As filed with the Securities and Exchange Commission on December 30, 1997
Registration No. 333-17435
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HOENIG GROUP INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3625520
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Royal Executive Park
4 International Drive
Rye Brook, New York 10573
(914) 935-9000
(Address, including zip code, and telephone number,
including area code, of Principal Executive Offices)
HOENIG GROUP INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
1997 FOREIGN EMPLOYEE STOCK PURCHASE PLAN
(Full titles of the plans)
Kathryn L. Hoenig, Esq.
Secretary
Hoenig Group Inc.
Royal Executive Park
4 International Drive
Rye Brook, New York 10573
(914) 935-9000
( Name and address, including zip code and telephone number, including area
code, of agent for service)
Copy to:
Malcolm P. Wattman, Esq.
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities Amount to Proposed Maximum Proposed Maximum Amount of
to be Registered be Registered(1) Offering Price per Share Aggregate Offering Price(1) Registration Fee(1)
<S>
<C> <C> <C> <C>
Common Stock, $.01 par
value(2)............ 500,000 shares $4.625 $2,312,500 $797
</TABLE>
Fee Previously Paid $797
Amount Due - 0 -
(1) Represents shares authorized for issuance under the Hoenig Group Inc. 1996
Employee Stock Purchase Plan (the "1996 Plan") and the Hoenig Group Inc.
1997 Foreign Employee Stock Purchase Plan (the "1997 Plan"). Pursuant to
Rule 416, this Registration Statement also covers such additional
securities as may become issuable under the 1996 Plan and the 1997 Plan
through operation of anti-dilution provisions.
(2) On January 14, 1997, Hoenig Group Inc. entered into a Rights Agreement with
Continental Stock Transfer & Trust Company (the "Rights Agreement") and
declared a dividend distribution of one right for each outstanding share of
Common Stock to stockholders of record on January 31, 1997 (the "Record
Date"). The rights attached to all shares of Common Stock outstanding on
the Record Date and thereafter to all shares of Common Stock issued.
Certificates for shares of Common Stock contain a notation incorporating
the Rights Agreement. The 500,000 shares of Common Stock registered herein
to be issued pursuant to the 1996 Plan and the 1997 Plan include such
rights. Such rights are not separately transferable apart from the Common
Stock, nor are they exercisable until the occurrence of certain events.
Value attributable to such rights, if any, is reflected in the market price
of the Common Stock, and such rights are issued for no additional
consideration. Accordingly, there is no offering price for the rights, and
no registration fee is required.
<PAGE>
EXPLANATORY NOTE
This Registration Statement is being filed in order to register an
aggregate of 500,000 shares of the Registrant's common stock, par value $.01 per
share and the associated rights attached to such shares of common stock ("Common
Stock"), issuable under the Hoenig Group Inc. 1996 Employee Stock Purchase Plan
(the "1996 Plan") and the Hoenig Group Inc. 1997 Foreign Employee Stock Purchase
Plan (the "1997 Plan"). The shares of Common Stock being registered pursuant to
this Registration Statement are referred to herein as the "Shares." The Shares
were previously registered in connection with the 1996 Plan and will be
available for issuance and allocated on a pro rata basis between each of the
1996 Plan and the 1997 Plan. This Registration Statement covers the original
issuance of the Shares described in this paragraph as well as the reoffer and
resale of such Shares to the extent owned by certain corporate officers or
directors of the Registrant (collectively, the "Selling Stockholders") described
under the caption "Selling Stockholders" in the prospectus meeting the
requirements of Part I of Form S-3 contained in this Registration Statement and
described below.
A prospectus meeting the requirements of Part I of Form S-8 and containing
the statement required by Item 2 of Form S-8 has been prepared. Such prospectus
is not included in this Registration Statement but will be delivered to all
participants in the 1996 Plan and the 1997 Plan pursuant to Rule 428(b)(1) under
the Securities Act of 1933, as amended.
A prospectus meeting the requirements of Part I of Form S-3 which covers
the reoffer and resale by the Selling Stockholders named therein of the Shares
acquired, or to be acquired, by them under the 1996 Plan or the 1997 Plan is
contained in this Registration Statement.
<PAGE>
PROSPECTUS
HOENIG GROUP INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
1997 FOREIGN EMPLOYEE STOCK PURCHASE PLAN
500,000 Shares of Common Stock
This Prospectus relates to 500,000 shares (the "Shares") of common stock,
$.01 par value per share, and the associated rights that are attached to shares
of common stock pursuant to the Rights Agreement dated as of January 14, 1997
(the "Common Stock"), of Hoenig Group Inc., a Delaware corporation (the
"Company"), which may be offered from time to time by the persons named in this
Prospectus under "Selling Stockholders" (the "Selling Stockholders") in
connection with the Company's 1996 Employee Stock Purchase Plan (the "1996
Plan") and 1997 Foreign Employee Stock Purchase Plan (the "1997 Plan"). The
Shares were previously registered in connection with the 1996 Plan. Shares are
available for issuance and will be allocated on a pro rata basis between each of
the 1996 Plan and the 1997 Plan.
The Shares will be sold, or otherwise disposed of, for the account of the
Selling Stockholders and the Company will not receive any proceeds from such
transactions.
The Selling Stockholders may offer the Shares for sale at the prices
prevailing on the principal markets on which the Shares are then traded on the
date of sale or may sell, or otherwise dispose of, the Shares in privately
negotiated transactions or donate the Shares to charitable institutions or other
persons, which in turn may offer the Shares for sale at prices prevailing on the
principal markets on which the Shares are traded, or sell, or otherwise dispose
of the Shares in privately negotiated transactions or through donations or
gifts. The Selling Stockholders also may pledge the Shares as collateral to
secure borrowings and the pledgees may in the event of foreclosure, offer the
Shares for sale at prices prevailing on the principal markets on which the
Shares are traded, or sell, or otherwise dispose of, the Shares in privately
negotiated transactions. The Shares may be sold by one or more of the following:
(a) a block trade in which the broker or dealer so engaged will attempt to sell
the Shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction; (b) purchases by a broker or dealer as
principal and resale by such broker or dealer for its account pursuant to this
Prospectus; (c) an exchange distribution in accordance with the rules of such an
exchange; and (d) ordinary brokerage transactions and transactions in which the
broker solicits purchasers. In effecting sales, brokers or dealers engaged by
the Selling Stockholders may arrange for other brokers or dealers to
participate. Brokers or dealers will receive commissions or discounts from the
Selling Stockholders in amounts to be negotiated immediately prior to the sale.
