As filed with the Securities and Exchange Commission on January 28, 1997
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INTERNATIONAL POST LIMITED
(Exact name of registrant as specified in its charter)
Delaware 13-3735647
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
545 FIFTH AVENUE, NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
COMMON STOCK ISSUABLE UNDER
THE INTERNATIONAL POST LIMITED 1993 LONG TERM INCENTIVE PLAN,
THE INTERNATIONAL POST LIMITED RESTRICTED SHARE PLAN FOR
DIRECTORS AND
VARIOUS STOCK OPTION AGREEMENTS
(Full title of the Plan)
Martin Irwin With a Gerald Adler, Esq.
President and Chief Executive Officer copy to: Shereff, Friedman, Hoffman
International Post Limited & Goodman, LLP
545 Fifth Avenue 919 Third Avenue
New York, New York 10017 New York, New York 10022
(212) 986-6300 (212) 758-9500
- --------------------------------------------------------------------------------
(Name, address and telephone number,
including area code, of agents for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed Maximum
Securities to Amount to Maximum Offering Aggregate Amount of
be Registered be Registered Price Per Share Offering Price Registration Fee
--------------------- --------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par 37,000 shares* $0.01 $370.00 $.11
value $0.01 per share
Common Stock, par 60,000 shares* $11.00 $660,000.00 $200.00
value $0.01 per share
Common Stock, par 181,818 shares* $9.35 $1,699,998.30 $515.15
value $0.01 per share
Common Stock, par 172,366 shares* $4.00 $689,464.00 $208.93
value $0.01 per share
Common Stock, par 172,367 shares* $5.00 $861,835.00 $261.16
value $0.01 per share
Common Stock, par 172,367 shares* $6.00 $1,034,202.00 $313.39
value $0.01 per share
Common Stock, par 82,900 shares* $4.50** $373,050.00** $113.05
value $0.01 per share
Total 878,818 shares* $5,318,919.30 $1,611.79
</TABLE>
* As such number may be amended due to adjustments arising out of any
recapitalization, reorganization, merger, consolidation, split-up, spin-off,
combination, exchange of shares or other similar corporate event.
** Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457 under the Securities of 1933, as amended, on the basis of
the average of the high and low prices of the registrant's common stock as
listed on the NASDAQ National Market System on a date within five days prior to
the filing hereof.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents which have been filed by International Post
Limited, a Delaware corporation (the "Company"), with the Securities and
Exchange Commission (the "Commission") are hereby incorporated herein by
reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
July 31, 1996, which is the Company's latest Annual Report on Form 10-K filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended October 31, 1996.
(c) The Company's Proxy Statement for annual meeting of stockholders
held on January 8, 1997.
(d) The description of the Company's common stock, $.01 par value per
share, contained in the Company's Registration Statement on Form 8-A filed with
the Commission under the Exchange Act, including any amendment or report filed
for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
of the securities offered under this Registration Statement have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference herein and to be a part of this Registration Statement
as of the date of the filing of such documents. Any statement contained in the
documents incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is incorporated or deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such 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.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
(the "Delaware Law") provides, in summary, that directors and officers of
Delaware corporations are entitled, under certain circumstances, to be
indemnified against all expenses and liabilities (including attorneys' fees)
incurred by them as a result of suits brought against them in their capacity as
a director or officer, if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if they had
no reasonable cause to believe their conduct was unlawful, provided, that no
indemnification may be made against expenses in respect of any claim, issue or
matter as to which they shall have been adjudged to be liable to the
corporation, unless and only to the extent that the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, they
are fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper. Any such indemnification may be made by the corporation
only as authorized in each specific case upon a determination by the
stockholders or disinterested directors that indemnification is proper because
the indemnitee has met the applicable standard of conduct. Article 8 of the
Company's Certificate of Incorporation entitles officers and directors of the
Company to indemnification to the fullest extent permitted by Section 145 of the
Delaware Law, as the same may be supplemented from time to time.
Article 9 of the Company's Certificate of Incorporation, as amended,
provides that no director shall have any personal liability to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except that such provision does not limit or eliminate the liability
of any director (i) for breach of such director's duty of loyalty to the Company
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or knowing violation of law, (iii) under Section
174 of the Delaware Law (involving certain unlawful dividends or stock purchases
or redemptions), or (iv) for any transaction from which such director derived an
improper personal benefit.
The Company maintains a primary directors and officers liability and
company reimbursement insurance policy (the "Policy") which, among other things,
provides for (i) payment on behalf of any of the Company's past, present or
future directors or officers against Loss (as defined in the Policy) as a result
of any Claim (as defined in the Policy) first made against the directors or
officers of the Company for any error, misstatement, misleading statement, act,
omission, neglect, or breach of duty committed or attempted, or allegedly
committed or attempted (each a "Wrongful Act"), occurring after August 1, 1992,
by one or more directors or officers of the Company, individually or
collectively, in their respective capacities as such, or for any matter claimed
against one or more directors or officers of the Company solely by reason of
their status as such, except for such Loss paid by the Company to any director
or officer of the Company as indemnification, and (ii) payment on behalf of the
Company against Loss for which the Company is required or permitted to pay as
indemnification to any director or officer of the Company as the result of any
Claim first made against any director or officer of the Company for any Wrongful
Act. The Policy does not cover Loss arising from any Claim made against the
Company or its directors or officers stemming from, among other things, a Claim
(a) brought about or contributed to by the fraudulent, dishonest or criminal act
or omission of a director or officer of the Company, provided that a judgment or
other final adjudication adverse to such director or officer establishes that
fraudulent, dishonest or criminal acts were committed by such director or
officer, or (b) based upon or attributable to any of the directors or officers
of the Company gaining in fact any personal profit or advantage to which they
were not legally entitled. The Company also maintains a supplemental insurance
and company reimbursement policy providing substantially similar coverage as
discussed above.
3
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this Registration
Statement:
Exhibit
Number Description
------- --------------------------------------------------------------
4.1 International Post Limited 1993 Long Term Incentive Plan
4.2 International Post Limited Restricted Share Plan for Directors
4.3 Stock Option Agreement, dated as of February 15, 1994, between
International Post Limited and Terrence A. Elkes
4.4 Stock Option Agreement, dated as of February 15, 1994, between
International Post Limited and Kenneth F. Gorman
4.5 Stock Option Agreement, dated as of February 15, 1994, between
International Post Limited and Jeffrey J. Kaplan
5 Opinion of Shereff, Friedman, Hoffman & Goodman, LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Shereff, Friedman, Hoffman & Goodman, LLP (included
in Exhibit 5)
24 Power of Attorney (included in signature page to this
Registration Statement)
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(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
4
<PAGE>
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
Securities and Exchange Commission pursuant to Rule
424(b) promulgated under the Securities Act of 1933 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 this Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (ii) shall
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
Company pursuant to Section 13 or Section 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The Securities Act of 1933, each filing of the Company's annual report
pursuant to Section 13(a) or 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 herein, 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
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.
5
<PAGE>
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 the City of New York, State of New York, on this 28th day of
January, 1997.
INTERNATIONAL POST LIMITED
By: /S/ JEFFREY J. KAPLAN
----------------------------
Jeffrey J. Kaplan
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned whose
signature appears below constitutes and appoints Jeffrey J. Kaplan and Gary R.
Strack, and each of them (with full power of each of them to act alone), his
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution for him and on his behalf, and in his name, place and stead,
in any and all capacities to execute and sign any and all amendments or
post-effective amendments to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof and the Company hereby confers like authority on its behalf.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Name and Signature Title Date
- ----------------------- -------------------------- ----------------
President, Chief Executive January 28, 1997
/S/ MARTIN IRWIN Officer and Director
- ----------------------- (Principal Executive Officer)
Martin Irwin
Executive Vice President, January 28, 1997
Chief Financial Officer
/S/ JEFFREY J. KAPLAN and Director
- ----------------------- (Principal Financial Officer)
Jeffrey J. Kaplan
Vice President, Treasurer January 28, 1997
/S/ GARY R. STRACK and Secretary
- ----------------------- (Principal Accounting Officer)
Gary R. Strack
/S/ ROBERT H. ALTER Director January 28, 1997
- -----------------------
Robert H. Alter
/S/ JULIUS BARNATHAN Director January 28, 1997
- -----------------------
Julius Barnathan
/S/ TERRENCE A. ELKES Director January 28, 1997
- -----------------------
Terrence A. Elkes
/S/ KENNETH F. GORMAN Director January 28, 1997
- -----------------------
Kenneth F. Gorman
/S/ LOUIS H. SIRACUSANO Director January 28, 1997
- -----------------------
Louis H. Siracusano
<PAGE>
INTERNATIONAL POST LIMITED
FORM S-8
REGISTRATION STATEMENT
EXHIBIT INDEX
Sequentially
Numbered
Exhibit Page
------- ------------
4.1 International Post Limited 1993 Long Term Incentive
Plan
4.2 International Post Limited Restricted Share Plan for
Directors
4.3 Stock Option Agreement, dated as of February 15,
1994, between International Post Limited and Terrence
A. Elkes
4.4 Stock Option Agreement, dated as of February 15,
1994, between International Post Limited and Kenneth
F. Gorman
4.5 Stock Option Agreement, dated as of February 15,
1994, between International Post Limited and Jeffrey
J. Kaplan
5 Opinion of Shereff, Friedman, Hoffman & Goodman, LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Shereff, Friedman, Hoffman & Goodman, LLP (included in
Exhibit 5)
24 Power of Attorney (included in signature page to this
Registration Statement)
<PAGE>
EXHIBIT 4.1
<PAGE>
INTERNATIONAL POST LIMITED
1993 LONG TERM INCENTIVE PLAN
<PAGE>
INTERNATIONAL POST LIMITED
1993 LONG TERM INCENTIVE PLAN
1. Purposes; Definitions
2. Administration
2.1 Compensation Committee
2.2 Duties and Powers of Committee
2.3 Majority Rule
2.4 Compensation; Professional Assistance; Good Faith Actions
2.5 Designated Beneficiaries
3. Shares Subject to the Plan
3.1 Shares Subject to the Plan
3.2 Changes in Company's Shares
4. Eligibility
5. Stock Options
5.1 Grants
5.2 Terms
(a) Price
(b) Term
(c) Vesting
(d) Termination of Employment
5.3 Nontransferability
5.4 Method of Exercise
6. Stock Appreciation Rights
6.1 Grants
6.2 Terms
(a) Price/Amount Paid on Exercise
(b) Term
(c) Vesting
(d) Termination of Employment
6.3 Nontransferability
6.4 Method of Exercise
6.5 Effects of Exercise
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7. Restricted Shares
7.1 Grants
7.2 Terms
(a) Acceptance of Award
(b) Price
(c) Restrictions and Conditions
7.3 Stock Certificates
8. Change in Control Provisions
8.1 Impact of Event
8.2 Definition of Change in Control
8.3 Change in Control Price
9. Miscellaneous
9.1 Effective Date
9.2 Amendment, Suspension or Termination of the Plan
9.3 Amendment of Award
9.4 Nontransferability
9.5 No Rights as Stockholder
9.6 Effect of Plan Upon Other Compensation and Incentive Plans
9.7 Regulations and Other Approvals; Governing Law
9.8 Governing Law
9.9 Withholding of Taxes
9.10 No Right to Continued Employment
9.11 Titles; Constructions
ii
<PAGE>
INTERNATIONAL POST LIMITED
1993 LONG TERM INCENTIVE PLAN
1. PURPOSES; DEFINITIONS.
The purposes of the Plan are to further the growth, development and
financial success of the Company by providing incentives to those officers and
other key employees who have the capacity for contributing in substantial
measure toward the growth and profitability of the Company and to assist the
Company in attracting and retaining employees with the ability to make such
contributions. To accomplish such purposes, the Plan provides that the Company
may grant Nonqualified Stock Options, Incentive Stock Options, Stock
Appreciation Rights, and Restricted Stock.
