As filed with the Securities and Exchange Commission on August 31, 1998
Registration No. 33-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SUCCESSORIES, INC.
(Exact Name of Registrant as Specified in its Charter)
ILLINOIS 36-3760230
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
2520 DIEHL ROAD, AURORA, ILLINOIS 60504
(Address, including Zip Code, of Registrant's Principal Executive Offices)
SUCCESSORIES, INC. STOCK OPTION PLAN
(Full Title of the Plan)
TIMOTHY C. DILLON
SUCCESSORIES, INC.
2520 DIEHL ROAD
AURORA, ILLINOIS 60540
(630) 820-7200
(Name, Address, and Telephone Number of Agent for Service)
Copies to:
GUY E. SNYDER C. RICHARD FARMER
VEDDER, PRICE, KAUFMAN & KAMMHOLZ CARROLL, HARTIGAN, FARMER, CERNEY
222 NORTH LASALLE STREET & MCGILLEN, LTD.
SUITE 2600 30 NORTH LASALLE STREET, SUITE 1200
CHICAGO, ILLINOIS 60601 CHICAGO, ILLINOIS 60602
------------------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Share,
$.01 par value...................... 250,000 $3.125 $781,250 $231
=======================================================================================================================
</TABLE>
(1) Calculated pursuant to Rule 457.
<PAGE>
Successories, Inc.
------------------
This Registration Statement relates to the registration of 250,000
additional shares of common stock, $.01 par value (the "Common Stock"), of
Successories, Inc. (the "Company") to be issued pursuant to the Successories,
Inc. Stock Option Plan (the "Plan"). The Company previously registered 1,450,000
shares of Common Stock in connection with the Plan on its Registration
Statements on Form S-8 (Registration Nos. 33-77464, 33-81047 and 333-19313). The
contents of Registration Statement File Nos. 33-77464, 33-81047 and 333-19313
are hereby incorporated by reference.
EXHIBITS
--------
The following exhibits are attached as part of this Registration
Statement:
Exhibit
Number
- ------
4.1 Successories, Inc. Stock Option Plan, as amended
5.1 Opinion of Carroll, Hartigan, Farmer, Cerney & McGillen, Ltd.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
2
<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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Aurora, State of Illinois, on August 31, 1998.
SUCCESSORIES, INC.
By: /s/ Arnold M. Anderson
-----------------------------------------------
Arnold M. Anderson, Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Timothy C. Dillon and James M. Beltrame,
or any of them each with power to act without the other, as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all subsequent pre- and post-effective amendments and supplements to this
Registration Statement, and to file the same, or cause to be filed the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that any said attorney-in-fact and agent or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
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.
<TABLE>
<CAPTION>
NAME CAPACITY DATE
- ---- -------- ----
<S> <C> <C>
/s/ Arnold M. Anderson Chief Executive Officer, Chairman of the August 31, 1998
- ------------------------------------------------- Board and Director
Arnold M. Anderson
/s/ Seamas T. Coyle Director August 31, 1998
- -------------------------------------------------
Seamas T. Coyle
/s/ Timothy C. Dillon Senior Vice President, General Counsel, August 31, 1998
- ------------------------------------------------- Secretary and Director
Timothy C. Dillon
/s/ Steven D. Kuptsis Chief Financial Officer August 31, 1998
- -------------------------------------------------
Steven D. Kuptsis
(Principal Financial and Accounting Officer)
/s/ C. Joseph LaBonte Director August 31, 1998
- -------------------------------------------------
C. Joseph LaBonte
/s/ Steven B. Larrick Director August 31, 1998
- -------------------------------------------------
Steven B. Larrick
/s/ Michael H. McKee Senior Vice President, Creative August 31, 1998
- ------------------------------------------------- Department and Director
Michael H. McKee
3
<PAGE>
NAME CAPACITY DATE
- ---- -------- ----
/s/ Mervyn C. Phillips, Jr. Director August 31, 1998
- -------------------------------------------------
Mervyn C. Phillips, Jr.
/s/ Guy E. Snyder
- ------------------------------------------------- Director August 31, 1998
Guy E. Snyder
</TABLE>
4
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed by the undersigned thereunto
duly authorized in the City of Aurora, State of Illinois, on August 31, 1998.
SUCCESSORIES, INC. STOCK OPTION PLAN
By: /s/ Steven B. Larrick
----------------------------------------------------------
Steven B. Larrick
Member of the Board of Directors that administers
the Plan
By: /s/ Mervyn C. Phillips, Jr.
----------------------------------------------------------
Mervyn C. Phillips, Jr.
Member of the Board of Directors that administers
the Plan
5
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
4.1 Successories, Inc. Stock Option Plan
5.1 Opinion of Carroll, Hartigan, Farmer, Cerney & McGillen, Ltd.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
6
Exhibit 4.1
SUCCESSORIES, INC.
