<PAGE>
As filed with the Securities and Exchange Commission on April 13, 1995.
REGISTRATION NO. 33-___________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
Form S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
------------------------
PEOPLES TELEPHONE COMPANY, INC.
(Exact name of registrant as specified in its charter)
NEW YORK 13-2626435
--------------------------------------------------------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2300 N.W. 89th Place, Miami, Florida 33172
--------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Peoples Telephone Company 1987 Non-Qualified Stock Option Plan,
Peoples Telephone Company 1987 Non-Qualified Stock Option Plan for Non-Employee
Directors,
Peoples Telephone Company, Inc. 1993 Non-Employee Director Stock Option Plan,
Peoples Telephone Company, Inc. 1994 Stock Incentive Plan for Employees,
and
Options Granted pursuant to Written Compensation Agreements, Related Stock
Option Plans and other Stock Option Grants
(Full title of the plans)
Robert D. Rubin copy to:
President Thomas O. Wells, Esq.
Peoples Telephone Company, Inc. Sparber, Kosnitzky, Truxton, Spratt
2300 N.W. 89th Place & Brooks, P.A.
Miami, Florida 33172 1401 Brickell Avenue, Suite 700
(305) 593-9667 Miami, Florida 33131
(305) 379-7200
(Name, address, including ZIP Code, and
telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------
Title of Proposed Proposed
securities maximum maximum
to be Amount to offering price aggregate Amount of
registered be registered per share (1) offering price (1) registration fee
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------
Common Stock, 5,967,401 $11.38 $27,599,230 $9,516.98
par value
$.01 per share
- ------------------------------------------------------------------------------------
</TABLE>
(1) Estimated in accordance with Rule 457(h)(1) on the basis of the price
of the average of the high and low price of the Registrant's common stock, par
value of $.01 per share, on April 10, 1995, as reported on the NASDAQ National
Market System ("NASDAQ") ($4.625).
Page 1 of 8
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
- -----------------------------------------------
The documents listed in (a) through (c) below previously filed with
the Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement. In addition, all documents
subsequently filed by the Registrant with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(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 part hereof from the date of
filing of such document.
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1994.
(b) All other reports filed by the Registrant pursuant to Section 13(a) or
15 (d) of the Exchange Act since December 31, 1994, including without
limitation the Company's Current Report on Form 8-K filed with the
Commission on March 2, 1995 reporting the sale of substantially all of
the Company's prepaid telephone calling card assets to Global Link
Teleco Corporation.
(c) The description of the Registrant's Common Stock, par value $.01 per
share, to be offered pursuant the Peoples Telephone Company 1987 Non-
Qualified Stock Option Plan, Peoples Telephone Company 1987 Non-
Qualified Stock Option Plan for Non-Employee Directors, Peoples
Telephone Company, Inc. 1993 Non-Employee Director Stock Option Plan,
Peoples Telephone Company, Inc. 1994 Stock Incentive Plan for
Employees and certain written compensation agreements, described in
the Registrant's Registration Statement filed with the Commission on
Form 10, Registration No. 0-16479 on March 1, 1988, as amended by any
amendments or reports filed for the purpose of updating such
description.
Item 4. Description of Securities.
- ---------------------------------
Not applicable, as the class of securities to be offered is registered
under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
- ----------------------------------------------
Not applicable, as no expert or counsel is employed by the Registrant on a
contingent basis or has an interest in the Registrant necessitating disclosure.
Page 2 of 8
<PAGE>
Item 6. Indemnification of Directors and Officers.
- -------------------------------------------------
Paragraph Tenth of the Registrant's Certificate of Incorporation provides
that the Registrant will indemnify and reimburse the officers and directors of
the Registrant to the fullest extent provided by law. Paragraph Tenth of the
Registrant's Certificate of Incorporation also provides that the provisions
regarding indemnification and advancement of expenses as provided by law shall
not be exclusive of any other right which any officer or director of the
Registrant may have or acquire thereafter under any provision of the
Registrant's Certificate of Incorporation or By-laws or by any agreement, vote
of shareholders or disinterested directors of the Registrant or otherwise,
provided, that no indemnification may be made to or on behalf of any officer or
director if a judgement or other final adjudication adverse to such officer or
director establishes that his acts were committed in bad faith or were the
result of active and deliberate dishonesty and were material to the cause of
action so adjudicated, or that he personally gained in fact a financial profit
or other advantage to which he was not legally entitled.
A director shall not be liable to the Registrant or its shareholders for
damages for any breach of duty in such director's capacity as a director unless
(i) a judgment or other final adjudication adverse to the director establishes
that his acts or omissions were in bad faith or involved intentional misconduct
or a knowing violation of law or that he personally gained in fact a financial
profit or other advantage to which he was not legally entitled or that his acts
violated section 719 of the Business Corporation Law of New York or (ii) the
liability of any director for any act or omission occurred prior to the adoption
of this indemnification provision by the Registrant.
Item 7. Exemption from Registration Claimed.
- -------------------------------------------
Not applicable, as no restricted securities are to be reoffered or resold
pursuant to this Registration Statement.
Item 8. Exhibits.
- ----------------
No. Description
--- -----------
4.1 Amended and Restated Certificate of Incorporation of the Registrant,
adopted on November 30, 1987, and filed as an exhibit to the Registrant's
Registration Statement on Form 10, filed with the Commission on March 1,
1988, Registration No. 0-16479 (the "Registration Statement"), is hereby
incorporated by reference.
4.2 Amendments to Certificate of Incorporation, adopted on March 8, 1990, and
March 15, 1990, respectively, and filed with the Commission as an exhibit
to the Registrant's Annual Report on Form 10-K for the year ended December
31, 1989, are hereby incorporated herein by reference.
4.3 Amendment to Certificate of Incorporation, adopted on June 29, 1990, and
filed with the Commission as an Exhibit to the Registrant's Form 10-K for
the year ended December 31, 1990, is hereby incorporated herein by
reference.
Page 3 of 8
<PAGE>
4.4 Restated Bylaws of the Registrant, adopted on November 30, 1987, and
filed as an exhibit to the Registrant's Registration Statement, is hereby
incorporated by reference.
*4.5 Peoples Telephone Company 1987 Non-Qualified Stock Option Plan, as
amended.
*4.6 Peoples Telephone Company 1987 Non-Qualified Stock Option Plan for Non-
Employee Directors, as amended.
4.7 Peoples Telephone Company, Inc. 1993 Non-Employee Director Stock Option
Plan filed with the Commission as an exhibit to the Registrant's Proxy
Statement for the year ended December 31, 1993, is hereby incorporated
herein by reference.
4.8 Peoples Telephone Company, Inc. 1994 Stock Incentive Plan for Employees
filed with the Commission as an exhibit to the Registrant's Proxy
Statement for the year ended December 31, 1994, is hereby incorporated
herein by reference.
4.9 Employment Agreement, dated January 1, 1994, and related Stock Option
Plan, dated February 16, 1994, between Peoples Telephone Company, Inc. and
Jeffrey Hanft, filed with the Commission as an exhibit to the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1993, is hereby
incorporated by reference.
4.10 Employment Agreement, dated January 1, 1994, and related Stock Option
Plan, dated February 16, 1994, between Peoples Telephone Company, Inc. and
Robert D. Rubin, filed with the Commission as an exhibit to the
Registrant's Annual Report on Form 10-K for the year ended December 31,
1993, is hereby incorporated by reference.
4.11 Employment Agreement, dated January 1, 1994, and related Stock Option
Plan, dated February 16, 1994, between Peoples Telephone Company, Inc. and
Richard F. Militello, filed with the Commission as an exhibit to the
Registrant's Annual Report on Form 10-K for the year ended December 31,
1993, is hereby incorporated by reference.
*4.12 Employment Agreement, dated June 22, 1994, between Peoples Telephone
Company, Inc. and Larry Ellman.
4.13 Employment Agreement, dated July 11, 1994, between Peoples Telephone
Company, Inc. and Bonnie S. Biumi and related Stock Option Agreement,
dated July 11, 1994, filed with the Commission as an exhibit to the
Registrant's Annual Report on Form 10-K for the year ended December 31,
1994, is hereby incorporated by reference.