Such brokers or dealers and any other participating brokers or dealers may be
deemed to be "underwriters" within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"), in connection with such sales.
Upon the Company being notified by a Selling Stockholder that any material
arrangement has been entered into with a broker or dealer for the sale of Shares
through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, a supplement to this
Prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such Selling Stockholder and of
the participating broker or dealer, (ii) the number of Shares involved, (iii)
the price at which such Shares were sold, (iv) the commissions paid or discounts
or concessions allowed to such broker or dealer, where applicable, (v) that such
broker or dealer did not conduct any investigation to verify the information set
out or incorporated by reference in this Prospectus and (vi) other facts
material to the transaction.
In addition, any Shares covered by this Prospectus which qualify for sale
pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to this
Prospectus.
Any of the foregoing transactions may involve the disposition of Shares
directly to acquirers (which may include market makers and other dealers) or
through a broker or brokers at prices that cannot be presently determined. All
costs, expenses and fees incurred in connection with the registration of the
Shares are being borne by the Company, but all selling and other expenses
incurred by the Selling Stockholders will be borne by such Selling Stockholders.
The Common Stock is traded on the Nasdaq National Market under the symbol
"HOEN." On December 29, 1997, the last reported sale price of the Common Stock
on the Nasdaq National Market was $6.50. Prospective acquirers of Shares
are urged to obtain a current price quotation.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
This Prospectus does not constitute an offer to sell or a solicitation of
an offer to buy the Shares offered hereby in any jurisdiction in which such
offer or solicitation may be unlawful. No person has been authorized to give any
information or to make any representations and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or the Selling Stockholders. All information contained herein is
as of the date of this Prospectus, except as otherwise indicated. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof or that the information contained
herein is correct as of any time subsequent to its date.
The date of this Prospectus is December 30, 1997
<PAGE>
TABLE OF CONTENTS
Available Information.......................................................3
Incorporation of Certain Documents by Reference.............................3
The Company.................................................................5
Selling Stockholders........................................................5
Experts.....................................................................5
Legal Matters...............................................................5
Indemnification.............................................................5
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy and information statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy and information statements and other information may be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and at the Commission's
regional offices at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661
and Seven World Trade Center, 13th Floor, New York, New York 10048. Copies of
such material can be obtained at prescribed rates from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. The
Commission maintains a Web site that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission. The address of the site is http://www.sec.gov. The Common
Stock of the Company is listed on the Nasdaq National Market, and such reports,
proxy and information statements and other information concerning the Company
may be inspected at the offices of Nasdaq Operations, 1735 K Street, NW, 4th
Floor, Washington, D.C. 20006.
The Company has filed with the Commission under the Securities Act a
Registration Statement on Form S-8 (together with all amendments and exhibits,
referred to as the "Registration Statement") with respect to the Shares offered
hereby. This Prospectus, which constitutes part of the Registration Statement,
does not contain all of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules and regulations
of the Commission. For further information, reference is made to the
Registration Statement . The Registration Statement may be inspected and copied
at the public reference facilities maintained by the Commission at the addresses
set forth in the preceding paragraph. Statements contained herein concerning any
document filed as an exhibit are not necessarily complete, and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement. Each such statement is qualified in its entirety by
such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated herein
by reference:
(a).The Company's Annual Report on Form 10-K filed pursuant to Section 13
of the Exchange Act for the fiscal year ended December 31, 1996 (the "1996
10-K").
(b).All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the 1996
10-K.
(c).The description of the Common Stock contained in the Company's
registration statements filed pursuant to Section 12 of the Exchange Act,
together with all amendments and reports filed with the Commission for the
purposes of updating or otherwise amending that description.
(d).All documents filed by the Company after the date of this Prospectus
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of the filing
of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference into this Prospectus will be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained in this Prospectus or any other subsequently filed document which also
is, or is deemed to be, incorporated by reference into this Prospectus modifies
or supersedes that statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will provide, without charge, to each person (including any
beneficial owner) to whom this Prospectus is delivered, upon written or oral
request of such person, a copy of any and all documents incorporated by
reference into the Registration Statement, other than exhibits to such documents
(unless such exhibits are specifically incorporated by reference into such
documents). Requests for such copies should be directed to:
Hoenig Group Inc.
Royal Executive Park
4 International Drive
Rye Brook, New York 10573
Attention: Stockholder Relations
Telephone: (914) 935-9000
Additional updating information with respect to the matters discussed in
this Prospectus may be provided in the future by means of appendices or
supplements to this Prospectus or other documents.
<PAGE>
THE COMPANY
The principal executive offices of the Company are located at Royal
Executive Park, 4 International Drive, Rye Brook, New York 10573 (Tel. (914)
935-9000).
Additional information regarding the Company is contained in the documents
listed above under the caption "Incorporation of Certain Documents by
Reference."
SELLING STOCKHOLDERS
This Prospectus may be used by certain corporate officers and directors of
the Company and its subsidiaries for the resale to the public of Shares to be
issued under the 1996 Plan and the 1997 Plan. The Shares to be issued under the
1996 Plan and the 1997 Plan will have been registered under the Securities Act
pursuant to the Registration Statement of which this Prospectus is a part.
Certain of such officers and directors may be deemed to be in a control
relationship with the Company within the meaning of the Securities Act and the
rules and regulations of the Commission thereunder and such Shares may be deemed
to be "control securities" within the meaning of the General Instructions to
Form S-8. The control securities referred to in this paragraph also may be
resold pursuant to Rule 144 under the Securities Act or in other transactions
exempt from registration.