STOCK OPTION PLAN
(AMENDED AND RESTATED SEPTEMBER 27, 1994
AND AS AMENDED OCTOBER 12, 1995,
JULY 30, 1996 AND JULY 22, 1997)
The Company hereby establishes the Successories, Inc. Stock Option Plan
effective April 8, 1993, subject to the approval of the Plan by the holders of a
majority of the shares of the Stock present in person or by proxy and voting at
a duly called meeting of the shareholders of the Company within one year after
the Plan's adoption by the Board. Absent such approval, the Plan will terminate
retroactively, and all Options granted under the Plan will be null and void.
ARTICLE I.
PURPOSE
The primary purpose of the Plan is to provide a means by which non-employee
directors and key employees of the Company and its Subsidiaries can acquire and
maintain stock ownership, thereby strengthening their commitment to the success
of the Company and its Subsidiaries and their desire to remain employed by the
Company and its Subsidiaries. The Plan also is intended to attract, employ and
retain non-employee directors and key employees and to provide such non employee
directors and employees with additional incentive and reward opportunities
designed to encourage them to enhance the profitable growth of the Company and
its Subsidiaries.
ARTICLE II.
DEFINITIONS
The following words and phrases, when used herein, unless their context clearly
indicates otherwise, shall have the following respective meanings:
A. "Board" means the board of directors of the Company.
B. "Cause" means conviction of the Grantee of any felony or other
crime involving dishonesty, fraud or moral turpitude, or the Grantee's habitual
neglect of his duties.
C. "Change of Control" means the occurrence of one of the following:
(i) without prior approval of the Board, a single entity or group of affiliated
entities acquires more than 50% of the Company's outstanding Stock, (ii) the
Company is involved in a merger or a sale of all or substantially all of its
assets so that its shareholders before the merger or sale own less than 50% of
the voting power of the surviving or acquiring corporation, (iii) a liquidation
or dissolution of the Company occurs, or (iv) a change in the majority of the
Board of Directors occurs during any 24-month period without the approval of a
majority of directors in office at the beginning of such period.
D. "Committee" means the committee of the Board appointed pursuant to
Section 4.1.
E. "Company" means Successories, Inc., an Illinois corporation.
F. "Disability" means a permanent and total disability within the
meaning of Section 22(e)(3) of the Internal Revenue Code.
G. "Disinterested Person" means a person who meets the definition of
a "disinterested person" pursuant to Rule 16b-3 of the SEC (or any successor
rule as in effect from time to time and "outside director" pursuant to Section
162(m) of the Internal Revenue Code and the Treasury Department regulations
issued thereunder.
7
<PAGE>
H. "Effective Date" means April 8, 1993.
I. "Fair Market Value" of any share of Stock, as of any applicable
date, means the fair market value of a share of Stock on such date as determined
in good faith by the Committee.
J. "Grant Date" means the date of grant of an Option determined in
accordance with Section 6.1(a) or Section 6.4(a).
K. "Grantee" means an individual who has been granted an Option.
L. "Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended, and any succeeding Internal Revenue Code, and references to sections
herein shall be deemed to include any such section as amended, modified or
renumbered.
M. "1934 Act" means the Securities Exchange Act of 1934, as amended,
and any succeeding Securities Exchange Act, and references to sections herein
shall be deemed to include any such section as amended, modified or renumbered.
N. "Option" means any incentive stock option or non-qualified stock
option granted under the Plan.
O. "Option Agreement" has the meaning specified in section 4.2(e).
P. "Option Price" means the per share purchase price of Stock
subject to an Option.
Q. "Plan" remains the Successories, Inc. Stock Option Plan as set
forth herein and as may from time to time be amended.
R. "SEC" means the Securities and Exchange Commission.
S. "Section 16 Grantee" means a person subject to potential liability
under Section 16(b) of the 1934 Act with respect to transactions involving
equity securities of the Company.
T. "Stock" means the common stock of the Company, par value $0.01 per
share.
U. "Subsidiary" means a corporation as defined in Section 424(f) of
the Internal Revenue Code with the Company being treated as the employer
corporation for purposes of this definition.
V. "10% Owner" means a person who beneficially owns stock (including
stock treated as owned under Section 424(d) of the Internal Revenue Code)
possessing more than 10% of the total combined voting power of all classes of
stock of the Company.
W. "Termination of Employment" with respect to Grantees who are
employees of the Company or its Subsidiaries occurs the later of (a) the first
day an individual is no longer entitled to severance payments for any reason
under the Company's or any Subsidiary's personnel policies or (b) the day an
individual is first entitled to continuation coverage pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA");
notwithstanding the foregoing, for an individual who is an employee of a
Subsidiary, the individual shall be deemed to have a Termination of Employment
on the first day the Company no longer owns voting securities possessing at
least 50% of the aggregate voting power of such Subsidiary's outstanding voting
securities.
