As filed with the Securities and Exchange Commission on January 23, 1997
Registration No. 33-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
GKN HOLDING CORP.
(Exact name of registrant as specified in its charter)
Delaware 13-3414302
(State or Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
61 BROADWAY
NEW YORK, NEW YORK 10006
(Address of principal executive offices)
1991 EMPLOYEE INCENTIVE PLAN
AND
OTHER EMPLOYEE BENEFIT PLANS
(Full title of the Plans)
PETER R. KENT,
Chief Operating Officer and Chief Financial Officer
GKN Holding Corp.
61 Broadway
New York, New York 10006
(212) 509-3800
(Name, address and telephone number, including area code, of agent for service)
with a copy to:
DAVID ALAN MILLER, Esq.
Graubard Mollen & Miller
600 Third Avenue
New York, New York 10016
(212) 818-8800
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum
Title of Securities Amount to be offering price aggregate Amount of
to be registered registered per share offering price registration fee
==================================== ===================== ====================== ===================== ======================
<S> <C> <C> <C> <C>
Common Stock issuable upon exercise 168,000 shares $2.20 $369,600
of options granted and outstanding 420,366 shares $4.50 1,891,647
under the Registrant's 1991 Employee 40,000 shares $4.95 198,000
Incentive Plan ("1991 Plan") 20,000 shares $5.00 100,000
316,043 shares $6.00 1,896,258
12,500 shares $6.13 76,563
--------------- ----------
976,909 shares (1) $4,532,068(2) $1,373.22
Common Stock issuable upon exercise
of options which may be granted
under the 1991 Plan 4,023,091 shares $6.00 $24,138,546 $7,313.98
Common Stock issuable upon exercise
of options and other stock-based
awards granted and outstanding under
other employee benefit plans
("Benefit Plans") 20,000 shares $6.00(5) $120,000(6) $ 36.36
TOTAL $28,790,614 $8,723.56
==================================== ===================== ======================
(Footnotes begin on next page)
<PAGE>
- ---------------------------------------
<FN>
(Footnotes to chart on previous page)
(1) Represents the exercise prices payable for the 976,909 shares that may
be acquired pursuant to outstanding options granted pursuant to the
1991 Plan.
(2) Represents the aggregate of the exercise prices multiplied by the
respective number of options outstanding pursuant to the 1991 Plan.
(3) Based upon the last sale price of the Common Stock, as reported by
Nasdaq, on January 22, 1997, in accordance with Rule 457(c) and Rule
457(h) (1) promulgated under the Securities Act of 1933, as amended
("Securities Act").
(4) The proposed maximum aggregate offering price is the product of the
proposed maximum offering price per share referenced in footnote (3)
above, as multiplied by the maximum number of securities issuable under
the 1991 Plan.
(5) Represents the exercise price payable for the shares of Common Stock
acquirable under outstanding options granted pursuant to Benefit Plans.
(6) The proposed maximum aggregate offering price is the sum of the
exercise prices of the options granted under Benefit Plans, in
accordance with Rule 457(h) under the Securities Act.
</FN>
</TABLE>
---------------------
In accordance with the provisions of Rule 462 promulgated under the
Securities Act, the Registration Statement will become effective upon filing
with the Securities and Exchange Commission.
The Registration Statement, including all exhibits and attachments,
contains 17 pages. The Exhibit Index may be found on page 9 of the consecutively
numbered pages of the Registration Statement.
---------------------
2
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information *
Item 2. Registrant Information and Plan Annual Information *
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act, and the Note to Part I of the Instructions to Form
S-8.
3
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant with the
Securities and Exchange Commission ("Commission") are incorporated by reference
in this Registration Statement:
(a) The Registrant's latest prospectus dated July 30, 1996 filed
pursuant to Rule 424(b) under the Securities Act that contains
audited financial statements for the Registrant's latest
fiscal year, ending January 31, 1996, for which such
statements have been filed.
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarterly periods ended July 31, 1996 and October 31, 1996 and
Current Report on Form 8-K dated January 16, 1997, filed with
the Commission pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 ("Exchange Act");
(c) The description of the Registrant's common stock par value
$.0001 per share ("Common Stock") contained in the
Registrant's 8-A Registration Statement filed with the
Commission pursuant to Section 12(g) of the Exchange Act,
including any subsequent amendment(s) or report(s) filed for
purpose of updating such description.