The persons who may resell Shares are referred to in this Prospectus
collectively as "Selling Stockholders." The names of the Selling Stockholders,
their relationships to the Company, and the number of shares of Common Stock
that they beneficially own and the amount of Shares owned by each such person
which are available for resale pursuant to this Prospectus will be set forth in
a supplement to this Prospectus at the time of sale. Neither the statements
contained in this Prospectus or the Registration Statement nor the delivery of
this Prospectus in connection with a sale, or other disposition, by any Selling
Stockholder shall be deemed an admission by the Company or any Selling
Stockholder that any Selling Stockholder is in a control relationship with the
Company.
The Company does not know whether any of the Selling Stockholders will use
this Prospectus in connection with the offer or sale of any Shares, or, if this
Prospectus is so used, how many Shares will be offered or sold.
EXPERTS
The consolidated financial statements of the Company appearing in the 1996
10-K have been examined by Deloitte & Touche LLP as set forth in their report
included therein and incorporated herein by reference. Such financial statements
are incorporated herein in reliance upon the reports of such accountants
pertaining to such financial statements and upon the authority of such firm as
experts in auditing and accounting.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for the
Company by Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, New York
10038.
INDEMNIFICATION
Section 145 of the General Corporation Law of Delaware, under which the
Company is organized, permits, and the By-laws of the Company require, the
Company to indemnify an officer or director of the Company, or of any
wholly-owned subsidiary of the Company, or of any other entity or enterprise
that the Board of the Company may designate by resolution, who was or is a party
or is threatened to be made a party to any "proceeding" (including a lawsuit)
because of his or her position, if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the Company. Section 145 permits, and the By-laws require, the Company to
advance expenses incurred in defending such a proceeding under certain
circumstances. If the officer or director is successful on the merits or
otherwise, the Company is required to indemnify him or her against all expenses,
including attorneys' fees, actually and reasonably incurred by him or her in
connection with such proceeding. In accordance with the General Corporation Law
of Delaware, the Company's Certificate of Incorporation limits a director's
exposure to personal monetary liability for breach of his fiduciary duty as a
director to the fullest extent permitted by the General Corporation Law of
Delaware.
The Company also maintains directors and officers' liability insurance
which, with certain exceptions, insures such directors and officers against
liabilities which they may incur in their respective capacities as such.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by Hoenig Group Inc. (the
"Registrant") with the Commission are hereby incorporated by reference into this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K filed pursuant to Section
13 of the Exchange Act for the fiscal year ended December 31, 1996;
(b) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the
Registrant's Annual Report referred to in (a) above;
(c) The description of the Common Stock contained in the Registrant's
Registration Statements under Section 12 of the Exchange Act, together with all
amendments and reports filed with the Commission for the purposes of updating
that description; and
(d) 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 hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference into this Registration Statement will be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement or any other
subsequently filed document which also is or is deemed to be incorporated by
reference into this Registration Statement modifies or supersedes that
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law, under which the
Registrant is organized, permits, and the By-laws of the Registrant require, the
Registrant to indemnify an officer or director of the Registrant, or of any
wholly-owned subsidiary of the Registrant, or any other entity or enterprise
that the board of directors of the Registrant may designate by resolution, who
was or is a party or is threatened to be made a party to any "proceeding"
(including a lawsuit) because of his or her position, if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Registrant. Section 145 permits and the By-laws
require, the Registrant to advance expenses incurred in defending such a
proceeding under certain circumstances. If the officer or director is successful
on the merits or otherwise, the Registrant is required to indemnify him or her
against all expenses, including attorneys' fees, actually and reasonably
incurred by him or her in connection with such proceeding. In accordance with
the General Corporation Law of Delaware, the Registrant's Certificate of
Incorporation limits a director's exposure to personal monetary liability for
breach of his or her fiduciary duty as a director to the fullest extent
permitted by the Delaware General Corporation Law.
The Company also maintains directors and officers' liability insurance
which, with certain exceptions, insures such directors and officers against
liabilities which they may incur in their respective capacities as such.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
No. Identification
4.1 Certificate of Incorporation of the Registrant (Incorporated herein by
reference to Exhibit 3.1 to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1996.)
4.2 Amended and Restated By-laws of the Registrant (Incorporated herein by
reference to Exhibit 3(b) to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1991).
4.3 Rights Agreement dated as of January 14, 1997 (Incorporated herein by
reference to Exhibit 1 to the Registrant's Registration Statement on
Form 8-A filed on January 21, 1997.)
5.1* Opinion of Cadwalader, Wickersham & Taft.
10.7 The Hoenig Group Inc. 1996 Employee Stock Purchase Plan.
10.8 The Hoenig Group Inc. 1997 Foreign Employee Stock Purchase Plan.
23.1 Consent of Cadwalader, Wickersham & Taft (included in its opinion
previously filed as Exhibit 5.1 to this Registration Statement.)
23.2 Consent of Deloitte & Touche LLP.
24.1** Power of Attorney.
- --------
* Previously filed.
**Previously filed as part of the signature page of this Registration Statement.
Item 9. Undertakings.
The Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being made
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933.
(ii)To reflect in the Prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, 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) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) 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.
(h)Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to any provision or arrangement whereby the Registrant
may indemnify a director, officer or controlling person of the Registrant
against liabilities arising under the Act, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Post-Effective
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Rye Brook, State of New
York, on December 30, 1997.
HOENIG GROUP INC.
By: /s/ Fredric P. Sapirstein
-------------------------
Fredric P. Sapirstein
Title: Chief Executive Officer and President
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to the Registration Statement has been signed by
the following persons in the capacities indicated on December 30, 1997.