X. "Termination of Directorship" with respect to non-employee
directors, shall mean the first day on which a director is no longer acting as a
director of the Company or any Subsidiary.
8
<PAGE>
ARTICLE III.
SCOPE OF THE PLAN
An aggregate of 1,700,000 shares of Stock is hereby made available and is
reserved for delivery on account of the exercise of Options. Subject to the
foregoing limit, authorized and unissued shares may be used for or in connection
with Options. If and to the extent an option shall expire or terminate for any
reason without having been exercised in full, or shall be forfeited, the shares
of Stock associated with such Option shall become available for other Options.
ARTICLE IV.
ADMINISTRATION
A. Administrative Committee. As to employee participants, the Plan
shall be administered by a committee of the Board, which shall consist of two or
more directors of the Company, (1) who are not employees of the Company or any
of its Subsidiaries, and (2) who are Disinterested Persons. Members of the
Committee shall continue to serve until otherwise directed by the Board.
Membership on the Committee shall be subject to such limitations as the Board
deems appropriate to permit transactions in Stock pursuant to the Plan to be
exempt from liability under Section 16(b) of the 1934 Act and to comply at all
times with Section 162(m) of the Internal Revenue Code and the Treasury
Department regulations issued thereunder. The Board shall administer the
nondiscretionary Options as granted to the non-employee directors pursuant to
Section 6.4 solely in accordance with the provisions thereunder.
B. Authority of the Committee. The Committee shall have full and
final authority, in its discretion, but subject to the express provisions of the
Plan, as follows:
1. to grant Options,
2. to determine (1) when Options may be granted and (2) whether or
not specific Options will be incentive stock options or
non-qualified stock options,
3. to administer and interpret the Plan, to make recommendations to
the Board; and to take all such steps and make all determinations
in connection with the Plan and Options granted thereunder as it
may deem necessary or advisable for the administration of the
Plan,
4. to prescribe, amend, and rescind rules relating to the Plan,
5. to determine, subject to the terms of the Plan, the terms and
provisions of the written agreements by which all Options shall be
granted ("Option Agreements") and, except as provided in Section
8.9, with the consent of the Grantee, to modify or amend any such
Option Agreement, or to waive any restrictions or conditions
applicable to any Option Agreement or the exercise thereof, at any
time,
6. to make such adjustments or modifications to Options to Grantees
working outside the United States as are necessary and advisable
to fulfill the purposes of the Plan,
7. to contest on behalf of the Company or any Grantee, at the expense
of the Company, any ruling or decision on any matter relating to
the Plan or any Option, and
8. to impose such additional conditions, restrictions, and
limitations upon the grant, exercise or retention of Options as
the Committee may, before or concurrently with the grant thereof,
deem appropriate.
The determination of the Committee on all matters relating to the Plan or any
Option or Option Agreement shall be conclusive and final. No member of the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan or any Option.
9
<PAGE>
ARTICLE V.
ELIGIBILITY
Options may be granted to any employee of the Company or any of its Subsidiaries
pursuant to Section 6.1 and shall be granted to non-employee directors of the
Company pursuant to Section 6.4. In selecting the employees to whom Options may
be granted, in determining the number of shares of Stock subject to each Option
granted to any employee, and in determining the other terms and conditions
applicable to each Option granted to any employee, the Committee shall take into
consideration such factors as it deems relevant in promoting the purposes of the
Plan.
ARTICLE VI.
GRANT OF OPTIONS
A. General Conditions.
1. The Grant Date of an Option shall be the date on which the
Committee grants the Option which shall be the date signified in
the Grantee's Option Agreement or such later date as specified in
advance by the Committee.
2. The term of each Option shall be a period of not more than 10
years from the Grant Date, and shall be subject to earlier
termination as herein provided.
3. A Grantee may, if otherwise eligible, be granted additional
Options.
4. Notwithstanding any provision to the contrary contained herein,
the number of shares covered by Options granted hereunder to any
one participant in any fiscal year shall not exceed 80,000 shares.
B. Option Price. No later than the Grant Date of any Option, the
Committee shall determine the Option Price of such Option. The Option Price of
an Option (subject to Section 6.3 with respect to incentive stock options) shall
not be less than 50% of the Fair Market Value of the Stock on the Grant Date.
