Registration No._____________
Securities and Exchange Commission
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THE DEWOLFE COMPANIES, INC.
(Exact name of issuer as specified
in its charter)
MASSACHUSETTS 04-2895334
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
80 Hayden Avenue, Lexington, Massachusetts 02173
(Address of principal executive offices)
THE DEWOLFE COMPANIES, INC.
1998 STOCK OPTION PLAN
(Full title of the plan)
Richard B. DeWolfe
The DeWolfe Companies, Inc.
80 Hayden Avenue
Lexington, Massachusetts 02173
(781) 863-5858
Copies to:
Patrick J. Kinney, Jr., Esq.
Lynch, Brewer, Hoffman & Sands, LLP
101 Federal Street
Boston, Massachusetts 02110
(617) 951-0800
(Name, address and telephone number of agent for service)
Approximate date of Commencement of Sale pursuant to the plan: Upon
issuance and exercise of options.
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
securities Amount maximum maximum Amount of
of to be to be offering price aggregate registration
registered registered(1) per share(2) offering price fee
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Common Stock,
$.01 par value 400,000 $6.06 $2,424,000 $715.08
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(1) The registration statement also includes an indeterminable number of
additional shares that may become issuable as a result of terminated,
expired or surrendered options or pursuant to the antidilution provisions
of the Plan.
(2) Computed on the basis of the closing sales price of securities of the same
class, as reported on the American Stock Exchange on February 5, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Certain important information is set forth in certain reports or statements
filed by The DeWolfe Companies, Inc. (the "Company") with the Securities and
Exchange Commission. The reports or documents listed below are incorporated
herein by reference:
(a) The DeWolfe Companies, Inc.'s (the "Company") latest Annual Report
on Form 10-K for the fiscal year ended December 31, 1996 (which incorporates by
reference certain portions of the Company's Proxy Statement for the Company's
1997 Annual Meeting of Stockholders held on May 13, 1997);
(b) The Company's latest Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1997;
(c) The Company's latest Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1997;
(d) The Company's latest Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1997;
(e) All other reports filed by the Company pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 for periods since September 30,
1997; and
(f) The information set forth under "Description of Registrant's
Securities to be Registered" in the Company's Registration Statement on Form 8-A
filed on April 15, 1995 (File No. 1-11278) (which incorporates by reference the
description of the Company's securities contained in the Company's Registration
Statement on Form S-18 (File No. 33-48113-B).
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference and to be a part hereof from the date of filing
such reports and documents.
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Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. EXPERTS
The consolidated financial statements of The DeWolfe Companies, Inc.
appearing in The DeWolfe Companies, Inc. Annual Report (Form 10-K) for the year
ended December 31, 1996, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements are incorporated
herein in reliance upon the report of Ernst & Young LLP given upon the authority
of such firm as experts in accounting and auditing.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 67 of the Massachusetts Business Corporation Law and Section 9 of
the By-Laws of the Company provide for indemnification of directors and officers
under certain circumstances. In addition, Article 6 of the Company's Restated
Articles of Organization provides for the limitation of liability of directors
under certain circumstances.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
Item 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
Item 9. UNDERTAKINGS.
A. The Company hereby undertakes:
(1) To file during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the registration statement;
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(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 in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Company pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in the 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 Plan.
B. The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (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 the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities under the Securities Act of
1933 may be permitted to directors, officers, and controlling persons of the
Company pursuant to the foregoing provisions or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in City of Lexington, Massachusetts, on this 10th day of February,
1998.
THE DEWOLFE COMPANIES, INC.