<TABLE>
<CAPTION>
Signature Title
<S> <C>
/s/ Fredric P. Sapirstein Chief Executive Officer, President, Chairman of the
Fredric P. Sapirstein Board and Director
(Principal Executive Officer)
MAX H. LEVINE* Executive Vice President, Director
Max H. Levine
/s/ Alan B. Herzog Chief Operating Officer, Chief Financial Officer,
Alan B. Herzog Treasurer and Director
(Principal Financial/Accounting Officer)
/s/ Kathryn L. Hoenig General Counsel, Secretary and Director
Kathryn L. Hoenig
/s/ Robert L. Cooney Director
Robert L. Cooney
MARTIN F.C. EMMETT* Director
Martin F.C. Emmett
ROBERT SPIEGEL* Director
Robert Spiegel
*By: /s/ Fredric P. Sapirstein
Fredric P. Sapirstein
(Attorney-in-fact)
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Identification
4.1 Certificate of Incorporation of the Registrant (Incorporated herein by
reference to Exhibit 3.1 to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1996)
4.2 Amended and Restated By-laws of the Registrant (Incorporated herein by
reference to Exhibit 3(b) to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1991)
4.3 Rights Agreement dated as of January 14, 1997 (Incorporated herein by
reference to Exhibit 1 to the Registrant's Registration Statement on
Form 8-A filed on January 21, 1997.)
5.1* Opinion of Cadwalader, Wickersham & Taft
10.7 The Hoenig Group 1996 Employee Stock Purchase Plan
10.8 The Hoenig Group Inc. 1997 Foreign Employee Stock Purchase Plan
23.1 Consent of Cadwalader, Wickersham & Taft (included in its opinion
previously filed as Exhibit 5.1 to this Registration Statement)
23.2 Consent of Deloitte & Touche LLP
24.1** Power of Attorney
- -------------
*Previously filed.
**Previously filed as part of the signature page of this Registration Statement.
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to the Registration Statement of Hoenig Group Inc. on Form S-8 of our
report dated March 18, 1997, appearing in the Annual Report on Form 10-K of
Hoenig Group Inc. for the year ended December 31, 1996, and to the reference to
us under the heading "Experts" in the Prospectus, which is part of such
Registration Statement.
Deloitte & Touche LLP
New York, New York
December 26, 1997
HOENIG GROUP INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
1. Purpose
The purpose of the 1996 Employee Stock Purchase Plan is to provide eligible
employees of Hoenig Group Inc. and its Subsidiaries a convenient
opportunity to purchase Company stock, without the payment of commissions
or fees.
It is the intention of the Company to have the Plan qualify as an "Employee
Stock Purchase Plan" under Section 423 of the Code, and the Plan shall be
construed in accordance with such purpose.
2. Definitions
The following terms, when used in the Plan, shall have the following
meanings:
(a) "Base Compensation" -- means the total compensation received by an
Employee during an Offering period, calculated in a manner prescribed
by the Committee from time to time, but excluding any bonus, incentive
or other similar extraordinary remuneration received.
(b) "Board" -- means the Board of Directors of Hoenig Group Inc.
(c) "Code" -- means the Internal Revenue Code of 1986, as amended.
(d) "Commencement Date" -- means the date upon which an Offering shall
commence, as determined pursuant to the Plan and specified in each
Offering. In the event that the Commencement Date is a Saturday,
Sunday or legal holiday, it shall be deemed to occur on the first
business day immediately thereafter.
(e) "Committee" -- means the Compensation and Stock Option Committee of
the Board.
(f) "Company" -- means Hoenig Group Inc. and its Subsidiaries.
(g) "Employee" -- means any person who is regularly and actually employed
by the Company or any Subsidiary of the Company whose customary
employment is: (i) 20 hours per week or more; or (ii) at least 5
months in a calendar year.
(h) "Exchange Act" -- means the Securities Exchange Act of 1934, as
amended.
(i) "Expiration Date" -- means the last day of any Offering period, as
determined pursuant to the Plan and as specified in each Offering. The
Expiration Date shall be the last day on which amounts may be
withdrawn from employee Accounts (as defined in Section 7); if not
withdrawn on or prior to the Expiration Date, all such amounts shall
be applied to the purchase of Stock pursuant to the terms of the
Offering. In the event that the Expiration Date is a Saturday, Sunday
or legal holiday, it shall be deemed to occur on the first business
day immediately prior thereto.
(j) "Fair Market Value" -- means the value of a share of Stock on a given
date determined as an average of the high and low prices of the Stock
on the NASDAQ NMS Exchange on such date, or if no sales of the Stock
were made on said Exchange on that date, the average of the high and
low prices of the Stock on the next preceding day on which sales were
made on said Exchange.
(k) "Hoenig" -- means Hoenig Group Inc., a Delaware corporation.
(l) "Offering" -- means any offering made in accordance with the terms and
conditions of the Plan permitting Participants to purchase Stock under
the Plan.
(m) "Participating Employee" -- means an Employee of the Company who
elects to participate in the Plan.
(n) "Plan" -- means this Hoenig Group Inc. 1996 Employee Stock Purchase
Plan.
(o) "Stock" -- means the common stock of the Company.
(p) "Subsidiary" -- means any corporation organized under the laws of any
of the United States, a majority of the voting stock of which is owned
by the Company or a Subsidiary of the Company or is otherwise
designated as a Subsidiary by the Committee.
3. Administration
The Plan shall be administered by the Committee, which shall be composed of
"disinterested persons" as such term is defined under Rule 16b-3 of the
Exchange Act, and whose actions and determinations on matters related to
the Plan shall be conclusive. Subject to the express provisions of the
Plan, the powers of the Committee shall include having the authority, in
its discretion, to:
(a) Define, prescribe, amend and rescind rules, regulations, procedures,
terms and conditions relating to the Plan, including, without
limitation, the establishment of procedures that may be necessary to
ensure compliance with Rule 16b-3 of the Exchange Act;
(b) Appoint such agents as it shall deem appropriate for the proper
administration of the Plan;
(c) Establish the Commencement and Expiration Date of any Offering and the
duration of such Offering period; and
(d) Make any other determinations necessary or advisable for administering
the Plan, including, but not limited to, interpreting the Plan,
correcting defects, reconciling inconsistencies and resolving
ambiguities.
4. Stock Subject to the Plan
(a) The maximum number of shares of Stock which may be sold under the Plan
shall not exceed 500,000 shares.
(b) If the number of shares of Stock that Participating Employees become
entitled to purchase is greater than the shares of Stock offered or
remaining available in a particular Offering, the available shares of
Stock shall be allocated by the Committee among such Participating
Employees in such manner as it deems fair and equitable.