C. Grant of Incentive Stock Options. At the time of the grant of any
Option to an employee of the Company or its Subsidiaries, the Committee may
designate that such Option shall be made subject to additional restrictions to
permit it to qualify as an incentive stock option under the requirements of
Section 422 of the Internal Revenue Code. Any option designated as an incentive
stock option:
1. shall have an Option Price of (1) not less that 100% of the Fair
Market Value of the Stock on the Grant Date or (2) in the case of
a 10% Owner, not less than 110% of the Fair Market Value of the
Stock on the Grant Date;
2. shall be for a period of not more than 10 years (5 years, in the
case of a 10% Owner) from the Grant Date, and shall be subject to
earlier termination as provided herein or in the applicable Option
Agreement;
3. shall not have an aggregate Fair Market Value (determined for each
incentive stock option at its Grant Date) of Stock with respect to
which incentive stock options are exercisable for the first time
by such Grantee during any calendar year (under the Plan and any
other employee stock option plan of the Grantee's employer or any
parent or subsidiary thereof ("Other Plans")), determined in
accordance with the provisions of Section 422 of the Internal
Revenue Code, which exceeds $100,000 (the "$100,000 Limit");
4. shall, if the aggregate Fair Market Value of Stock (determined on
the Grant Date) with respect to all incentive stock options
previously granted under the Plan and any Other Plans ("Prior
Grants") and
10
<PAGE>
any incentive stock options under such grant (the "Current Grant")
which are exercisable for the first time during any calendar year
would exceed the $100,000 Limit, be exercisable as follows:
a. the portion of the Current Grant exercisable for the first
time by the Grantee during any calendar year which would,
when added to any portions of any Prior Grants, be
exercisable for the first time by the Grantee during such
calendar year with respect to stock which would have an
aggregate Fair Market Value (determined as of the
respective Grant Date for such incentive stock options) in
excess of the $100,000 Limit shall, notwithstanding the
terms of the Current Grant, be exercisable for the first
time by the Grantee in the first subsequent calendar year
or years in which it could be exercisable for the first
time by the Grantee when added to all Prior Grants without
exceeding the $100,000 Limit; and
b. if, viewed as of the date of the Current Grant, any portion
of a Current Grant could not be exercised under the
provisions of the immediately preceding provision during
any calendar year commencing with the calendar year in
which it is first exercisable through and including the
last calendar year in which it may by its terms be
exercised, such portion of the Current Grant shall not be
an incentive stock option, but shall be exercisable as a
separate non-qualified stock option at such date or dates
as are provided in the Current Grant;
5. shall be granted within 10 years from the earlier of the date the
Plan is adopted or the date the Plan is approved by the
shareholders of the Company; and
6. shall require the Grantee to notify the Committee of any
disposition of any Stock issued pursuant to the exercise of the
incentive stock option under the circumstances described in
Section 421 (b) of the Internal Revenue Code (relating to certain
disqualifying dispositions), within 10 days of such disposition.
Notwithstanding the foregoing and Section 4.2(e), the Committee may, without the
consent of the Grantee, at any time before the exercise of an Option (whether or
not an incentive stock option), take any action necessary to prevent such Option
from being treated as an incentive stock option.
D. Grant of Nondiscretionary Options. Nondiscretionary Options shall
be granted to each non-employee director of the Company solely on the following
terms and conditions:
1. Each person who is serving as a non-employee director of the
Company on December 14, 1994 shall automatically be granted an
option to purchase five thousand (5,000) shares of Common Stock
(the "nondiscretionary Option"). In addition, each non-employee
director first elected or appointed after December 14, 1994 shall
automatically be granted an option to purchase five thousand
(5,000) shares of Stock on the day such person is first elected or
appointed a non-employee director. Each nondiscretionary Option
granted pursuant to the provisions of this Section 6.4(a) shall be
exercisable in cumulative annual increments of fifty percent (50%)
commencing on the first anniversary of the Grant Date of such
Option;
2. Subject to the approval of the shareholders of the Company of the
provisions of this Section 6.4(b) at the 1996 Annual Meeting of
Shareholders, on each date of the Annual Meeting of Shareholders
of the Company, commencing with the 1996 Annual Meeting of
Shareholders, each non-employee director of the Company whose term
of office will continue after such Annual Meeting of Shareholders
shall automatically be granted an option to purchase four thousand
(4000) shares of Common Stock as of such date. The
non-discretionary option granted pursuant to this Section 6.4(b)
shall be exercisable in full on the Grant Date of such Option;
3. The exercise price of the nondiscretionary Options granted
pursuant to this Section 6.4 shall be one hundred percent (100%)
of the last bid price of the Stock as of the Grant Date (or if no
bid price was reported as of the Grant Date, as of the first
business day preceding the Grant Date on which a bid price was
reported);
11
<PAGE>
4. (i) If the Grantee has a Termination of Directorship for Cause,
any unexercised Option shall terminate upon the Grantee's
Termination of Directorship;
(ii) If the Grantee has a Termination of Directorship for any
reason other than cause, then any unexercised Option may be
exercised to the extent set forth below, but in no event
beyond the original term of the Option:
(1) If the Grantee's Termination of Directorship is
caused by the death of the Grantee, then any
unexercised Option may be exercised, in whole or in
part, at any time within one year after the
Grantee's death by the Grantee's personal
representative or by the person to whom the Option
is transferred by will or the applicable laws of
descent and distribution;
(2) If the Grantee's Termination of Directorship is on
account of the Disability of the Grantee, then any
unexercised Option may be exercised, in whole or in
part, at any time within one year after the date of
such Termination of Directorship; provided that, if
the Grantee dies after such Termination of
Directorship and before the end of such one-year
period, such Option may be exercised by the deceased
Grantee's personal representative or by the person
to whom the Option is transferred by will or the
applicable laws of descent and distribution within
one year after the Grantee's Termination of
Directorship, or, if later, within 180 days after
the Grantee's death; and
(3) If the Grantee's Termination of Directorship is for
any reason other than Cause, Death or Disability,
then any unexercised Option, to the extent
exercisable at the date of such Termination of
Directorship may be exercised, in whole or in part,
at any time within three months after such
Termination of Directorship; provided that, if the
Grantee dies after such Termination of Directorship
and before the end of such three-month period, such
Option may be exercised by the deceased Grantee's
personal representative or by the person to whom the
Option is transferred by will or the applicable laws
of descent and distribution within one year after
the Grantee's Termination of Directorship to the
extent exercisable at the date of such Termination
of Directorship;
5. The nondiscretionary Options granted pursuant to this Section 6.4
shall expire ten (10) years from the Grant Date, subject to the
terms and conditions of the Plan; and
6. The provisions of this Section 6.4 shall not be amended more than
once every six months, other than to comport with changes in the
Internal Revenue Code, the Employee Retirement Income Security
Act, or the rules thereunder.