By /s/ Richard B. DeWolfe
---------------------------------
Richard B. DeWolfe, President
(Principal Executive Officer)
By /s/ James A. Marcotte
---------------------------------
James A. Marcotte
Senior Vice President
(Principal Financial Officer)
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POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. By so signing, each of the undersigned in
his capacity as a director or officer, or both, as the case may be, does hereby
appoint Richard B. DeWolfe, Edward S. Brewer, Jr. and Patrick J. Kinney, Jr., or
any one of them acting singly, his lawful attorney to execute in his name, place
and stead, any and all amendments to said Registration Statement and all
instruments necessary or incidental in connection therewith, and to file the
same with the Securities and Exchange Commission. Said attorney shall have the
full powers and authority to do and perform in the name and on behalf of each of
the undersigned, in any and all capacities, every act whatsoever requisite or
necessary to be done in the premises as fully, and to all intents and purposes,
as each of the undersigned might do in person, hereby ratifying, and approving
the acts of such attorney.
Title Date
/s/ Richard B. DeWolfe Chairman of the Board February 10, 1998
- ---------------------------- President, Chief Executive
Richard B. DeWolfe Officer, and Treasurer
/s/ James A. Marcotte Senior Vice President, February 10, 1998
- ---------------------------- Chief Financial Officer,
James A. Marcotte and Chief Accounting Officer
/s/ A. Clinton Allen Director February 10, 1998
- ----------------------------
A. Clinton Allen
/s/ R. Robert Popeo Director February 10, 1998
- ----------------------------
R. Robert Popeo
/s/ Paul R. Del Rossi Director February 10, 1998
- ----------------------------
Paul R. Del Rossi
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EXHIBIT INDEX
Exhibit Sequentially
Number Description Numbered Page
- ------ ----------- -------------
4.1 Restated Articles of Organization of the Company
[incorporated herein by reference to the Company's
Registration Statement on Form S-18 (File No.
33-48113-B)] N/A
4.2 By-laws of the Company [incorporated by reference
to the Company's Registration Statement on
Form S-18 (File No. 33-48113-B)] N/A
4.3 Specimen Stock Certificate [incorporated by reference
to the Company's Registration Statement on
Form S-18 (File No. 33-48113-B)] N/A
4.4 The Company's 1998 Stock
Option Plan 9
5 Opinion of Lynch, Brewer, Hoffman & Sands, LLP 22
23.1 Consent of Lynch, Brewer, Hoffman & Sands, LLP N/A
(included in Exhibit 5)
23.2 Consent of Ernst & Young LLP 23
24 Power of Attorney (included in Part II) 7
99 Copy of Section 67 of the Massachusetts Business
Corporation Law with respect to indemnification of
officers and directors (incorporated by reference to the
Company's Registration Statement on Form S-18
(File No. 33-48113-B)) N/A
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Exhibit 4.4
THE DEWOLFE COMPANIES, INC.
1998 STOCK OPTION PLAN
Article 1.
Establishment, Objectives, and Duration
1.1 Establishment of the Plan. THE DEWOLFE COMPANIES, INC., a Massachusetts
corporation (hereinafter referred to as the "Company"), hereby establishes an
incentive compensation plan to be known as The DeWolfe Companies, Inc. 1998
Stock Option Plan (hereinafter referred to as the "Plan"), as set forth in this
document.
Subject to the provisions of Article 12 hereof, the Plan shall become
effective as of February 10, 1998 (the "Effective Date") and shall remain in
effect as provided in Section 1.4 hereof.
1.2 Prior Plans Superseded. The Plan is intended to and hereby does replace
and supersede the Company's 1992 Stock Option Plan, as amended (the "1992
Plan"), and the Company's 1992 Non-Employee Director Stock Option Plan, as
amended (the "Director Plan"), and as of the Effective Date, the 1992 Plan is
hereby terminated in accordance with the provisions of Section 13 of the 1992
Plan and the 1992 Director Plan is hereby discontinued in accordance with the
provisions of Section 10 of the Director Plan, provided, however, that all
outstanding options under the 1992 Plan and the 1992 Director Plan shall remain
in full force and effect in accordance with the 1992 Plan and the 1992 Director
Plan, as the case may be, as in effect immediately prior to the Effective Date.
