As filed with the Securities and Exchange Commission on March 12, 1999
Registration No. 333-_______________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
-------------------------
Equivest Finance, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 59-2346270
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
Two Clinton Square,
Syracuse, New York 13202
(888) 373-7678
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Equivest Finance, Inc.
1997 Long-Term Incentive Plan
(Full title of the plans)
-------------------------
Richard C. Breeden
Chief Executive Officer
Equivest Finance, Inc.
100 Northfield Street,
Greenwich, Connecticut 06830
(203) 618-0065
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be to be Offering Price Per Aggregate Registration
Registered (1) Registered Share Offering Price Fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 483,100 $5.05 (2) $ 2,439,655 $ 678.23
per share 166,300 $4.31 (2) $ 716,753 $ 199.26
375,000 $1.00 (2) $ 375,000 $ 104.25
2,475,600 $6.43 (3) $15,918,108 $4,425.24
--------- ----------- ---------
Total 3,500,000 $19,449,516 $5,406.98
================================================================================================================================
<FN>
(1) This Registration Statement on Form S-8 relates to shares of Common Stock, par value $.01 per share (the "Common
Stock"), of Equivest Finance, Inc. (the "Registrant"). Such shares are issuable pursuant to the 1997 Long-Term Incentive
Plan (as amended and restated) (the "1997 Plan").
(2) Estimated solely for the purpose of calculating the registration fee. Such estimate is calculated pursuant to Rules 457(c)
and 457(h) under the Securities Act of 1933, as amended (the "Securities Act"), based on the exercise price of the options
previously granted under the 1997 Plan.
(3) Estimated solely for the purpose of calculating the registration fee. The price shown is the average high and low price of
the Common Stock on the NASDAQ Small Cap Market on March 11, 1999 in accordance with Rules 457(c) and 457(h)
under the Securities Act.
</FN>
</TABLE>
================================================================================
<PAGE>
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee 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 Form S-8.
2
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, filed by the Registrant, are
incorporated by reference in this Registration Statement:
(a) the Registrant's Annual Report on Form 10-KSB for the
fiscal year ended December 31, 1997;
(b) the Registrant's Quarterly Report on Form 10-QSB for the
quarters ended March 31, 1998, June 30, 1998 and September 30, 1998;
(c) the reports on Form 8-K of the Registrant filed since
December 31, 1997 and the report on Form 8-K/A filed with the
Commission on December 16, 1998.
(d) the description of the Common Stock, contained in the
Registrant's Registration Statement on Form S-18 filed with the
Securities and Exchange Commission (the "Commission"), pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on December 29, 1988 (File No. 33-24855), as
supplemented by Form 8-K/A, filed with the Commission on December 16,
1998 (File No. 333-29015).
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 part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
3
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law ("Section
145") in summary, empowers a Delaware corporation, within certain limitations,
to indemnify its officers, directors, employees and agents against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement,
actually and reasonably incurred by them in connection with any suit or
proceeding other than by or on behalf of the corporation, if they acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interest of the corporation, and, with respect to a criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful.
With respect to actions by or on behalf of the corporation,
Section 145 permits a corporation to indemnify its officers, directors,
employees and agents against expenses (including attorneys' fees) actually and
reasonably incurred in connection with the defense or settlement of such action
or suit, provided such person meets the standard of conduct described in the
preceding paragraph, except that no indemnification is permitted in respect of
any claim where such person has been found liable to the corporation, unless the
Court of Chancery or the court in which such action or suit was brought approves
such indemnification and determines that such person is fairly and reasonably
entitled to be indemnified.
Article IX of the by-laws of the Registrant provides for the
indemnification of officers and directors and certain other parties of the
Registrant to the fullest extent permitted by law.
Item 7. Exemption from Registration Claimed.
Not applicable.
4
<PAGE>
Item 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement:
4.1 Equivest Finance, Inc. 1997 Long-Term Incentive Plan, as amended and
restated.