E. Grantee's Agreement to Serve. Each Grantee who is an employee of
the Company or any Subsidiary and is granted an Option shall, by executing such
Grantee's Option Agreement, agree that such Grantee will remain in the employ of
the Company or any of its Subsidiaries for at least one year after the Grant
Date. Each Grantee who is a non-employee director shall, by executing such
Grantee's Option Agreement, agree that such Grantee will not resign as a
director of the Company or any of its Subsidiaries for at least one year after
the Grant Date. No obligation of the Company or any of its Subsidiaries as to
the length of any Grantee's employment or association with the Company or any of
its Subsidiaries shall be implied by the terms of the Plan, any Grant of an
Option, or any Option Agreement. The Company and its Subsidiaries reserve the
same rights to terminate employment or association of any Grantee as existed
before the Effective Date.
F. Non-transferability. Each Option granted hereunder shall by its
terms not be assignable or transferable other than by will or the laws of
descent and distribution and may be exercised, during the Grantee's lifetime,
only by the Grantee.
12
<PAGE>
ARTICLE VII.
EXERCISE OF OPTIONS
A. Exercise of Options. Subject to Sections 4.2(f), 7.4, and 7.5 and
such terms and conditions as the Committee may impose, each Option shall be
exercisable in cumulative annual increments of twenty percent (20%) commencing
on the first anniversary of the Grant Date of such Option; provided, however,
that with respect to any Section 16 Grantee, no shares issued upon exercise of
any Option granted pursuant to the Plan may be sold prior to six months from the
Grant Date of such Option. Each Option shall be exercised by delivery to the
Company of written notice of intent to purchase a specific number of shares of
Stock subject to the Option. The Option Price of any shares of Stock shall be
paid in full at the time of the exercise.
B. Payment of Option Price. A Grantee may, at his election, pay the
Option Price payable upon the exercise of an Option in (a) cash, (b) Stock
valued at its Fair Market Value on the business day next preceding the date of
exercise, or (c) any combination of both (including Stock received by the
Grantee upon the exercise of one or more Options).
C. Share Withholding.
1. Mandatory Tax Withholding.
a. Whenever under the Plan, shares of Stock are to be
delivered upon exercise of an Option, the Company shall be
entitled to require as a condition of delivery (i) that the
Grantee remit an amount sufficient to satisfy all federal,
state, and local withholding tax requirements related
thereto, if any, (ii) the withholding of such sums from
compensation otherwise due to the Grantee or from any
shares of Stock due to the Grantee under the Plan, or (iii)
any combination of the foregoing; or
b. If any disqualifying disposition described in Section
6.3(f) is made with respect to shares of Stock acquired
under an incentive stock option granted pursuant to the
Plan, then the person making such disqualifying disposition
shall remit to the Company an amount sufficient to satisfy
all federal, state, and local withholding taxes thereby
incurred;
provided that, in lieu of or in addition to the foregoing, the Company shall
have the right to withhold such sums from compensation otherwise due to the
Grantee or from any shares of Stock due to the Grantee under the Plan.
