock Option shall theretofore have been granted, adversely
affect the rights of such Grantee under such Stock Option.
SECTION 13. EFFECTIVE DATE AND SHAREHOLDERS' APPROVAL
The Plan shall become effective as of August 30, 1995 subject to its
approval by the affirmative votes of the holders of a majority of the securities
of the Company present, or represented, and entitled to vote thereon at the
Annual Meeting of Shareholders of the Company or any adjournment or postponement
thereof.
<PAGE>
Exhibit 4.2
RESTATED CERTIFICATE OF INCORPORATION, AS AMENDED
OF
THE SHERWOOD GROUP, INC.
It is hereby certified that
1. The name of the Corporation is THE SHERWOOD GROUP,
INC. (hereinafter referred to as the "Corporation").
2. The address of its registered office in the State
of Delaware is 229 South State Street, in the city of Dover,
County of Kent, 19901. The name of its registered agent at
such address is Prentice Hall Corporate Services.
3. The nature of the business or purposes to be
conducted or promoted is to engage in any lawful act or
activity for which corporations may be organized under the
General Corporation Law of Delaware.
4. The total number of shares of all classes of stock
that the Corporation shall have authority to issue is
51,000,000, of which 1,000,000 shares shall be Preferred
Stock, par value $.01 per share, ("Preferred Stock") and of
which 50,000,000 shares shall be Common Stock, par value $.01
per share ("Common Stock"), and the voting powers,
designations, preferences and relative, participating,
optional or other special qualifications, limitations or
restrictions thereof are set forth hereinafter:
1. Preferred Stock
(a) The Preferred Stock may be
issued in one or more series, each of which shall be
distinctively designated, shall rank equally and
shall be identical in all respects except as
otherwise provided in subsection 1(b) of this Section
4.
(b) Authority is hereby vested in
the Board of Directors to issue from time to time the
Preferred Stock of any series and to state in the
resolution or resolutions providing for the issuance
of shares of any series the voting powers, if any,
designations, preferences and relative,
participating, optional or other special rights, and
the qualifications, limitations or restrictions of
such series to the full extent now or hereafter
permitted by the law of the State of Delaware in
respect of the matters set forth in the following
clauses (1) to (viii) inclusive;
(i) The number of
shares to constitute such series, and the distinctive
designations thereof;
(ii) the voting powers,
full or limited, if any, of such series;
(iii) the rate of
dividends payable on shares of such
series, the conditions on which and the times when
such dividends are payable, the preference to, or the
relation to, the payment of the dividends payable on
any other class, classes or series of stock, whether
cumulative or non-cumulative and, if cumulative, the
date form which dividends on shares of such series
shall be cumulative;
(iv) the redemption
price or prices, if any, and the terms and conditions
on which shares of such series shall be redeemable;
(v) the requirement of
any sinking fund or funds to be applied to the
purchase or redemption of shares of such series and,
if so, the amount of such fund or funds and the
manner of application;
(vi) the rights of
shares of such series upon the liquidation,
dissolution or winding up of, or upon any
distribution of the assets of, the Corporation;
(vii) the rights, if
any, of the holders of shares of such
series to convert such shares into, or to
exchange such shares for, shares of any other class,
classes or series of stock and the price or prices or
the rates of exchange and the adjustments at which
such shares shall be convertible or exchangeable, and
any other terms and conditions of such conversion or
exchange;
(viii) any other
preferences and relative, participating,
optional or other special rights of shares of such
series, and qualifications, limitations or
restrictions including, without limitation, any
restriction on an increase in the number of shares of
any series theretofore authorized and any
qualifications, limitations or restrictions of rights
or powers to which shares of any future series shall
be subject.
(c) The number of authorized shares
of Preferred Stock may be increased or decreased by
the affirmative vote of the holders of a majority of
the votes of all classes of voting securities of the
Corporation without a class vote of the Preferred
Stock, or any series thereof, except as otherwise
provided in the resolution or resolutions fixing the
voting rights of any series of the Preferred Stock.