4.2 Form of Certificate of Incorporation and Amendments thereto of Equivest
Finance, Inc. (Exhibit 3.1 of Equivest Finance, Inc.'s Registration
Statement on Form 8-K/A, (File No. 333-29015)).
4.3 Form of By-laws and Amendments thereto of Equivest Finance, Inc.
(Exhibit 3.2 of Equivest Finance, Inc.'s Registration Statement on Form
8-K/A, File No. 333-29015)).
5 Opinion of Shearman & Sterling regarding the legality of the securities
being registered hereby.
23.1 Consent of Firley, Moran, Freer & Eassa.
23.2 Consent of Shearman & Sterling (included in Exhibit 5).
24 Powers of Attorney (included on signature page).
5
<PAGE>
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, 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.
(b) The undersigned Registrant hereby further 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 the time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Greenwich, Connecticut, on the 11th day of March, 1999.
EQUIVEST FINANCE, INC.
By: /s/ Richard C. Breeden
-------------------------
Name: Richard C. Breeden
Title: Chairman of the Board of Directors
and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
Each of the undersigned whose signature appears below hereby
constitutes and appoints Richard C. Breeden and Eric C. Cotton his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to sign any and all amendments (including post-effective amendments)
and supplements to this Registration Statement and any and all related
registration statements necessary to register additional securities, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and agent
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, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
7
<PAGE>
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following persons in the
indicated capacities on March 11, 1999.
Signature Title
--------- -----
/s/ Richard C. Breeden President, Chairman of the Board of
- ------------------------------ Directors and Chief Executive
Richard C. Breeden Officer (Principal Executive Officer)
/s/ Gerald L. Klaben, Jr. Senior Vice-President, Treasurer and
- ------------------------------ Chief Financial Officer
Gerald L. Klaben, Jr. (Principal Financial Officer)
/s/ Thomas J. Hamel Executive Vice President and Director
- ------------------------------
Thomas J. Hamel
/s/ James R. Petrie Controller (Principal Accounting
- ------------------------------ Officer)
James R. Petrie
/s/ R. Perry Harris Director
- ------------------------------
R. Perry Harris
/s/ George W. Carmany, III Director
- ------------------------------
George W. Carmany, III
/s/ John R. Petty Director
- ------------------------------
John R. Petty
8
<PAGE>
Exhibit Index
Exhibit No. Description of Document
4.1 Equivest Finance, Inc. 1997 Long-Term Incentive Plan, as amended
and restated.
4.2 Form of Certificate of Incorporation and Amendments thereto of
Equivest Finance, Inc. (Exhibit 3.1 of Equivest Finance, Inc.'s
Registration Statement on Form 8-K/A, (File No. 333-29015)).
4.3 Form of By-laws and Amendments thereto of Equivest Finance, Inc.
(Exhibit 3.2 of Equivest Finance, Inc.'s Registration Statement
on Form 8-K/A, (File No. 333-29015)).
5 Opinion of Shearman & Sterling regarding the legality of the
securities being registered hereby.
23.1 Consent of Firley, Moran, Freer and Eassa.
23.2 Consent of Shearman & Sterling (included in Exhibit 5).
24 Powers of Attorney (included on signature page).
9
SCHEDULE A
EQUIVEST FINANCE, INC.
1997 LONG TERM INCENTIVE PLAN
(as amended and restated as of September 11, 1998)
- --------------------------------------------------------------------------------
1. Purpose of the Plan
The purpose of the Plan is to attract, retain and motivate
selected employees and directors who are in a position to have an impact on the
results of the operations of the business of the Company or one or more of its
Subsidiaries. The Company expects that it will benefit from the additional
incentive which such employees and directors will have to increase the value of
the Company's Shares as a result of the Plan.
2. Definitions
The following capitalized terms used in the Plan have the
respective meanings set forth in this Section:
(a) Act: The Securities Exchange Act of 1934, as amended,
or any successor thereto.
(b) Award: An Option, Stock Appreciation Right, or Other
Stock-Based Award granted pursuant to the Plan.