2. Elective Share Withholding.
a. Subject to Section 7.3(b)(2), a Grantee may elect the
withholding ("Share Withholding") by the Company of a
portion of the shares of Stock otherwise deliverable to
such Grantee upon the exercise of an Option ("Taxable
Event") having a Fair Market Value equal to:
(i) the Option Price or a portion thereof;
(ii) the minimum amount necessary to satisfy required
federal, state, or local withholding tax liability
attributable to the Taxable Event (in 1993, the
minimum amount required by federal tax withholding
rules is 20% of the Grantee's taxable income); or
(iii) with the Committee's prior approval, a greater
amount, not to exceed the estimated total amount of
such Grantee's tax liability with respect to the
Taxable Event.
b. Each Share Withholding election by a Grantee shall be
subject to the following restrictions:
13
<PAGE>
(i) any Grantee's election shall be subject to the
Committee's right to revoke such election of Share
Withholding by such Grantee at any time before the
Grantee's election if the Committee has reserved the
right to do so in the Option Agreement;
(ii) if the Grantee elects Share Withholding to satisfy
federal, state, or local withholding tax liability
attributable to the Taxable Event, and the shares
withheld are insufficient to satisfy said tax
liability, the Company may withhold income from
other sources due from the Company to the Grantee in
an amount sufficient to satisfy said tax obligation;
(iii) if the Grantee is a Section 16 Grantee, such
Grantee's election shall be subject to the
disapproval of the Committee at any time, whether or
not the Committee has reserved the right to do so;
(iv) the Grantee's election must be made before the date
(the "Tax Date") on which the amount of tax to be
withheld is determined;
(v) the Grantee's election shall be irrevocable;
(vi) a Section 16 Grantee may not elect Share Withholding
within six months after the grant of the related
Option (except if the Grantee dies or incurs a
Disability before the end of the six-month period);
(vii) a Section 16 Grantee must elect Share Withholding
either six months before the Tax Date or during the
ten business day period beginning on the third
business day after the release of the Company's
quarterly or annual summary statement of sales and
earnings; and
(viii) if the shares withheld have not been held by the
Grantee for at least the greater of:
(1) two years from the date the Option(s)
underlying the shares was or were granted, or
(2) one year after the transfer of the share(s)
to the Grantee, the use of the shares will
constitute a disqualifying disposition, and
the Option(s) underlying the shares will no
longer satisfy all of the requirements under
Section 422 of the Internal Revenue Code to
permit it to qualify as an incentive stock
option.
3. The share withholding provisions of the Plan shall be inapplicable
to the nondiscretionary Options granted to non-employee directors
of the Company pursuant to Section 6.4.
D. Effects of a Change of Control.
1. Notwithstanding any other provisions of the Plan, after a Change
of Control, all Options granted under the Plan shall immediately
be fully exercisable for a period of six months following said
Change of Control, after which time no further Options may be
exercised under the Plan.
2. After a Change of Control, Section 6.5 shall not be construed to
prevent the exercise of a Grantee's Option whether or not such
Grantee remains employed for one year after the applicable Grant
Date.
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E. Termination of Employment.
1. Termination for Cause. If the Grantee has a Termination of
Employment for Cause, any unexercised Option shall terminate upon
the Grantee's Termination of Employment.
2. Termination other than for Cause. If the Grantee has a Termination
of Employment for any reason other than cause, then any
unexercised Option may be exercised to the extent set forth below,
but in no event beyond the original term of the Option:
a. Death. If the Grantee's Termination of Employment is caused
by the death of the Grantee, then any unexercised Option
may be exercised, in whole or in part, at any time within
one year after the Grantee's death by the Grantee's
personal representative or by the person to whom the Option
is transferred by will or the applicable laws of descent
and distribution;
b. Disability. If the Grantee's Termination of Employment is
on account of the Disability of the Grantee, then any
unexercised Option to the extent exercisable at the date of
such Termination of Employment (or to such extent as
determined by the Committee), may be exercised, in whole or
in part, at any time within one year after the date of such
Termination of Employment; provided that, if the Grantee
dies after such Termination of Employment and before the
end of such one-year period, such Option may be exercised
by the deceased Grantee's personal representative or by the
person to whom the Option is transferred by will or the
applicable laws of descent and distribution within one year
after the Grantee's Termination of Employment, or, if
later, within 180 days after the Grantee's death; and
c. Other. If the Grantee's Termination of Employment is for
any reason other than Cause, Death or Disability, then any
unexercised Option, to the extent exercisable at the date
of such Termination of Employment (or to such extent as
determined by the Committee), may be exercised, in whole or
in part, at any time within three months (or such other
period not to exceed one year as determined by the
Committee) after such Termination of Employment; provided
that, if the Grantee dies after such Termination of
Employment and before the end of such three-month period
(or such other period, if any, determined by the
Committee), such Option may be exercised by the deceased
Grantee's personal representative or by the person to whom
the Option is transferred by will or the applicable laws of
descent and distribution within one year after the
Grantee's Termination of Employment to the extent
exercisable at the date of such Termination of Employment
(or to such extent as determined by the Committee).
notwithstanding subparagraphs (1) through (3) of this subparagraph (b), the
Committee may, in its sole discretion, establish different terms and conditions
pertaining to the effect of Termination of Employment to the extent permitted by
applicable state and federal law.
ARTICLE VIII.