4.14 Employment Agreement, dated January 1, 1995, between Peoples Telephone
Company, Inc. and Bruce W. Renard, filed with the Commission as an exhibit
to the Registrant's Annual Report on Form 10-K for the year ended December
31, 1994, is hereby incorporated by reference.
*5 Opinion of Sparber, Kosnitzky, Truxton, Spratt & Brooks, P.A.
Page 4 of 8
<PAGE>
*23.1 Consent of Price Waterhouse.
*23.2 Consent of Sparber, Kosnitzky, Truxton, Spratt & Brooks, P.A. (included in
its opinion filed as Exhibit 5).
*24 Powers of Attorney.
- ----------------------------
* Filed herewith
Item 9. Undertakings.
- --------------------
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, to include any material
information with respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such information in this
Registration Statement.
(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.
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 that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
Page 5 of 8
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Miami, State of Florida, on April 12, 1995.
PEOPLES TELEPHONE COMPANY, INC.
By: /s/ Jeffrey Hanft
----------------------------------------
Jeffrey Hanft, Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons on behalf
of the Registrant in the capacities and on the date indicated:
<TABLE>
<CAPTION>
DATE SIGNATURE TITLE
- ---- --------- -----
<S> <C> <C>
April 12, 1995 /s/ Jeffrey Hanft Chairman of the Board, Chief
------------------------
Jeffrey Hanft Executive Officer and Director
April 12, 1995 /s/ Robert D. Rubin President and Director
------------------------
Robert D. Rubin
April 12, 1995 /s/ Richard F. Militello Chief Operating Officer
------------------------
Richard F. Militello
April 12, 1995 /s/ Bonnie S. Biumi Chief Financial Officer
------------------------
Bonnie S. Biumi
April 12, 1995 /s/ Denise Gordon Controller
------------------------
Denise Gordon
April 12, 1995 Director
------------------------
Robert E. Lund
April 12, 1995 /s/ Jody Frank Director
------------------------
Jody Frank
April 12, 1995 Director
------------------------
Richard Whitman
April 12, 1995 /s/ Ronald Gelber Director
------------------------
Ronald Gelber
By: /s/ Jeffrey Hanft
-----------------------------
Jeffrey Hanft, Attorney-in-Fact
</TABLE>
Page 6 of 8
<PAGE>
INDEX OF EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
Exhibit Page Number
- ------- -----------
4.1 Amended and Restated Certificate of Incorporation
of the Registrant, adopted on November 30, 1987, and
filed as an exhibit to the Registrant's
Registration Statement on Form 10, filed with the
Commission on March 1, 1988, Registration No.
0-16479 (the "Registration Statement"), is hereby
incorporated by reference.
4.2 Amendments to Certificate of Incorporation, adopted
on March 8, 1990, and March 15, 1990, respectively,
and filed with the Commission as an exhibit to the
Registrant's Annual Report on Form 10-K for the
year ended December 31, 1989, are hereby incorporated
herein by reference.
4.3 Amendment to Certificate of Incorporation, adopted
on June 29, 1990, and filed with the Commission as
an Exhibit to the Registrant's Form 10-K for the
year ended December 31, 1990, is hereby incorporated
herein by reference.
4.4 Restated Bylaws of the Registrant, adopted on
November 30, 1987, and filed as an exhibit to the
Registrant's Registration Statement, is hereby
incorporated by reference.
*4.5 Peoples Telephone Company 1987 Non-Qualified Stock
Option Plan, as amended.
*4.6 Peoples Telephone Company 1987 Non-Qualified Stock
Option Plan for Non-Employee Directors, as amended.
4.7 Peoples Telephone Company, Inc. 1993 Non-Employee
Director Stock Option Plan filed with the Commission
as an exhibit to the Registrant's Proxy Statement
for the year ended December 31, 1993, is hereby
incorporated herein by reference.
4.8 Peoples Telephone Company, Inc. 1994 Stock Incentive
Plan for Employees filed with the Commission as an
exhibit to the Registrant's Proxy Statement for the
year ended December 31, 1994, is hereby incorporated
herein by reference.
4.9 Employment Agreement, dated January 1, 1994, and
related Stock Option Plan, dated February 16, 1994,
between Peoples Telephone Company, Inc. and Jeffrey
Hanft, filed with the Commission as an exhibit to
the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1993, is hereby
incorporated by reference.
Page 7 of 8
<PAGE>
INDEX OF EXHIBITS CONTINUED
Exhibit Page Number
- ------- -----------
4.10 Employment Agreement, dated January 1, 1994, and
related Stock Option Plan, dated February 16, 1994,
between Peoples Telephone Company, Inc. and Robert D.
Rubin, filed with the Commission as an exhibit to
the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1993, is hereby
incorporated by reference.
4.11 Employment Agreement, dated January 1, 1994, and
related Stock Option Plan, dated February 16, 1994,
between Peoples Telephone Company, Inc. and
Richard F. Militello, filed with the Commission
as an exhibit to the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1993,
is hereby incorporated by reference.
*4.12 Employment Agreement, dated June 22, 1994, between
Peoples Telephone Company, Inc. and Larry Ellman.
4.13 Employment Agreement, dated July 11, 1994, between
Peoples Telephone Company, Inc. and Bonnie S. Biumi
and related Stock Option Agreement, dated July 11,
1994, filed with the Commission as an exhibit to
the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1994, is hereby
incorporated by reference.
4.14 Employment Agreement, dated January 1, 1995, between
Peoples Telephone Company, Inc. and Bruce W. Renard,
filed with the Commission as an exhibit to the
Registrant's Annual Report on Form 10-K for the
year ended December 31, 1994, is hereby incorporated
by reference.
*5 Opinion of Sparber, Kosnitzky, Truxton, Spratt &
Brooks, P.A.
*23.1 Consent of Price Waterhouse.
*23.2 Consent of Sparber, Kosnitzky, Truxton, Spratt &
Brooks, P.A. (included in its opinion filed as
Exhibit 5).
*24 Powers of Attorney.
- --------------------------
* Filed herewith
Page 8 of 8
<PAGE>
EXHIBIT 4.5
PEOPLES TELEPHONE COMPANY
1987 NON-QUALIFIED STOCK OPTION PLAN
------------------------------------
1. Purpose. The purpose of this Non-Qualified Stock Option Plan (the
-------
"Plan") is to further the best interests of PEOPLES TELEPHONE COMPANY and its
subsidiaries (the "Company") by encouraging directors, officers and employees of
the Company to acquire a proprietary stake in the Company and its future growth.
It is the view of the Company that it may achieve this goal by granting stock
options.
2. Option Shares. 150,000 shares of the Common Stock of the Company, par
-------------
value $.01 per share (the "Stock"), are hereby reserved for issuance upon the
exercise of the stock options granted under the Plan (the "Options"). The Stock
may be issued pursuant to such Options either from the Company's authorized but
unissued Stock or from the Company's issued but not outstanding Stock (treasury
stock). Should any Options granted hereunder not be exercised in the time
allowed for such exercise, the shares of Stock relating to such lapsed Options
shall be available for issuance pursuant to Options subsequently granted under
the Plan.
3. Administration of this Plan. This Plan shall be administered by a
---------------------------
committee of the Board of Directors of the Company (the "Committee"). The
Committee may exercise any and all of the powers and functions of the Company's
Board of Directors pursuant to this Plan as described herein.
Subject to the provisions of the Plan, the Committee shall have authority
to (i) adopt, amend and rescind its rules, regulations and procedures as it
deems advisable in the administration of the Plan, (ii) construe and interpret
the Plan and (iii) make all other determinations deemed necessary or advisable
for the administration of the Plan. All decisions, determinations and
interpretations of the Committee shall be final, conclusive and binding on all
persons holding an Option granted pursuant to the Plan ("Optionees").
Neither the Committee nor any member thereof shall be liable for any action
or determination taken or made in good faith with respect to the Plan or any
Option granted thereunder.
4. Eligibility. All directors, officers and employees of the Company
-----------
designated by the Committee shall be eligible to receive Options under the Plan.