(c) In the event of a recapitalization, merger, consolidation, stock
dividend or split, combination or exchange of shares or any other
change in corporate structure or capitalization affecting the Stock,
the Committee may make such equitable adjustments in the Plan and the
then outstanding Offerings as it deems necessary and appropriate
including, but not limited to, changing the number of shares of Stock
reserved under the Plan, and the price of the current Offering.
5. Eligibility
(a) All Employees of the Company will be eligible to participate in the
Plan in accordance with such rules as may be prescribed by the
Committee from time to time; provided, however, that such rules shall
neither permit nor deny participation in the Plan contrary to the
requirements of the Code (including, but not limited to, Section
423(b)(3), (4) and (8) thereof) and regulations promulgated
thereunder.
(b) No Employee may be granted the right to purchase Stock under the Plan
if such Employee, immediately after the right is granted, owns 1% or
more of the total combined voting power or value of the Stock of the
Company or any of its Subsidiaries. For purposes of the preceding
sentence, the rules of Section 425(d) of the Code shall apply in
determining the Stock ownership of an Employee, and Stock which the
Employee may have the right to purchase (including outstanding options
on Company Stock owned by the Employee) shall be treated as Stock
owned by the Employee.
6. Offering, Participation
(a) Unless otherwise specified by the Committee, there shall be two
Offerings under the Plan during each calendar year. The respective
Commencement Dates and Expiration Dates of each Offering shall be (i)
January 1 and June 29 and (ii) July 1 and December 30, unless
otherwise specified by the Committee prior to the Commencement Date of
any Offering. With respect to the 1996 calendar year, there shall be
one Offering commencing on July 1 and expiring on December 30.
(b) An Employee may elect to participate in such Offering at such time or
times as determined by the Committee by:
(i) authorizing a payroll deduction for such purpose;
(ii) tendering a check made payable to the Company in an amount
sufficient to purchase at least the minimum number of
shares required pursuant to Section 8; or
(iii) a combination of subsections (i) and (ii) above, in an
amount sufficient to purchase at least the minimum number
of shares required pursuant to Section 8.
(c) The Committee may at any time suspend an Offering if required by law
or by the best interests of the Company as determined by the Committee
in its sole discretion. The Company's obligation to sell and deliver
Stock under the Plan is subject to the approval of any governmental or
regulatory authority required in connection with the authorization,
issuance or sale of such Stock.
7. Employee Contributions
(a) The Company will maintain an account for each Participating Employee
(the "Account") to hold contributions designated for the purchase of
Stock. Interest shall be credited to such Account at such rate as the
Committee may from time to time determine.
(b) Subject to the rules, procedures and forms adopted by the Committee, a
Participating Employee may, at any time up to one day prior to the
Expiration Date of an Offering, increase, decrease or suspend his or
her payroll deduction, or may withdraw the balance of his or her
Account and thereby withdraw from participation in the Offering.
(c) Any balance remaining in any Participating Employee's Account at the
end of an Offering period will be repaid to such employee.
(d) In the event of a Participating Employee's retirement, death or
termination of employment, his or her participation in any Offering
under the Plan shall cease, no further amounts shall be deducted
pursuant to the Plan and the balance in the Participating Employee's
Account shall be paid to the Employee, or in the event of the
Employee's death, to the Employee's beneficiary.
8. Purchase, Limitation
(a) Subject to the provisions of Section 8(d) below, each Participating
Employee will be granted the right to purchase, upon the Commencement
Date of an Offering, as many full shares of Stock as the amount in
such Employee's Account (determined on the Expiration Date) can
purchase (the minimum number of shares which may be purchased is 100).
(b) The Account of each Participating Employee shall be totaled as of the
Expiration Date. Subject to the provisions of Section 7(b) above, if
the Account contains sufficient funds to purchase 100 or more shares
of Stock as of that date, the Participating Employee shall be deemed
to have purchased as many full shares of Stock as possible at the
price determined under Section 8(c) below. The Participating
Employee's account will be charged, on that date, for the amount of
the purchase, at which time, the Employee shall be deemed to have
acquired the shares of Stock. As soon as practicable after such date,
the Participating Employee shall receive a stock certificate
representing the amount of full shares acquired (the value of any
partial share to be returned to such Employee by check).
(c) On or before the Commencement Date of each Offering, the Committee
shall determine the purchase price of the shares of Stock to be sold
under the Offering or the formula for determining such price;
provided, however, that no such price may be less than the lesser of:
(i) an amount equal to 85 percent of the Fair Market Value of
the Stock on the Commencement Date of the Offering; or
(ii) an amount equal to 85 percent of the Fair Market Value of
the Stock on the Expiration Date.
(d) In any calendar year, the Fair Market Value (determined as of the
Commencement Date of such year) of the shares of Stock a Participating
Employee has the right to purchase under the Plan may not exceed
$25,000 when added to the Fair Market Value of all other shares which
such Employee may have the right to purchase under this or other plans
that qualify as employee stock purchase plans of the Company under
Section 423 of the Code.
(e) The Participating Employee shall have none of the rights or privileges
of a stockholder of the Company with respect to shares of Stock
purchased under the Plan (including without limitation rights to vote
and receive dividends) until the date on which the shares of Stock are
deemed to be acquired pursuant to Section 8(b) above.
(f) (i) Notwithstanding anything in the Plan to the contrary, in the event
of a "change-in-control" of the Company (as defined below), if the
Committee determines that such change-in-control could prevent
Participating Employees from obtaining the benefits provided under the
Plan, the Plan may be terminated in any manner deemed by the Committee
to provide equitable treatment to the Participating Employees.