2. Common Stock
At every meeting of the stockholders
of the Corporation (or with respect to any action by
written consent in lieu of a meeting of
stockholders), each share of Common Stock shall be
entitled to one (1) vote (whether voted in person by
the holder thereof or by proxy) on all matters which
may lawfully be submitted to a vote of stockholders
(except to the extent otherwise required by law).
At the time at which this Restated
Certificate of Incorporation becomes effective, the
par value of each share of Common Stock, par value
$.10 per share, issued and outstanding as at such
time, shall be reduced to $.01 per share.
5. The Corporation is to have perpetual existence.
6. In furtherance and not in limitation of the powers
conferred by statute, the board of directors is expressly
authorized:
To make, alter or repeal the by-laws of the
corporation.
To authorize and cause to be executed
mortgages and liens upon the real and personal
property of the corporation.
To set apart out of any of the funds of the
corporation available for dividends a reserve or
reserves for any proper purpose and to abolish any
such reserve in the manner in which it was created.
By a majority of the whole board, to
designate one or more committees, each committee to
consist of two or more of the directors of the
corporation. The board may designate one or more
directors as alternate members of any committee, who
may replace any absent or disqualified member at any
meeting of the committee. Any such committee, to the
extent provided in the resolution or in the by-laws
of the corporation, shall have and may exercise the
powers of the board of directors in the management of
the business and affairs of the corporation and may
authorize the seal of the corporation to be affixed
to all papers which may require it; provided,
however, the by-laws may provide that in the absence
or disqualification of any member or members thereof
the members or members thereof present at any meeting
and not disqualified from voting, whether or not he
or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at
the meeting in the place of any such absent or
disqualified member.
When authorized by the affirmative vote of
the holders of majority of the stock issued and
outstanding having voting power given at a
stockholders' meeting duly called upon such notice as
is required by statute, or when authorized by the
written consent of the holders of a majority of the
voting stock issued and outstanding, to sell, lease
or exchange all or substantially all of the property
and assets of the corporation, including its good
will and its corporate franchises, upon such terms
and conditions and for such consideration, which may
consist in whole or in part of money or property
including shares of stock in, and/or other securities
of, any other corporation or corporations, as its
board of directors shall deem expedient and for the
best interests of the corporation.
7. (a) No person serving as a
director of the Corporation shall be
liable to the Corporation or its
shareholders for monetary damages for breach
of fiduciary duty as a director, provided
that this provision shall not eliminate or
limit the liability of a director (1) for
any breach of the director's duty of loyalty
to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or
which involve intentional misconduct or
a knowing violation of law, (iii) under
Section 174 of the Delaware General
Corporation Law, or (iv) for any
transaction from which the director derived
an improper personal benefit.
(b) (i) The corporation shall
indemnify, subject to the requirements of
subsection (iii) of this Section, any
person, or his heirs and legal
representatives, who was or is a party or is
threatened to be made a party of 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 another
corporation, partnership, joint venture
trust or other enterprise, against expenses
(including attorneys' fees), judgments,
fines and amounts 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; except that, as to any threatened,
pending or completed action or suit by or in
the right of the Corporation, such
indemnification shall be limited to expenses
(including attorneys' fees) actually and
reasonably incurred in connection with the
defense or settlement of the case, and in
respect of any such claim, issue or matter
as to which such person shall have been
adjudged to be liable for negligence or
misconduct in the performance of his duty to
the Corporation, shall not be made without
court approval.
(ii) To the extent that a director,
officer, employee or agent of the
corporation shall be successful on the
merits or otherwise in defense of any
action, suit or proceeding referred to in
subsection (a) of this Section, or in
defense of any claim, issue or matter
therein, the Corporation shall indemnify him
against expenses (including attorneys' fees)
actually and reasonably incurred by him in
connection therewith.