5. Grant of Options. In making its selection of those eligible to receive
----------------
Options and determining the number of shares to be granted pursuant to each
Option, the Committee may consider any factors that it may, in its sole
discretion, deem relevant. Each grant of an Option pursuant to this Plan shall
be made within ten (10) years from the date of adoption of this Plan by the
Company's Board of Directors (the "Adoption Date"). Each grant of an Option
pursuant to this Plan shall be made upon such terms and conditions as may be
determined by the Committee at the time of grant, subject to the terms,
conditions and limitations set forth in this Plan.
<PAGE>
6. Option Price. The purchase price per share of Stock placed under an
------------
Option pursuant to this Plan (the "Option Price") shall be determined by the
Committee, but in no event may such price be below the fair market value of such
Stock on the business day immediately preceding the date of the grant. The
Committee shall determine or adopt rules to determine such fair market value.
7. Duration of Option. An Option granted hereunder shall be effective
------------------
(hereinafter called the "Option Period") upon the date it is granted, and shall
continue until the later of (i) a date set by the Committee at the time of grant
or (ii) ten years after the date of grant. In addition, and in limitation of
the above, the Option Period of any Option shall terminate 30 days after the
termination of the Optionee's employment by the Company for any reason, except
the death or disability of the Optionee. In the event of the termination of
employment due to the death or disability of the Optionee, the Option Period of
the Option held by him upon the date of such termination shall terminate upon
the earlier of (a) six months after the date of the Optionee's death or
termination due to disability, as the case may be, or (b) the date of
termination of such Option determined by the first sentence of this Section. In
the event of termination of an Optionee's employment due to the death of the
Optionee, such Optionee's Options may be exercised during such six month period
by his estate or by the person who acquired the right to exercise such Options
through bequest or inheritance.
8. Nontransferability of Options. No Option granted pursuant to this Plan
-----------------------------
may be transferred by any Optionee otherwise than by will or by the laws of
descent and distribution; further, during the lifetime of any Optionee, Options
granted hereunder may be exercised only by such Optionee.
9. Termination of the Plan. This Plan shall terminate upon the close of
-----------------------
business ten (10) years from the Adoption Date unless it shall have been sooner
terminated by reason of there having been granted and fully exercised Options
covering the entire 150,000 shares of Stock subject to this Plan. Upon such
termination, no further Options may be granted hereunder. If, after termination
of this Plan as provided above, there are outstanding Options which have not
been fully exercised, such Options shall remain in effect in accordance with
their terms and shall remain subject to the terms of this Plan.
10. Exercise of Options. An Option granted pursuant to this Plan shall be
-------------------
exercisable at any time within the Option Period, subject to the terms and
conditions of such Option. Exercise of any Option shall be made by the
delivery, during the period that such Option is exercisable, to the Company, in
person or by mail, of (i) written notice from the Optionee stating that the
Optionee is exercising such Option and (ii) the payment of the aggregate
purchase price of all shares as to which such Option is then exercised and the
payment of any required federal income tax withholding. Such aggregate purchase
price shall be paid to the Company in cash, Stock or any other class of equity
securities of the Company (such Stock and other class of equity securities of
the Company are hereinafter collectively referred to as the "Company Stock"), or
in a combination of cash or Company Stock at the time of exercise.
2
<PAGE>
There may not, however, be any payment by an Optionee of the exercise price
in whole or in part with shares of Company Stock at a time when the Company is
Insolvent (as hereafter defined) or when such payment would make the Company
Insolvent, or as such payment may otherwise be prohibited by any applicable
state or Federal Statute, rule of regulation, or any rule or regulation of any
stock exchange upon which Company Stock is traded, or if Company Stock is traded
on a recognized stock quotation service, which may be the National Association
of Securities Dealers Automated Quotations System ("NASDAQ"), any rule or
regulation of NASDAQ. For the purposes of this Plan, "Insolvent" shall mean the
inability of the Company to pay it debts as they become due in the usual course
of its business. Company Stock utilized in full or partial payment of the
exercise price shall be valued at fair market value on the date of exercise of
the Option. The Committee shall determine or enact rules to determine the fair
market value of any Company Stock.
Notwithstanding anything to the contrary contained herein, no written
notice shall be effective under this Section 10 unless it requests the exercise
of Options for one hundred (100) shares of an integral multiple thereof; except
to the extent necessary to make full exercise of the Options in the event that
only an odd lot remains. Upon the exercise of an Option in compliance with the
provision of this Section, and upon the receipt by the Company of the payment
for the Stock so taken up, the Company shall (i) deliver or cause to be
delivered to the Optionee so exercising his Option a certificate or certificates
for the number of shares of Stock with respect to which the Option is so
exercised and payment is so made, and (ii) register or cause such shares to be
registered in the name of the exercising Optionee.
The Committee may impose additional conditions upon the right of an
Optionee to exercise an Option granted hereunder if such conditions are not
inconsistent with the terms of this Plan.
Upon exercise of an Option, the Committee may permit the issuance of Stock
prior to its full payment if satisfactory arrangements are made for its prompt
sale and for an escrow or similar arrangement with a financial institution or
brokerage house for payment to the Company of the full purchase price of the
Option.
11. Stock Appreciation Rights.
-------------------------
(a) The Committee, in its discretion, may at the time of exercise of an
Option, in conjunction with all or part of any Option granted under the Plan,
permit an Optionee to exercise the Option in an alternative manner based on the
appreciated value of the common stock subject to the Option (hereinafter
referred to as a "Stock Appreciation Right"); provided, however, that the final
Committee approval is needed in order to exercise a Stock Appreciation Right.
(b) Upon the exercise of a Stock Appreciation Right, an Optionee shall be
entitled to receive, at the option of the Committee, either (i) cash equal to
the "current value of the option" or (ii) the number of shares equal to the
"current value of the option" divided by the
3
<PAGE>
fair market value of one share of stock on the date of exercise. The "current
value of the option" shall be equal to the excess of the fair market value of
one share of common stock on the date of exercise over the option price per
share specified in the related option, multiplied by the number of shares with
respect to which the Stock Appreciation Rights are being exercised. The fair
market value of the stock shall be deemed to be the closing price of the
Company's common stock reported in the Over-the-Counter market or, in the event
no sale of the Company's stock shall have been reported on that day, the closing
price for the Company's stock on the next preceding day when such price was
reported, or, if the Company's stock is not actively traded on an organized
market, then the fair market value of such stock as determined by the Committee
in its discretion. The date of exercise shall be deemed to be the day the
Secretary of the Company receives written notice to exercise the Option.
(c) The Optionee may express his desire to exercise his Option in the form
of Stock Appreciation Rights by his delivering written notice of exercise to the
Secretary of the Company stating such desire. Upon the Secretary's receipt of
the notice of exercise, the Committee shall have thirty (30) days to mail to the
Optionee its written approval or disapproval of the exercise of the Stock
Appreciation Right. The Committee's decision to approve or disapprove the
exercise shall be final and binding upon all concerned. In the event the
Committee's written decision on the exercise is not mailed to the Optionee
within thirty (30) days after delivery to the Secretary of the notice of
exercise, the Optionee shall be entitled to receive the number of shares
determined pursuant to Section 11(b) hereof. In the event the Committee
disapproves the exercise of the Stock Appreciation Right, the Optionee shall
have all rights pursuant to this Plan with respect to the exercisable shares as
if the Optionee had not exercised the Stock Appreciation Right.
In the event the term of the Option has lapsed during the Committee's
thirty (30) day review period described in this Section 11(c) and the Committee
disapproves the exercise of the Stock Appreciation Right, the Optionee shall be
entitled to an additional thirty (30) day period, beginning from the date he
receives notice of the Committee's disapproval, within which to purchase the
shares related to the disapproved Stock Appreciation Right by paying the Option
Price of such shares to the Company; provided, however, the thirty (30) day
period shall not extend beyond the period specified in Section 7 hereof.
(d) Upon the exercise and Committee approval of Stock Appreciation Rights,
the Option or part thereof to which such Stock Appreciation Rights is related
shall be deemed to have been exercised for the purpose of the limitation of the
number of shares of common stock to be issued under the Plan as set forth in
Section 2 hereof and for purposes of the limitation of the number of shares of
common stock to be issued pursuant to that Option.