Whenever the following terms are used in the Plan, they shall have the
meaning specified below unless the context clearly indicates to the contrary.
"Board" shall mean the Board of Directors of the Company.
"Cause" shall mean the willful failure by an Employee to perform his
duties with the Company or a Subsidiary or the willful engaging in
conduct which is injurious to the Company or a Subsidiary,
monetarily or otherwise, as determined by the Committee in its sole
discretion, provided that, if the Employee has entered into an
employment agreement with the Company or a Subsidiary, then the word
"Cause" shall have the meaning attributed to it in such employment
agreement.
"Change in Control" shall have the meaning set forth in Section 8.2.
"Change in Control Date" shall have the meaning set forth in Section
8.2.
"Change in Control Price" shall have the meaning set forth in
Section 8.3.
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"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Committee" shall mean the Compensation Committee of the Board,
appointed as provided in Section 2.1.
"Company" shall mean International Post Limited a Delaware
corporation, and any successor corporation.
"Designated Beneficiary" shall have the meaning set forth in Section
2.5.
"Early Retirement" shall mean retirement from active employment with
the Company or a Subsidiary (a) on or after attainment of age
fifty-five (55) and the completion of fifteen (15) years of service,
or (b) in accordance with the early retirement provisions of a
pension plan maintained by the Company or a Subsidiary.
"Effective Date" shall have the meaning set forth in Section 9.1.
"Employee" shall mean any employee (including any officer whether or
not a director) of the Company, or of any corporation which is then
a Subsidiary that has been designated by the Board to participate in
the Plan.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" per Share as of a particular date shall mean:
(a) the closing sales price per Share on a national securities
exchange for the last preceding date on which there was a sale of
Shares on such exchange; or
(b) if clause (a) does not apply and the Shares are then quoted
on the National Association of Securities Dealers Automated
Quotation system ("NASDAQ"), the closing price per Share as
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reported on NASDAQ for the last preceding date on which a sale
was reported; or
(c) if clause (a) or (b) does not apply and the Shares are then
traded on an over-the-counter market, the average of the closing
bid and asked prices for the Shares in such over-the-counter
market for the last preceding date on which such bid and asked
prices were quoted; or
(d) if clause (a), (b) or (c) does not apply, such value as the
Committee, in good faith, shall determine to equal the fair
market value of a share.
"Holdings" shall mean MTE Holdings, Inc., a New York corporation, or
any successor thereto.
"Incentive Stock Option" shall mean an Option intended to be and
designated as an "incentive stock option" within the meaning of
Section 422 of the Code.
"Nonqualified Stock Option" shall mean an Option that is not an
Incentive Stock Option.
"Normal Retirement" shall mean retirement from active employment with
the Company or a Subsidiary (a) on or after attainment of age
sixty-five (65), or (b) in accordance with the normal retirement
provisions of a pension plan maintained by the Company or a
Subsidiary.
"Option" shall mean an option to purchase Shares (including Restricted
Shares, if the Committee so determines) granted pursuant to Section
5.1.
"Optionee" shall mean an Employee to whom an Option has been granted
pursuant to the Plan.
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"Parent" shall mean any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company if each of the
corporations (other than the Company), or if each group of commonly
controlled corporations, then owns stock possessing fifty percent
(50%) or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
"Participant" shall mean an Employee to whom an award is granted
pursuant to the Plan.
"Permanent Disability" shall mean that the Employee has suffered
physical or mental incapacity of such nature as to prevent him from
engaging in or performing the principal duties of his customary
employment or occupation on a continuing or sustained basis, provided
that, if an Employee has entered into an employment agreement with the
Company or a Subsidiary, then the term "Permanent Disability" shall
have the meaning attributed to it in such employment agreement. All
determinations as to the date and extent of disability of any Employee
shall be made by the Committee upon the basis of such evidence as it
deems necessary or desirable.
"Plan" shall mean this International Post Limited 1993 Long Term
Incentive Plan, as hereinafter amended from time to time.
"Qualified Person" shall mean any insurance company that acquires any
securities of the Company from Holdings or any affiliate thereof.
"Restricted Shares" shall mean Shares which are awarded to a
Participant that are subject to the restrictions described in Section
7.1.
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"Restriction Period" shall mean the period during which Restricted
Shares are subject to the restrictions set forth in Section 7.2.
"Retirement" shall mean a Participant's (a) Early Retirement that the
Committee, in its sole discretion, has determined should be treated as
a Retirement for purposes of the Plan, or (b) Normal Retirement.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Share" shall mean a share of the Company's Common Stock, $0.01 par
value.
"Stock Appreciation Right" shall mean a right granted pursuant to
Section 6.1.
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company, if each such corporation
(other than the last corporation in the unbroken chain), or if each
group of commonly controlled corporations, then owns fifty percent
(50%) or more of the total combined voting power in one of the other
corporations in such chain.
"Ten-Percent Stockholder" shall mean an Employee, who, at the time an
Incentive Stock Option is to be granted to him, owns (within the
meaning of Section 422(b)(6) of the Code) stock possessing more than
ten percent (10%) of the total combined voting power of all classes of
stock of the Company, a Parent or a Subsidiary.
"Termination of Employment" shall mean the time when the
employee-employer relationship between the Employee and the Company,
the Parent or a Subsidiary terminates for any reason whatsoever, but
excluding any termination where there is a simultaneous reemployment
by either the Company, the Parent or a Subsidiary, provided that, if a
corporation that is a Subsidiary ceases to be a Subsidiary as a result
of a sale of stock, such sale shall be deemed to be a Termination of
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Employment of the Participants who were employed by such corporation
immediately prior to such date.
2. ADMINISTRATION.
2.1 Compensation Committee
The Plan shall be administered by the Committee which shall consist of
at least three individuals appointed by the Board and holding office at the
pleasure of the Board. All Committee members shall be members of the Board, and
must be "disinterested persons," as such term is described in Rule 16b-3 adopted
by the Securities and Exchange Commission under the Exchange Act, if and as such
Rule is in effect. Appointment of Committee members shall be effective upon
acceptance of appointment. Committee members may resign at any time by
delivering written notice to the Board. Vacancies in the Committee shall be
filled by the Board.
2.2 Duties and Powers of Committee
It shall be the duty of the Committee to conduct the general
administration of the Plan in accordance with its terms and provisions. The
Committee shall have the power to interpret the Plan and to adopt such rules for
the administration, interpretation and application of the Plan as are consistent
therewith and to interpret, amend or revoke any such rules. Prior to determining
the eligible Employees to whom awards will be made, the Committee shall consult
with the Chief Executive Officer(s) of the Company and, if applicable, the
Parent and any Subsidiary, and the Committee may delegate to one or more
executive officers the power to make awards to eligible Employees who are not
executive officers or directors, provided that the Committee shall fix the
maximum amount for such awards for the group and a maximum for any one Employee.
All actions taken and all interpretations and determinations made by the
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Committee and such executive officers shall be binding upon all persons,
including the Company, stockholders, all Subsidiaries, Employees, Participants
and Designated Beneficiaries.
2.3 Majority Rule
The Committee shall act by a majority of its members in office. The
Committee may act either by vote at a telephonic or other meeting or by a
memorandum or other written instrument signed by a majority of the Committee.
2.4 Compensation; Professional Assistance; Good Faith Actions
Members of the Committee shall receive such compensation for their
services as members as may be determined by the Board. All expenses and
liabilities incurred by members of the Committee in connection with the
administration of the Plan shall be borne by the Company. The Committee may,
with the approval of the Board, employ attorneys, consultants, accountants,
appraisers, or other persons. The Committee, the Company and its officers and
directors shall be entitled to rely upon the advice, opinions or valuations of
any such persons. No member of the Committee shall be personally liable for any
action, determination or interpretation made in good faith with respect to the
Plan or the awards hereunder, and all members of the Committee shall be fully
protected by the Company in respect to any such action, determination or
interpretation.
2.5 Designated Beneficiaries
If a Participant dies prior to receiving any payment due under the
Plan, such payment shall be made to his Designated Beneficiary. A Participant's
Designated Beneficiary shall be the beneficiary designated by a Participant, in
a manner determined by the Committee, to receive amounts due the Participant in
the event of the Participant's death. In the absence of an effective designation
by the Participant, Designated Beneficiary shall mean the Participant's estate.
7
<PAGE>
3. SHARES SUBJECT TO THE PLAN.
3.1 Shares Subject to the Plan
The maximum number of Shares that may be the subject of or related to
awards under this Plan is 580,000. The Company shall reserve such number of
Shares for the purposes of the Plan, out of its authorized but unissued Shares
or out of Shares held in the Company's treasury, or partly out of each. In the
event that (a) an Option or Stock Appreciation Right is settled for cash or
expires or is terminated unexercised as to any Shares covered thereby, or (b) an
Option or Stock Appreciation Right is cancelled or forfeited for any reason
under the Plan without the delivery of Shares or any Restricted Shares are
forfeited for any reason, such Shares shall thereafter be again available for
award pursuant to the Plan. In the event that any Participant delivers Shares to
pay the exercise price of an Option or any other award granted hereunder, the
number of Shares available for awards under the Plan shall be increased by the
number of Shares so surrendered, to the extent permissible under Rule 16b-3,
adopted by the Securities Exchange Commission under the Exchange Act, if and as
such Rule is in effect.
3.2 Changes in Company's Shares
In the event that the Committee shall determine that any stock
dividend, extraordinary cash dividend, recapitalization, reorganization, merger,
consolidation, split-up, spin-off, combination, exchange of shares, warrants or
rights offering to purchase Shares at a price substantially below fair market
value, or other similar corporate event affects the Shares such that an
adjustment is required in order to preserve the benefits or potential benefits
intended to be made available under this Plan, then the Committee shall, in such
manner as the Committee may deem equitable, adjust any or all of (a) the number
and kind of shares which thereafter may be awarded or optioned and sold or made
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the subject of Stock Appreciation Rights under the Plan, (b) the number and kind
of shares subject to outstanding Options and other awards, and (c) the grant,
exercise or conversion price with respect to any of the foregoing and/or, if
deemed appropriate, make provision for a cash payment to a Participant or a
person who has an outstanding Option or other award provided, however, that the
number of Shares subject to any Option or other award shall always be a whole
number.
4. Eligibility.
Any Employee who is an officer or who is designated by the Committee
as a key Employee shall be eligible to receive awards under this Plan. In
general, an Employee may be designated as a key Employee if such Employee is
responsible for or contributes to the management, growth, and/or profitability
of the business of the Company and/or a Subsidiary.
5. Stock Options.
5.1 Grants
Subject to the provisions of the Plan, the Committee shall have the
sole and complete authority to determine the eligible Employees to whom Options
shall be granted, the number of Shares to be covered by each Option, the
exercise price therefor and the terms and conditions applicable to the exercise
of the Option. The Committee shall have the authority to grant Incentive Stock
Options, Nonqualified Stock Options, or both. In the case of Incentive Stock
Options, the terms and conditions of such grants shall be subject to and comply
with Section 422 of the Code and any rules or regulations promulgated
thereunder, including the requirement that the aggregate Fair Market Value
(determined as of the date of grant) of the Shares with respect to which
Incentive Stock Options granted under this Plan and all other option plans of
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the Company, the Parent and any Subsidiary become exercisable by an Optionee
during any calendar year shall not exceed $100,000. To the extent that the
limitation set forth in the preceding sentence is exceeded for any reason
(including the acceleration of the time for exercise of an Option), the Options
with respect to such excess amount shall be treated as Nonqualified Stock
Options.
5.2 Terms
Options shall be granted only pursuant to a written Option Agreement,
which shall be executed by the Optionee and an authorized officer of the Company
and which shall contain such terms and conditions as the Committee shall
determine, consistent with the Plan, including the following:
(a) Price. The exercise price for the Shares subject to an Option,
or the manner in which such exercise price is to be determined,
shall be determined by the Committee, provided that, the exercise
price per Share shall not be less than 100% of the Fair Market Value
of a Share as of the date the Option is granted (110% in the case of
an Incentive Stock Option granted to a Ten-Percent Stockholder).