All documents subsequently filed by the Registrant 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 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.
The Common Stock of the Registrant is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
empowers a Delaware corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee, or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise, against expenses (including
4
<PAGE>
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit, or
proceeding if such person acted in good faith and in a manner such person
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 that such person's conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that such person did not act in good faith and in a
manner which such person 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 reasonable cause to believe that such person's conduct was
unlawful.
In the case of an action by or in the right of the corporation, Section
145 empowers a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action in
any of the capacities set forth above against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted in good faith
and in a manner such person reasonably believed to be in and not opposed to the
best interests of the corporation, except that indemnification is not permitted
in respect of any claim, issue, or matter as to which such person is adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought determines upon
application that, despite the adjudicate of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
deems proper. Section 145 further provides: that a Delaware corporation is
required to indemnify a director, officer, employee, or agent against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with any action, suit, or proceeding or in defense of any claim,
issue, or matter therein as to which such person has been successful on the
merits or otherwise; that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; that indemnification provided for by Section 145 shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee, or agent and shall inure to the
benefit of such person's heirs, executors, and administrators; and empowers the
corporation to purchase and maintain insurance on behalf of a director or
officer against any such liability asserted against such person in any such
capacity or arising out of such person's status as such whether or not the
corporation would have the power to indemnify him against liability under
Section 145. A Delaware corporation may provide indemnification only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct. Such determination is to be made (i)
by the board of directors by a majority vote of a quorum consisting of directors
who were not party to such action, suit, or proceeding, or (ii) if such a quorum
is not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders.
Section 7.5 of the Registrant's By-Laws and Article Ninth of its
Amended and Restated Certificate of Incorporation provides for indemnification
of directors and officers of the Company to the fullest extent permitted by law,
as now in effect or later amended.
The Registrant has also entered into indemnification agreements with
each of its directors and executive officers. The indemnification agreements
provide that the directors and executive officers will be indemnified to the
fullest extent permitted by applicable law. The indemnification agreements also
provide that expenses incurred by an officer or director in defending a civil or
criminal action, suit, or proceeding may be paid by the Registrant in advance of
final disposition upon receipt of an undertaking by or on behalf of such person
to repay such amount if it ultimately is determined that such person is not
entitled to be indemnified by the Registrant.
5
<PAGE>
The Registrant currently provides liability insurance for each director
and certain officers for certain losses arising from claims or charges made
against them while acting in their capacities as directors or officers of the
Registrant.
Article Eighth of the Registrant's Restated Certificate of
Incorporation eliminates the personal liability of the directors of the
Registrant to the fullest extent permitted by the provisions of Section 102 of
the Delaware General Corporation Law, as the same may be amended and
supplemented.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
4.1 1991 Employee Incentive Plan of the Registrant (incorporated by
reference to Exhibit 10.17 from Amendment No. 1 to the
Registrant's Registration Statement on Form S-1, File No. 333-
05273 ("Registration Statement"))
4.2 Stock Option Agreement for the purchase of 10,000 shares
between the Registrant and Arnold B. Pollard
4.3 Stock Option Agreement for the purchase of 10,000 shares
between the Registrant and John P. Margaritis
5.1 Opinion of Graubard Mollen & Miller
23.1 Consent of KPMG Peat Marwick LLP, independent accountants for
Registrant
23.2 Consent of Graubard Mollen & Miller (included in Exhibit 5.1)
</TABLE>
6
<PAGE>
Item 9. Undertakings.
(a) The undersigned Registrant 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;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent 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 (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13(a) or Section
15(d) of the Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, 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 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.
(c) Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing procedures, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the 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.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 the City of New York, State of New York, on this 22nd day of
January 1997.
GKN HOLDING CORP.