(iii) Any indemnification under
subsection (i) of this Section (unless
ordered by a court) shall be made by the
Corporation only as authorized in the
specific case upon a determination that the
director, officer, employee or agent has met
the applicable standard of conduct set forth
in subsection (a) of this Section. Such
determination shall be made (1) by the Board
of Directors by a majority vote of a quorum
consisting of directors who were not parties
to such action, suit or proceeding, of (2)
if such quorum is not obtainable, or, even
if obtainable, a quorum of disinterested
directors so directs, by independent legal
counsel in a written opinion, or (3) by the
stockholders.
(iv) The Corporation shall pay in
advance of the final disposition of a civil
or criminal action, suit or proceeding
expenses incurred by a director, officer,
employee or agent in defending such action,
suit or proceeding upon receipt of an
undertaking by or on behalf of the director,
officer, employee or agent 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
Section.
(v) The indemnification provided by
this Section shall not limit the Corporation
from providing any other indemnification
permitted by law nor shall it be deemed
exclusive of any other rights to which those
indemnified may be entitled under any
by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both
as to action in his official capacity and as
to action in another capacity while holding
such office, and shall continue as to a
person who has ceased to be a director or
officer, and shall inure to the benefit of
the heirs, executors and administrators of
such a person.
8. (a) Except as otherwise expressly
provided in paragraph c of this Section B:
(i) any merger or consolidation
of the Corporation of any Subsidiary (as hereinafter defined)
with or into any Major Stockholder (as hereinafter defined),
or
(ii) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition to or with any
Major Stockholder of all or substantially all of the assets of
the Corporation, or
(iii) the adoption of any plan or
proposal for the liquidation or dissolution of the
Corporation;
shall require the affirmative vote ofd the holders of at least
eighty percent (80%) of the votes entitled to be cast by the
holders of the outstanding Class A Stock and Common Stock of
the Corporation voting together as one class ("Voting
Shares"). Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that
some lesser percentage may be specified, by law or otherwise.
(b) For the purposes of this Section 8, (i)
"Major Stockholder" shall mean any individual, firm,
corporation (other than the Corporation) or other entity
which, as of the record date for the determination of
stockholders entitled to notice of and to vote on any of the
transactions described in clauses (i) through (iii) of
paragraph (a) of this Section 8, or immediately prior to the
consummation of any such transaction, is the beneficial owner
of 10% or more of the votes represented by the Voting Shares;
(ii) an individual, firm, corporation or other entity shall be
deemed to be the beneficial owner of any Voting Shares (x)
which it has the right to acquire pursuant to any agreement,
or upon the exercise of conversion rights, warrants, or
options, or otherwise, or (y) which are beneficially owned,
directly or indirectly [including shares deemed owned through
the application of clause (a) above], by it or any "affiliate"
or "associate" (as those terms are defined in Rule 12b-2 of
the General Rules and Regulations under the Securities and
Exchange Act of 1934) of it, or by any other individual, firm,
corporation or other entity with which it or any "affiliate"
or "associate" (as defined above) of it has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock of
the Corporation; (iii) the outstanding Voting Shares shall
include shares deemed owned by a Major Stockholder (or an
individual, firm, corporation or other entity deemed a Major
Stockholder) through the application of clauses (x) and (y) of
clause (ii) above but shall not include any other Voting
Shares which may be issuable by the Corporation to any other
individual, firm, corporation or other entity pursuant to any
agreement, or upon exercise of conversion rights, warrants, or
options, or otherwise; and (iv) "Subsidiary" shall mean any
corporation of which a majority of any class of "equity
security" (as defined in Rule 3all-1 of the General Rules and
Regulations under the Securities Exchange Act of 1934) is
owned, directly or indirectly, by the Corporation.