MISCELLANEOUS
A. Substituted Options. If the Committee cancels any Option (granted
under this Plan, or any Plan of any entity acquired by the Company or any of its
Subsidiaries), and a new Option is substituted therefor, then the Committee may,
in its discretion, determine the terms and conditions of such new Option and
may, in its discretion, provide that the grant date of the canceled option shall
be the date used to determine the earliest date or dates for exercising the new
substituted Option under Section 7.1 hereof so that the Grantee may exercise the
substituted Option at the same time as if the Grantee had held the substituted
Option since the grant date of the canceled option; however, in the case of an
incentive stock option, the Grant Date as of which the Option Price will be
calculated shall be the date on which the new substituted Option is issued;
provided that no Option shall be canceled without the consent of the Grantee if
the terms and conditions of the new Option to be substituted are not at least as
favorable as the terms and conditions of the option to be canceled.
15
<PAGE>
B. Securities Law Matters.
1. If the Committee deems it necessary to comply with the Securities
Act of 1933, the Committee may require a written investment intent
representation by the Grantee and may require that a restrictive
legend be affixed to certificates for shares of Stock.
2. If based upon the opinion of counsel for the Company, the
Committee determines that the exercise or nonforfeitability of, or
delivery of benefits pursuant to, any Option would violate any
applicable provision of (1) federal or state securities law or (2)
the listing requirements of any securities exchange on which are
listed any of the Company's equity securities, then the Committee
may postpone any such exercise, nonforfeitability or delivery, as
the case may be, but the Company shall use its best efforts to
cause such exercise, nonforfeitability or delivery to comply with
all such provisions at the earliest practicable date. The
Committee's authority under this Section 8.2(b) shall expire on
the date of any Change of Control.
C. Funding. Benefits payable under the Plan to any person shall be
paid directly by the Company. The Company shall not be required to fund, or
otherwise segregate assets to be used for, benefits under the Plan.
D. No Employment Rights. Neither the establishment of the Plan nor
the granting of any Option shall be construed to (a) give any Grantee the right
to remain employed by the Company or any of its Subsidiaries or remain a
director of the Company or any of its Subsidiaries or give any Grantee any
benefits not specifically provided by the Plan or (b) in any manner modify the
right of the Company or any of its Subsidiaries to modify, amend, or terminate
any of its employee benefit plans.
E. Rights as a Shareholder. A Grantee shall not, by reason of any
Option have any right as a shareholder of the Company with respect to the shares
of Stock which may be deliverable upon exercise of such Option until such shares
have been delivered to him.
F. Nature of Payments. Any and all grants or deliveries of shares of
Stock hereunder shall constitute special incentive payments to the Grantee and
shall not be taken into account in computing the amount of salary or
compensation of the Grantee for the purposes of determining any pension,
retirement, death or other benefits under (a) any pension, retirement,
profit-sharing, bonus, life insurance or other employee benefit plan of the
Company or any of its Subsidiaries or (b) any agreement between the Company or
any Subsidiary, on the one hand, and the Grantee, on the other hand, except as
such plan or agreement shall otherwise expressly provide.
G. Non-Uniform Determinations. The Committee's determinations under
the Plan need not be uniform and may be made by the Committee selectively among
employees who receive, or are eligible to receive, Options (whether or not such
persons are similarly situated). Without limiting the generality of the
foregoing, with respect to employee participants, the Committee shall be
entitled, among other things, to make non-uniform and selective determinations
and to enter into non-uniform and selective Option Agreements as to (a) the
identity of the Grantees, (b) the terms and provisions of Options, and (c) the
treatment, under Section 7.5, of Terminations of Employment. Notwithstanding the
foregoing, the Committee's interpretation of Plan provisions shall be uniform to
similarly situated Grantees.
H. Adjustments.
1. The Committee or the Board, as the case may be, shall make
equitable adjustment of:
a. the aggregate numbers of shares of Stock available under
Article III,
b. the number of shares of Stock covered by an Option, and
c. the Option Price of any Option, to reflect a stock
dividend, stock split, reverse stock split, share
combination, recapitalization, merger, consolidation, asset
spin-off, reorganization, rights offering, liquidation, or
similar event, of or by the Company (including any
transaction
16
<PAGE>
in which shares of Stock are changed into or exchanged for
a different number or kind of shares of stock or other
securities of the Company or another Corporation);
2. if there is a change in corporate structure or Stock of the
Company, the Board may make any adjustments necessary to prevent
accretion, or to protect against dilution, in the number and kind
of shares of Stock authorized by the Plan, and with respect to
outstanding Options, in the number and kind of shares of Stock
covered thereby and in the applicable Option Price.