By: /s/ Peter R. Kent
---------------------
Peter R. Kent
Chief Operating Officer and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David M. Nussbaum and Peter M. Kent his
true and lawful attorneys-in-fact and agents, each acting alone, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments to this Registration
Statement, including post-effective amendments, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, and hereby ratifies and
confirms all that said attorneys-in-fact and agents, each acting alone, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ David M. Nussbaum Chairman of the Board and Chief January 22, 1997
- -------------------------- Executive Officer
David M. Nussbaum (and Principal Executive
Officer)
/s/ Roger N. Gladstone President and Director January 22, 1997
- ---------------------------
Roger N. Gladstone
/s/ Peter R. Kent Chief Operating Officer, Chief January 22, 1997
- --------------------------- Financial Officer and Director
Peter R. Kent (and Principal Accounting
and Financial Officer)
/s/ Lester Rosenkrantz Executive Vice President and January 22, 1997
- ---------------------------- Director
Lester Rosenkrantz
/s/ John P. Margaritis Director January 22, 1997
- ------------------------------
John P. Margaritis
/s/ Arnold B. Pollard Director January 22, 1997
- -------------------------------
Arnold B. Pollard
/s/ James Krantz Director January 22, 1997
- -------------------------------
James Krantz
</TABLE>
8
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page
<S> <C> <C>
4.1 1991 Employee Incentive Plan (incorporated by reference
to Exhibit 10.17 from Amendment No. 1 to the Registrant's
Registration Statement on Form S-1, File No. 333-05273
("Registration Statement"))
4.2 Stock Option Agreement for the purchase
of 10,000 shares between the Registrant
and Arnold B. Pollard 10
4.3 Stock Option Agreement for the purchase
of 10,000 shares between the Registrant
and John P. Margaritis 13
5.1 Opinion of Graubard Mollen & Miller 16
23.1 Consent of KMPG Peat Marwick LLP, independent
accountants for Registrant 17
23.2 Consent of Graubard Mollen & Miller
(included in Exhibit 5.1)
</TABLE>
9
<PAGE>
EXHIBIT 4.2
Stock Option Agreement of Arnold B. Pollard
GKN HOLDING CORP.
STOCK OPTION AGREEMENT
AGREEMENT, made as of the 2nd day of August 1996, between GKN HOLDING
CORP., a Delaware corporation ("Company"), and Arnold B. Pollard ("Director" or
"Grantee").
WHEREAS, on May 30, 1996, the Board of Directors of the Company or a
committee thereof (in either event, "Company") authorized the grant to the
Director of an option to purchase an aggregate of 10,000 of the authorized but
unissued or treasury shares of the Common Stock of the Company ("Common Stock")
on the terms and conditions set forth in this Agreement.
WHEREAS, the Director desires to acquire said option on the terms and
conditions set forth in this Agreement;
IT IS AGREED:
1. The Company hereby grants to the Director the right and option to
purchase all or any part of an aggregate of 10,000 shares of the Common Stock on
the terms and conditions set forth herein ("Option"). The Option is not intended
to qualify as an "incentive stock option" under section 422 of the Internal
Revenue Code of 1986, as amended ("Code").
2. The purchase price of each share of Common Stock subject to the Option
("Option Shares") shall be $6.00, equal to the per share offering price in the
Company's 1996 Initial Public Offering.
3. (a) The Option shall become exercisable on the day the Grantee becomes a
director of the Company, which shall occur upon the consummation of the
Company's Initial Public Offering. No Option Shares may be purchased hereunder
prior to such date. After the Option becomes exercisable, it shall remain
exercisable, for a period of ten years.
(b) The Option shall not be assignable or transferable except in the event
of the death of the Director, by will or by the laws of descent and
distribution. No transfer of the Option by the Director by will or by the laws
of descent and distribution shall be effective to bind the Company unless the
Company shall have been furnished with written notice thereof and a copy of the
will and such other evidence as the Company may deem necessary to establish the
validity of the transfer and the acceptance by the transferee or transferees of
the terms and conditions of the Option.
4. The Director shall not have any of the rights of a stockholder with
respect to the Option Shares until such shares have been issued after the due
exercise of the Option.
5. In the event of any recapitalization, reclassification, stock dividend,
stock split, or other change in the corporate structure affecting the class of
Common Stock as a whole, the Company shall proportionally adjust the number and
kind of shares covered by the Option and the option price thereunder; provided,
that the number of adjusted Option Shares, if any, shall always be rounded up to
the next whole number.