(c) The provisions of this Section 8 shall
not apply to any transaction described in clauses (i) or (ii)
of paragraph (a) of this Section 8 (i) if the Corporation is
then, and at all times throughout the preceding twelve months
has been, directly or indirectly, the beneficial owner of a
majority of each class of the outstanding "equity securities"
(as defined above) of the Major Stockholder which is a party
to such transaction, (ii) if the Board of Directors of the
Corporation shall by resolution have approved a memorandum of
understanding with the Major Stockholder which is a party to
such transaction, consistent in material terms with such
transaction, prior to the time such Major Stockholder shall
have become a beneficial owner of 10% or more of the votes
represented by the Voting Shares, or (iii) if such transaction
is approved by a resolution adopted prior to the consummation
of such transaction by the affirmative vote of 70% of the
whole Board of Directors of the Corporation (the "whole Board"
being a number of directors which the Corporation would have
if there were no vacancies), provided that a majority of the
members of the Board of Directors voting for the approval of
such transaction were duly elected and acting members of the
Board of Directors prior to the later of (a) the date that
such Major Stockholder first became a beneficial owner of 10%
or more of the votes represented by the Voting Shares or (b)
January 1, 1987 or such majority were the designees or
nominees of such members of the Board of Directors.
(d) Notwithstanding any other provisions of
the Certificate of Incorporation or the By-Laws of the
Corporation (and notwithstanding the fact that some lesser
percentage may be specified by law, the Certificate of
Incorporation or the By-Laws of the Corporation), any
amendment, alteration, change or repeal of this Section 8 of
the Certificate of Incorporation shall require the affirmative
vote of the holders of at least eighty percent (80% of the
votes represented by the Voting Shares.
9. Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of
them and/or between this Corporation and its stockholders or
any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way
of this Corporation or any creditor or stockholder thereof, or
on the application o f any receiver or receivers appointed for
this Corporation under the provisions of Section 291 of Title
8 of the Delaware Code or on the application of trustees in
dissolution or any receiver or receivers appointed for this
Corporation under the provisions of Section 279 of Title 8 of
the Delaware Code order a meeting of the creditors or class of
creditors, and/or of the stockholders or class of stockholders
of this Corporation, as the case may be, to be summoned in
such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class
of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to
any compromise or arrangement and to any reorganization of
this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the
said application has been made, be binding on all the
creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as
the case may be, and also on this Corporation.
10. (a) Commending with the first meeting of
shareholder at which directors are to be elected following the
effective date of this Restated Certificate of Incorporation,
the directors of the Corporation shall be classified with
respect to the time for which they shall severally hold office
by dividing them into three (3) classes, each class to be as
nearly equal in number as possible, which classes shall be
designated as Class 1, Class 2 and Class 3. Subject to the
provisions hereof, the number of directors in each class shall
from time to time be designated by the Board of Directors of
the Corporation. The Class 1 directors shall be elected
initially for a term of one year which term shall expire at
the first Annual Meeting of Shareholders following the
classification of the Board of Directors, the Class 2
directors shall be elected initially for a term of two years
which term shall expire at the Annual Meeting of Shareholders
following the classification of the Board of Directors, and
the Class 3 directors shall be elected initially for a term of
three (3) years which term shall expire at the third Annual
Meeting of Shareholders to be held following the
classification of the Board of Directors. At each Annual
Meeting, commencing with the first Annual Meeting to be held
following the classification of the Board of Directors, the
successors to the class shall be elected to hold office for a
term of three years so that the term of office of one class of
directors shall expire each year.
(b) Notwithstanding any other provisions of
the Certificate of Incorporation or the By-Laws of the
Corporation (and notwithstanding the fact that some lesser
percentage may be specified by law, the Certificate of
Incorporation or the By-Laws of the Corporation), any
amendment, alteration, change or repeal of this Section 10 of
the Certificate of Incorporation shall require the affirmative
vote of the holders of at least eighty percent (80%) of the
votes represented by the Voting Shares.
11. Meeting of stockholders may be held within or
without the State of Delaware, as the By-laws may provide. The
books of the Corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at
such place or places as may be designated from time to time by
the Board of Directors or in the By-laws of the Corporation.
Elections of directors need not be by written ballot, unless
the By-Laws of the Corporation shall so provide.
12. The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this
Restated Certificate of Incorporation, in the manner now, or
hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
<PAGE>
Exhibit 4.3
CERTIFICATE OF AMENDMENT
TO
RESTATED CERTIFICATE OF INCORPORATION
OF
THE SHERWOOD GROUP, INC.