1.3 Purpose of the Plan. The purpose of this Plan is to benefit the Company
and its subsidiaries by enabling the Company to offer to certain present and
future Employees, Directors, and consultants (including sales associates) stock
based incentives in the Company, thereby giving them a stake in the growth and
prosperity of the Company and encouraging the continuance of their services with
the Company or subsidiaries.
1.4 Duration of the Plan. The Plan shall commence on the Effective Date and
shall remain in effect, subject to the right of the Board of Directors to amend
or terminate the Plan at any time pursuant to Article 9 hereof, until all Shares
subject to it shall have been purchased or acquired according to the Plan's
provisions.
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Article 2.
Definitions
Whenever used in the Plan, the following terms shall have the meanings set
forth below, and when the meaning is intended, the initial letter of the word
shall be capitalized:
"Beneficial Owner" or "Beneficial Ownership" shall have the meaning
ascribed to such term in Rule 13d-3 of the General Rules and Regulations under
the Exchange Act.
"Board" or "Board of Directors" means the Board of Directors of the
Company.
"Change of Control" of the Company shall mean:
(a) The Company is merged or consolidated or reorganized into or with
another corporation or other legal person (an "Acquiror") and as a result of
such merger, consolidation or reorganization less than 75% of the outstanding
voting securities or other capital interests of the surviving, resulting or
acquiring corporation or other legal person are owned in the aggregate by the
stockholders of the Company, directly or indirectly, immediately prior to such
merger, consolidation or reorganization, other than by the Acquiror or any
corporation or other legal person controlling, controlled by or under common
control with the Acquiror;
(b) The Company sells all or substantially all of its business and/or
assets to an Acquiror, of which less than 75% of the outstanding voting
securities or other capital interests are owned in the aggregate by the
stockholders of the Company, directly or indirectly, immediately prior to such
sale, other than by any corporation or other legal person controlling,
controlled by or under common control with the Acquiror; or
(c) During any period of two consecutive years, individuals who at the
beginning of any such period constitute the directors of the Company cease for
any reason to constitute at least a majority thereof unless the election, or the
nomination for election by the Company's stockholders, of each new director of
the Company was approved by a vote of at least two-thirds of such directors of
the Company then still in office who were directors of the Company at the
beginning of any such period.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation thereto.
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"Committee" means the Committee as specified in Article 3 herein appointed
by the Board to administer the Plan with respect to grants of Options.
"Common Stock" means the common stock of the Company.
"Company" means The DeWolfe Companies, Inc. a Massachusetts corporation, as
well as any successor to such entity as provided in Article 11 herein.
"Director" means any individual who is a member of the Board of Directors
of the Company.
"Disability" shall have the meaning ascribed to such term in the
Participant's governing long-term disability plan. If no long term disability
plan is in place with respect to a Participant, then with respect to that
Participant, Disability shall mean: for the first 24 months of disability, that
the Participant is unable to perform his or her job; thereafter, that the
Participant is unable to perform any and every duty of any gainful occupation
for which the Participant is reasonably suited by training, education or
experience.
"Effective Date" shall have the meaning ascribed to such term in Section
1.1 hereof.
"Employee" means any employee of the Company or any Subsidiary.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor act thereto.
"Fair Market Value" shall (i) for purposes of setting any Option Price,
unless otherwise required by any applicable provision of the Code or any
regulations issued thereunder, or unless the Committee otherwise determines,
mean as of the date of grant of the Option, the average of the high and low
trading prices of the Common Stock on the American Stock Exchange (as reported
in The Wall Street Journal) on the trading date immediately preceding such date
of grant; and (ii) for purposes of the valuation of any Shares delivered in
payment of the Option Price upon the exercise of an Option, for purposes of the
valuation of any Shares withheld to pay taxes due in connection with the
exercise of an Option, mean the average of the high and low sales prices of the
Common Stock on the American Stock Exchange (as reported in The Wall Street
Journal) on the date of exercise (or if the date of exercise is not a trading
day, on the trading day next preceding the date of exercise).