12. Controlling Terms. Options granted pursuant hereto may include
-----------------
conditions that are more (but not less) restrictive to the Optionee than the
conditions contained herein and, in such event, the more restrictive conditions
shall apply.
4
<PAGE>
13. Purchase of Stock for Investment. Unless the Options and shares
--------------------------------
covered by the Plan have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), pursuant to a registration statement filed with
the Securities and Exchange Commission and any other applicable regulatory
agency, or the Company has determined that such registration is unnecessary,
each Optionee exercising an Option under the Plan may be required by the Company
(i) to give a representation in writing that such shares are being acquired for
the Optionee's own account and not for the account or beneficial interest of any
other person or entity, and that such shares of Stock shall be acquired for the
Optionee's own investment and not with a view to or for resale in connection
with the distribution of all or any part thereof; (ii) to represent and
acknowledge that he is a sophisticated investor by virtue of his education,
learning and other investments and that he is knowledgeable and experienced in
business and financial matters and with respect to the business of the Company,
in particular; (iii) to represent and acknowledge that he has been furnished or
has otherwise obtained all information necessary to enable him to evaluate the
merits and risks of an investment in the shares of Stock and that he has had
access to any and all information he desires to enable him to evaluate the risks
and merits of an investment in the shares of Stock; and (iv) to covenant and
agree to restrictions governing the time and circumstances of disposition of the
shares of Stock being acquired by such exercise. In the event that the Company
requires any such representation or covenant, any shares of Stock so acquired
will bear an appropriate legend to signify the restrictions on such shares under
the applicable securities laws and that "stop-transfer" instructions will be
given to the Company's registrar and transfer agent. To the extent necessary to
comply with the securities laws, regulations or orders of the United States or
any state, the Committee may, as a condition precedent to the exercise of an
Option, require the Optionee (or the legal representatives, legatees or
distributees, in the event of the Optionee's death or disability) to covenant
and agree to any other restrictions which the Committee believes to be necessary
or advisable to comply with any such laws, regulations or orders, including but
not limited to restrictions governing the time and circumstances of disposition
of the shares being acquired by exercise of such Option.
14. Requirements of Law. If any law, regulation or order of the United
-------------------
States Securities and Exchange Commission, or of any other commission or agency
having jurisdiction, shall require the Company or the exercising Optionee to
take any action with respect to the shares of Stock acquired by the exercise of
an Option, then the date upon which the Company shall deliver or cause to be
delivered the certificate or certificates for the shares of Stock shall be
postponed until full compliance has been made with all such requirements of law
or regulation. Further, in the event that the Company shall determine that, in
compliance with the Securities Act or any other applicable statute or
regulation, it is necessary to register any of the shares of Stock with respect
to which an exercise of an Option has been made, or to qualify any such shares
for exemption from any of the requirements of the Securities Act or such other
applicable statute or regulations, then the Company shall take such action at
its own expense, but not until such an action has been completed shall the
Option shares be delivered to the exercising Optionee. Further, in the event
that at the time of exercise of the Option the shares of Stock shall be listed
on any stock exchange, then if required by law or the exchange to do so, the
Company shall register the Option shares of Stock with respect to which exercise
is so made
5
<PAGE>
in accordance with the provisions of the Securities Act, any other applicable
law or regulation or any rules or regulations of any such exchange, and the
Company shall make regulations of any such exchange, and the Company shall make
prompt application for the listing of Option shares on such exchange at the
expense of the Company.
15. No Exchange Act Registration Obligation. Notwithstanding any other
---------------------------------------
provision contained herein, the Company shall have no obligation to be
registered under the Securities and Exchange Act of 1934 (the "Exchange Act"),
to continue any such registration or to be current in its reporting obligations
under the Exchange Act.
16. No Rights Conferred upon Granting of Options. The Optionee shall not
--------------------------------------------
have any rights as a shareholder of the Company with respect to any shares of
Stock prior to the date of issuance to the Optionee of the certificate or
certificates for such shares. Neither the Plan nor the Option confer on the
Optionee any right to be employed by the Company.
17. Adjustments. In the event of any reorganization, merger,
-----------
consolidation, acquisition, separation, recapitalization, split-up, combination,
exchange of shares or stock dividend of the Stock or shares convertible into the
Stock or similar corporate action, the number and class of shares of Stock
available pursuant to this Plan and any Options granted pursuant to this Plan,
together with the Option Prices, shall be adjusted by appropriate modifications
in this Plan and in any Options outstanding pursuant to this Plan. Any such
adjustment to the Plan or to Options or Option Prices shall be made by notice of
the Company's Board of Directors, whose determination shall be conclusive.
18. Amendment or Discontinuance of this Plan. The Company's Board of
----------------------------------------
Directors may amend, suspend or discontinue this Plan at any time without
restriction; provided, however, that such Board may not alter or amend or
discontinue or revoke or otherwise impair any outstanding Options that have been
granted pursuant to this Plan and remain unexercised, except as provided in
Section 16 above, or except in the event that there is secured the written
consent of the holder of the outstanding Option proposed to be so altered or
amended. Nothing contained in this Section, however, shall in any way extend
the Option Period of any outstanding Option by an amendment, suspension or
discontinuance of the Plan.
In addition, notwithstanding any other provision in the Plan, in the event
of a change in any Federal or state law or regulation which would make the
exercise of all or part of an existing Option unlawful or subject the Company to
a penalty, the Company's Board of Directors may restrict such exercise without
the consent of the Optionee or other holder thereof in order to comply with such
law or regulation or to avoid such penalty.
19. Liquidation of the Company. In the event of the complete liquidation
--------------------------
or dissolution of the Company, other than as an incident to a merger,
reorganization or other adjustment referred to in Section 16 above, any Options
granted pursuant to this Plan and remaining unexercised shall be deemed
cancelled without regard to or without being limited by any other provisions of
this Plan.
6
<PAGE>
20. Unsecured Obligation. Optionees shall not have any interest in any
--------------------
fund or special asset of the Company by reason of the Plan. No trust fund shall
be created in connection with the Plan or any award thereunder, and there shall
be no required funding of amounts which may become payable to any Optionee.
21. Governing Law. The Plan shall be governed by, construed and enforced
-------------
in accordance with the laws of the State of Florida.
22. Compliance with Rule 16b-3. It is the intent of the Committee that
--------------------------
all Options granted hereunder comply with the applicable provisions of Rule 16b-
3 of the Securities and Exchange Commission as presently in effect and as
amended from time to time. Therefore, this Plan may be amended in any manner
deemed by the Committee necessary or desirable to meet any provision or
condition of Rule 16b-3. Additionally, the Committee shall grant all Options in
such a manner as to comply with the applicable requirements of Rule 16b-3.
23. Approval. This Plan shall be adopted by the Company's Board of
--------
Directors and approved by a majority of the shareholders of the Company.
7
<PAGE>
PEOPLES TELEPHONE COMPANY, INC.
1987 NON-QUALIFIED STOCK OPTION PLAN
FIRST AMENDMENT TO PLAN
The Peoples Telephone Company, Inc. 1987 Non-Qualified Stock Option Plan
(the "Plan") is hereby amended as follows:
1. The first sentence of Section 2 of the Plan is amended to read:
"350,000 shares of the Common Stock of the Company, par value
$.01 per share (the "Stock"), are hereby reserved for issuance upon
the exercise of stock options granted under the Plan (the "Options")."
8
<PAGE>
PEOPLES TELEPHONE COMPANY, INC.
1987 NON-QUALIFIED STOCK OPTION PLAN
SECOND AMENDMENT TO PLAN
The Peoples Telephone Company, Inc. 1987 Non-Qualified Stock Option Plan
(the "Plan") is hereby amended as follows:
1. The first sentence of Section 2 of the Plan is amended to read:
"700,000 shares of the Common Stock of the Company, par value
$.01 per share (the "Stock"), are hereby reserved for issuance upon
the exercise of stock options granted under the Plan (the "Options")."
9
<PAGE>
PEOPLES TELEPHONE COMPANY, INC.