The Sherwood Group, Inc., a corporation organized and existing under
and by virtue of Section 242 of the General Corporation Law of the State of
Delaware (the "Corporation"), DOES HEREBY CERTIFY:
1. By Unanimous Written Consent dated August 19, 1997, resolutions were
duly adopted by the Board of Directors of the Corporation setting forth a
proposed amendment of the Restated Certificate of Incorporation of the
Corporation filed on February 4, 1987 with the Delaware Department of State (the
"Certificate"), declaring said amendment to be advisable and calling a meeting
of the stockholders of the Corporation for consideration thereof pursuant to
Section 222 of the General Corporation Law of the State of Delaware.
2. At an annual meeting of the stockholders of the Corporation held on
October 21, 1997, resolutions to amend the Certificate were proposed and duly
adopted by a sufficient number of shares entitled to vote as required by
Delaware law. The resolution setting forth the proposed amendment is as follows:
"RESOLVED, that the Corporation's Certificate of Incorporation shall be
amended as follows:
Article 4 is amended and restated in its entirety as follows:
"4. The total number of shares of all classes of stock that
the Corporation shall have authority to issue is 51,000,000, of which 1,000,000
shares shall be Preferred Stock, par value $.01 per share ("Preferred Stock")
and of which 50,000,000 shares shall be Common Stock, par value $.01 per share
("Common Stock"), and the voting powers, designations, preferences and relative,
participating, optional or other special qualifications, limitations or
restrictions thereof are set forth hereinafter:
1. Preferred Stock
(a) The Preferred Stock may be issued in one or more series,
each of which shall be distinctively designated, shall rank equally and shall be
identical in all respects except as otherwise provided in subsection 1(b) of
this Section 4.
(b) Authority is hereby vested in the Board of Directors to
issue from time to time the Preferred Stock of any series and to state in the
resolution or resolutions providing for the issuance of shares of any series the
voting powers, if any, designations, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations or
restrictions of such series to the full extent now or hereafter permitted by the
law of the State of Delaware in respect of the matters set forth in the
following clauses (i) to (viii) inclusive;
(i) the number of shares to constitute such
series, and the distinctive designations thereof;
(ii) the voting powers, full or limited, if any,
of such series;
(iii) the rate of dividends payable on shares of such
series, the conditions on which and the times when such dividends are
payable, the preference to, or the relation to, the payment of the
dividends payable on any other class, classes or series of stock,
whether cumulative or non-cumulative and, if cumulative, the date from
which dividends on shares of such series shall be cumulative;
(iv) the redemption price or prices, if any, and the
terms and conditions on which shares of such series shall be
redeemable;
(v) the requirement of any sinking fund or funds to
be applied to the purchase or redemption of shares of such series and,
if so, the amount of such fund or funds and the manner of application;
(vi) the rights of shares of such series upon the
liquidation, dissolution or winding up of, or upon any distribution of
the assets of, the Corporation;
(vii) the rights, if any, of the holders of shares of
such series to convert such shares into, or to exchange such shares
for, shares of any other class, classes or series of stock and the
price or prices or the rates of exchange and the adjustments at which
such shares shall be convertible or exchangeable, and any other terms
and conditions of such conversion or exchange;
(viii) any other preferences and relative,
participating, optional or other special rights of shares of such
series, and qualifications, limitations or restrictions including,
without limitation, any restriction on an increase in the number of
shares of any series theretofore authorized and any qualifications,
limitations or restrictions of rights or powers to which shares of any
future series shall be subject.
(c) The number of authorized shares of Preferred Stock may be
increased or decreased by the affirmative vote of the holders of a majority of
the votes of all classes of voting securities of the Corporation without a class
vote of the Preferred Stock, or any series thereof, except as otherwise provided
in the resolution or resolutions fixing the voting rights of any series of the
Preferred Stock.