6. The Company hereby represents and warrants to the Director that the
Option Shares, when issued and delivered by the Company to the Director in
accordance with the terms and conditions hereof will be duly and validly issued,
fully paid and non-assessable.
7. The Director hereby represents and warrants to the Company that he is
acquiring the Option and shall acquire the Option Shares for his own account and
not with a view to the distribution thereof.
10
<PAGE>
8. Anything in this Agreement to the contrary notwithstanding, the Director
hereby agrees that he shall not sell, transfer by any means or otherwise dispose
of the Option Shares acquired by him without registration under the Securities
Act of 1933, as amended ("Act"), or in the event that they are not so
registered, unless (a) an exemption from the Act is available thereunder, and
(b) the Director has furnished the Company with notice of such proposed transfer
and the Company's legal counsel, in its reasonable opinion, shall deem such
proposed transfer to be so exempt.
9. The Director hereby acknowledges that:
(a) All reports and documents required to be filed by the Company with the
National Association of Securities Dealers, Inc. and Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934 and other applicable
laws within the last 12 months have been made available to the Director for his
inspection.
(b) If he exercises the Option, he must bear the economic risk of the
investment in the Option Shares for an indefinite period of time because the
Option Shares will not have been registered under the Act and cannot be sold by
him unless they are registered under the Act or an exemption therefrom is
available thereunder.
(c) In his position with the Company, he has had both the opportunity to
ask questions of and receive answers from the officers and directors of the
Company and all persons acting on its behalf concerning the terms and conditions
of the offer made hereunder and to obtain any additional information to the
extent the Company possesses or may possess such information or can acquire it
without unreasonable effort or expense necessary to verify the accuracy of the
information obtained pursuant to subparagraph (a) above.
(d) The Company shall place stop transfer orders with its transfer agent
against the transfer of the Option Shares in the absence of registration under
the Act or an exemption therefrom.
(e) The certificates evidencing the Option Shares shall bear the following
legend:
"The shares represented by this certificate have been acquired
for investment and have not been registered under the
Securities Act of 1933. The shares may not be sold or
transferred in the absence of such registration or an
exemption therefrom under said Act."
10. Subject to the terms and conditions of the Agreement, the Option may be
exercised by written notice to the Company at its principal place of business.
Such notice shall state the election to exercise the Option and the number of
Option Shares in respect to which it is being exercised, shall contain a
representation and agreement by the person or persons so exercising the Option
that the Option Shares are being purchased for investment and not with a view to
the distribution or resale thereof, and shall be signed by the person or persons
so exercising the Option. Such notice shall be accompanied by payment of the
full purchase price of the Option Shares in cash or by bank or certified check,
unless otherwise agreed to by the Company. The Company shall issue a certificate
or certificates evidencing the Option Shares as soon as practicable after the
notice and payment is received. The certificate or certificates evidencing the
Option Shares shall be registered in the name of the person or persons so
exercising the Option.
11. All notices, requests, deliveries, payments, demands and other
communications which are required or permitted to be given under this Agreement
shall be in writing and shall either be delivered personally or sent by
certified mail, return receipt requested, postage prepaid, to the parties at
their respective addresses set forth below, or to such other address as either
shall have specified by notice in the writing to the other, and shall be deemed
duly given hereunder when so delivered or mailed, as the case may be.
12. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
11
<PAGE>
13. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter thereof.
14. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and to the extent not prohibited herein, their respective heirs,
successors, assigns and representatives. Nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties hereto and
as provided above, their respective heirs, successors, assigns and
representatives any rights, remedies, obligations or liabilities.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the 2nd day of August, 1996.
GKN HOLDING CORP.
By: /s/ Peter R. Kent
------------------------
Peter R. Kent
Chief Operating Officer
DIRECTOR:
By: /s/ Arnold B. Pollard
------------------------
Arnold B. Pollard
12
<PAGE>
EXHIBIT 4.3
Stock Option Agreement of John P. Margaritis
GKN HOLDING CORP.
STOCK OPTION AGREEMENT
AGREEMENT, made as of the 2nd day of August 1996, between GKN HOLDING
CORP., a Delaware corporation ("Company"), and John P. Margaritis ("Director" or
"Grantee").