1987 NON-QUALIFIED STOCK OPTION PLAN
THIRD AMENDMENT TO PLAN
The Peoples Telephone Company, Inc. 1987 Non-Qualified Stock Option Plan
(the "Plan") is hereby amended as follows:
1. The first sentence of Section 2 of the Plan is amended to read:
"1,200,000 shares of the Common Stock of the Company, par value
$.01 per share (the "Stock"), are hereby reserved for issuance upon
the exercise of stock options granted under the Plan (the "Options")."
10
<PAGE>
PEOPLES TELEPHONE COMPANY, INC.
1987 NON-QUALIFIED STOCK OPTION PLAN
FOURTH AMENDMENT TO PLAN
The Peoples Telephone Company, Inc. 1987 Non-Qualified Stock Option Plan
(the "Plan") is hereby proposed as follows:
1. The first sentence of Section 2 of the Plan is proposed to read:
"1,400,000 shares of the Common Stock of the Company, par value
$.01 per share (the "Stock"), are hereby reserved for issuance upon
the exercise of stock options granted under the Plan (the "Options")."
11
<PAGE>
EXHIBIT 4.6
PEOPLES TELEPHONE COMPANY
1987 NON-QUALIFIED STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
-----------------------------------
1. Purpose. The purpose of this Non-Qualified Stock Option Plan For Non-
-------
Employee Directors (the "Plan") is to improve the ability of PEOPLES TELEPHONE
COMPANY (the "Company") to attract and retain highly-qualified non-employee
directors by encouraging such directors of the Company to acquire a proprietary
stake in the Company and its future growth. It is the view of the Company that
it may achieve this goal by granting stock options under the Plan.
2. Option Shares. 75,000 shares of the Common Stock of the Company, par
-------------
value $.01 per share (the "Stock"), are hereby reserved for issuance upon the
exercise of the stock options granted under the Plan (the "Options"). The Stock
may be issued pursuant to such Options either from the Company's authorized but
unissued Stock or from the Company's issued but not outstanding Stock (treasury
stock). Should any Options granted hereunder not be exercised in the time
allowed for such exercise, the shares of Stock relating to such lapsed Options
shall be available for issuance pursuant to Options subsequently granted under
the Plan.
3. Administration of this Plan. This Plan shall be administered by a
---------------------------
committee of three employees of the Company, none of whom are eligible for the
grant of options under the Plan (the "Committee").
Subject to the provisions of the Plan, the Committee shall have authority
to (i) adopt, amend and rescind its rules, regulations and procedures as it
deems advisable in the administration of the Plan, (ii) construe and interpret
the Plan and (iii) make all other determinations deemed necessary or advisable
for the administration of the Plan. All decisions, determinations and
interpretations of the Committee shall be final, conclusive and binding on all
persons holding an Option granted pursuant to the Plan ("Optionees").
Neither the Committee nor any member thereof shall be liable for any action
or determination taken or made in good faith with respect to the Plan or any
Option granted hereunder.
4. Eligibility. All non-employee directors of the Company designated by
-----------
the Committee shall be eligible to receive Options under the Plan.
5. Grant of Options. In making its selection of those eligible to receive
----------------
Options and determining the number of shares to be granted pursuant to each
Option, the Committee may consider any factors that it may, in its sole
discretion, deem relevant. Each grant of an Option pursuant to this Plan shall
be made within ten (10) years from the date of adoption of this Plan by the
Company's Board of Directors (the "Adoption Date"). Each grant of an Option
pursuant to this Plan shall be made upon such terms and conditions as may be
determined by the
<PAGE>
Committee at the time of grant, subject to the terms, conditions and limitations
set forth in this Plan.
6. Option Price. The purchase price per share of Stock placed under the
------------
Option pursuant to this Plan (the "Option Price") shall be determined by the
Committee, but in no event may such price be below the fair market value of such
Stock on the business day immediately preceding the date of the grant. The
Committee shall determine or adopt rules to determine such fair market value.
7. Duration of Option. An Option granted hereunder shall be effective
------------------
(hereinafter called the "Option Period") upon the date it is granted, and shall
continue until the later of (i) a date set by the Committee at the time of grant
or (ii) ten years after the date of grant. In addition, and in limitation of
the above, the Option Period of any Option shall terminate 30 days after the
Optionee voluntarily resigns as director of the Company.
8. Nontransferability of Options. No Option granted pursuant to this Plan
-----------------------------
may be transferred by any Optionee otherwise than by will or by the laws of
descent and distribution; further, during the lifetime of any Optionee, Options
granted hereunder may be exercised only by such Optionee.
9. Termination of the Plan. This Plan shall terminate upon the close of
-----------------------
business ten (10) years from the Adoption Date unless it shall have been sooner
terminated by reason of there having been granted and fully exercised Options
covering the entire 75,000 shares of Stock subject to this Plan. Upon such
termination, no further Options may be granted hereunder. If, after termination
of this Plan as provided above, there are outstanding Options which have not
been fully exercised, such Options shall remain in effect in accordance with
their terms and shall remain subject to the terms of this Plan.
10. Exercise of Options. An Option granted pursuant to this Plan shall be
-------------------
exercisable at any time within the Option Period, subject to the terms and
conditions of such Option Exercise of any Option shall be made by the delivery,
during the period that such Option is exercisable, to the Company, in person or
by mail, of (i) written notice from the Optionee stating that the Optionee is
exercising such Option and (ii) the payment of the aggregate purchase price of
all shares as to which such Option is then exercised and the payment of any
required federal income tax withholding. Such aggregate purchase price shall be
paid to the Company in cash, Stock or any other class of equity securities of
the Company (such Stock and other class of equity securities of the Company are
hereinafter collectively referred to as the "Company Stock"), or in a
combination of cash or Company Stock at the time of exercise.
There may not, however, be any payment by an Optionee of the exercise price
in whole or in part with shares of Company Stock at a time when the Company is
Insolvent (as hereafter defined) or when such payment would make the Company
Insolvent, or as such payment may otherwise be prohibited by any applicable
state or Federal statute, rule or regulation, or any rule or regulation of any
stock exchange upon which Company Stock is traded, or if Company Stock
-2-
<PAGE>
is traded on a recognized stock quotation service, which may be the National
Association of Securities Dealers Automated Quotations System ("NASDAQ"), any
rule or regulation of NASDAQ. For the purposes of this Plan, "Insolvent" shall
mean the inability of the Company to pay its debts as they become due in the
usual course of its business. Company Stock utilized in full or partial payment
of the exercise price shall be valued at fair market value on the date of
exercise of the Option. The Committee shall determine or enact rules to
determine the fair market value of any Company Stock.
Notwithstanding anything to the contrary contained herein, no written
notice shall be effective under this Section 10 unless it requests the exercise
of Options for one hundred (100) shares or an integral multiple thereof; except
to the extent necessary to make full exercise of the Options in the event that
only an odd lot remains. Upon the exercise of an Option in compliance with the
provisions of this Section, and upon the receipt by the Company of the payment
for the Stock so taken up, the Company shall (i) deliver or cause to be
delivered to the Optionee so exercising his Option a certificate or certificates
for the number of shares of Stock with respect to which the Option is so
exercised and payment is so made, and (ii) register or cause such shares to be
registered in the name of the exercising Optionee.
The Committee may impose additional conditions upon the right of an
Optionee to exercise an Option granted hereunder if such conditions are not
inconsistent with the terms of this Plan.
Upon exercise of an Option, the Committee may permit the issuance of Stock
prior to its full payment if satisfactory arrangements are made for its prompt
sale and for an escrow or similar arrangement with a financial institution or
brokerage house for payment to the Company of the full purchase price of the
Option.
11. Stock Appreciation Rights.
-------------------------
(a) The Committee, in its discretion, may at the time of exercise of an
Option, in conjunction with all or part of any Option granted under the Plan,
permit an Optionee to exercise the Option in an alternative manner based on the
appreciated value of the common stock subject to the Option (hereinafter
referred to as a "Stock Appreciation Right"); provided, however, that the final
Committee approval is needed in order to exercise a Stock Appreciation Right.