(b) Term. Options shall be for such term as the Committee shall
determine, provided that no Option shall be exercisable after the
expiration of ten years from the date it is granted (five years in
the case of an Incentive Stock Option granted to a Ten-Percent
Stockholder).
(c) Vesting. Options shall be exercisable in such installments
(which need not be equal) and at such times as may be designated by
the Committee and set forth in the Option Agreement. To the extent
not exercised, installments shall accumulate and may be exercised,
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in whole or in part, at any time after becoming exercisable, but not
later than the date the Option expires. The Committee may accelerate
the exercisability of any Option or portion thereof at any time.
Notwithstanding the foregoing, the Committee may, in its sole
discretion, provide that all or a part of the Shares received by an
Optionee upon the exercise of a Nonqualified Stock Option shall be
Restricted Shares subject to any or all of the restrictions or
conditions set forth in Section 7.2(c).
(d) Termination of Employment. In the event of the Termination of
Employment of an Optionee, any outstanding Options held by such
Optionee shall, unless the Option Agreement evidencing such Option
provides otherwise, terminate as follows:
(i) If (x) the Optionee's Termination of Employment is due to his
death, Permanent Disability or Retirement, (y) such Termination
of Employment occurs after the occurence of a Change in Control
but on or before the second anniversary of a Change in Control
Date and either (A) is an involuntary termination not for Cause
or (B) is deemed to be a Termination of Employment as a result of
the sale of stock of a Subsidiary (as provided in the definition
of "Termination of Employment" in Section 1), or (z) such
Termination of Employment is, or is deemed to be, a Termination
of Employment without Cause, all Options shall vest and become
immediately exercisable for a period of five years following such
Termination of Employment or until the expiration of their
original terms, whichever is shorter, and shall thereafter
terminate.
(ii) In all other cases, all Options (to the extent exercisable
at the time of such Termination) shall be exercisable for a
period of thirty (30) days following the Optionee's Termination
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of Employment or until the expiration of their original term,
whichever is shorter, and shall thereafter terminate.
Notwithstanding the foregoing, the Committee may provide, either at
the time an Option is granted or, after consultation with the appropriate Chief
Executive Officer, thereafter, that the Option may be exercised after the
periods provided in this Section 5.2(d), but in no event beyond the original
term of the Option.
5.3 Nontransferability
No Option granted hereunder shall be transferable by the Optionee to
whom granted otherwise than by will, the laws of descent and distribution, or
pursuant to a qualified domestic relations order, as such term is defined in
Rule 16b-3(a)(2) of the Securities Exchange Act of 1934, as amended, and an
Option may be exercised during the lifetime of such Optionee only by the
Optionee or his guardian or legal representative. The terms of such Option shall
be binding upon the beneficiaries, executors, administrators, heirs and
successors of the Optionee.
5.4 Method of Exercise
The exercise of an Option shall be made only by a written notice
delivered in person or by first class mail to the Secretary of the Company at
the Company's principal executive office, specifying the number of Shares to be
purchased and accompanied by full payment therefor and otherwise in accordance
with the Option Agreement pursuant to which the Option was granted. The purchase
price for any Shares purchased pursuant to the exercise of an Option shall be
paid in full upon such exercise in cash, by check or, at the discretion of the
Committee and upon such terms and conditions as the Committee shall approve, by
transferring previously owned Shares to the Company, having Shares withheld or
exercising pursuant to a "cashless exercise" procedure, or any combination
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thereof. Any Shares transferred to the Company as payment of the purchase price
under an Option shall be valued at their Fair Market Value on the date of
exercise of such Option. If requested by the Committee, the Optionee shall
deliver the Option Agreement evidencing the Option to the Secretary of the
Company who shall endorse thereon a notation of such exercise and return such
Option Agreement to the Optionee. Not less than one hundred (100) Shares may be
purchased at any time upon the exercise of an Option unless the number of Shares
so purchased constitutes the total number of Shares then purchasable under the
Option or the Committee determines otherwise, in its sole discretion.
6. Stock Appreciation Rights.
6.1 Grants
Subject to the provisions of the Plan, the Committee shall have the
sole and complete authority to determine the eligible Employees to whom Stock
Appreciation Rights shall be granted, the number of Shares to be covered, and
the terms and conditions applicable to the exercise of such rights. Stock
Appreciation Rights may be granted in tandem with an Option, in addition to an
Option, or freestanding and unrelated to an Option. In the case of a
Nonqualified Stock Option, a tandem Stock Appreciation Right may be granted
either at or after the time of the grant of such Option. In the case of an
Incentive Stock Option, a tandem Stock Appreciation Right may be granted only at
the time of the grant of such Option, may be exercised only if and when the Fair
Market Value of the Shares subject to the Incentive Stock Option exceeds the
exercise price of such Option, and shall contain such other terms and conditions
required to comply with Section 422 of the Code and any rules or regulations
promulgated thereunder.
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6.2 Terms
Stock Appreciation Rights shall be granted only pursuant to a written
agreement, which shall be executed by the Participant and an authorized officer
of the Company and which shall contain such terms and conditions as the
Committee shall determine, consistent with the Plan, including the following:
(a) Price/Amount Paid on Exercise. The exercise price for a Stock
Appreciation Right shall be determined by the Committee, in its sole
discretion, provided that the exercise price per Share shall not be
less than one hundred percent (100%) of the Fair Market Value of a
Share as of the date the Stock Appreciation Right is granted (110% in
the case of a Stock Appreciation Right granted in tandem with an
Incentive Stock Option granted to a Ten-Percent Stockholder). Upon the
exercise of a Stock Appreciation Right, a Participant shall be
entitled to receive an amount in cash and/or Shares equal in value to
the excess of the Fair Market Value of one Share on the date of
exercise over the exercise price per Share for such Stock Appreciation
Right, multiplied by the number of Shares in respect of which the
Stock Appreciation Right shall have been exercised. The Committee
shall determine whether the Stock Appreciation Right shall be settled
in cash, Shares or a combination of cash and Shares.
(b) Term. Stock Appreciation Rights shall be for such term as the
Committee shall determine, and as shall be set forth in each award
agreement, provided that no Stock Appreciation Right shall be
exercisable after the expiration of ten years from the date it is
granted (five years in the case of a Stock Appreciation Right granted
in tandem with an Incentive Stock Option granted to a Ten-Percent
Stockholder).
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(c) Vesting. Stock Appreciation Rights shall be exercisable in such
installments (which need not be equal) and at such times as may be
designated by the Committee and set forth in the award agreement,
provided that, Stock Appreciation Rights granted in tandem with an
Option shall be exercisable only at such time or times and to the
extent that the Option to which they relate is exercisable in
accordance with the provisions of the Plan and the Option Agreement.
Any Stock Appreciation Right granted subsequent to the grant of a
tandem Option, or freestanding and unrelated to an Option, shall not
be exercisable during the first six months of its term, except that
this special limitation shall not apply in the event of death or
Permanent Disability of the Participant prior to the expiration of the
six-month period.
(d) Termination of Employment. In the event of a Termination of
Employment of a Participant, any outstanding Stock Appreciation Rights
granted in tandem with an Option shall terminate when such Option
terminates, and any other outstanding Stock Appreciation Rights held
by such Participant shall, unless the award agreement provides
otherwise, terminate at the time and in the manner described in
Section 5.2(d) for Options.
6.3 Nontransferability
No Stock Appreciation Right granted hereunder shall be transferable by
the Participant to whom granted otherwise than by will or the laws of descent
and distribution, and a Stock Appreciation Right may be exercised during the
lifetime of such Participant only by the Participant or his guardian or legal
representative. The terms of such Stock Appreciation Right shall be binding upon
the beneficiaries, executors, administrators, heirs and successors of the
Participant.
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6.4 Method of Exercise
The exercise of a Stock Appreciation Right shall be made only by a
written notice delivered in person or by first class mail to the Secretary of
the Company at the Company's principal executive office, specifying the number
of Shares with respect to which the Stock Appreciation Right is being exercised
and otherwise in accordance with the award agreement pursuant to which the Stock
Appreciation Right was granted. A Stock Appreciation Right may not be exercised
with respect to less than one hundred (100) Shares, unless the number of Shares
with respect to which it is exercised constitutes the total number of Shares
then subject to such right or the Committee determines otherwise, in its sole
discretion.
6.5 Effects of Exercise
Upon the exercise of a Stock Appreciation Right that was granted in
tandem with an Option, such Option (a) shall be surrendered and deemed to have
been exercised for the purpose of the limitation set forth in Section 3.1 on the
number of Shares to be issued under the Plan to the extent of the number of
Shares issued under the Stock Appreciation Right at such time, and (b) shall no
longer be exercisable to the extent the tandem Stock Appreciation Rights have
been exercised. If requested by the Committee, the Participant shall deliver the
award agreement evidencing the Stock Appreciation Right to the Secretary of the
Company who shall endorse thereon a notation of such exercise and return such
agreement to the Participant.
7. Restricted Shares.
7.1 Grants
Subject to the provisions of the Plan, the Committee shall have the
sole and complete authority to determine the eligible Employees to whom, and the
time or times at which, grants of Restricted Shares will be made, the number of
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of Shares to be awarded, the price (if any) to be paid by the recipient of
Restricted Shares, the time or times within which such awards may be subject to
forfeiture, and all other conditions of the awards. Awards of Restricted Shares
may be granted either alone or in addition to other awards granted under the
Plan. The Committee may condition the grant of Restricted Shares upon the
attainment of specified performance goals or such other factors as the Committee
may determine, in its sole discretion. The provisions of Restricted Share awards
need not be the same with respect to each recipient.
7.2 Terms
Restricted Share awards shall be granted only pursuant to a written
agreement, which shall be executed by the Participant and a duly authorized
officer of the Company and which shall contain such terms and conditions as the
Committee shall determine, consistent with the Plan, including the following:
(a) Acceptance of Award. An award of Restricted Shares must be
accepted by the Participant within a period of sixty (60) days (or
such shorter period as the Committee may specify at grant) after the
award date by the execution of a Restricted Share award agreement in
the form provided by the Committee, and, if applicable, the payment of
the purchase price for such Shares.
(b) Price. The purchase price of Restricted Shares shall be determined
by the Committee, in its sole discretion, and may be zero.
(c) Restrictions and Conditions. The Restricted Shares awarded to a
Participant pursuant to this Section 7 shall be subject to the
following restrictions and conditions:
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(i) Subject to the provisions of the Plan and the award agreement,
during a period set by the Committee commencing with the date of
such award, which in no event shall exceed five years (the
"Restriction Period"), the Participant shall not be permitted to
sell, transfer, pledge, assign or otherwise encumber Restricted
Shares awarded under the Plan. Within these limits, the Committee
may provide for the lapse of such restrictions in installments and
may accelerate or waive such restrictions in whole or in part, based
on service, performance and/or such other factors or criteria as the
Committee may determine, in its sole discretion.
(ii) Except as provided in clause (i) and this clause (ii), the
Participant shall have, with respect to the Restricted Shares, all
of the rights of a stockholder of the Company, including the right
to vote the Shares and to receive any cash dividends. Stock
dividends, if any, issued with respect to Restricted Shares shall be
treated as additional Restricted Shares that are subject to the same
restrictions and other terms and conditions that apply with respect
to the Shares with respect to which such dividends are issued.
(iii) Subject to the applicable provisions of the award agreement
and this Section, upon the Participant's Termination of Employment
during the Restriction Period, all Restricted Shares in respect of
which the Restriction Period has not lapsed, shall be forfeited.
Notwithstanding the foregoing, the Committee may, in its sole
discretion, at the time of grant or thereafter, waive in whole or in
part any or all restrictions with respect to a Participant's
Restricted Shares, based on such factors as the Committee may deem
appropriate.