WHEREAS, on May 30, 1996, the Board of Directors of the Company or a
committee thereof (in either event, "Company") authorized the grant to the
Director of an option to purchase an aggregate of 10,000 of the authorized but
unissued or treasury shares of the Common Stock of the Company ("Common Stock")
on the terms and conditions set forth in this Agreement.
WHEREAS, the Director desires to acquire said option on the terms and
conditions set forth in this Agreement;
IT IS AGREED:
1. The Company hereby grants to the Director the right and option to
purchase all or any part of an aggregate of 10,000 shares of the Common Stock on
the terms and conditions set forth herein ("Option"). The Option is not intended
to qualify as an "incentive stock option" under section 422 of the Internal
Revenue Code of 1986, as amended ("Code").
2. The purchase price of each share of Common Stock subject to the Option
("Option Shares") shall be $6.00, equal to the per share offering price in the
Company's 1996 Initial Public Offering.
3. (a) The Option shall become exercisable on the day the Grantee becomes a
director of the Company, which shall occur upon the consummation of the
Company's Initial Public Offering. No Option Shares may be purchased hereunder
prior to such date. After the Option becomes exercisable, it shall remain
exercisable for a period of ten years.
(b) The Option shall not be assignable or transferable except in the event
of the death of the Director, by will or by the laws of descent and
distribution. No transfer of the Option by the Director by will or by the laws
of descent and distribution shall be effective to bind the Company unless the
Company shall have been furnished with written notice thereof and a copy of the
will and such other evidence as the Company may deem necessary to establish the
validity of the transfer and the acceptance by the transferee or transferees of
the terms and conditions of the Option.
4. The Director shall not have any of the rights of a stockholder with
respect to the Option Shares until such shares have been issued after the due
exercise of the Option.
5. In the event of any recapitalization, reclassification, stock dividend,
stock split, or other change in the corporate structure affecting the class of
Common Stock as a whole, the Company shall proportionally adjust the number and
kind of shares covered by the Option and in the option price thereunder;
provided, that the number of adjusted Option Shares, if any, shall always be
rounded up to the next whole number.
6. The Company hereby represents and warrants to the Director that the
Option Shares, when issued and delivered by the Company to the Director in
accordance with the terms and conditions hereof will be duly and validly issued,
fully paid and non-assessable.
7. The Director hereby represents and warrants to the Company that he is
acquiring the Option and shall acquire the Option Shares for his own account and
not with a view to the distribution thereof.
13
<PAGE>
8. Anything in this Agreement to the contrary notwithstanding, the Director
hereby agrees that he shall not sell, transfer by any means or otherwise dispose
of the Option Shares acquired by him without registration under the Securities
Act of 1933, as amended ("Act"), or in the event that they are not so
registered, unless (a) an exemption from the Act is available thereunder, and
(b) the Director has furnished the Company with notice of such proposed transfer
and the Company's legal counsel, in its reasonable opinion, shall deem such
proposed transfer to be so exempt.
9. The Director hereby acknowledges that:
(a) All reports and documents required to be filed by the Company with the
National Association of Securities Dealers, Inc. and Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934 and other applicable
laws within the last 12 months have been made available to the Director for his
inspection.
(b) If he exercises the Option, he must bear the economic risk of the
investment in the Option Shares for an indefinite period of time because the
Option Shares will not have been registered under the Act and cannot be sold by
him unless they are registered under the Act or an exemption therefrom is
available thereunder.
(c) In his position with the Company, he has had both the opportunity to
ask questions of and receive answers from the officers and directors of the
Company and all persons acting on its behalf concerning the terms and conditions
of the offer made hereunder and to obtain any additional information to the
extent the Company possesses or may possess such information or can acquire it
without unreasonable effort or expense necessary to verify the accuracy of the
information obtained pursuant to subparagraph (a) above.
(d) The Company shall place stop transfer orders with its transfer agent
against the transfer of the Option Shares in the absence of registration under
the Act or an exemption therefrom.
(e) The certificates evidencing the Option Shares shall bear the following
legend:
"The shares represented by this certificate have been acquired
for investment and have not been registered under the
Securities Act of 1933. The shares may not be sold or
transferred in the absence of such registration or an
exemption therefrom under said Act."