(c) Board: The Board of Directors of the Company.
(d) Code: The Internal Revenue Code of 1986, as amended, or
any successor thereto.
(e) Committee: The Compensation Committee of the Board.
(f) Company: Equivest Finance, Inc.
(g) Disability: Except as otherwise provided by the
Committee, the inability to engage in any substantial
gainful activity by reason of a medically determinable
physical or mental impairment which constitutes a
permanent and total disability, as defined in Section
22(e)(3) of the Code (or any successor section thereto).
The determination whether a Participant has suffered a
Disability shall be made by the Committee based upon
such evidence as it deems necessary and appropriate. A
Participant shall not be considered disabled unless he
or she furnished such medical or other evidence of the
existence of the Disability as the Committee, in its
sole discretion, may require.
(h) Effective Date: September 1, 1997.
(i) Fair Market Value: On a given date, the arithmetic mean
of the high and low prices of the Shares as reported on
such date on the Composite Tape of the principal
national securities exchange on which such Shares are
listed or admitted to trading, or, if no Composite Tape
exists for such national securities exchange on such
date, then on the principal national securities exchange
on which such Shares are listed or admitted to trading,
or, if the Shares are not listed or admitted on a
national securities exchange, the arithmetic mean of the
per Share closing bid price and per Share closing asked
price on such date as quoted on the National Association
of Securities Dealers Automated Quotation System (or
such
<PAGE>
market in which such prices are regularly quoted), or,
if there is no market on which the Shares are regularly
quoted, the Fair Market Value shall be the value
established by the Committee in good faith. If no sale
of Shares shall have been reported on such Composite
Tape or such national securities exchange on such date
or quoted on the National Association of Securities
Dealers Automated Quotation System on such date, then
the immediately preceding date on which sales of the
Shares have been so reported or quoted shall be used.
(j) ISO: An Option that is also an incentive stock option
granted pursuant to Section 6(d) of the Plan.
(k) LSAR: A limited stock appreciation right granted
pursuant to Section 7(d) of the Plan.
(l) Option: A stock option granted pursuant to Section 6 of
the Plan.
(m) Option Price: The purchase price per Share of an Option,
as determined pursuant to Section 6(a) of the Plan.
(n) Other Stock-Based Awards: Awards granted pursuant to
Section 8 of the Plan.
(o) Participant: An individual who is selected by the
Committee to participate in the Plan pursuant to
Section 5 of the Plan.
(p) Performance-Based Awards: Certain Other Stock-Based
Awards granted pursuant to Section 8(b) of the Plan.
(q) Plan: The Equivest Finance, Inc. 1997 Long Term
Incentive Plan, (amended and restated as of September
11, 1998).
(r) Shares: shares of common stock, par value $0.01 per
share, of the Company.
(s) Stock Appreciation Right: A stock appreciation right
granted pursuant to Section 7 of the Plan.
(t) Subsidiary: A subsidiary corporation of the Corporation,
as defined in Section 424(f) of the Code (or any
successor section thereto).
3. Shares Subject to the Plan
The total number of Shares that may be issued under the Plan
is 3.5 million shares. The maximum number of Shares for which Awards may be
granted during a calendar year to any one Participant shall be 1 million. The
Shares may consist, in whole or in part, of unissued Shares or treasury Shares.
The issuance of Shares or the payment of cash upon the exercise of an Award
shall reduce the total number of Shares available under the Plan, as applicable.
Shares which are subject to Awards which terminate or lapse may be granted again
under the Plan.
4. Administration
The Plan shall be administered by the Committee, which may
delegate its duties and powers in whole or in part to any subcommittee thereof
consisting solely of at least two individuals who are each (a) "non-employee
directors" within the meaning of Rule 16b-3 under the Act (or any successor rule
thereto) and (b) "outside directors" within the meaning of Section 162(m) of the
Code (or any successor section thereto). The Committee shall have the
2
<PAGE>
authority to select the Participants to be granted Awards under the Plan, to
determine the size and terms of an Award and to determine the time when grants
of Awards will be made. The Committee is authorized to interpret the Plan, to
establish, amend and rescind any rules, and regulations relating to the Plan,
and to make any other detonations that it deems necessary or desirable for the
administration or the Plan. Any decision of the Committee shall lie within its
sole and absolute discretion and shall be final, conclusive and binding on all
parties concerned.