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7.3 Stock Certificates
Each Participant receiving a Restricted Share award shall be issued a
stock certificate in respect of such Shares. Such certificate shall be
registered in the name of such Participant, and shall bear whatever appropriate
legend referring to the terms, conditions, and restrictions applicable to such
award as the Committee shall determine. The Committee may, in its sole
discretion, require that the stock certificates evidencing Restricted Shares be
held in custody by the Company until the restrictions thereon shall have lapsed,
and that, as a condition of any Restricted Share award, the Participant shall
have delivered a stock power, endorsed in blank, relating to the Shares covered
by such award. If and to the extent the Restriction Period expires without a
prior forfeiture of the Restricted Stock subject to such Restriction Period,
certificates for an appropriate number of unrestricted Shares shall be delivered
to the Participant promptly.
8. CHANGE IN CONTROL PROVISIONS.
8.1 Impact of Event
In the event of a Change in Control, as defined in Section 8.2, the
following provisions shall apply:
(a) Any Stock Appreciation Rights outstanding for at least six months
and any Options awarded under the Plan not previously vested and
exercisable shall immediately become fully vested and exercisable.
(b) The restrictions applicable to any Restricted Shares shall lapse
and such Shares shall be deemed fully vested.
(c) In the event of a Change in Control other than one described in
Section 8.2(e), if, within one year after the Change in Control Date,
(i) no Shares are listed on a national securities exchange or are
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listed on the NASDAQ National Market or (ii) for a period of sixty
(60) consecutive trading days, the Fair Market Value of a Share on
such an exchange or market shall have declined by twenty percent (20%)
or more from the Fair Market Value of a Share on the Change in Control
Date or the Change in Control Price, whichever is higher, then the
Company shall provide written notice thereof to each Participant and
for a period of sixty (60) days following the giving of such notice,
the Company shall, by written offer to the Participants which shall
accompany such notice, offer the opportunity to such Participants to
be paid the value of all of their outstanding Options and Stock
Appreciation Rights, determined on the basis of the Change in Control
Price, as defined in Section 8.3. Such amount shall be payable in a
cash lump sum within thirty (30) days after the Company receives
notification of the Participant's election to accept the offer
described in this clause (c).
(d) In the event of a Change in Control described in Section 8.2(e),
notwithstanding any other provision herein to the contrary (including,
but not limited to, Section 5.2(d)), all Options and Stock
Appreciation Rights held by affected Participants shall remain
exercisable for a period of five years following the relevant Change
in Control Date or until the expiration of their original terms,
whichever is shorter, and shall thereafter terminate.
8.2 Definition of Change in Control
For purposes of the Plan, a Change in Control means the happening of
any of the following:
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(a) any "person," as such term is used in Sections 13(d) and 14(d) of
the Exchange Act (other than the Company or any Subsidiary of the
Company, or any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any Subsidiary, or Holdings or
any affiliate thereof so long as Holdings or such affiliate is
controlled by (i) Apollo Partners, Ltd., as Trustee under the Voting
Trust Agreement, dated as of 9/20/91, with The Equitable Life
Assurance Society of the United States ("ELAS") and The Equitable Deal
Flow Fund, L.P. ("EDFF"), as beneficiaries (to the extent ELAS and
EDFF remain sole beneficiaries), or (ii) ELAS or its affiliates, or
any Qualified Person (i) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Company representing twenty percent (20%) or more
of the combined voting power of the Company's then outstanding
securities, and (ii) Holdings is no longer the sole "beneficial
owner," directly or indirectly, of securities of the Company
representing the largest percentage of the combined voting power of
the Company's then outstanding securities;
(b) during the period of two consecutive years beginning on or after
the Effective Date, individuals who at the beginning of such period
constitute the Board, and any new director (other than a director
designated by a person who has entered into an agreement with the
Company to effect a transaction described in clause (c) or (d) of this
Section 8.2) whose election by the Board or nomination for election by
the Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved (unless the
approval of the election or nomination for election of such new
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directors was in connection with an actual or threatened election or
proxy contest), cease for any reason to constitute at least a majority
thereof;
(c) the stockholders of the Company approve a merger or consolidation
of the Company with any other corporation, other than (i) a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than eighty percent (80%) of
the combined voting power of the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation or (ii) a merger or consolidation effected to implement
a capitalization of the Company (or similar transaction) in which no
"person," as such term is used in Sections 13(d) and 14(d) of the
Exchange Act (other than the Company or any Subsidiary of the Company,
or any trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any Subsidiary, or Holdings or any
affiliate thereof so long as Holdings or such affiliate is controlled
by (i) Apollo Partners, Ltd., as Trustee under the Voting Trust
Agreement, dated as of 9/20/91, with The Equitable Life Assurance
Society of the United States ("ELAS") and the Equitable Deal Flow
Fund, L.P. ("EDFF"), as beneficiaries (to the extent ELAS and EDFF
remain sole beneficiaries), or (ii) ELAS or its affiliates, or any
Qualified Person acquires more than twenty percent (20%) of the
combined voting power of the Company's then outstanding securities;
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(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets or
any transaction having a similar effect; or
(e) if the Company enters into an agreement with an unrelated party
for the sale of all or substantially all of the assets or outstanding
stock of a Subsidiary (or a transaction having a similar effect), a
Change in Control shall be deemed to have occurred with respect to
those Participants who are then employed by such Subsidiary. The
"Change in Control Date" shall be the earliest date on which one of
the events described in this Section 8.2 occurs, as determined by the
Committee, in its sole discretion, provided that, if Section 8.2(e)
applies, the Change in Control Date shall be deemed to be the date of
the agreement, provided that the transaction does close.
8.3 Change in Control Price
Change in Control Price means the higher of (i) the highest Fair
Market Value, or (ii) the highest price paid or offered in any bona fide
transaction related to a Change in Control of the Company, at any time during
the sixty (60) days preceding, or at the time of, the Change in Control Date,
provided that, in the case of Incentive Stock Options and Stock Appreciation
Rights granted in tandem with Incentive Stock Options, such price shall be based
only on the Fair Market Value on the date of the event that gives rise to the
obligation to pay under Section 8.1(c).
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9. MISCELLANEOUS.
9.1 Effective Date
The Plan shall become effective as of the date of Board approval (the
"Effective Date") and shall continue in effect until the tenth anniversary of
such approval.
9.2 Amendment, Suspension or Termination of the Plan
The Plan may be wholly or partially amended or otherwise modified,
suspended or terminated at any time or from time to time by the Board; provided,
however, that, except as provided in Section 3.2, no amendment shall be
effective unless approved by the affirmative vote of a majority of the votes
eligible to be cast at a meeting of stockholders of the Company held within
twelve (12) months of the date of adoption of such amendment, where such
amendment will:
(a) increase the total number of Shares reserved for the purposes of
the Plan;
(b) change the class of persons eligible to participate in the Plan;
(c) reduce the minimum purchase price of Shares pursuant to Options as
provided herein;
(d) extend the maximum period for granting or exercising Options
provided herein; or
(e) otherwise materially increase the benefits accruing to Employees
under the Plan.
Neither the amendment, suspension nor termination of the Plan shall,
without the consent of the Participant, alter or impair any rights or
obligations under any award theretofore granted. No awards may be granted during
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any period of suspension nor after termination of the Plan, and in no event may
any awards be granted under the Plan after ten years from the Effective Date.
9.3 Amendment of Award
The Committee may amend, modify or terminate any outstanding award
with the Participant's consent at any time prior to payment or exercise in any
manner not inconsistent with the terms of the Plan, including without
limitation, (a) to change the date or dates as of which an Option or Stock
Appreciation Right becomes exercisable or Restricted Shares become vested, or
(b) to cancel and reissue an award under such different terms and conditions as
it determines appropriate.
9.4 Nontransferability
No award shall be assignable or transferable except by will, the laws
of descent and distribution, or pursuant to a qualified domestic relations
order, as such term is defined in Rule 16b-3(a)(2)of the Securities Exchange Act
of 1934, as amended, and no right or interest of any Participant shall be
subject to any lien, obligation or liability of the Participant.
9.5 No Rights as Stockholder
Subject to the provisions of the applicable award, no Participant
shall be deemed for any purpose to be or to have the rights and privileges of
the owner of any Shares subject to any Option or otherwise to be distributed
under the Plan until such Participant shall have become the holder thereof.
Notwithstanding the foregoing, in connection with each grant of Restricted
Shares, the applicable award agreement shall specify if and to what extent the
Participant shall not be entitled to the rights of a stockholder in respect of
such Restricted Shares.
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9.6 Effect of Plan Upon Other Compensation and Incentive Plans
The adoption of the Plan shall not affect any other compensation or
incentive plans in effect for the Company or any Subsidiary. Nothing in the Plan
shall be construed to limit the right of the Company or any Subsidiary to
establish any other forms of incentives or compensation for Employees of the
Company or any Subsidiary.
9.7 Regulations and Other Approvals; Governing Law
(a) The obligation of the Company to sell or deliver Shares with
respect to Options or any other award granted under the Plan shall be
subject to all applicable laws, rules and regulations, including all
applicable federal and state securities laws, and the obtaining of all
such approvals by governmental agencies as may be deemed necessary or
appropriate by the Committee.
(b) The Board may make such changes as may be necessary or appropriate
to comply with the rules and regulations of any government authority
or to obtain the tax benefits under the applicable provisions of the
Code and regulations promulgated thereunder for Employees granted
Incentive Stock Options.
(c) Each Option and any other award payable in Shares is subject to
the requirement that, if at any time the Committee determines, in its
sole discretion, that the listing, registration or qualification of
Shares issuable pursuant to the Plan is required by any securities
exchange or under any state or federal law, or the consent or approval
of any governmental regulatory body is necessary or desirable as a
condition of, or in connection with, the grant of an Option or the
issuance of Shares, no Options shall be granted or payment made or
Shares issued, in whole or in part, unless listing, registration,
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qualification, consent or approval has been effected or obtained free
of any conditions as acceptable to the Committee.
(d) Within one year after the Effective Date of this Plan, the Company
will, if eligible, file a registration statement on Form S-8 under the
Securities Act to register the Shares reserved for issuance hereunder.
In the event that the disposition of Shares acquired pursuant to the
Plan is not covered by a then current registration statement under the
Securities Act, and is not otherwise exempt from such registration,
such Shares shall be restricted against transfer to the extent
required by the Securities Act or regulations thereunder, and the
Committee may require any individual receiving Shares pursuant to the
Plan, as a condition precedent to receipt of such Shares, to represent
to the Company in writing that the Shares acquired by such individual
are acquired for investment only and not with a view to distribution.
The certificate for any Shares acquired pursuant to the Plan shall
include any legend that the Committee deems appropriate to reflect any
restrictions on transfer.
(e) At the time of grant of any award, the Committee may provide in
the award agreement that any Shares received as a result of such grant
shall be subject to a right of first refusal in favor of the Company,
pursuant to which the Participant shall be required to offer to the
Company any Shares that he wishes to sell, with the price being the
then Fair Market Value of such Shares, subject to such other terms and
conditions as the Committee may specify in the award agreement.
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9.8 Governing Law
The Plan and the rights of all persons claiming hereunder shall be
construed and determined in accordance with the laws of the State of Delaware
without giving effect to the choice of law principles thereof.
9.9 Withholding of Taxes
No later than the date as to which an amount first becomes includible
in the gross income of a Participant for federal income tax purposes with
respect to any award granted under the Plan, the Participant shall pay to the
Company, or make arrangements satisfactory to the Company regarding the payment
of, any federal, state, or local taxes of any kind required by law or the
Company to be withheld with respect to such amount. The obligations of the
Company under the Plan shall be conditional on such payment or arrangements and
the Company and its Subsidiaries shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
Participant. In its discretion, the Committee may permit Participants to satisfy
withholding obligations by delivering previously owned Shares or by electing to
have Shares withheld.