(b) Upon the exercise of a Stock Appreciation Right, an Optionee shall be
entitled to receive, at the option of the Committee, either (i) cash equal to
the "current value of the option" or (ii) the number of shares equal to the
"current value of the option" divided by the fair market value of one share of
stock on the date of exercise. The "current value of the option" shall be equal
to the excess of the fair market value of one share of common stock on the date
of exercise over the option price per share specified in the related option,
multiplied by the number of shares with respect to which the Stock Appreciation
rights are being exercised. The fair market value of the stock shall be deemed
to be the closing price of the Company's
-3-
<PAGE>
common stock reported in the Over-the-Counter market or, in the event no sale of
the Company's stock shall have been reported on that day, the closing price for
the Company's stock on the next preceding day when such price was reported, or,
if the Company's stock is not actively traded on an organized market, then the
fair market value of such stock as determined by the Committee in its
discretion. The date of exercise shall be deemed to be the day the Secretary of
the Company receives written notice to exercise the Option.
(c) The Optionee may express his desire to exercise his Option in the form
of Stock Appreciation Rights by his delivering written notice of exercise to the
Secretary of the Company stating such desire. Upon the Secretary's receipt of
the notice of exercise, the Committee shall have thirty (30) days to mail to the
Optionee its written approval or disapproval of the exercise of the Stock
Appreciation Right. The Committee's decision to approve or disapprove the
exercise shall be final and binding upon all concerned. In the event the
Committee's written decision on the exercise is not mailed to the Optionee
within thirty (30) days after delivery to the Secretary of the notice of
exercise, the Optionee shall be entitled to receive the number of shares
determined pursuant to Section 11(b) hereof. In the event the Committee
disapproves the exercise of the Stock Appreciation Right, the Optionee shall
have all rights pursuant to this Plan with respect to the exercisable shares as
if the Optionee had not exercised the Stock Appreciation Right.
In the event the term of the Option has lapsed during the Committee's
thirty (30) day review period described in this Section 11(c) and the Committee
disapproves the exercise of the Stock Appreciation Right, the Optionee shall be
entitled to an additional thirty (30) day period, beginning from the date he
receives notice of the Committee's disapproval, within which to purchase the
shares related to the disapproved Stock Appreciation Right by paying the Option
Price of such shares to the Company; provided, however, the thirty (30) day
period shall not extend beyond that period specified in Section 7 hereof.
(d) Upon the exercise and Committee approval of Stock Appreciation Rights,
the Option or part thereof to which such Stock Appreciation Rights is related
shall be deemed to have been exercised for the purpose of the limitation of the
number of shares of common stock to be issued under the Plan as set forth in
Section 2 hereof and for purposes of the limitation of the number of shares of
common stock to be issued pursuant to that Option.
12. Controlling Terms. Options granted pursuant hereto may include
-----------------
conditions that are more (but not less) restrictive to the Optionee than the
conditions contained herein and, in such event, the more restrictive conditions
shall apply.
13. Purchase of Stock for Investment. Unless the Options and shares
--------------------------------
covered by the Plan have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), pursuant to a registration statement filed with
the Securities and Exchange Commission and any other applicable regulatory
agency, or the Company has determined that such registration is unnecessary,
each Optionee exercising an Option under the Plan may be required by the Company
(i) to give a representation in writing that such shares are being acquired for
the
-4-
<PAGE>
Optionee's own account and not for the account or beneficial interest of any
other person or entity, and that such shares of Stock shall be acquired for the
Optionee's own investment and not with a view to or for resale in connection
with the distribution of all or any part thereof; (ii) to represent and
acknowledge that he is a sophisticated investor by virtue of his education,
learning and other investments and that he is knowledgeable and experienced in
business and financial matters and with respect to the business of the Company,
in particular; (iii) to represent and acknowledge that he has been furnished or
has otherwise obtained all information necessary to enable him to evaluate the
merits and risks of an investment in the shares of Stock and that he has had
access to any and all information he desires to enable him to evaluate the risks
and merits of an investment in the shares of Stock; and (iv) to covenant and
agree to restrictions governing the time and circumstances of disposition of the
shares of Stock being acquired by such exercise. In the event that the Company
requires any such representation or covenant, any shares of Stock so acquired
will bear an appropriate legend to signify the restrictions on such shares under
the applicable securities laws and that "stop-transfer" instructions will be
given to the Company's registrar and transfer agent. To the extent necessary to
comply with the securities laws, regulations or orders of the United States or
any state, the Committee may, as a condition precedent to the exercise of an
Option, require the Optionee (or the legal representatives, legatees or
distributees, in the event of the Optionee's death or disability) to covenant
and agree to any other restrictions which the Committee believes to be necessary
or advisable to comply with any such laws, regulations or orders, including but
not limited to restrictions governing the time and circumstances of disposition
of the shares being acquired by exercise of such Option.
14. Requirements of Law. If any law, regulation or order of the United
-------------------
States Securities and Exchange Commission, or of any other commission or agency
having jurisdiction, shall require the Company or the exercising Optionee to
take any action with respect to the shares of Stock acquired by the exercise of
an Option, then the date upon which the Company shall deliver or cause to be
delivered the certificate or certificates for the shares of Stock shall be
postponed until full compliance has been made with all such requirements of law
or regulation. Further, in the event that the Company shall determine that, in
compliance with the Securities Act or any other applicable statute or
regulation, it is necessary to register any of the shares of Stock with respect
to which an exercise of an Option has been made, or to qualify any such shares
for exemption from any of the requirements of the Securities Act or such other
applicable statute or regulations, then the Company shall take such action at
its own expense, but not until such an action has been completed shall the
Option shares be delivered to the exercising Optionee. Further, in the event
that at the time of exercise of the Option the shares of Stock shall be listed
on any stock exchange, then if required by law or the exchange to do so, the
Company shall register the Option shares of Stock with respect to which exercise
is so made in accordance with the provisions of the Securities Act, any other
applicable law or regulation or any rules or regulations of any such exchange,
and the Company shall make prompt application for the listing of Option shares
on such exchange at the expense of the Company.
15. No Exchange Act Registration Obligation. Notwithstanding any other
---------------------------------------
provision contained herein, the Company shall have no obligation to be
registered under the Securities and
-5-
<PAGE>
Exchange Act of 1934 (the "Exchange Act"), to continue any such registration or
to be current in its reporting obligations under the Exchange Act.
16. No Rights Conferred upon Granting of Options. The Optionee shall not
--------------------------------------------
have any rights as a shareholder of the Company with respect to any shares of
Stock prior to the date of issuance to the Optionee of the certificate or
certificates for such shares. Neither the Plan nor the Option confer on the
Optionee any right to be employed by the Company.
17. Adjustments. In the event of any reorganization, merger,
-----------
consolidation, acquisition, separation, recapitalization, split-up, combination,
exchange of shares or stock dividend of the Stock or shares convertible into the
Stock or similar corporate action, the number and class of shares of Stock
available pursuant to this Plan and any Options granted pursuant to this Plan,
together with the Option Prices, shall be adjusted by appropriate modifications
in this Plan and in any Options outstanding pursuant to this Plan. Any such
adjustment to the Plan or to Options or Option Prices shall be made by notice of
the Company's Board of Directors, whose determination shall be conclusive.
18. Amendment or Discontinuance of this Plan. The Company's Board of
----------------------------------------
Directors may amend, suspend or discontinue this Plan at any time without
restriction; provided, however, that such Board may not alter or amend or
discontinue or revoke or otherwise impair any outstanding Options that have been
granted pursuant to this Plan and remain unexercised, except as provided in
Section 16 above, or except in the event that there is secured the written
consent of the holder of the outstanding Option proposed to be so altered or
amended. Nothing contained in this Section, however, shall in any way extend
the Option Period of any outstanding Option by an amendment, suspension or
discontinuance of the Plan.
In addition, notwithstanding any other provision in the Plan, in the event
of a change in any Federal or state law or regulation which would make the
exercise of all or part of an existing Option unlawful or subject the Company to
a penalty, the Company's Board of Directors may restrict such exercise without
the consent of the Optionee or other holder thereof in order to comply with such
law or regulation or to avoid such penalty.