I. Amendment of the Plan. The Board may from time to time in its
discretion amend or modify the Plan without the approval of the shareholders of
the Company, except as such shareholder approval may be required (a) to permit
transactions in Stock pursuant to the Plan to be exempt from liability under
Section 16(b) of the 1934 Act or to comply with any applicable law, rule or
regulation or (b) under the listing requirements of any securities exchange on
which are listed any of the Company's equity securities. No change will be
permitted to an Option previously granted which will impair the rights of a
Grantee without the Grantee's consent. The Board cannot, without shareholder
approval, change the aggregate number of shares of Stock which may be sold
pursuant to Options granted or change the class of employees eligible to
participate in the Plan or adopt any amendment affecting the Option Price at
which Options may be granted under the Plan.
J. Termination of the Plan. The Plan shall terminate on the tenth
(10th) anniversary of the Effective Date or at such earlier time as the Board
may determine. Any termination, whether in whole or in part, shall not affect
any Option or Option Agreement then outstanding under the Plan.
K. No Illegal Transaction. The Plan and all Options granted pursuant
to it are subject to all laws and regulations of any governmental authority
which may be applicable thereto; and notwithstanding any provision of the Plan
or any Option, Grantees shall not be entitled to exercise Options or receive the
benefits thereof and the Company shall not be obligated to deliver any Stock or
pay any benefits to a Grantee if such exercise, delivery, receipt or payment of
benefits would constitute a violation by the Grantee or the Company of any
provision of any such law or regulation.
L. Severability. If all or any part of the Plan is declared by any
court or governmental authority to be unlawful or invalid, such unlawfulness or
invalidity shall not serve to invalidate any portion of the Plan not declared to
be unlawful or invalid. Any Section or part of a Section so declared to be
unlawful or invalid shall, if possible, be construed in a manner which will give
effect to the terms of such Section or part of a Section to the fullest extent
possible while remaining lawful and valid.
M. Headings. The headings of Articles and Sections are included
solely for convenience of reference, and if there is any conflict between such
headings and the text of this Plan, the text shall control.
N. Number and Gender. When appropriate the singular as used in this
Plan shall include the plural and vice versa, and the masculine shall include
the feminine.
O. Controlling Law. The law of the State of Illinois, except its law
with respect to choice of law, shall be controlling in all matters relating to
the Plan.
17
Exhibit 5.1
August 31, 1998
Successories, Inc.
2520 Diehl Road
Aurora, Illinois 60540
Ladies and Gentlemen:
We are acting as general counsel for Successories, Inc. (the "Company")
in connection with the issuance of up to an additional 250,000 shares of common
stock, $.01 par value per share (the "Shares") by the Company pursuant to the
Plan, as defined below. A registration statement on Form S-8, File No. 33-77464
("Registration Statement"), has been filed under the Securities Act of 1933, as
amended ("Act") with respect to the original offering of shares under the Plan.
In connection with the offering of the Shares we have examined:
(i) the Successories, Inc. Stock Option Plan, as amended and restated
("Plan") which is filed as Exhibit 4.1 to the Registration
Statement;
(ii) the Registration Statement including the remainder of the exhibits
thereto; and
(iii) such other documents as we deem necessary to form the opinions
hereinafter expressed.
As to various questions of fact material to such options, where relevant
facts were not independently established, we have relied upon statements of
officers of the Company.
Our opinion assumes that:
(a) the pertinent provisions of such federal and state securities laws
as may be applicable have been complied with; and
(b) the Shares are issued in accordance with the terms of the Plan.
Based and relying solely upon the foregoing, we advise you that, in our
opinion, the Shares, or any portion thereof, to the extent such Shares represent
original issuances by the Company, when issued pursuant to the Plan after the
Registration Statement has become effective under the Act will be validly
issued, fully paid and nonassessable.
18
<PAGE>
Successories, Inc.
August 31, 1998
Page 2
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. In giving this consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
Very truly yours,
/s/ Carroll, Hartigan, Farmer, Cerney &
McGillen, Ltd.
-----------------------------------
CARROLL, HARTIGAN, FARMER
CERNEY & McGILLEN, LTD.
19
Exhibit 23.1
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 24, 1998 (except with respect to
the matter discussed in the third paragraph of Note 7, as to which the date is
May 14, 1998), which appears on page F-1 of the Successories, Inc. Annual Report
on Form 10-K for the periods ended January 31, 1998 and February 1, 1997.
Arthur Andersen LLP
Chicago, Illinois
August 31, 1998
20
Exhibit 23.2
PRICEWATERHOUSECOOPERS LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 26, 1996, except as to (a) the
pro forma information for the period May 1, 1995 through February 3, 1996
presented in Note 11, the date of which is April 18, 1997 and (b) the basic and
diluted earnings per share amounts for the period May 1, 1995 through February
3, 1996 presented in the consolidated statements of operations and in Notes 11
and 14, the date of which is April 24, 1998, which appears on page F-3 of the
Successories, Inc. Annual Report on Form 10-K for the year ended January 31,
1998.
PricewaterhouseCoopers LLP
Chicago, Illinois
August 31, 1998
21