9.10 No Right to Continued Employment
Nothing in the Plan or in any award agreement shall confer upon any
Employee any right to continue in the employ of the Company or any Subsidiary or
shall interfere with or restrict in any way the right of the Company and its
Subsidiaries, which are hereby expressly reserved, to remove, terminate or
discharge any Employee at any time for any reason whatsoever, with or without
Cause, subject to the terms of any separate agreement with the Employee.
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9.11 Titles; Constructions
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of the Plan. The masculine pronoun
shall include the feminine and neuter and the singular shall include the plural,
when the context so indicates.
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EXHIBIT 4.2
<PAGE>
INTERNATIONAL POST LIMITED
RESTRICTED SHARE PLAN
FOR DIRECTORS
<PAGE>
RESTRICTED SHARE PLAN
FOR DIRECTORS
1. PURPOSE; DEFINITIONS.
2. ADMINISTRATION.
2.1 Administration
2.2 Designated Beneficiaries
3. SHARES SUBJECT TO THE PLAN.
3.1 Shares Subject to the Plan
3.2 Changes in Company's Shares
4. RESTRICTED SHARES.
4.1 Grants
4.2 Terms of Awards
(a) Acceptance of Award
(b) Price
(c) Restrictions and Conditions
4.3 Stock Certificates
5. CHANGE IN CONTROL PROVISIONS.
5.1 Impact of Event
5.2 Definition of Change in Control
6. MISCELLANEOUS.
6.1 Effective Date
6.2 Amendment, Suspension or Termination of the Plan
6.3 Regulations and Other Approvals
6.4 Governing Law
6.5 Titles; Construction
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INTERNATIONAL POST LIMITED
RESTRICTED SHARE PLAN
FOR DIRECTORS
1. PURPOSE; DEFINITIONS.
The purpose of the Plan is to increase the proprietary and vested
interest of the Non-Employee Directors of the Company in the growth, development
and financial success of the Company by granting them awards of Restricted
Stock.
Whenever the following terms are used in the Plan, they shall have the
meaning specified below unless the context clearly indicates to the contrary.
"Board" shall mean the Board of Directors of the Company.
"Change in Control" shall have the meaning set forth in Section 5.2.
"Change in Control Date" shall have the meaning set forth in Section
5.2.
"Company" shall mean International Post Limited, a Delaware
corporation, and any successor corporation.
"Designated Beneficiary" shall have the meaning set forth in Section
2.2.
"Effective Date" shall have the meaning set forth in Section 6.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" per Share as of a particular date shall mean:
(a) the closing sales price per Share on a national securities
exchange for the last preceding date on which there was a sale of
Shares on such exchange; or
(b) if clause (a) does not apply and the Shares are then quoted
on the National Association of Securities Dealers Automated
Quotation system ("NASDAQ"), the
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closing price per Share are reported on NASDAQ for the last
preceding date on which a sale was reported; or
(c) if clause (a) or (b) does not apply and the Shares are then
traded on an over-the-counter market, the average of the closing
bid and asked prices for the Shares in such over-the-counter
market for the last preceding date on which such bid and asked
prices were quoted; or
(d) if clause (a), (b) or (c) does not apply, such value as the
Board, in good faith, shall determine to equal the fair market
value of a Share.
"Holdings" shall mean MTE Holdings, Inc., a New York corporation, or
any successor thereto.
"Non-Employee Director" shall mean a director of the Company who is
not an employee of the Company, a parent or a subsidiary and has
not, within one year immediately preceding the determination of such
director's eligibility, received any award under any plan of the
Company, a parent or a subsidiary that entitles the participants
therein to acquire stock, stock options or stock appreciation rights
of any such company (other than the Plan or any other plan under
which participants' entitlements are governed by provisions meeting
the requirements of Rule 16b-3(c)(2)(ii) promulgated under the
Exchange Act).
"Participant" shall mean no Non-Employee Director to whom an award
of Restricted Shares is granted pursuant to the Plan.
"Plan" shall mean this International Post Limited Restricted Share
Plan for Directors, as hereinafter amended from time to time.
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<PAGE>
"Qualified Person" shall mean any insurance company that acquires
any securities of the Company from Holdings or any affiliate
thereof.
"Restricted Shares" shall mean Shares which are awarded to a
Non-Employee Director that are subject to the transfer and
forfeitability restrictions described in Section 4.2.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Share" shall mean a share of the Company's Common Stock, $0.01 par
value.
2. ADMINISTRATION.
2.1 Administration
The Plan shall be administered by the Board, which shall have the
power to interpret the Plan and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent with its terms and
provisions and to interpret, amend or revoke any such rules; provided, however,
that the Board shall have no discretion with respect to the selection of
directors to receive Restricted Shares under the Plan, the number of Restricted
Shares to be awarded, or the timing of such awards. All actions taken and all
interpretations and determinations made by the Board shall be binding upon all
persons, including the Company, stockholders, directors, Participants and
Designated Beneficiaries. The Secretary of the Company shall be authorized to
implement the Plan in accordance with its terms, and to take such actions of a
ministerial nature as shall be necessary to effectuate the intent and purposes
thereof. No member of the Board shall be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan or
the awards hereunder, and all members of the Board shall be fully protected by
the Company in respect to any such action, determination or interpretation.
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<PAGE>
2.2 Designated Beneficiaries
If a Participant dies prior to receiving any payment due under the
Plan, such payment shall be made to his Designated Beneficiary. A Participant's
Designated Beneficiary shall be the beneficiary specifically designated by a
Participant in writing to receive amounts due the Participant in the event of
the Participant's death. In the absence of an effective designation by the
Participant, Designated Beneficiary shall mean the Participant's estate.
3. SHARES SUBJECT TO THE PLAN.
3.1 Shares Subject to the Plan
The maximum number of Shares that may be the subject of awards under
this Plan shall be 50,000. The Company shall reserve such number of Shares for
the purposes of the Plan, out of its authorized but unissued Shares or out of
Shares held in the Company's treasury, or partly out of each. In the event that
Restricted Shares are forfeited for any reason, such Shares shall thereafter
again be available for award pursuant to the Plan.
3.2 Changes in Company's Shares
In the event that the Board shall determine that any recapitalization,
reorganization, merger, consolidation, split-up, spin-off, combination, or
exchange of Shares, or other similar corporate event affects the Shares such
that an adjustment is required in order to preserve the benefits or potential
benefits intended under this Plan, the Board shall, in its sole discretion, and
in such manner as it may deem equitable, adjust any or all of the number and
kind of Shares which thereafter may be awarded under the Plan, or the number and
kind of Shares subject to outstanding awards; provided, however, that the number
of Shares subject to any award shall always be a whole number.
4
<PAGE>
4. RESTRICTED SHARES.
4.1 Grants
Each individual who is a Non-Employee Director on the Effective Date
shall receive an award of 2,000 Restricted Shares (5,000 in the case of the
Chairman of the Board of Directors). Any individual who is elected or appointed
a Non-Employee Director after the Effective Date shall receive an award of 3,000
Restricted Shares as of the date of the first meeting of the Board after such
election or appointment.
4.2 Terms of Awards
The Restricted Shares awarded hereunder shall be awarded only pursuant
to a written agreement, which shall be executed by the Participant and a duly
authorized officer of the Company and which shall contain the following terms
and conditions:
(a) Acceptance of Award. An award of Restricted Shares must be
accepted by the Participant within a period of sixty (60) days (or
such other period as the Board may specify at grant) after the award
date by the execution of a Restricted Share award agreement in the
form provided by the Board.
(b) Price. The purchase price of each Restricted Share shall be
equal to its par value, and shall be payable by the Participant by
check (or by any other means acceptable to the Board) at the time
the Participant executes the Restricted Share award agreement,
unless otherwise provided by the Board.
(c) Restrictions and Conditions. The Restricted Shares awarded to a
Participant pursuant to this Section 4 shall be subject to the
following restrictions and conditions:
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<PAGE>
(i) A Participant shall not be permitted to sell, transfer,
pledge, assign or otherwise encumber Restricted Shares awarded
under the Plan prior to the date on which such Shares vest in
accordance with clause (iii), except in accordance with the laws
of descent and distribution.
(ii) Except as provided in clause (i) and this clause (ii), the
Participant shall have, with respect to the Restricted Shares,
all of the rights of a stockholder of the Company, including the
right to vote the Shares and to receive any cash dividends
declared on them. Stock dividends, if any, issued with respect to
Restricted Shares shall be treated as additional Restricted
Shares that are subject to the same restrictions and other terms
and conditions that apply with respect to the Restricted Shares
with respect to which such dividends are issued.
(iii) Subject to the applicable provisions of the Restricted
Share award agreement and this Section, a Participant's interest
in Restricted Shares shall immediately become fully vested and
nonforfeitable, and the restrictions set forth in this Section
4.2 shall lapse, upon the earliest to occur of (x) the last day
of the second consecutive year during which the Participant shall
serve as a Non-Employee Director (such two year period being
referred to herein as the "Term"), (y) the Participant's death or
total disability, or (z) a Change in Control Date.
Notwithstanding the foregoing, if a Participant ceases to be a
Non-Employee Director for any reason prior to the end of the Term
for which he was awarded Restricted Shares, all
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<PAGE>
such Restricted Shares that have not vested in accordance with
the preceding sentence shall be forfeited immediately, and the
Company shall reimburse the Participant an amount equal to his
purchase price for such forfeited Restricted Shares. All
determinations as to whether a Non-Employee Director has become
totally disabled shall be made by the Board, in good faith, upon
the basis of such evidence as it deems necessary or desirable,
and shall be final and binding on all interested persons.
4.3 Stock Certificates
A stock certificate registered in the name of each Participant
receiving a Restricted Share award shall be issued in respect of such Shares.
Such certificate shall bear whatever appropriate legend referring to the terms,
conditions, and restrictions applicable to such award as the Board shall
determine. The Board may, in its sole discretion, require that the stock
certificates evidencing Restricted Shares be held in custody by the Company
until the restrictions thereon shall have lapsed. If and to the extent a
Participant's interest in Restricted Shares becomes fully vested, certificates
for an appropriate number of unrestricted Shares shall be delivered to the
Participant promptly.
5. CHANGE IN CONTROL PROVISIONS.
5.1 Impact of Event
Upon a Change in Control, the transferability and forfeiture
restrictions placed on any Restricted Shares by Section 4.2 shall lapse on the
Change in Control Date and such Shares shall be deemed fully vested and owned by
the Participant as of such date.
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<PAGE>
5.2 Definition of Change in Control
For purposes of the Plan, a Change in Control means the happening of
any of the following:
(a) any "person," as such term is used in Section 13(d) and 14(d) of
the Exchange Act (other than the Company or any subsidiary in which
the Company owns fifty percent (50%) or more of the total combined
voting power, or any trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any such
subsidiary, or Holdings or any affiliate thereof so long as Holdings
or such affiliate is controlled by (i) Apollo Partners, Ltd., as
Trustee under the Voting Trust Agreement, dated as of 9/20/91, with
the Equitable Life Assurance Society of the United States ("ELAS")
and the Equitable Deal Flow Fund, L.P. ("EDFF"), as beneficiaries
(to the extent ELAS and EDFF remain sole beneficiaries), or (ii)
ELAS or its affiliates, or any Qualified Person (i) is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company
representing twenty percent (20%) or more of the combined voting
power of the Company's then outstanding securities, and (ii)
Holdings is no longer the sole "beneficial owner," directly or
indirectly, of securities of the Company representing the largest
percentage of the combined voting power of the Company's then
outstanding securities;
(b) during any period of two consecutive years beginning on or after
the Effective Date, individuals who at the beginning of such period
constitute the Board, and any new director (other than a director
designated by a person who has entered into an agreement with the
Company to effect a transaction described in clause (c) or (d) of
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<PAGE>
this Section 5.2) whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote of at
least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose
election or nomination for election was previously so approved
(unless the approval of the election or nomination for election of
such new directors was in connection with an actual or threatened
election or proxy contest), cease for any reason to constitute at
least a majority thereof;
(c) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than
(i) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than
eighty percent (80%) of the combined voting power of the voting
securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation or (ii) a merger or
consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no "person" as such term
is used in Section 13(d) and 14(d) of the Exchange Act (other than
the Company or any subsidiary in which the Company owns fifty
percent (50%) or more of the total combined voting power, or any
trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any such subsidiary, or Holdings or
any affiliate thereof so long as Holdings or such affiliate is
controlled by (i) Apollo Partners, Ltd., as Trustee under the Voting
Trust Agreement, dated as of 9/20/91, with the Equitable Life
Assurance Society of the United States
9
<PAGE>
("ELAS") and the Equitable Deal Flow Fund, L.P. ("EDFF"), as
beneficiaries (to the extent ELAS and EDFF remain sole
beneficiaries), or (ii) ELAS or its affiliates, or any Qualified
Person acquires more than twenty percent (20%) of the combined
voting power of the Company's then outstanding securities; or
(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company's assets or any transaction having a similar effect. The
"Change in Control Date" shall be the earliest date on which one of
the events described in this Section 5.2 occurs.