5. Eligibility
The Committee may, in its sole discretion, designate those
person(s) who shall be Participant(s) in the Plan. Participants shall be
selected from among the employees and directors of the Company and any of its
Subsidiaries who are in a position to have an impact on the results of the
operations of the Company or one or more of its Subsidiaries; provided that ISOs
may only be granted to employees of the Company or its Subsidiaries.
6. Terms and Conditions of Options
Opinions granted under the Plan shall be, as determined by the
Committee, non-qualified, incentive or other stock options for federal income
tax purposes, as evidenced by the related Option agreements. Options granted
under the Plan shall be subject to the following terms and conditions:
(a) Option Price. The Option Price per Share shall be
determined by the Committee.
(b) Exercisability of Options. Options granted under the Plan
shall be exercisable at such time and upon such terms and conditions as may be
determined by the Committee, but in no event shall an Option be exercisable more
than ten years after the date it is granted.
(c) Method of Exercise. Except as otherwise provided in the
Plan or in an Award agreement, an Option may be exercised for all, or from time
to time any part, of the Shares for which it is then exercisable. For purposes
of this Section 6 of the Plan, the exercise date of an Option shall be the later
of the date a notice of exercise is received by the Company and, if applicable,
the date payment is received by the Company pursuant to clauses (i), (ii) or
(iii) in the following sentence. The purchase price for the Shares as to which
an Option is exercised shall be paid to the Company in full at the time of
exercise at the election of the Participant (i) in cash, (ii) in Shares having a
Fair Market Value equal to the aggregate Option Price for the Shares being
purchased and satisfying such other requirements as may be imposed by the
Committee, (iii) partly in cash and partly in such Shares, (iv) through the
withholding of Shares (which would otherwise be delivered to the Participant)
with an aggregate Fair Market Value on the exercise date equal to the aggregate
Option Price or (v) through the delivery of irrevocable instructions to a broker
to deliver promptly to the Company an amount equal to the aggregate Option Price
for the Shares being purchased. No Participant shall have any rights to
dividends or other rights of a stockholder with respect to Shares subject to an
Option until the Shares have been issued to the Participant. A Participant may,
if and to the extent permitted by the Committee, elect to defer payment of an
Award.
(d) ISOs. The Committee may grant Options under the Plan that
are intended to be ISOs. Such ISOs shall comply with the requirements of Section
422 of the Code (or any successor section thereto). No ISO may be granted to any
Participant who at the time of such grant, owns more than ten percent of the
total combined voting power of all classes of stock of the Company or of any
Subsidiary, unless (i) the Option Price for such ISO is at least 110% of the
Fair Market Value of a Share on the date the ISO is granted and (ii) the date on
which such ISO terminates is a date not later than the day preceding the fifth
anniversary of the date on which the ISO is granted. Any Participant who
disposes of Shares, acquired upon the exercise of an ISO either (i) within two
years after the date of grant of such ISO or (ii) within one year after the
transfer of such Shares to the Participant, shall notify the Company of such
disposition and of the amount realized upon such disposition.
3
<PAGE>
(e) Deferral. The Committee may develop procedures for a
Participant to defer receipt of Shares otherwise subject to Options granted
hereunder.
7. Terms and Conditions of Stock Appreciation Rights
(a) Grants. The Committee also may grant (i) a Stock
Appreciation Right independent of an Option or (ii) a Stock Appreciation Right
in connection with an Option, or a portion thereof. A Stock Appreciation Right
granted pursuant to clause (ii) of the preceding sentence (A) may be granted at
the time the related Option is granted or at any time prior to the exercise or
cancellation of the related Option, (B) shall cover the same Shares covered by
an Option (or such lesser number of Shares as the Committee may determine) and
(C) shall be subject to the same terms and conditions as such Option except for
such additional limitations as are contemplated by this Section 7 (or such
additional limitations as may be included in an Award agreement).