2. Common Stock
At every meeting of the stockholders of the Corporation (or
with respect to any action by written consent in lieu of a meeting of
stockholders), each share of Common Stock shall be entitled to one (1) vote
(whether voted in person by the holder thereof or by proxy) on all matters which
may lawfully be submitted to a vote of stockholders (except to the extent
otherwise required by law).
At the time at which this Restated Certificate of Incorporation becomes
effective, the par value of each share of Common Stock, par value $.10 per
share, issued and outstanding as at such time, shall be reduced to $.01 per
share."
3. The following votes were cast in connection with the
aforementioned amendment: 10,077,542 votes in favor 46,900
votes against 7,725 votes abstained
4. The amendment was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Arthur Kontos, its President, this 21st day of October, 1997.
THE SHERWOOD GROUP, INC.
/s/ Arthur Kontos
Arthur Kontos
President and Chief Executive Officer
ATTEST:
/s/ Laura Singer
Laura Singer, Assistant Secretary
<PAGE>
Exhibit 4.4
BY-LAWS
OF
THE SHERWOOD GROUP, INC., AS AMENDED
ARTICLE I
OFFICES
Section 1. The registered office shall be in the city of Dover, County
of Kent, State of Delaware. Section 2. The corporation may also have
offices at such other places both within and without the State
of Delaware as the board of directors may from time to time determine or the
business of the corporation may require.
ARTICLE II
MEETING OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Jersey City, State of New Jersey, or at
such other place as may be fixed from time to time by the board of directors, or
at such other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1969, shall be held on the 1st day of August if not a legal holiday, and if a
legal holiday, then on the next secular day following, at 11 A.M. or at such
other date and time as shall be designated from time to time by the board of
directors and stated in the notice of the meeting, at which they shall elect by
a plurality vote a board of directors, and transact such other business as may
properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than fifty days before the date of the
meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten nor more than fifty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote, present in person or represented by proxy,
shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of a
majority of the outstanding stock having voting power shall decide any question
brought before such meeting, unless the question is one upon which by express
provision of the statutes or of the certificate of incorporation or of any
Stockholders Agreement which a different vote is required in which case such
express provision shall govern and control the decision of such question.
Section 10. Each stockholder shall at every meeting of the stockholders
be entitled to one vote in person or by proxy for each share of the capital
stock having voting power held by such stockholder, but no proxy shall be voted
on after three years from its date, unless the proxy provides for a longer
period.
Section 11. Whenever the vote of stockholders at a meeting thereof is
required or permitted to be taken for or in connection with any corporate
action, by any provision of the statutes, the meeting and vote of stockholders
may be dispensed with if all of the stockholders who would have been entitled to
vote upon the action if such meeting were held shall consent in writing to such
corporate action being taken.
ARTICLE III
DIRECTORS
Section 1. The board of directors shall consist of one or more members,
the number of directors to be fixed from time to time by the board of directors.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by the action of
the board of directors or the vote of the holders of the outstanding stock
having voting power.
Section 3. The business of the corporation shall be managed by its
board of directors which may exercise all such powers of the corporation and do
all such lawful acts and things as are not by statute or by the certificate of
incorporation or by these by-laws directed or required to be exercised or done
by its stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held at
such time and at such place as shall from time to time be determined by the
board.
Section 7. Special meetings of the board may be called by the president
on two days' notice to each director, either personally or by mail or by
telegram; special meetings shall be called by the president or secretary in like
manner and on like notice on the written request of two directors.
Section 8. At all meetings of the board a majority of the total number
of directors shall constitute a quorum for the transaction of business and the
vote of a majority of the directors present at a meeting at which a quorum is
present shall be the act of the board of directors. If a quorum shall not be
present at any meeting of the board of directors, the directors present thereat
may adjourn the meeting from time to time without notice other than the
announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors may be taken without a meeting, if all
members of the board, consent thereto in writing, and the writing or writings
are filed with the minutes of proceedings of the board.
Section 10. Members of the Board of Directors may participate in
meetings of the Board or any committee thereof by conference telephone call
provided that all members of the board participating in said meeting may hear
each other, and such participation shall constitute presence in person at the
meeting.