(ii) For purposes of this Plan, a "change-in-control" of the
Company shall have occurred:
(A) on the date of the acquisition by any "person"
(within the meaning of Sections 13(d)(3) or 14(d)(2)
of the Exchange Act), excluding the Company or any
of its Subsidiaries, of beneficial ownership (within
the meaning of Rule 13d-3 under the Exchange Act) of
50% or more of either the then outstanding shares of
Stock, or the then outstanding voting securities
entitled to vote generally in the election of
directors;
(B) on the date the individuals who constitute the Board
as of the effective date of this Plan ("Incumbent
Board") cease for any reason to constitute at least
a majority of the Board, provided that any person
becoming a director subsequent to the date of this
Plan whose election, or nomination for election by
the Company's stockholders, was approved by a vote
of at least a majority of the directors then
comprising the Incumbent Board shall be, for
purposes of this Plan, considered as though such
person were a member of the Incumbent Board; or
(C) on the date of the occurrence of a transaction for
the acquisition of the Company, through the purchase
of assets, merger, or otherwise, by a person (as
defined in Section (f)(ii)(A) of this Section 8),
other than the Company or any of its Subsidiaries,
that required stockholder approval.
Notwithstanding the foregoing, for the purposes of
subsection (A) only, the definition of "person" shall not
include any beneficial holder of more than 5% of the Stock
as of December 31, 1995, or any person, trust or entity
which is a successor by will or by the laws of descent and
distribution to any such holder or any combination of such
holders or group of such holders (including, without
limitation, any such person or persons acting as a
partnership, limited partnership, syndicate or other group
whether formally organized or not).
9. Share Restrictions
Certificates of Stock purchased under the Plan may be registered only in
the name of the Participating Employee, or, if such Employee so indicates
on an appropriate form provided by the Company, in his or her name jointly
with a member of his or her family, with right of survivorship. A
Participating Employee who is a resident of a jurisdiction which does not
recognize such a joint tenancy may have such certificates registered in the
Employee's name as tenant in common with a member of the Employee's family,
without right of survivorship. Shares of Stock acquired by the
Participating Employee under the Plan may not be transferred or assigned
for a period of one year from the date upon which such shares are acquired
otherwise than by will or the laws of descent and distribution, or unless
otherwise specified by the Committee.
10. Effective Date of the Plan
The Plan shall become effective upon its approval by the affirmative vote
of the holders of a majority of the outstanding shares of Stock present, or
represented and entitled to vote, at the 1996 Annual Meeting of
Stockholders of the Company.
11. Amendment and Termination
Subject to the provisions of Section 4(b) above, the Plan shall terminate
coincident with the completion of any Offering under which the limitation
on the total number of shares in Section 4(a) above has been reached. The
Board may at any time terminate the Plan, or make such amendment of the
Plan as it may deem advisable.
12. General Provisions
(a) Neither the adoption of the Plan nor any aspect of its operation or
administration, including any document delivered pursuant to or
describing the Plan, shall limit or restrict in any way the right of
the Company to terminate the employment of any Employee at any time
with or without cause or assigning a reason therefor, or shall be
construed to impose upon the Company any liability not expressly and
specifically assumed under the Plan.
(b) By electing to participate in the Plan, each Participating Employee
and each person claiming under or through any Participating Employee,
shall be conclusively deemed to have indicated his acceptance and
ratification of, and consent to, the terms of the Plan and any action
or decision taken or made or to be taken or made under the Plan by the
Company or its representatives.
(c) The place of administration of the Plan shall be conclusively deemed
to be within the State of New York. Except to the extent preempted by
federal law, the validity, construction, interpretation and
administration of the Plan, and of any determinations or decisions
made thereunder, and the rights of any and all persons having or
claiming to have any interest therein or thereunder, shall be governed
by, and determined exclusively and solely in accordance with, the laws
of the State of New York.
(d) The right to purchase stock under the Plan is not transferable by a
Participating Employee other than by will or the laws of descent and
distribution.
HOENIG GROUP INC.
1997 FOREIGN EMPLOYEE STOCK PURCHASE PLAN
1. Purpose
The purpose of the 1997 Foreign Employee Stock Purchase Plan is to provide
eligible employees of Hoenig Group Inc. and its Subsidiaries who are not
employed in the United States with a convenient opportunity to purchase
Company stock, without the payment of commissions or fees.
The Company does not intend to have the Plan or stock purchases made under
the Plan qualify for any preferential or special tax treatment in any
particular foreign jurisdiction and the Plan shall be construed
accordingly.
2. Definitions
The following terms, when used in the Plan, shall have the following
meanings:
(a) "Base Compensation" -- means the total compensation received by an
Employee during an Offering period, calculated in a manner prescribed
by the Committee from time to time, but excluding any bonus, incentive
or other similar extraordinary remuneration received.
(b) "Board" -- means the Board of Directors of the Company.
(c) "Commencement Date" -- means the date upon which an Offering shall
commence, as determined pursuant to the Plan and specified in each
Offering. In the event that the Commencement Date is a Saturday,
Sunday or legal holiday, it shall be deemed to occur on the first
business day immediately thereafter.
(d) "Committee" -- means the Compensation and Stock Option Committee of
the Board.
(e) "Company" -- means Hoenig Group Inc. and its Subsidiaries.
(f) "Employee" -- means any person who is regularly and actually employed
outside of the United States by any Subsidiary that is not a
participating employer in the U.S. Stock Purchase Plan and whose
customary employment is: (i) 16 hours per week or more; and (ii) who
has been so employed for at least five (5) months.
(g) "Expiration Date" -- means the last day of any Offering period, as
determined pursuant to the Plan and as specified in each Offering. The
Expiration Date shall be the last day on which amounts may be
withdrawn from Employee Accounts (as defined in Section 7); if not
withdrawn on or prior to the Expiration Date, all such amounts shall
be applied to the purchase of Stock pursuant to the terms of the
Offering. In the event that the Expiration Date is a Saturday, Sunday
or legal holiday, it shall be deemed to occur on the first business
day immediately prior thereto.
(h) "Fair Market Value" -- means the value of a share of Stock on a given
date determined as an average of the high and low prices of the Stock
on the NASDAQ NMS Exchange on such date, or if no sales of the Stock
were made on said Exchange on that date, the average of the high and
low prices of the Stock on the first day immediately prior thereto on
which sales were made on said Exchange.
(i) "Offering" -- means any offering made in accordance with the terms and
conditions of the Plan permitting Participating Employees to purchase
Stock under the Plan.
(j) "Participating Employee" -- means an Employee of the Company who
elects to participate in the Plan.