(b) Terms. The exercise price per Share of a Stock
Appreciation Right shall be an amount determined by the Committee but in no
event shall such amount be less than the greater of (i) the Fair Market Value of
a Share on the date the Stock Appreciation Right is granted or, in the case of a
Stock Appreciation Right granted in conjunction with an Option, or a portion
thereof, the Option Price of the related Option and (ii) an amount permitted by
applicable laws, rules, by-laws or policies of regulatory authorities or stock
exchanges. Each Stock Appreciation Right granted independent of an Option shall
entitle a Participant upon exercise to an amount equal to (i) the excess of (A)
the Fair Market Value on the exercise date of one Share over (B) the exercise
price per Share, times (ii) the number of Shares covered by the Stock
Appreciation Right. Each Stock Appreciation Right granted in conjunction with an
Option, or a portion thereof, shall entitle a Participant to surrender to the
Company the unexercised Option, or any portion thereof, and to receive from the
Company in exchange therefor an amount equal to (i) the excess of (A) the Fair
Market Value on the exercise date of one Share over (B) the Option Price per
Share, times (ii) the number of Shares covered by the Option, or portion
thereof, which is surrendered. The date a notice of exercise is received by the
Company shall be the exercise date. Payment shall be made in Shares or in cash,
or partly in Shares and partly in cash, valued at such Fair Market Value, all as
shall be determined by the Committee. Stock Appreciation Rights may be exercised
from time to time upon actual receipt by the Company of written notice of
exercise stating the number of Shares subject to an exercisable Option with
respect to which the Stock Appreciation Right is being exercised. No fractional
Shares will be issued in payment for Stock Appreciation Rights, but instead cash
will be paid for a fraction or, if the Committee should so determine, the number
of Shares will be rounded downward to the next whole Share.
(c) Limitations. The Committee may impose, in its discretion,
such conditions upon the exercisability or transferability of Stock Appreciation
Rights as it may deem fit.
(d) Limited Stock Appreciation Rights. The Committee may grant
LSARs that are exercisable upon the occurrence of specified contingent events.
Such LSARs may provide for a different method of determining appreciation, may
specify that payment will be made only in cash and may provide that any related
Awards are not exercisable while such LSARs are exercisable. Unless the context
otherwise requires, whenever the term "Stock Appreciation Right" is used in the
Plan, such term shall include LSARs.
8. Other Stock-Based Awards
(a) Generally. The Committee, in its sole discretion, may
grant Awards of Shares, Awards of restricted Shares and Awards that are valued
in whole or in part by reference to, or an otherwise based on the Fair Market
Value of, Shares ("Other Stock-Based Awards"). Such Other Stock-Based Awards
shall be in such form, and dependent on such conditions, as the Committee shall
determine, including, without limitation, the right to receive one or more
Shares (or the equivalent cash value of such Shares) upon the completion of a
specified period of service, the occurrence of an event and/or the attainment of
performance objectives. Other Stock-Based Awards may be granted alone or in
addition to any other Awards granted under the Plan. Subject to the provisions
of the Plan, the
4
<PAGE>
Committee shall determine to whom and when Other Stock-Based Awards will be
made, the number of Shares to be awarded under (or otherwise related to) such
Other Stock-Based Awards; whether such Other Stock-Based Award shall be settled
in cash, Shares or a combination of cash and Shares; and all other terms and
conditions of such Awards (including, without limitation, the vesting provisions
thereto).