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"Incentive Stock Option" or "ISO" means an option to purchase Shares
granted under Article 6 herein and which is designated as an Incentive Stock
Option and which is intended to meet the requirements of Code Section 422.
"Insider" shall mean an individual who is, on the relevant date, an
officer, director or more than ten percent (10%) beneficial owner of any class
of the Company's equity securities that is registered pursuant to Section 12 of
the Exchange Act, all as defined under Section 16 of the Exchange Act and the
regulations promulgated thereunder.
"Named Executive Officer" means a Participant who is one of the group of
covered employees as defined in the regulations promulgated under Code Section
162(m), or any successor statute.
"Nonqualified Stock Option" or "NQSO" means an option to purchase Shares
granted under Article 6 herein and which is not intended to meet the
requirements of Code Section 422.
"Option" means an Incentive Stock Option or a Nonqualified Stock Option, as
described in Article 6 herein.
"Option Agreement" means a writing provided by the Company to each
Participant setting forth the terms and provisions applicable to Options granted
under this Plan. The Participant's acceptance of the terms of the Option
Agreement shall be evidenced by the continued rendering by the Participant of
services on behalf of the Company or its subsidiaries without written objection
before any exercise of the Option. If the Participant objects in writing, the
grant of the Option shall be revoked.
"Option Price" means the price at which a Share may be purchased by a
Participant pursuant to an Option.
"Participant" means an Employee, a Director or a consultant (including a
sales associate) who has outstanding an Option granted under the Plan.
"Performance-Based Exception" means the exception for
performance-based compensation from the tax deductibility limitations of Code
Section 162(m).
"Retirement" means the Participant's termination of employment with the
Company or its Subsidiaries on or after the date on which the Participant
becomes eligible to receive normal or early retirement benefits under The
DeWolfe Companies, Inc. 401(k) Retirement Plan, or such successor plan as may be
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implemented in the future. If the Participant is not a participant in the 401(k)
Retirement Plan, then retirement may occur on or after the date the Participant
has achieved the minimum age or combination of age and service with the Company
and its Subsidiaries that would be required to receive an immediate annuity from
the 401(k) Retirement Plan if he or she were a participant. Notwithstanding the
foregoing, the Committee may, in its sole discretion, determine that a
Participant has met the criteria for a Retirement termination from the Company.
"Shares" means shares of Common Stock of the Company.
"Subsidiary" means any corporation, partnership, joint venture, affiliate,
or other entity in which the Company is the direct or indirect beneficial owner
of not less than 20% of all issued and outstanding equity interests.
Article 3.
Administration
3.1 The Committee. The Plan shall be administered by the Stock Option
Committee of the Board, or by any other Committee appointed by the Board. If and
to the extent that no Committee exists that has the authority to administer the
Plan, the functions of the Committee shall be exercised by the full Board.
Notwithstanding the foregoing, no option shall be granted to any member of the
Committee unless such grant is approved by the unanimous vote of the Board
(which may be by written consent), and with respect to any such Options to be
granted to a member of the Committee any reference to the Committee in this Plan
shall instead refer to the full Board.
3.2 Authority of the Committee. Except as limited by law or by the
Certificate of Incorporation or Bylaws of the Company, and subject to the
provisions herein, the Committee shall have full power to select Employees,
Directors and consultants (including sales associates) who shall participate in
the Plan; determine the sizes and types of Options; determine the terms and
conditions of Options in a manner consistent with the Plan; construe and
interpret the Plan and any agreement or instrument entered into under the Plan;
establish, amend, or waive rules and regulations for the Plan's administration;
and (subject to the provisions of Article 9 herein) amend the terms and
conditions of any outstanding Option to the extent such terms and conditions are
within the discretion of the Committee as provided in the Plan. Further, the
Committee shall make all other determinations which may be necessary or
advisable for the administration of the Plan. As permitted by law, the Committee
may delegate the authority granted to it herein.