19. Liquidation of the Company. In the event of the complete liquidation
--------------------------
or dissolution of the Company, other than as an incident to a merger,
reorganization or other adjustment referred to in Section 16 above, any Options
granted pursuant to this Plan and remaining unexercised shall be deemed
cancelled without regard to or without being limited by any other provisions of
this Plan.
20. Unsecured Obligation. Optionees shall not have any interest in any
--------------------
fund or special asset of the Company by reason of the Plan. No trust fund shall
be created in connection with the Plan or any award thereunder, and there shall
be no required funding of amounts which may become payable to any Optionee.
-6-
<PAGE>
21. Governing Law. The Plan shall be governed by, construed and enforced
-------------
in accordance with the laws of the State of Florida.
22. Compliance with Rule 16b-3. It is the intent of the Committee that
--------------------------
all Options granted hereunder comply with the applicable provisions of Rule 16b-
3 of the Securities and Exchange Commission as presently in effect and as
amended from time to time. Therefore, this Plan may be amended in any manner
deemed by the Committee necessary or desirable to meet any provision or
condition of Rule 16b-3. Additionally, the Committee shall grant all Options in
such a manner as to comply with the applicable requirements of Rule 16b-3.
23. Approval. This Plan shall be adopted by the Company's Board of
--------
Directors and approved by a majority of the shareholders of the Company.
-7-
<PAGE>
EXHIBIT 4.12
EMPLOYMENT AGREEMENT
Agreement (the "Agreement") dated as of June 22, 1994 (the "Execution
Date") between PEOPLES TELEPHONE COMPANY, INC., a New York corporation (the
"Company"), and LARRY ELLMAN (the "Employee").
RECITALS
WHEREAS, the Company is presently engaged in the business of owning and
operating telephone and wire communication systems and other businesses (the
"Business"); and
WHEREAS, the Employee has many years of business experience and the
Employee and the Company desire to enter into this Agreement, subject to the
terms and conditions contained herein.
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants set forth in this Agreement:
1. EMPLOYMENT AND TERM.
-------------------
a. During the term of this Agreement, the Company agrees to employ the
Employee and the Employee agrees to serve as an employee of the Company as
hereinafter provided. The term (the "Term of Employment") shall begin on June
22, 1994 and shall end on June 22, 1997.
2. DUTIES.
------
a. The Employee agrees during the Term of Employment to perform the duties
of the President of the Pay Telephone Division and to perform such other duties
and assignments of an executive nature relating to the business of the Company
as the board of directors of the Company directs. During the Term of Employment
the Employee shall, except during customary vacation periods and periods of
illness, devote all of his business time and attention to the performance of the
duties under this Agreement and to promote the best interests of the Company.
The Employee shall report to and shall be subject to the supervision of the
Chief Executive Officer, the Executive Vice President and the Chief Operating
Officer only. The Employee shall not, either during or outside of normal
business hours, directly or indirectly, engage in any aspect of the
telecommunications business for or on behalf of any entity other than the
Company, nor engage in any activity inimical to the best interests of the
Company.
3. COMPENSATION AND RELATED MATTERS.
--------------------------------
a. Base Salary. The Employee shall receive an annual base salary as
-----------
follows: (i) during the first year of this Agreement, the Employee shall
receive a salary in the amount of $150,000 (the "Base Salary"); (ii) during the
second year of this Agreement, the Employee
<PAGE>
shall receive a salary in an amount equal to the Base Salary plus 10% (the
"Adjusted Base Salary), if such Adjusted Base salary is approved by the
Company's Board of Directors; and (iii) during the third year of this Agreement,
the Employee shall receive a salary in an amount equal to the Adjusted Base
Salary plus 10% (the "Second Adjusted Base Salary"), if such Second Adjusted
Base salary is approved by the Company's Board of Directors. The Employee shall
receive the Base Salary, the Adjusted Base Salary and the Second Adjusted Base
Salary during the term of this Agreement in substantially equal monthly or bi-
weekly installments in accordance with the normal practice of the Company.
b. The Annual Bonus. The Employee shall receive an annual bonus (the
----------------
"Bonus") equal to not less than $25,000. The Bonus shall be payable no later
than the 31st day after the end of each year during the term of this Agreement.
The Bonus shall not exceed 100% of the Employee's annual salary as provided in
Section 3(a) above for any year during the term of this Agreement.
c. Stock Options. The Company shall grant the Employee a right to
-------------
purchase 45,000 shares of common stock of the Company effective as of the
Execution Date of this Agreement at a price per share of $5.6875.
Unless otherwise agreed, the foregoing options shall vest one third (1/3)
upon execution of the Employment Agreement, one third (1/3) after twelve (12)
months following that date and one third (1/3) after twenty-four (24) months
following that date. In addition, the Employee may receive additional stock
option grants subject to approval of the Board of Directors and on the terms
approved by the Board of Directors.
d. Car Allowance. The Company shall pay the Employee a car allowance
-------------
during the term of this Agreement in amount up to $500 per month to reimburse
the Employee for his automobile expenses, including car/lease payments,
insurance costs and related automobile expenses.
e. Fringe Benefits. During the Term of Employment, the Company shall
---------------
provide Employee with individual medical insurance at the Company's expense,
through a major medical/group hospitalization insurance provider determined by
the Company, in its sole and absolute discretion. Additionally, the Employee
shall enjoy the customary benefits afforded to its employees. The Employee also
shall be entitled to participate in employee benefit plans now or hereafter
provided or made available to the Company's employees generally, such as life
insurance, and pension, retirement and stock option plans. Nothing in this
Agreement shall require the Company to establish, maintain or continue any of
the fringe benefits already in existence for employees of the Company and
nothing in this Agreement shall restrict the right of the Company to amend,
modify or terminate such fringe benefit program.
f. Vacations. During the Term of Employment, the Employee shall be
---------
entitled each year to vacations as are customarily taken by the Company's
executive officers.
2
<PAGE>
The Company shall not pay the Employee any additional compensation for any
vacation time not used by the Employee.
g. Relocation Costs. The Company shall pay the cost of moving the
----------------
Employee's household furnishings and personal property and insuring same against
loss from Baltimore, Maryland to Miami, Florida. Such cost shall be approved by
the Company prior to the Employee's incurrence of same. Additionally, the
Company agrees to provide Employee with the use of a furnished apartment in Dade
County, Florida through August, 1994. No other relocation costs of any type
will be borne by the Company.
4. Termination.
-----------
This Agreement may be terminated prior to the expiration of the term set
forth in Section 1 above as follows:
a. Death. This Agreement shall terminate upon the death of the Employee,
-----
and the Company shall have no further obligation under this Agreement to make
any payments to, or bestow any benefits on, his beneficiary or beneficiaries
from and after the date of the Employee's death, other than payments or benefits
accrued and due and payable to him prior to the date of death pursuant to this
Agreement.
b. Disability. The Company may terminate the Employee's employment under
----------
this Agreement if as a result of his incapacity due to accident or illness, the
Employee shall have been unable to satisfactorily perform his normal duties
under this Agreement for a period of six months. Except as specifically
provided in this Section 4, the Company shall have no further obligation under
this Agreement to make any payments to, or bestow any benefits on, the Employee
from and after the date of termination.
c. Cause. The Company may terminate the Employee's employment under this
-----
Agreement for Cause at any time. For purposes of this Agreement, the Company
shall have "Cause" to terminate the Employee's employment if he (1) engages in
one or more acts constituting a felony or involving fraud or serious moral
turpitude; (2) refuses (except by reason of incapacity due to accident or
illness) to perform his duties; or (3) engages in misconduct injurious to the
Company. In the event of a termination for Cause, the Company shall have no
further obligation under this Agreement to make any payments to, or bestow any
benefits on, the Employee from and after the date of the termination, other than
payments or benefits accrued and due and payable to him prior to the date of
termination.
5. NON-COMPETITION.
---------------
a. The Employee hereby covenants and agrees that, except with the written
consent of the Company, the Employee will not, during the Term of Employment and
for one year after the end of the Term of Employment, alone or in association
with others as principal, officer, agent, employee, director or stockholder of
any corporation, partnership, association or
3
<PAGE>
other entity, or through the lending of capital, lending of money or property,
or rendering of services or otherwise, (i) engage in any business all of part of
which is, at the time, competitive with the business then conducted by the
Company, directly or indirectly, in any state in which the Company then
operates; (ii) solicit or attempt to solicit any person (natural or otherwise)
who had entered into an agreement with the company to conduct its business; and
(iii) solicit or attempt to solicit any person employed by the Company to leave
their employment or not fulfill their contractual responsibility, whether or not
the employment or contracting is full-time or temporary pursuant to a written or
oral agreement, or for a determined period or at will.