(b) Performance-Based Awards. Notwithstanding anything to the
contrary herein, certain Other Stock-Based Awards granted under this Section 8
may be granted in a manner which is deductible by the Company under Section
162(m) of the Code (or any successor section thereto) ("Performance-Based
Awards"). A Participant's Performance-Based Award shall be determined based on
the attainment of written performance goals approved by the Committee for a
performance period established by the Committee (i) while the outcome for that
performance period is substantially uncertain and (ii) no more than 90 days
after the commencement of the performance period to which the performance goal
relates or, if less, the number of days which is equal to 25 percent of the
relevant performance period. The performance goals, which must be objective,
shall be based upon one or more of the following criteria: (i) consolidated
earnings before or after taxes (including earnings before interest, taxes,
depreciation and amortization); (ii) net income; (iii) operating income; (iv)
earnings per Share; (v) book value per Share; (vi) return on stockholders'
equity; (vii) expense management; (viii) return on investment; (ix) improvements
in capital structure; (x) profitability of an identifiable business unit or
product; (xi) maintenance or improvement of profit margins; (xii) stock price;
(xiii) market share; (xiv) revenues or sales; (xv) costs; (xvi) cash flow;
(xvii) working capital and (xviii) return on assets. The foregoing criteria may
relate to the Company, one or more of its Subsidiaries or one or more of its
divisions or units, or any combination of the foregoing, and may be applied on
an absolute basis and/or be relative to one or more peer group companies or
indices, or any combination thereof, all as the Committee shall determine. In
addition, to the degree consistent with Section 162(m) of the Code (or any
successor section thereto), the performance goals may be calculated without
regard to extraordinary items. The maximum amount of a Performance-Based Award
to any Participant with respect to a fiscal year of the Company shall be 400,000
Shares. The Committee shall determine whether, with respect to a performance
period, the applicable performance goals have been met with respect to a given
Participant and, if they have, to so certify and ascertain the amount of the
applicable Performance-Based Award. No Performance-Based Awards will be paid for
such performance period until such certification is made by the Committee. The
amount of the Performance-Based Award actually paid to a given Participant may
be less than the amount determined by the applicable performance goal formula,
at the discretion of the Committee. The amount of the Performance-Based Award
determined by the Committee for a performance period shall be paid to the
Participant at such time as determined by the Committee in its sole discretion
after the end of such performance period; provided, however, that a Participant
may, if and to the extent permitted by the Committee and consistent with the
provisions of Sections 162(m) of the Code, elect to defer payment of a
Performance-Based Award.
9. Tax Withholding
The Committee shall have the right to require payment of any
federal, state, local or foreign income or other taxes required to be withheld
with respect to the exercise or payment of an Award. Unless the Committee
specifies otherwise, the Participant may elect to pay a portion or all of such
withholding taxes by (a) delivery in Shares or (b) having Shares withheld by the
Company from any Shares that would have otherwise been received by the
Participant. The number of Shares so delivered or withheld shall have an
aggregate Fair Market Value sufficient to satisfy the applicable withholding
taxes.
10. Amendments or Termination
The Board may amend, alter or discontinue the Plan, but no
amendment, alteration or discontinuation shall be made which, (a) without the
approval of the stockholders of the Company, would (except as is provided in
Section 11 of the Plan), (i) increase the total number of Shares reserved for
the purpose of the Plan, (ii) change the maximum number of Shares for which
Awards may be granted to any Participant, (iii) materially increase the benefits
accruing to Participants under the Plan or (iv) materially modify the
eligibility requirements for participation in the Plan, or (b) without the
consent of a Participant, would impair any of the rights or obligations
5
<PAGE>
under any Award theretofore granted to such Participant under the Plan;
provided, however, that the Committee may amend the Plan in such manner as it
deems necessary to permit the granting of Awards meeting the requirements of the
Code or other applicable (United States or foreign) laws.
11. No Right to Employment
The granting of an Award under the Plan shall impose no
obligation on the Company or any Subsidiary to continue the employment of a
Participant or to make any additional Awards to the Participant and shall not
lessen or affect the Company's or Subsidiary's right to terminate the employment
of such Participant.