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3.3 Decisions Binding. All determinations and decisions made by the
Committee pursuant to the provisions of the Plan and all related orders and
resolutions of the Board shall be final, conclusive and binding on all persons,
including the Company, its stockholders, Employees, consultants (including sales
associates) Participants, and their estates and beneficiaries.
Article 4.
Shares Subject to the Plan and Maximum Number of Shares Subject to Options
4.1 Shares Available for Options. The aggregate number of Shares which may
be issued or used for reference purposes under this Plan or with respect to
which Options may be granted shall not exceed 400,000 Shares (subject to
adjustment as provided in Section 4.3), which may be either authorized and
unissued Shares or Shares held in or acquired for the treasury of the Company.
Upon:
(a) a cancellation, termination, expiration, forfeiture, or lapse for
any reason of any Option; or
(b) payment of an Option Price and/or payment of any taxes arising
upon exercise of an Option with previously acquired Shares or by withholding
Shares which otherwise would be acquired on exercise,
then the number of Shares underlying any such Option which were not issued as a
result of any of the foregoing actions shall again be available for the purposes
of Options thereafter granted under the Plan.
4.2 Individual Participant Limitations. Unless and until the Committee
determines that an Option to a Named Executive Officer shall not be designed to
comply with the Performance-Based Exception, and subject to adjustment as
provided in Section 4.3 herein, the maximum aggregate number of Options that may
be granted in any one fiscal year to a Participant shall be 100,000.
4.3 Adjustments in Authorized Shares. In the event of any change in
corporate capitalization, such as a stock split, or a corporate transaction,
such as any merger, consolidation, separation, including a spin-off, or other
distribution of stock or property of the Company, any reorganization (whether or
not such reorganization comes within the definition of such term in Code Section
368) or any partial or complete liquidation of the Company, such adjustment
shall be made in the number and class of Shares available for Options, the
number and class of and/or price of Shares subject to outstanding Options
granted under the Plan and the number of Shares set forth in Sections 4.1 and
4.2, as may be determined to
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be appropriate and equitable by the Committee, in its sole discretion, to
prevent dilution or enlargement of rights; provided, however, that the number
subject to any Option shall always be a whole number.
Article 5.
Eligibility and Participation
5.1 Eligibility. Persons eligible to participate in this Plan include all
officers and other employees of the Company and its Subsidiaries, Directors and
consultants (including sales associates) to the Company and its Subsidiaries, as
determined by the Committee.
5.2 Actual Participation. Subject to the provisions of the Plan, the
Committee may, from time to time, select from all eligible Employees, Directors
and consultants (including sales associates), those to whom Options shall be
granted and shall determine the terms, conditions and amount of each Option.
Article 6.
Granting of Stock Options
6.1 Grant of Options. Subject to the terms and provisions of the Plan,
Options may be granted to one or more Participants in such number, and upon such
terms, and at any time and from time to time as shall be determined by the
Committee. The Committee may grant Nonqualified Stock Options or Incentive Stock
Options. The Committee shall have complete discretion in determining the number
of Options granted to each Participant (subject to Article 4 herein).
6.2 Option Agreement. Each Option grant shall be evidenced by an Option
oAgreement that shall specify the Option Price, the duration of the Option, the
number of Shares to which the Option pertains, and such other provisions as the
Committee shall determine. The Option Agreement with respect to the Option also
shall specify whether the Option is intended to be an ISO within the meaning of
Code Section 422, or an NQSO whose grant is intended not to fall under the
provisions of Code Section 422.
6.3 Option Price. The Committee shall designate the Option Price for each
grant of an Option under this Plan which Option Price shall be at least equal to
one hundred percent (100%) of the Fair Market Value of a Share on the date the
Option is granted, and which Option Price may not be subsequently changed by the
Committee except pursuant to Section 4.3 hereof or to the extent provided in the
Option Agreement.