6. MISCELLANEOUS.
6.1 Effective Date
The Plan shall become effective as of the date of Board approval (the
"Effective Date") and shall continue in effect until the tenth anniversary of
such approval.
6.2 Amendment, Suspension or Termination of the Plan
The Plan may be wholly or partially amended or otherwise modified,
suspended or terminated at any time or from time to time by the Board; provided,
however, that, except as provided in Section 3.2, no amendment shall be
effective unless approved by the affirmative vote of a majority of the votes
eligible to be cast at a meeting of stockholders of the Company held within
twelve (12) months of the date of adoption of such amendment, where such
amendment will:
(a) increase the total number of Shares reserved for the purposes of
the Plan;
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<PAGE>
(b) change in any respect the class of persons who constitute Non-
Employee Directors;
(c) extend the maximum period for granting awards as provided
herein; or
(d) otherwise materially increase the benefits accruing to Non-
Employee Directors under the Plan.
Except as provided in Section 6.1, from and after the Effective Date,
neither the amendment, suspension nor termination of the Plan shall,
without the consent of the Participant, alter or impair any rights or
obligations under any award theretofore granted. No awards may be
granted during any period of suspension nor after termination or
expiration of the Plan.
6.3 Regulations and Other Approvals
(a) The obligation of the Company to deliver Shares with respect to
any award granted under the Plan shall be subject to all applicable
laws, rules and regulations, including all applicable federal and
state securities laws, and the obtaining of all such approvals by
governmental agencies as may be deemed necessary or appropriate by
the Board.
(b) The Board may make such changes as may be necessary or
appropriate to comply with the rules and regulations of any
government authority.
(c) Each award of Shares is subject to the requirement that, if at
any time the Board determines, in its sole discretion, that the
listing, registration or qualification of Shares issuable pursuant
to the Plan is required by any securities exchange or under any
United States or Canadian, state, provincial or federal law, or the
consent or approval of any governmental regulatory body is necessary
or desirable as a condition of, or in connection with,
11
<PAGE>
issuance of Shares, no Shares shall be issued, in whole or in part,
unless listing, registration, qualification, consent or approval has
been effected or obtained free of any conditions as acceptable to
the Board.
(d) Within one year after the Effective Date of this Plan, the
Company intends to file a registration statement on Form S-8 under
the Securities Act to register the Shares reserved for issuance
hereunder. In the event that the disposition of Shares acquired
pursuant to the Plan is not covered by a then current registration
statement under the Securities Act, and is not otherwise exempt from
such registration, such Shares shall be restricted against transfer
to the extent required by the Securities Act or regulations
thereunder, and the Board may require any individual receiving
Shares pursuant to the Plan, as a condition precedent to receipt of
such Shares, to represent to the Company in writing that the Shares
acquired by such individual are acquired for investment only and not
with a view to distribution. The certificate for any Shares acquired
pursuant to the Plan shall include any legend that the Board deems
appropriate to reflect any restrictions on transfer.
(e) At the time of grant of any award, the Board may provide in the
Restricted Share award agreement that any Shares received as a
result of such grant shall be subject to a right of first refusal in
favor of the Company, pursuant to which the Participant shall be
required to offer to the Company any Shares that he wishes to sell,
with the price being the then Fair Market Value of such Shares,
subject to such other terms and conditions as the Board may specify
in the award agreement.
12
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6.4 Governing Law
The Plan and the rights of all persons claiming hereunder shall be
construed and determined in accordance with the laws of the State of
Delaware without giving effect to the choice of law principles
thereof.
6.5 Titles; Construction
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of the Plan. The
masculine pronoun shall include the feminine and neuter and the
singular shall include the plural, when the context so indicates.
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EXHIBIT 4.3
<PAGE>
INTERNATIONAL POST LIMITED
(FORMERLY, INTERNATIONAL POST GROUP INC.)
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of February 15, 1994 is made by and
between International Post Limited (formerly, International Post Group Inc.), a
Delaware corporation (the "Company") and Terrence A. Elkes (the "Optionee").
WHEREAS, the Company desires to grant a stock option to the
Optionee and the Optionee desires to accept such stock option;
NOW, THEREFORE, the Company and the Optionee agree as follows:
1. DEFINITIONS.
Any capitalized term which is not defined in this Agreement
shall have the meaning given such term under the Company's 1994 Long Term
Incentive Plan (the "Plan"). The following terms shall have the meaning
specified below, unless the context clearly indicates to the contrary:
"Change in Control" shall have the meaning set forth in
Section 8.2 of the Plan, as in effect on the date hereof.
"Change in Control Date" shall have the meaning set forth in
Section 8.2 of the Plan, as in effect on the date hereof.
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"Change in Control Price" shall have the meaning set forth in
Section 8.3 of the Plan, as in effect on the date hereof.
"Code" shall mean the Internal Revenue Code of 1986.
"Committee" shall mean the Compensation Committee of the Board
of Directors of the Company, appointed as provided in the Plan.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Share" shall mean a share of the Company's Common Stock,
$0.01 par value.
2. GRANT OF OPTION.
2.1 Grant; Grant Date
The Company hereby grants to the Optionee the right and option
to purchase from the Company all or any part of an aggregate of 30,000 Shares
upon the terms and conditions set forth in this Agreement. The Grant Date of the
Option shall be February 15, 1994. The Optionee hereby accepts the Option, and
agrees to be bound by all the terms and provisions of this Agreement.
2.2 Adjustments in Option
In the event that the outstanding Shares subject to the Option
are changed into or exchanged for a different number or kind of shares or
securities of the Company, or of another corporation, by reason of
reorganization, merger or other subdivision, consolidation, recapitalization,
reclassification, stock split, issuance of warrants, stock dividend or
combination of shares or similar event, Holdings shall make an appropriate and
equitable adjustment in the Option, whether in respect to the securities which
are subject thereto or any of the terms or exercise thereof, so that Optionees
rights under this Option shall be maintained as before the occurrence of such
event to the maximum extent possible.
2
<PAGE>
2.3 Option Terms
The Option granted under this Agreement shall be subject to
the following terms and conditions:
(a) Price. The exercise price for the Shares subject to the
Option shall be $11.00 per Share.
(b) Term. The Option shall expire on the fifth anniversary of
the Grant Date.
(c) Vesting. Except as provided in Section 3.1, the Option
shall vest and become exercisable on May 15, 1994.
(d) Exercise. To the extent that the Option has become
exercisable in accordance with this Agreement, it may be exercised in whole or
in part at any time prior to its expiration or termination, by providing written
notice of such exercise to the Secretary of the Company of the number of Shares
as to which the Option is being exercised, and enclosing payment for the Shares
with respect to which the Option is being exercised. Such payment shall be in
cash or by check, or if approved by the Committee, by the delivery of Shares
previously owned by the Optionee, duly endorsed for transfer to the Company,
with a Fair Market Value on the date of delivery equal to the aggregate purchase
price of the Shares with respect to which the Option is being exercised, or
pursuant to a "cashless exercise," or any combination of the foregoing approved
by the Committee, in its sole discretion. Partial exercise shall be for whole
Shares only and shall not be for less than one thousand (1,000)shares unless the
number of Shares purchased constitutes the total number of Shares then remaining
subject to the Option or the Committee permits such smaller exercise in its sole
discretion. Notation of any partial exercise shall be made by the Company on
Schedule I hereto.
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2.4 Nontransferability
The Option shall not be transferable other than by will or the
applicable laws of descent and distribution, and no transfer so effected shall
be effective to bind the Company unless the Company has been furnished with
written notice thereof and such evidence as the Committee may deem reasonably
necessary to establish the validity of the transfer and the acceptance by the
transferee or transferees of the terms and conditions of the Option.
2.5 Conditions to Issuance of Stock Certificates
(a) The Shares deliverable upon the exercise of the Option, or
any portion thereof, may be either previously authorized but unissued Shares or
issued Shares which have been reacquired by the Company. Such Shares shall be
fully paid and non-assessable. The stock certificates evidencing the Shares
shall bear legends restricting transferability in substantially the form
indicated below:
"These Shares have not been registered under the
Securities Act of 1933, as amended (the "Securities Act") and
may not be resold, pledged or otherwise transferred unless
they have been registered under the Securities Act or unless
an exemption from registration is available. The sale, pledge
or other transfer of these Shares are further subject to
restrictions specified in the Lockup Agreement dated as of
February 15, 1994 among Furman Selz Incorporated, First Albany
Corporation, and Terrence A.
Elkes."
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<PAGE>
(b) The Company shall not be required to issue or deliver any
certificate or certificates for Shares deliverable upon any exercise of the
Option prior to fulfillment of all of the following conditions:
(i) The completion of any registration or other
qualification of such Shares under any state or federal law or under rulings or
regulations of the Securities and Exchange Commission or of any other
governmental regulatory body, or the obtaining of approval or other clearance
from any state or federal governmental agency which the Committee shall, in its
sole discretion, deem necessary or advisable.
(ii) In the event that the Shares have not been
registered under the Securities Act of 1933, as amended, if the Committee shall,
in its sole discretion, deem it necessary or advisable, the execution by the
Optionee of a written representation and agreement, in a form satisfactory to
the Committee, in which the Optionee represents that the Shares acquired by him
upon exercise are being acquired for investment and not with a view to
distribution thereof.
2.6 Rights as Stockholder
The Optionee shall not be, nor have any of the rights or
privileges of, a stockholder of the Company in respect of any Shares purchasable
upon the exercise of the
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Option unless and until certificates representing such Shares shall have been
issued by the Company.
3. CHANGE IN CONTROL PROVISIONS.
3.1 Impact of Event
In the event of a Change in Control, the following shall
apply:
(a) Any portion of the Option that had not yet become
exercisable and vested shall become fully vested and exercisable immediately.
(b) In the event of a Change in Control other than one
described in Section 8.2(e) of the Plan, if, within one year after the Change in
Control Date, (i) no Shares are listed on a national securities exchange or are
traded on an over-the-counter market or (ii) for a period of sixty (60)
consecutive trading days, the Fair Market Value of a Share on such an exchange
or market shall have declined by twenty percent (20%) or more from the Fair
Market Value of a Share on the Change in Control Date or the Change in Control
Price, whichever is higher, then for a period of sixty (60) days following the
event that gives rise to the obligation to pay under this clause (b), the
Company shall offer the Optionee the opportunity to be paid the value of the
outstanding Option, determined on the basis of the Change in Control Price. Such
amount shall be payable in a cash lump sum within thirty (30) days after the
Company receives notification of the Optionee's election to accept the offer
described in this clause (b). 3.2 Designated Beneficiary If the Optionee dies
prior to receiving any payment due under Section 3.1(b) of this Agreement, such
payment shall be made to his beneficiary (as designated in the form and manner
determined by the Committee) or, if no designation is in effect, to the
Optionee's estate.
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4. MISCELLANEOUS.