(k) "Plan" -- means this Hoenig Group Inc. 1997 Foreign Employee Stock
Purchase Plan.
(l) "Stock" -- means the common stock of the Company.
(m) "Subsidiary" -- means any corporation, a majority of the voting stock
of which is owned by the Company or a Subsidiary of the Company or is
otherwise designated as a Subsidiary by the Committee.
(n) "U.S. Stock Purchase Plan" -- means the Employee Stock Purchase Plan
adopted by the Company in 1996 which is intended to qualify as an
"Employee Stock Purchase Plan" under Section 423 of the U.S. Internal
Revenue Code of 1986, as amended.
3. Administration
The Plan shall be administered by the Committee whose actions and
determinations on matters related to the Plan shall be conclusive. Subject
to the express provisions of the Plan, the powers of the Committee shall
include having the authority, in its discretion, to:
(a) Define, prescribe, amend and rescind rules, regulations, procedures,
terms and conditions relating to the Plan;
(b) Appoint such agents as it shall deem appropriate for the proper
administration of the Plan;
(c) Establish the Commencement and Expiration Date of any Offering and the
duration of such Offering period;
(d) Limit eligibility of Employees based on the country(ies) where
employed where necessary or desirable to comply with the applicable
laws and regulations of that country; and
(e) Make any other determinations necessary or advisable for administering
the Plan, including, but not limited to, interpreting the Plan,
correcting defects, reconciling inconsistencies and resolving
ambiguities.
4. Stock Subject to the Plan
(a) The maximum number of shares of Stock which may be sold under the Plan
shall not exceed the difference between 500,000 shares and any amounts
issued under the U.S. Stock Purchase Plan.
(b) If the number of shares of Stock that Participating Employees become
entitled to purchase is greater than the shares of Stock offered or
remaining available in a particular Offering, the available shares of
Stock shall be allocated by the Committee among such Participating
Employees and employees participating in the U.S. Stock Purchase Plan
in such manner as it deems fair and equitable.
(c) In the event of a recapitalization, merger, consolidation, stock
dividend or split, combination or exchange of shares or any other
change in corporate structure or capitalization affecting the Stock,
the Committee may make such equitable adjustments in the Plan and the
then outstanding Offerings as it deems necessary and appropriate
including, but not limited to, changing the number of shares of Stock
reserved under the Plan, and the price of the current Offering.
5. Eligibility
(a) All Employees will be eligible to participate in the Plan in
accordance with such rules as may be prescribed by the Committee from
time to time.
(b) No Employee may be granted the right to purchase Stock under the Plan
if such Employee, immediately after the right is granted, owns 1% or
more of the total combined voting power or value of the Stock of the
Company or any of its Subsidiaries. For purposes of the preceding
sentence, the rules of Section 425(d) of the U.S. Internal Revenue
Code of 1986, as amended, shall apply in determining the Stock
ownership of an Employee, and Stock which the Employee may have the
right to purchase (including outstanding options on Company Stock
owned by the Employee) shall be treated as Stock owned by the
Employee.
6. Offering, Participation
(a) Unless otherwise specified by the Committee, there shall be two
Offerings under the Plan during each calendar year. The respective
Commencement Dates and Expiration Dates of each Offering shall be (i)
January 2 and June 29 and (ii) July 1 and December 30, unless
otherwise specified by the Committee prior to the Commencement Date of
any Offering.
(b) An Employee may elect to participate in such Offering at such time or
times as determined by the Committee by:
(i) authorizing a payroll deduction for such purpose, with the
approval of the Commissioner for Labour in Hong Kong in the
case of Employees employed in Hong Kong;
(ii) tendering a check made payable to the Company in an amount
sufficient to purchase at least the minimum number of
shares required pursuant to Section 8; or
(iii) a combination of subsections (i) and (ii) above, in an
amount sufficient to purchase at least the minimum number
of shares required pursuant to Section 8.
(c) The Committee may at any time suspend an Offering if required by law
or by the best interests of the Company as determined by the Committee
in its sole discretion. The Company's obligation to sell and deliver
Stock under the Plan is subject to the approval of any governmental or
regulatory authority required in connection with the authorization,
issuance or sale of such Stock.
7. Employee Contributions
(a) The Company will maintain an account for each Participating Employee
(the "Account") to hold contributions designated for the purchase of
Stock. Interest shall be credited to such Account at such rate as the
Committee may from time to time determine.
(b) Subject to the rules, procedures and forms adopted by the Committee, a
Participating Employee may, at any time up to one day prior to the
Expiration Date of an Offering, increase, decrease or suspend his or
her payroll deduction, or may withdraw the balance of his or her
Account and thereby withdraw from participation in the Offering.
(c) Any balance remaining in any Participating Employee's Account at the
end of an Offering period will be repaid to such employee.
(d) In the event of a Participating Employee's retirement, death or
termination of employment, his or her participation in any Offering
under the Plan shall cease, no further amounts shall be deducted
pursuant to the Plan, and the balance in the Participating Employee's
Account shall be paid to the Employee, or in the event of the
Employee's death, to the Employee's beneficiary.
8. Purchase, Limitation
(a) Subject to the provisions of Section 8(d) below, each Participating
Employee will be granted the right to purchase, upon the Commencement
Date of an Offering, as many full shares of Stock as the amount in
such Employee's Account (determined on the Expiration Date) can
purchase (the minimum number of shares which may be purchased is 100).
Only existing Stock, including but not limited to Treasury Stock,
which has previously been issued to (or otherwise distributed to and
acquired by) a person other than the Company or any of its
Subsidiaries or other affiliates (or any other person in its capacity
as agent or trustee for any of them) will be sold to Employees in Hong
Kong under this Plan.
(b) The Account of each Participating Employee shall be totaled as of the
Expiration Date. Subject to the provisions of Section 7(b) above, if
the Account contains sufficient funds to purchase 100 or more shares
of Stock as of that date, the Participating Employee shall be deemed
to have purchased as many full shares of Stock as possible at the
price determined under Section 8(c) below. The Participating
Employee's Account will be charged, on that date, for the amount of
the purchase, at which time, the Employee shall be deemed to have
acquired the shares of Stock. As soon as practicable after such date,
the Participating Employee shall receive a stock certificate
representing the amount of full shares acquired (the value of any
partial share to be returned to such Employee by check).