10. Subject to the terms and conditions of the Agreement, the Option may be
exercised by written notice to the Company at its principal place of business.
Such notice shall state the election to exercise the Option and the number of
Option Shares in respect to which it is being exercised, shall contain a
representation and agreement by the person or persons so exercising the Option
that the Option Shares are being purchased for investment and not with a view to
the distribution or resale thereof, and shall be signed by the person or persons
so exercising the Option. Such notice shall be accompanied by payment of the
full purchase price of the Option Shares in cash or by bank or certified check,
unless otherwise agreed to by the Company. The Company shall issue a certificate
or certificates evidencing the Option Shares as soon as practicable after the
notice and payment is received. The certificate or certificates evidencing the
Option Shares shall be registered in the name of the person or persons so
exercising the Option.
11. All notices, requests, deliveries, payments, demands and other
communications which are required or permitted to be given under this Agreement
shall be in writing and shall either be delivered personally or sent by
certified mail, return receipt requested, postage prepaid, to the parties at
their respective addresses set forth below, or to such other address as either
shall have specified by notice in the writing to the other, and shall be deemed
duly given hereunder when so delivered or mailed, as the case may be.
12. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
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13. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter thereof.
14. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and to the extent not prohibited herein, their respective heirs,
successors, assigns and representatives. Nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties hereto and
as provided above, their respective heirs, successors, assigns and
representatives any rights, remedies, obligations or liabilities.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the 2nd day of August, 1996.
GKN HOLDING CORP.
By: /s/ Peter R. Kent
-------------------------
Peter R. Kent
Chief Operating Officer
DIRECTOR:
By: /s/ John P. Margaritis
-------------------------
John P. Margaritis
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EXHIBIT 5.1
Graubard Mollen & Miller
600 Third Avenue
New York, New York 10016-2097
January 22, 1997
GKN Holding Corp.
61 Broadway
New York, New York 10006
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-8
("Registration Statement") filed by GKN Holding Corp. ("Company"), a Delaware
corporation, under the Securities Act of 1933, as amended ("Act"), with respect
to an aggregate of 5,020,000 shares of common stock, par value $.0001 per share
("Common Stock"), to be offered by the Company under the Company's 1991 Employee
Incentive Plan and certain other employee benefit plans under separate written
agreements (collectively "Plans").
We have examined such documents and considered such legal matters as we
have deemed necessary and relevant as the basis for the opinion set forth below.
With respect to such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as reproduced
or certified copies, and the authenticity of the originals of those latter
documents. As to questions of fact material to this opinion, we have, to the
extent deemed appropriate, relied upon certain representations of certain
officers and employees of the Company. We have also assumed that in granting
future awards under the Plans, the Board of Directors of the Company or the
appropriate committee thereunder will exercise its discretion in establishing
the terms of such awards within the permissible limits of the law of the State
of Delaware.
Based upon the foregoing, it is our opinion that the Common Stock to be
issued by the Company under the Plans, when sold in accordance with the terms of
the Plans and the individual instruments governing their issuance, will be
legally issued, fully paid and nonassessable, although they may be subject to
contractual restrictions established by the applicable Plans or other
instruments.
In giving this opinion, we have assumed that all certificates for the
Company's shares of Common Stock, prior to their issuance, will be duly executed
on behalf of the Company by the Company's transfer agent and registered by the
Company's registrar, if necessary, and will conform, except as to denominations,
to specimens which we have examined.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement, to the use of our name as your counsel and to all
references made to us in the Registration Statement and in the Prospectus
forming a part thereof. In giving this consent, we do not hereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act, or the rules and regulations promulgated thereunder.
Very truly yours,
/s/ Graubard Mollen & Miller
GRAUBARD MOLLEN & MILLER
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders of
GKN Holding Corp.:
We consent to the incorporation by reference in this Registration Statement of
GKN Holding Corp. and subsidiaries (the "Company") on Form S-8 of the report of
KPMG Peat Marwick LLP dated April 12, 1996, except as to Note 13, which is as of
May 28, 1996, appearing in the Company's initial public offering Registration
Statement on Form S-1 (Reg. No. 333-05273).
/s/ KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
New York, New York
January 22, 1997
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