4.1 Administration
The Committee shall have the power to interpret the Plan and
this Agreement, and to adopt such rules for the administration, interpretation
and application of the Plan as are consistent therewith and to interpret or
revoke any such rules. All actions taken and all interpretations and
determinations made by the Committee shall be final and binding upon the
Optionee, the Company and all other interested persons.
4.2 Entire Agreement;Amendment
This Agreement together with the Plan constitutes the entire
agreement between the parties with respect to the subject matter hereof. Any
term or provision of this Agreement may be waived at any time by the party which
is entitled to the benefits thereof, and any term or provision of this Agreement
may be amended or supplemented at any time by the mutual consent of the parties
hereto, except that any waiver of any term or condition, or any amendment, of
this Agreement must be in writing.
4.3 Governing Law
The laws of the State of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement
regardless of the law that might be applied under principles of conflict of
laws.
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4.4 Successors
This Agreement shall be binding upon and inure to the benefit
of the successors, assigns and heirs of the respective parties.
4.5 Notices
All notices or other communications made or given in
connection with this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by registered or certified mail, return
receipt requested, to those listed below at their following respective addresses
or at such other address as each may specify by notice to the others:
To the Optionee:
c/o Apollo Partners Limited
350 Park Avenue
New York, New York 10022
To the Company:
International Post Limited
545 Fifth Avenue
New York, N.Y. 10017
4.6 Waiver
The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver thereof
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
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<PAGE>
4.7 Titles; Construction
Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of the Agreement. The
masculine pronoun shall include the feminine and neuter and the singular shall
include the plural, when the context so indicates.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
INTERNATIONAL POST LIMITED (formerly,
INTERNATIONAL POST GROUP INC.)
By: /S/ MARTIN IRWIN
-----------------
Name: Martin Irwin
Title: President and
Chief Executive Officer
OPTIONEE
/S/ TERRENCE A. ELKES
---------------------
Name: Terrence A. Elkes
9
<PAGE>
SCHEDULE I
Notations As to Partial Exercise
Number of Balance of
Purchased Shares on Authorized Notation
Date of Exercise Shares Option Signature Date
- ---------------- --------- ---------- ---------- --------
10
<PAGE>
EXHIBIT 4.4
<PAGE>
INTERNATIONAL POST LIMITED
(FORMERLY, INTERNATIONAL POST GROUP, INC.)
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of February 15, 1994 is made by and
between International Post Limited (formerly, International Post Group Inc.), a
Delaware corporation (the "Company") and Kenneth F. Gorman (the "Optionee").
WHEREAS, the Company desires to grant a stock option to the
Optionee and the Optionee desires to accept such stock option;
NOW, THEREFORE, the Company and the Optionee agree as follows:
1. DEFINITIONS
Any capitalized term which is not defined in this Agreement
shall have the meaning given such term under the Company's 1994 Long Term
Incentive Plan (the "Plan"). The following terms shall have the meaning
specified below, unless the context clearly indicates to the contrary:
"Change in Control" shall have the meaning set forth in
Section 8.2 of the Plan, as in effect on the date hereof.
"Change in Control Date" shall have the meaning set forth in
Section 8.2 of the Plan, as in effect on the date hereof.
"Change in Control Price" shall have the meaning set forth in
Section 8.3 of the Plan, as in effect on the date hereof.
"Code" shall mean the Internal Revenue Code of 1986.
"Committee" shall mean the Compensation Committee of the Board
of Directors of the Company, appointed as provided in the Plan.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Share" shall mean a share of the Company's Common Stock,
$0.01 par value.
1
<PAGE>
2. GRANT OF OPTION.
2.1 Grant; Grant Date
The Company hereby grants to the Optionee the right and option
to purchase from the Company all or any part of an aggregate of 30,000 Shares
upon the terms and conditions set forth in this Agreement. The Grant Date of the
Option shall be February 15, 1994. The Optionee hereby accepts the Option, and
agrees to be bound by all the terms and provisions of this Agreement.
2.2 Adjustments in Option
In the event that the outstanding Shares subject to the Option
are changed into or exchanged for a different number or kind of shares or
securities of the Company, or of another corporation, by reason of
reorganization, merger or other subdivision, consolidation, recapitalization,
reclassification, stock split, issuance of warrants, stock dividend or
combination of shares or similar event, Holdings shall make an appropriate and
equitable adjustment in the Option, whether in respect to the securities which
are subject thereto or any of the terms or exercise thereof, so that Optionee's
rights under this Option shall be maintained as before the occurrence of such
event to the maximum extent possible.
2.3 Option Terms
The Option granted under this Agreement shall be subject to
the following terms and conditions:
(a) Price. The exercise price for the Shares subject to the
Option shall be $11.00 per Share.
(b) Term. The Option shall expire on the fifth anniversary of
the Grant Date.
(c) Vesting. Except as provided in Section 3.1, the Option
shall vest and become exercisable on May 15, 1994.
(d) Exercise. To the extent that the Option has become
exercisable in accordance with this Agreement, it may be exercised in whole or
in part at any time prior to its expiration or termination, by providing written
notice of such exercise to the Secretary of the Company of the number of Shares
as to which the Option is being exercised, and enclosing payment for the Shares
with respect to which the Option is being exercised. Such payment shall be in
cash or by check, or if approved by the Committee, by the delivery of Shares
previously owned by the Optionee, duly endorsed for transfer to the Company,
with a Fair Market Value on the date of delivery equal to the aggregate purchase
price of the Shares with respect to which the Option is being exercised, or
pursuant to a "cashless exercise," or any combination of the foregoing approved
by the Committee, in its sole discretion. Partial exercise shall be for whole
2
<PAGE>
Shares only and shall not be for less than one thousand (1,000) Shares unless
the number of Shares purchased constitutes the total number of Shares then
remaining subject to the Option or the Committee permits such smaller exercise
in its sole discretion. Notation of any partial exercise shall be made by the
Company on Schedule I hereto.
2.4 Nontransferability
The Option shall not be transferable other than by will or the
applicable laws of descent and distribution, and no transfer so effected shall
be effective to bind the Company unless the Company has been furnished with
written notice thereof and such evidence as the Committee may deem reasonably
necessary to establish the validity of the transfer and the acceptance by the
transferee or transferees of the terms and conditions of the Option.
2.5 Conditions to Issuance of Stock Certificates
(a) The Shares deliverable upon the exercise of the Option, or
any portion thereof, may be either previously authorized but unissued Shares or
issued Shares which have been reacquired by the Company. Such Shares shall be
fully paid and non-assessable. The stock certificates evidencing the Shares
shall bear legends restricting transferability in substantially the form
indicated below:
"These Shares have not been registered under the Securities
Act of 1933, as amended (the "Securities Act") and may not be
resold, pledged or otherwise transferred unless they have been
registered under the Securities Act or unless an exemption
from registration is available.
The sale, pledge or other transfer of these Shares are further
subject to restrictions specified in the Lockup Agreement
dated as of February 15, 1994 among Furman Selz Incorporated,
First Albany
Corporation, and Kenneth F. Gorman."
(b) The Company shall not be required to issue or deliver any
certificate or certificates for Shares deliverable upon any exercise of the
Option prior to fulfillment of all of the following conditions:
(i) The completion of any registration or other qualification
of such Shares under any state or federal law or under rulings or
regulations of the Securities and Exchange Commission or of any other
governmental regulatory body, or the obtaining of approval or other
clearance from any state or federal governmental agency which the
Committee shall, in its sole discretion, deem necessary or advisable.
(ii) In the event that the Shares have not been registered
under the Securities Act of 1933, as amended, if the Committee shall,
in its sole discretion, deem it necessary
3
<PAGE>
or advisable, the execution by the Optionee of a written representation
and agreement, in a form satisfactory to the Committee, in which the
Optionee represents that the Shares acquired by him upon exercise are
being acquired for investment and not with a view to distribution
thereof.
2.6 Rights as Stockholder
The Optionee shall not be, nor have any of the rights or
privileges of, a stockholder of the Company in respect of any Shares purchasable
upon the exercise of the Option unless and until certificates representing such
Shares shall have been issued by the Company.
3. CHANGE IN CONTROL PROVISIONS.
3.1 Impact of Event
In the event of a Change in Control, the following shall
apply:
(a) Any portion of the Option that had not yet become
exercisable and vested shall become fully vested and exercisable immediately.
(b) In the event of a Change in Control other than one
described in Section 8.2(e) of the Plan, if, within one year after the Change in
Control Date, (i) no Shares are listed on a national securities exchange or are
traded on an over-the-counter market or (ii) for a period of sixty (60)
consecutive trading days, the Fair Market Value of a Share on such an exchange
or market shall have declined by twenty percent (20%) or more from the Fair
Market Value of a Share on the Change in Control Date or the Change in Control
Price, whichever is higher, then for a period of sixty (60) days following the
event that gives rise to the obligation to pay under this clause (b), the
Company shall offer the Optionee the opportunity to be paid the value of the
outstanding Option, determined on the basis of the Change in Control Price. Such
amount shall be payable in a cash lump sum within thirty (30) days after the
Company receives notification of the Optionee's election to accept the offer
described in this clause (b).
3.2 Designated Beneficiary
If the Optionee dies prior to receiving any payment due under
Section 3.1(b) of this Agreement, such payment shall be made to his beneficiary
(as designated in the form and manner determined by the Committee) or, if no
designation is in effect, to the Optionee's estate.
4. MISCELLANEOUS.
4.1 Administration
The Committee shall have the power to interpret the Plan and
this Agreement, and to adopt such rules for the administration, interpretation
and application of the Plan as are
4
<PAGE>
consistent therewith and to interpret or revoke any such rules. All actions
taken and all interpretations and determinations made by the Committee shall be
final and binding upon the Optionee, the Company and all other interested
persons.
4.2 Entire Agreement; Amendment
This Agreement together with the Plan constitutes the entire
agreement between the parties with respect to the subject matter hereof. Any
term or provision of this Agreement may be waived at any time by the party which
is entitled to the benefits thereof, and any term or provision of this Agreement
may be amended or supplemented at any time by the mutual consent of the parties
hereto, except that any waiver of any term or condition, or any amendment, of
this Agreement must be in writing.
4.3 Governing Law
The laws of the State of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement
regardless of the law that might be applied under principles of conflict of
laws.
4.4 Successors
This Agreement shall be binding upon and inure to the benefit
of the successors, assigns and heirs of the respective parties.
4.5 Notices
All notices or other communications made or given in
connection with this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by registered or certified mail, return
receipt requested, to those listed below at their following respective addresses
or at such other address as each may specify by notice to the others:
To the Optionee:
c/o Apollo Partners Limited
350 Park Avenue
New York, New York 10022
To the Company:
International Post Limited
545 Fifth Avenue
New York, N.Y. 10017
4.6 Waiver
5
<PAGE>
The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver thereof
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
4.7 Titles; Construction
Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of the Agreement. The
masculine pronoun shall include the feminine and neuter and the singular shall
include the plural, when the context so indicates.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
INTERNATIONAL POST LIMITED (FORMERLY,
INTERNATIONAL POST GROUP INC.)
By: /S/ MARTIN IRWIN
----------------
Name: Martin Irwin
Title: President and
Chief Executive Officer
By:
Name:
Title:
OPTIONEE
/S/ KENNETH F. GORMAN
---------------------
Name: Kenneth F. Gorman
6
<PAGE>
SCHEDULE I
Notations As to Partial Exercise
Number of Balance of
Purchased Shares on Authorized Notation
Date of Exercise Shares Option Signature Date
- ---------------- --------- ---------- ---------- --------
7
<PAGE>
EXHIBIT 4.5
<PAGE>
INTERNATIONAL POST LIMITED
(FORMERLY, INTERNATIONAL POST GROUP, INC.)
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of February 15, 1994 is made by and
between International Post Limited (formerly, International Post Group Inc.), a
Delaware corporation (the "Company") and Jeffrey J. Kaplan (the "Employee").