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6.4 Duration of Options. Each Option granted to a Participant shall expire
at such time as the Committee shall determine at the time of grant; provided,
however, that unless otherwise designated by the Committee at the time of
grant, no Option shall be exercisable later than the tenth (10th) anniversary
date of its grant.
6.5 Exercise of Options. Options granted under this Article 6 shall be
exercisable at such times and be subject to such restrictions and conditions as
the Committee shall in each instance approve, which need not be the same for
each grant or for each Participant.
6.6 Payment. Options granted under this Article 6 shall be exercised by the
delivery of a written notice of exercise to the Company, setting forth the
number of Shares with respect to which the Option is to be exercised,
accompanied by full payment for the Shares. The Option Price upon exercise of
any Option shall be payable to the Company in full either:
(a) in cash or its equivalent,
(b) by tendering previously acquired Shares having an aggregate Fair
Market Value at the time of exercise equal to the total Option Price, or
(c) by a combination of (a) and (b).
The Committee also may allow cashless exercises as permitted under Federal
Reserve Board's Regulation T, subject to applicable securities law restrictions,
or by any other means which the Committee determines to be consistent with the
Plan's purpose and applicable law. As soon as practicable after receipt of a
written notification of exercise and full payment, the Company shall deliver to
the Participant, in the Participant's name, Share certificates in an appropriate
amount based upon the number of Shares purchased under the Option(s).
In connection with the exercise of options granted under the Plan, the
Company may make loans to the Participants as the Committee, in its discretion,
may determine. Such loans shall be subject to the following terms and conditions
and such other terms and conditions as the Committee shall determine not
inconsistent with the Plan. Such loans shall bear interest at such rates as the
Committee shall determine from time to time, which rates may be below then
current market rates or may be made without interest. In no event may any such
loan exceed the Fair Market Value, at the date of exercise, of the shares
covered by the Option, or portion thereof, exercised by the Optionee. No loan
shall have an initial term exceeding two years, but any such loan may be
renewable at the discretion of the Committee. When a loan shall have been made,
Shares having a
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fair market value at least equal to 150 percent of the principal amount of the
loan shall be pledged by the Participant to the Company as security for payment
of the unpaid balance of the loan.
6.7 Restrictions on Share Transferability. The Committee may impose such
restrictions on any Shares acquired pursuant to the exercise of an Option
granted under this Article 6 as it may deem advisable, including, without
limitation, restrictions under applicable Federal securities laws, under the
requirements of any stock exchange or market upon which such Shares are then
listed and/or traded, and under any blue sky or state securities laws applicable
to such Shares.
6.8 Termination of Employment or Consulting Arrangement. Each Option
Agreement shall set forth the extent to which the Participant shall have the
right to exercise the Option following termination of the Participant's
employment, service on the Board of Directors or consulting arrangement with the
Company and/or its Subsidiaries. Such provisions shall be determined in the sole
discretion of the Committee, shall be included in the Option Agreement entered
into with each Participant, need not be uniform among all Options issued
pursuant to the Plan, and may reflect distinctions based on the reasons for
termination of employment, director relationship or consulting agreement,
including, but not limited to, termination of employment for cause or good
reason, or reasons relating to the breach or threatened breach of restrictive
covenants. Subject to Article 8, in the event that a Participant's Option
Agreement does not set forth such termination provisions, the following
termination provisions shall apply:
(a) In the event a Participant's employment, director relationship or
consulting arrangement with the Company and/or its Subsidiaries is
terminated for any reason other than death, Disability or Retirement, all
Options held by the Participant shall expire and all rights to purchase
Shares thereunder shall terminate immediately; provided, however, that
notwithstanding the foregoing, all Options to which the Participant has a
vested right immediately prior to such termination shall be exercisable for
the lesser of (i) 30 days following the date of termination or (ii) the
expiration date of the Option.