12. Successors and Assigns
The Plan shall be binding on all successors and assigns of the
Company and a Participant, including, without limitation, the estate of such
Participant and the executor, administrator or trustee of such estate, or any
receiver or trustee in bankruptcy or representative of the Participant's
creditors.
13. Nontransferability of Awards
Unless otherwise so provided by the Committee, an Award shall
not be subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition be voluntary
or by operation of law by judgment, levy, attachment, garnishment or any other
legal or equitable proceedings (including bankruptcy), and any attempted
disposition thereof shall be null and void and of no effect.
14. Adjustments Upon Certain Events
Notwithstanding any provision in the Plan to the contrary, in
the event of any change in the outstanding Shares by reason of any Share
dividend or split, reorganization, recapitalization, merger, consolidation,
spin-off, combination or exchange of Shares or other corporate exchange, or any
distribution to stockholders of Shares other than regular cash dividends, the
Committee in its sole discretion and without liability to any person may make
such substitution or adjustment, if any, as it deems to be equitable, as to (i)
the number or kind of Shares or other securities issued or reserved for issuance
pursuant to the Plan or pursuant to outstanding Awards, (ii) the Option Price
and/or (iii) any other affected terms of such Awards.
15. Choice of Law
The Plan shall be governed by and construed and in accordance
with the laws of the State of New York, without regard to the choice of law
provisions thereof.
16. Term of the Plan
The Plan shall be effective as of the Effective Date. No Award
may be granted under the Plan after the tenth anniversary of the date the Plan
is adopted by the Board, but Awards theretofore granted may extend beyond that
date.
17. Amendment and Restatement of the Plan
This amendment and restatement of the Plan, effective as of
September 11, 1998, is conditional upon the approval by the shareholders of the
Company at the first meeting of the shareholders to occur after September 11,
1998 of the amendments to the Plan adopted by the Board at the September 11,
1998 meeting of the Board, and if such amendments are not so approved, the terms
of the Plan prior to September 11, 1998 shall remain in full force and effect.
6
[LETTERHEAD OF SHEARMAN & STERLING]
March 12, 1999
Equivest Finance, Inc.
Two Clinton Square
Syracuse, New York 13202
Ladies and Gentlemen:
We have acted as special counsel to Equivest Finance, Inc., a
Delaware corporation ("Equivest"), in connection with the Registration Statement
on Form S-8 (the "Registration Statement") being filed by Equivest on March 12,
1999 with the Securities and Exchange Commission under the Securities Act of
1933, as amended, with respect to 3.5 million shares of common stock, par value
$.01 per share, of Equivest (the "Common Stock"), to be issued from time to time
pursuant to the Equivest Finance, Inc. 1997 Long-Term Incentive Plan (the
"Plan").
In so acting, we have examined the Registration Statement and
we have also examined and relied as to factual matters upon the representations
and warranties contained in originals, or copies certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates and other instruments as in our judgment are necessary or
appropriate to be able to render the opinion expressed below. In such
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents, certificates and instruments submitted to us as originals and
the conformity with the originals of all documents submitted to us as copies.
Based upon the foregoing, we are of the opinion that the
shares of Common Stock to which the Registration Statement relates have been
duly authorized and, when issued and delivered in accordance with the terms of
the Plan and paid for in full in accordance with the terms of the Plan, will be
validly issued, fully paid and non-assessable.
Our opinion expressed above is limited to the General
Corporation Law of the State of Delaware and we do not express any opinion
herein concerning any other law.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ SHEARMAN & STERLING
-----------------------
SHEARMAN & STERLING
KL/BK/MM
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8, relating to the Equivest Finance, Inc. 1997 Long-Term
Incentive Plan, of our report, dated February 20, 1998, on the consolidated
financial statements of Equivest Finance, Inc. and subsidiaries, included in the
1997 Annual Report on Form 10KSB.
/s/ Firley, Moran, Freer & Eassa, P.C.
--------------------------------------
Firley, Moran, Freer & Eassa, P.C.
Syracuse, New York
March 11, 1999