(c) On or before the Commencement Date of each Offering, the Committee
shall determine the purchase price of the shares of Stock to be sold
under the Offering or the formula for determining such price;
provided, however, that no such price may be less than the lesser of:
(i) an amount equal to 85 percent of the Fair Market Value of
the Stock on the Commencement Date of the Offering; or
(ii) an amount equal to 85 percent of the Fair Market Value of
the Stock on the Expiration Date.
(d) In any calendar year, the Fair Market Value (determined as of the
Commencement Date of such year) of the shares of Stock a Participating
Employee has the right to purchase under the Plan may not exceed
US$25,000 when added to the Fair Market Value of all other shares
which such Employee may have the right to purchase under this Plan,
the U.S. Stock Purchase Plan or other employee stock purchase plans of
the Company.
(e) The Participating Employee shall have none of the rights or privileges
of a stockholder of the Company with respect to shares of Stock
purchased under the Plan (including without limitation rights to vote
and receive dividends) until the date on which the shares of Stock are
deemed to be acquired pursuant to Section 8(b) above.
(f) (i) Notwithstanding anything in the Plan to the contrary, in the event
of a "change-in-control" of the Company (as defined below), if the
Committee determines that such change-in-control could prevent
Participating Employees from obtaining the benefits provided under the
Plan, the Plan may be terminated in any manner deemed by the Committee
to provide equitable treatment to the Participating Employees.
(ii) For purposes of this Plan, a "change-in-control" of the
Company shall have occurred:
(A) on the date of the acquisition by any "person"
(within the meaning of Sections 13(d)(3) or 14(d)(2)
of the Exchange Act), excluding the Company or any
of its Subsidiaries, of beneficial ownership (within
the meaning of Rule 13d-3 under the Exchange Act) of
50% or more of either the then outstanding shares of
Stock, or the then outstanding voting securities
entitled to vote generally in the election of
directors;
(B) on the date the individuals who constitute the Board
as of the effective date of the U.S. Stock Purchase
Plan ("Incumbent Board") cease for any reason to
constitute at least a majority of the Board,
provided that any person becoming a director
subsequent to the date of this Plan whose election,
or nomination for election by the Company's
stockholders, was approved by a vote of at least a
majority of the directors then comprising the
Incumbent Board shall be, for purposes of this Plan,
considered as though such person were a member of
the Incumbent Board; or
(C) on the date of the occurrence of a transaction for
the acquisition of the Company, through the purchase
of assets, merger, or otherwise, by a person (as
defined in Section (f)(ii)(A) of this Section 8),
other than the Company or any of its Subsidiaries,
that required stockholder approval.
Notwithstanding the foregoing, for the purposes of
subsection (A) only, the definition of "person"
shall not include any beneficial holder of more than
5% of the Stock as of December 31, 1995, or any
person, trust or entity which is a successor by will
or by the laws of descent and distribution to any
such holder or any combination of such holders or
group of such holders (including, without
limitation, any such person or persons acting as a
partnership, limited partnership, syndicate or other
group whether formally organized or not).
(g) If on the purchase of shares of Stock by the Participating Employee in
accordance with Section 8(b) (above) the Company either would be
required to deduct UK income tax or becomes liable for UK national
insurance contributions, then the Company shall have the power to
charge the Account of that Participating Employee with the amount of
UK income tax to be deducted and/or any UK national insurance
contributions of the Participating Employee which the Company is
liable to pay. Where the Company decides to exercise this power, the
number of shares of Stock that could otherwise be purchased with the
Participating Employee's account shall be reduced to the extent that
there remains a balance in the Account sufficient to satisfy such UK
income tax and any UK national insurance contribution liability.
9. Share Restrictions
Certificates of Stock purchased under the Plan may be registered only in
the name of the Participating Employee, or, if such Employee so indicates
on an appropriate form provided by the Company, in his or her name jointly
with a member of his or her family, with right of survivorship. A
Participating Employee who is a resident of a jurisdiction which does not
recognize such a joint tenancy may have such certificates registered in the
Employee's name as tenant in common with a member of the Employee's family,
without right of survivorship. Shares of Stock acquired by the
Participating Employee under the Plan may not be transferred or assigned
for a period of one year from the date upon which such shares are acquired
other than by will or the laws of descent and distribution, or unless
otherwise specified by the Committee.
10. Effective Date of the Plan
The Plan shall become effective upon its approval by the affirmative vote
of a majority of the Board.
11. Amendment and Termination
Subject to the provisions of Section 4(b) above, the Plan shall terminate
coincident with the completion of any Offering under which the limitation
on the total number of shares in Section 4(a) above has been reached. The
Board may at any time terminate the Plan, or make such amendment of the
Plan as it may deem advisable.
12. General Provisions
(a) Neither the adoption of the Plan nor any aspect of its operation or
administration, including any document delivered pursuant to or
describing the Plan, shall limit or restrict in any way the right of
the Company to terminate the employment of any Employee at any time
with or without cause or assigning a reason therefor, or shall be
construed to impose upon the Company any liability not expressly and
specifically assumed under the Plan.
(b) By electing to participate in the Plan, each Participating Employee
and each person claiming under or through any Participating Employee,
shall be conclusively deemed to have indicated his acceptance and
ratification of, and consent to, the terms of the Plan and any action
or decision taken or made or to be taken or made under the Plan by the
Company or its representatives.
(c) The place of administration of the Plan shall be conclusively deemed
to be within the State of New York. Except to the extent preempted by
federal law, the validity, construction, interpretation and
administration of the Plan, and of any determinations or decisions
made thereunder, and the rights of any and all persons having or
claiming to have any interest therein or thereunder, shall be governed
by, and determined exclusively and solely in accordance with, the laws
of the State of New York.
(d) The right to purchase stock under the Plan is not transferable by a
Participating Employee other than by will or the laws of descent and
distribution.