(b) In the event a Participant's employment, director relationship or
consulting arrangement with the Company and/or its Subsidiaries is
terminated due to death or Disability, all Options shall immediately become
fully vested on the date of termination.
(c) Subject to Article 8, in the event of termination of the
Participant's employment, director relationship or consulting arrangement
due to death or Disability, all Options in which the Participant has a
vested right upon
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termination shall be exercisable for a period of one (1) year following
such termination, or until the expiration date of the Option, whichever is
later.
(d) Subject to Article 8, in the event of termination of the
Participant's employment, director relationship or consulting arrangement
due to Retirement, all Options in which the Participant has a vested right
upon termination shall be exercisable until the date which is (i) three
years following the date of termination or (ii) the expiration date of the
Option, whichever is earlier.
6.9 Nontransferability of Options.
(a) Incentive Stock Options. No ISO granted under the Plan may be
sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and
distribution. Further, all ISOs granted to a Participant under the Plan
shall be exercisable during his or her lifetime only by such Participant.
(b) Nonqualified Stock Options. Except as otherwise provided in a
Participant's Option Agreement, no NQSO granted under this Article 6 may be
sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and
distribution. Further, except as otherwise provided in a Participant's
Option Agreement, all NQSOs granted to a Participant under this Article 6
shall be exercisable during his or her lifetime only by such Participant.
Article 7.
Rights of Employees, Directors and Consultants
7.1 Employment or Consulting Arrangement. Nothing in the Plan shall
interfere with or limit in any way the right of the Company to terminate any
Participant's employment or consulting arrangement at any time, nor confer upon
any Participant any right to continue in the employ of or consulting arrangement
with the Company or any Subsidiary, nor interfere with or limit in any way the
right of the Board to remove any Participant who is a Director from service on
the Board at any time in accordance with the provisions of the Company's By-laws
and applicable law.
For purposes of this Plan, temporary absence from employment because of
illness, vacation, approved leaves of absence, and transfers of employment among
the Company and its Subsidiaries, shall not be considered to terminate
employment or to interrupt continuous employment. Temporary cessation of the
provision of
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<PAGE>
consulting services because of illness, vacation or any other reason approved in
advance by the Company shall not be considered a termination of the consulting
arrangement or an interruption of the continuity thereof. Conversion of a
Participant's employment relationship to a consulting arrangement or from a
consulting arrangement to an employment relationship shall not result in
termination of previously granted Options.
7.2 Participation. No Employee, Director or consultant shall have the right
to be selected to receive an Option under this Plan, or, having been so
selected, to be selected to receive a future Option.
Article 8.
Change of Control
Upon the occurrence of a Change of Control, unless otherwise specifically
prohibited under applicable laws, or by the rules and regulations of any
governing governmental agencies or national securities exchanges, any and all
Options granted hereunder shall become immediately exercisable, and shall remain
exercisable throughout their entire term.
Article 9.
Amendment, Modification, and Termination
9.1 Amendment, Modification, and Termination. The Board may at any time and
from time to time, alter, amend, suspend or terminate the Plan in whole or in
part, subject to any requirement of stockholder approval imposed by applicable
law, rule or regulation.
9.2 Options Previously Granted. No termination, amendment, or modification
of the Plan shall adversely affect in any material way any Option previously
granted under the Plan, without the written consent of the Participant holding
such Option.
Article 10.
Withholding
10.1 Tax Withholding. The Company shall have the power and the right to
deduct or withhold, or require a Participant to remit to the Company, an amount
sufficient to satisfy Federal, state, and local taxes, domestic or foreign,
required by law or regulation to be withheld with respect to any taxable event
arising as a result of the Plan.