6. COMPANY'S RIGHT TO INJUNCTIVE RELIEF; ATTORNEY'S FEES.
-----------------------------------------------------
a. The Employee acknowledges that the Employee's services to the Company
are of a unique character which gives them a special value to the Company, the
loss of which cannot reasonably or adequately be compensated in damages in an
action at law, and that a breach of this Agreement will result in irreparable
and continuing harm to the Company, and that therefore, in addition to any other
remedy which the Company may have at law or in equity, the Company shall be
entitled to injunctive relief for a breach of this Agreement by the Employee.
The Employee and the Company agree that the prevailing party in any action to
enforce any breach of any covenant in this Agreement shall be reimbursed by the
other party for all expenses and reasonable attorneys' fees incurred by that
party to enforce this Agreement.
7. TRADE SECRETS AND CONFIDENTIAL INFORMATION.
------------------------------------------
a. The Employee acknowledges that the Company's business depends to a
significant degree upon the possession of information which is not generally
known to others, and that the profitability of the Company's business requires
that this information remain proprietary to the Company.
b. The Employee shall not except as required in the course of employment
by the Company, disclose or use during or subsequent to the Term of Employment,
any confidential information relating to the Company's business of which
Employee becomes aware by reason of being employed by the Company or to which
Employee gains access. Such information includes, but is not limited to, lists
of property owners, data, records, computer programs, manuals, processes,
methods and intangible rights which are either developed by the Employee during
the Term of Employment or to which the Employee has access. All records and
equipment and other materials relating in any way to any confidential
information relating to property owners or to the Company's business shall be
and remain the Company's sole property during and after the Term of Employment.
c. Upon termination of employment, the Employee shall promptly return to
the Company all materials and all copies of materials involving any confidential
information in the Employee's possession or control. The Employee agrees to
represent to the Company that he has complied with the provisions of this
Section 7 upon termination of employment.
4
<PAGE>
d. The Employee acknowledges that he is not a party to any agreement which
may restrict his employment with the Company.
8. MISCELLANEOUS.
-------------
a. The captions in this Agreement are not part of its provisions, are
merely for reference and have no force or effect. If any caption is
inconsistent with any provision of this Agreement, such provision shall govern.
b. This Agreement is made in and shall be governed by and construed in
accordance with the laws of the State of Florida, without giving effect to
conflict of law principles.
c. To the extent that the terms set forth in this Agreement or any word,
phrase, clause or sentence is found to be illegal or unenforceable for any
reason, such word, phrase, clause or sentence shall be modified or deleted in
such manner so as to afford the Company the fullest protection commensurate with
making this Agreement, as modified, legal and enforceable under applicable laws,
and the balance of this Agreement shall not be affected thereby, the balance
being construed as severable and independent.
d. All notices given under this Agreement shall be in writing and shall be
sent by registered or certified mail or delivered by hand and, if intended for
the Company, shall be addressed to it or delivered to it at 2300 N.W. 89th
Place, Miami, Florida 33172 to the attention of Robert D. Rubin, President. If
intended for the Employee, notices shall be delivered personally or shall be
addressed (if sent by mail) to the Employee's then current residence address as
shown on the Company's records, or to such other address as the Employee directs
in a notice to the Company. All notices shall be deemed to be given on the date
received at the address of the addressee or, if delivered personally, on the
date delivered.
e. As used in this Agreement where appropriate, the masculine shall
include the feminine; where appropriate, the singular shall include the plural
and the plural shall include the singular.
f. This Agreement contains all obligations and understandings between the
parties relating to the subject of this Agreement and merges all prior
discussions, negotiations and agreements, if any, between them, and none of the
parties shall be bound by any conditions, definitions, understandings,
warranties or representations other than as expressly provided or referred to in
this Agreement. This Agreement is intended to cancel and supersede all existing
agreements between the Employee and the Company.
g. This Agreement may be modified only by a written instrument properly
executed by the parties to this Agreement.
5
<PAGE>
h. No waiver by any party to this Agreement, whether expressed or implied,
of its rights under any provision of this Agreement shall constitute a waiver of
the party's rights under the provisions at any other time or a waiver of the
party's rights under any other provision of this Agreement.
i. The Employee and the Company agree that the prevailing party in any
action to enforce any breach of any covenant in this Agreement shall be
reimbursed by the other party for all expenses and reasonable attorneys' fees
incurred by that party to enforce this Agreement.
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement as of the day and year first above written.
PEOPLES TELEPHONE COMPANY, INC.
By:
--------------------------
Robert D. Rubin, President
THE EMPLOYEE
By: /s/ Larry Ellman
--------------------------
Larry Ellman
6
<PAGE>
[LETTERHEAD OF SPARBER, KOSNITZKY, TRUXTON, DE LA GUARDIA, SPRATT & BROOKS
APPEARS HERE]
April 13, 1995
Peoples Telephone Company, Inc.
2300 Northwest 89th Place
Miami, Florida 33126
RE: Peoples Telephone Company, Inc. --
Registration Statement of Form S-8
Gentlemen:
We have acted as special legal counsel to Peoples Telephone Company, Inc.,
a New York corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") relating to
the registration with the Securities and Exchange Commission of 5,967,401 shares
(the "Shares") of common stock, par value of $.01 per share, of the Company (the
"Common Stock"), which Shares has been or will be issued in connection with the
exercise of options which have been or may be granted pursuant to (i) Peoples
Telephone Company 1987 Non-Qualified Stock Option Plan, as amended, (ii) Peoples
Telephone Company, Inc. 1993 Non-Employee Director Stock Option Plan, (iii)
Peoples Telephone Company, Inc. 1994 Stock Incentive Plan and (iv) the certain
compensation agreements, related stock option plans and other stock option
grants issued by the Company (collectively, the "Stock Option Plan").
Based upon our examination of such documents and records as we have deemed
relevant and necessary and upon a certificate of an officer of the Company, we
are of the opinion that the Shares are duly authorized, and when issued upon the
exercise of options in accordance with the terms of the Stock Option Plans,
will be validly issued, fully paid and non-assessable shares of Common Stock.
This opinion has been prepared and is to be construed in accordance with
the Report on Standards for Florida Opinions dated April 8, 1991 issued by the
Business law Section of the Florida Bar (the "Report"). The Report is
incorporated herein by reference into this opinion.
<PAGE>
Peoples Telephone Company, Inc.
April 13, 1995
Page 2
The foregoing opinion is limited to the laws of the State of Florida and
applicable Federal laws as they exist as of the date of this opinion. We assume
no obligation to update or supplement such opinions to reflect any facts or
circumstances that may hereafter come to our attention or any changes in law
that may hereafter occur.
We hereby consent to the filing of this opinion letter as Exhibit 5 to the
Registration Statement and to the use of our name under the heading "Legality
of Securities" in the related Prospectus.
Sincerely yours,
SPARBER, KOSNITZKY, TRUXTON,
SPRATT & BROOKS, P.A.
/s/ Michael Kosnitzky, Esq.
Michael Kosnitzky, Esq.
for the Firm
Sparber, Kosnitsky, Truxton, de la Guardia, Spratt & Brooks
Professional Association
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
---------------------------------------------------
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-8 of our report dated
March 28, 1995 appearing on page 30 of Peoples Telephone Company, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1994. We also consent to
the reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Miami, Florida
April 10, 1995
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person who signature appears below
contributes and appoints Jeffrey Hanft and Robert D. Rubin, and each of them,
his true and lawful attorneys-in-fact and agents, each with full power of
substitution and resubstitution, for him and his name, place and stead, in any
and all capacities, to sign any and all amendments, to the Registration
Statement on Form S-8, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
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, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that each said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Date: _____________, 1995 __________________________________
Please Sign Name
__________________________________
Please Print Name