Section 11. The chairman of the board shall be a member of the board
and shall be selected by a majority vote or unanimous written consent of the
members of the board. He shall perform such duties as may from time to time be
assigned to him by the board.
COMPENSATION OF DIRECTORS
Section 12. The directors may be paid their expenses, if any, of
attendance at such meeting of the board of directors and may be paid a fixed sum
for attendance at each meetings of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefore. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, accept where required or
permitted by law to be otherwise signed and executed and accept where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order of their election)
shall perform the duties of the president, and when so acting, shall have all
the powers of and be subject to all restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given notice of all meetings of the
stockholders and special meeting of the board of directors, and shall perform
such other duties as may be prescribed by the board of directors or president
under whose supervision he shall be. He shall have custody of the corporate seal
of the corporation and he, or an assistant secretary, shall have authority to
affix the same to an instrument requiring it and when so affixed, it may be
attested by his signature or by the signature of such assistant secretary. The
board of directors may give general authority to any other officer to affix the
seal of the corporation an to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election), shall, in
the absence of the secretary or in the event of his inability, or refusal to
act, perform the duties and exercise the power of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all monies
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed ever six weeks) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election),
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the power of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the corporation shall be entitled
to have a certificate, signed by, or in the name of the corporation by, the
chairman or vice-chairman of the board of directors, or the president or a
vice-president and the treasurer or an assistant treasurer, or the secretary or
an assistant secretary of the corporation, certifying the number of shares owned
by him in the corporation.
Section 2. Where a certificate is countersigned (1) by a transfer agent
other than the corporation or its employee, or (2) by a registrar other than the
corporation or .its employee, any other signature on the certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, if may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFERS OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting or stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conductive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and then words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting.
<PAGE>
Exhibit 5
December 8, 1997
The Sherwood Group, Inc.
Exchange Place Centre
10 Exchange Place
Jersey City, New Jersey 07302-3913
Re: The Sherwood Group, Inc.
Gentlemen:
We have acted as counsel to The Sherwood Group, Inc. (the "Company") in
connection with all proceedings relating to the authorization and proposed
issuance and sale by you of shares of common stock, par value $.01 per share
("Common Stock") upon the exercise of stock options granted pursuant to The
Sherwood Group, Inc. 1995 Stock Option Plan, as amended, (the "Plan"), as
described in the Registration Statement on Form S-8 (the "Registration
Statement"), filed by you with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, (the "Act").
Based upon our examination of such documents and proceedings
as we have deemed necessary and pertinent, we are of the opinion that:
1. The Sherwood Group, Inc. (the "Company") is a corporation duly
organized and existing under the laws of the State of Delaware;
2. The Plan has been duly authorized and approved by the Board of
Directors and the stockholders of the Company;
3. The shares of Common Stock reserved by the Board of Directors of the
Company for issuance upon the exercise of stock options granted under the Plan
have been duly authorized;
4. When the shares of Common Stock are issued upon the due exercise of
stock options granted in accordance with the Plan, such shares of Common Stock
will be duly and validly issued and outstanding and will be fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Opinions" in the Prospectus forming a part of the Registration Statement.
Very truly yours,
CRUMMY, DEL DEO, DOLAN,
GRIFFINGER & VECCHIONE
A Professional Corporation
<PAGE>
Exhibit 23.1
The Board of Directors
The Sherwood Group, Inc. and Subsidiaries
We consent to the incorporation by reference herein of our report dated
July 22, 1997, with respect to the consolidated statements of financial
condition of The Sherwood Group, Inc. and Subsidiaries as of May 31, 1997 and
1996, and the related consolidated statements of income, stockholders' equity,
and cash flows for each of the years in the three-year period ended May 31,
1997, which report appears in the Form 10-K of The Sherwood Group, Inc. and
Subsidiaries dated May 31, 1997.
KPMG Peat Marwick, LLP
New York, New York
December 5, 1997