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<PAGE>
10.2 Share Withholding. With respect to withholding required upon the
exercise of Options, Participants may elect, subject to the approval of the
Committee, to satisfy the withholding requirement, in whole or in part, by
having the Company withhold Shares having a Fair Market Value on the date the
tax is to be determined equal to the minimum statutory total tax which would be
imposed on the transaction. All such elections shall be irrevocable, made in
writing, signed by the Participant, and shall be subject to any restrictions or
limitations that the Committee, in its sole discretion, deems appropriate.
Article 11.
Successors
All obligations of the Company under the Plan with respect to Options
granted hereunder shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect merger,
consolidation, purchase of all or substantially all of the business and/or
assets of the Company or otherwise.
Article 12.
Shareholder Ratification
This Plan was adopted by the Board of Directors on February 10, 1998,
subject to the ratification by the stockholders of the Company. If the Plan is
ratified by the affirmative vote of the holders of a majority of the outstanding
shares of Common Stock of the Company voting in person or by proxy at the 1998
Annual Stockholders' Meeting, it shall be deemed to have become effective on the
Effective Date of February 10, 1998. Options may be granted under the Plan prior
to ratification of the Plan by the stockholders of the Company and, in each such
case, the date of grant shall be determined without reference to the date of
ratification of the Plan by stockholders of the Company; provided, however that
if the Plan is not ratified by stockholders, all options granted hereunder shall
be canceled and void.
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Article 13.
Legal Construction
13.1 Gender and Number. Except where otherwise indicated by the context,
any masculine term used herein also shall include the feminine; the plural shall
include the singular and the singular shall include the plural.
13.2 Severability. In the event any provision of the Plan shall be held
illegal or invalid for any reason, the illegality or invalidity shall not
affoect the remaining parts of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.
13.3 Requirements of Law. The granting of Options and the issuance of
Shares under the Plan shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required.
13.4 Securities Law Compliance. With respect to Insiders, transactions
under this Plan are intended to comply with all applicable conditions of Rule
16b-3 or its successors under the Exchange Act. To the extent any provision of
the Plan or action by the Committee fails to so comply, it shall be deemed null
and void, to the extent permitted by law and deemed advisable by the Committee.
13.5 Governing Law. To the extent not preempted by Federal law, the Plan,
and all agreements hereunder, shall be construed in accordance with and governed
by the laws of the Commonwealth of Massachusetts.
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Exhibit 5
February 10, 1998
Securities and Exchange Commission
450 Fifth Street N.W.
Washington, D.C. 20549
RE: Registration of 400,000 shares of Common Stock of The DeWolfe
Companies, Inc. on SEC Form S-8 Registration Statement
-------------------------------------------------------------
Gentlemen:
Our opinion, as counsel for The DeWolfe Companies, Inc. (the "Company"),
has been solicited in connection with the registration under the Securities Act
of 1933 of 400,000 shares of Common Stock, $.01 par value ("Common Stock"), to
be issued by the Company pursuant to the Company's 1998 Stock Option Plan (the
"Option Plan") as more particularly set forth in the Registration Statement on
Form S-8 to be filed with the Securities and Exchange Commission on or about
February 10, 1998.
We have examined the Articles of Organization of the Company, the By-laws
and minute books of the Company, the Option Plan, and the pertinent statutes of
the Commonwealth of Massachusetts.
Based upon the foregoing, we are of the opinion that the shares of Common
Stock being offered by the Company pursuant to said Registration Statement will
be, when issued and paid for in accordance with the terms of the Option Plan,
legally issued, fully paid and non-assessable.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement.
Very truly yours,
LYNCH, BREWER,
HOFFMAN & SANDS, LLP
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to The DeWolfe Companies, Inc. 1998
Stock Option Plan and to the incorporation by reference therein of our report
dated February 21, 1997, with respect to the consolidated financial statements
and schedules of The DeWolfe Companies, Inc. included in its Annual Report (Form
10-K) for the year ended December 31, 1996, filed with the Securities and
Exchange Commission.
Ernst & Young LLP
Boston, Massachusetts
February 10, 1998
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