WHEREAS, the Company desires to permit the Employee to share
directly in the growth of the business of the Company and its Subsidiaries, and
to identify his interests with those of the Company's stockholders by awarding a
stock option to the Employee;
NOW, THEREFORE, and in consideration of the Employee's
employment with the Company or a Subsidiary, the Company and the Employee agree
as follows:
1. DEFINITIONS.
Any capitalized term which is not defined in this Agreement
shall have the meaning given such term under the Company's 1994 Long Term
Incentive Plan (the "Plan"). The following terms shall have the meaning
specified below, unless the context clearly indicates to the contrary:
"Cause" shall mean (a) the definition of "cause" used in the
employment agreement between the Employee and the Employer or (b) if the
Employee has not entered into such an agreement, the willful failure by the
Employee to perform his duties with the Employer or the willful engaging in
conduct which is injurious to the Employer, the Company, a Subsidiary, or, if
applicable, a Parent, monetarily or otherwise, as determined by the Committee in
its sole discretion.
1
<PAGE>
"Change in Control" shall have the meaning set forth in
Section 8.2 of the Plan, as in effect on the date hereof.
"Change in Control Date" shall have the meaning set forth in
Section 8.2 of the Plan, as in effect on the date hereof.
"Change in Control Price" shall have the meaning set forth in
Section 8.3 of the Plan, as in effect on the date hereof.
"Code" shall mean the Internal Revenue Code of 1986.
"Committee" shall mean the Compensation Committee of the Board
of Directors of the Company, appointed as provided in the Plan.
"Early Retirement" shall mean the Employee's retirement from
active employment with the Employer (a) on or after attainment of age fifty-five
(55) and the completion of fifteen years of service, or (b) in accordance with
the early retirement provisions of a pension plan maintained by the Employer.
"Employer" shall mean the Company or the Subsidiary that
employs the Employee on the date hereof, provided that, if the Employee
subsequently is transferred to another corporation covered by the Plan, such
employing corporation shall be the Employer for purposes of this Agreement.
"Normal Retirement" shall mean the Employee's retirement from
active employment with the Employer (a) on or after attainment of age sixty-five
(65), or (b) in accordance with the normal retirement provisions of a pension
plan maintained by the Employer.
"Permanent Disability" shall mean (a) the definition of
"disability" used in the employment agreement between the Employee and the
Employer, or (b) if the Employee has not entered into such an employment
agreement, a physical or mental incapacity that prevents the Employee from
engaging in or performing the principal duties of his customary employment or
occupation on a continuing or sustained basis.
2
<PAGE>
"Retirement" shall mean the Employee's (a) Early Retirement
that the Committee, in its sole discretion, has determined should be treated as
a Retirement for purposes of this Agreement, or (b) Normal Retirement.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Share" shall mean a share of the Company's Common Stock,
$0.01 par value. "Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company, if each such corporation (other than
the last corporation in the unbroken chain), or if each group of commonly
controlled corporations, then owns fifty percent (50%) or more of the total
combined voting power in one of the other corporations in such chain.
"Termination of Employment" shall mean the time when the
employee-employer relationship between the Employee and the Employer terminates
for any reason whatsoever, but excluding any termination where there is a
simultaneous reemployment by the Company, a Subsidiary, or, if applicable, a
Parent. If a corporation that is a Subsidiary ceases to be a Subsidiary as a
result of a sale of stock, such sale shall be deemed to be a Termination of
Employment of the Employee if he was employed by such Subsidiary immediately
prior to such sale.
2. INCORPORATION OF TERMS OF PLAN.
Except as otherwise specifically modified hereby, the terms
and conditions of the Plan shall apply to the option granted to the Employee
hereunder. Notwithstanding the foregoing, however, neither the option granted
hereunder nor the Shares issuable upon exercise thereof shall be deemed to have
been issued under the Plan.
3
<PAGE>
3. GRANT OF OPTION.
3.1 Grant; Grant Date
Subject to the terms and conditions of the Plan, the Company
hereby grants to the Employee the right and option to purchase from the Company
all or any part of an aggregate of 181,818 Shares upon the terms and conditions
set forth in this Agreement. The Grant Date of the Option shall be February 15,
1994. The Employee hereby accepts the Option, acknowledges that he has received
and read a copy of the Plan, and agrees to be bound by all the terms and
provisions of the Plan and this Agreement.
3.2 Adjustments in Option.
In the event that the outstanding Shares subject to the Option
are changed into or exchanged for a different number or kind of shares or
securities of the Company, or of another corporation, by reason of
reorganization, merger or other subdivision, consolidation, recapitalization,
reclassification, stock split, issuance of warrants, stock dividend or
combination of shares or similar event, the Committee shall make an appropriate
and equitable adjustment in the Option so that the Employee's proportionate
interest shall be maintained as before the occurrence of such event to the
maximum extent possible. Any adjustment made by the Committee shall be final and
binding upon the Employee, the Company and all other interested parties.
4
<PAGE>
3.3 Option Terms
The Option granted under this Agreement shall be subject to
the following terms and conditions:
(a) Price. The exercise price for the Shares subject to the
Option shall be $9.35 per Share.
(b) Term. The Option shall expire on the tenth anniversary of
the Grant Date, unless terminated earlier in accordance with Section 3.3(e).
(c) Vesting. The Option is fully vested and exercisable.
(d) Exercise. The Option may be exercised in whole or in part
at any time prior to its expiration or termination, by providing written notice
of such exercise to the Secretary of the Company of the number of Shares as to
which the Option is being exercised, and enclosing payment for the Shares with
respect to which the Option is being exercised. Such payment shall be in cash or
by check, or if approved by the Committee, by the delivery of Shares previously
owned by the Employee, duly endorsed for transfer to the Company, with a Fair
Market Value on the date of delivery equal to the aggregate purchase price of
the Shares with respect to which the Option is being exercised, or pursuant to a
"cashless exercise," or any combination of the foregoing approved by the
Committee, in its sole discretion. Partial exercise shall be for whole Shares
only and shall not be for less than one thousand (1000) Shares unless the number
of Shares purchased constitutes the total number of Shares then remaining
subject to the Option or the Committee permits such smaller exercise in its sole
discretion. Notation of any partial exercise shall be made by the Company on
Schedule I hereto.
5
<PAGE>
(e) Status of Option Upon Termination of Employment. In the
event of the Termination of Employment of the Employee, the Option shall
terminate as follows:
(i) If the Employee's Termination of Employment is due
to death, Permanent Disability, or Retirement, the Option shall vest and
become immediately exercisable, for the shorter of five years following
such Termination or the remainder of its original term, and shall
thereafter terminate. The same rule shall apply if such Termination of
Employment (x) occurs after the occurrence of a Change in Control but on
or before the second anniversary of a Change in Control Date and either
(A) is an involuntary termination not for Cause or (B) is deemed to be a
Termination of Employment because the corporation employing the Employee
ceases to be a Subsidiary (as provided in the definition of "Termination
of Employment" in Section 1) and subsection (e)(ii) below does not apply
or (y) is, or is deemed to be under the Employment Agreement between the
Company and the Employee, a Termination of Employment without Cause.
(ii) If the Employee is employed by a Subsidiary when
all or substantially all of the stock or assets of the Subsidiary are
sold, as described in Section 8.2(e) of the Plan, the Option shall be
exercisable for the shorter of five years following the Change in Control
Date or the remainder of its original term.
(iii) In all other cases, the Option (to the extent
exercisable at the time of such Termination) shall be exercisable for a
period of thirty (30) days following the Employee's Termination of
Employment or until the expiration of its original term, whichever is
shorter, and shall thereafter terminate.
6
<PAGE>
Notwithstanding the foregoing, the Committee may provide,
after consultation with the appropriate Chief Executive Officer, that the Option
may be exercised after the periods provided in this Section 3.3(e), but in no
event beyond the original term of the Option.
3.4 Nontransferability
The Option shall not be transferable other than by will, the
applicable laws of descent and distribution, or pursuant to a qualified domestic
relations order, as such term is defined in Rule 16b-3(a)(2) of the Securities
Exchange Act of 1934, as amended, and no transfer so effected shall be effective
to bind the Company unless the Company has been furnished with written notice
thereof and such evidence as the Committee may deem necessary to establish the
validity of the transfer and the acceptance by the transferee or transferees of
the terms and conditions of the Option.
3.5 Conditions to Issuance of Stock Certificates
(a) The Shares deliverable upon the exercise of the Option, or
any portion thereof, may be either previously authorized but unissued Shares or
issued Shares which have been reacquired by the Company. Such Shares shall be
fully paid and non-assessable. The stock certificates evidencing the Shares
shall bear such legends restricting transferability as the Committee deems
necessary or advisable.
(b) The Company shall not be required to issue or deliver any
certificate or certificates for Shares deliverable upon any exercise of the
Option prior to fulfillment of all of the following conditions:
(i) The completion of any registration or other
qualification of such Shares under any state or federal law or under
rulings or regulations of the Securities and Exchange Commission or of
any other governmental regulatory body, or the obtaining of approval or
other clearance from any state or federal governmental agency which the
Committee shall, in its sole discretion, deem necessary or advisable.
(ii) In the event that the Shares have not been
registered under the Securities Act, if the Committee shall, in its sole
discretion, deem it necessary or advisable, the execution by the Employee
of a written representation and agreement, in a form satisfactory to the
Committee, in which the Employee represents that the Shares acquired by
him upon exercise are being acquired for investment and not with a view
to distribution thereof in violation of applicable law.
3.6 Rights as Stockholder
The Employee shall not be, nor have any of the rights or
privileges of, a stockholder of the Company in respect of any Shares purchasable
upon the exercise of the Option unless and until certificates representing such
Shares shall have been issued by the Company.
4. Change in Control Provisions.
4.1 Impact of Event
In the event of a Change in Control prior to the Employee's
Termination of Employment, the following shall apply:
(a) Any portion of the Option that had not yet become
exercisable and vested shall become fully vested and exercisable immediately.
(b) In the event of a Change in Control other than one
described in Section 8.2(e) of the Plan, if, within one year after the Change in
Control Date, (i) no Shares are listed on a national securities exchange or are
traded on an over-the-counter market or (ii) for a period of sixty (60)
7
<PAGE>
consecutive trading days, the Fair Market Value of a Share on such an exchange
or market shall have declined by twenty percent (20%) or more from the Fair
Market Value of a Share on the Change in Control Date or the Change in Control
Price, whichever is higher, then for a period of sixty (60) days following the
event that gives rise to the obligation to pay under this clause (b), the
Company shall offer the Employee the opportunity to be paid the value of the
outstanding Option, determined on the basis of the Change in Control Price. Such
amount shall be payable in a cash lump sum within thirty (30) days after the
Company receives notification of the Employee's election to accept the offer
described in this clause (b).
4.2 Designated Beneficiary
If the Employee dies prior to receiving any payment due under
Section 4.1(b) of this Agreement, such payment shall be made to his beneficiary
(as designated in the form and manner determined by the Committee) or, if no
designation is in effect, to the Employee's estate.
5. MISCELLANEOUS.
5.1 Administration
The Committee shall have the power to interpret the Plan and
this Agreement, and to adopt such rules for the administration, interpretation
and application of the Plan as are consistent therewith and to interpret or
revoke any such rules. All actions taken and all interpretations and
determinations made by the Committee shall be final and binding upon the
Employee, the Company and all other interested persons.
5.2 Withholding of Taxes; Section 83(b) Election
No later than the date as of which an amount first becomes
includable in the gross income of the Employee for federal income tax purposes
with respect to the grant of the Option under this Agreement, the Employee shall
9
<PAGE>
pay to the Company, or the Employee (or his Designated Beneficiary) shall make
arrangements satisfactory to the Company regarding the payment of, any federal,
state, or local taxes of any kind required by law or the Company to be withheld
with respect to such amount. The obligations of the Company under this Agreement
shall be conditioned on such payment or arrangements, and the Company (and its
Subsidiaries and, if applicable, a Parent) shall, to the extent permitted by
law, have the right to deduct any such taxes from any payment of any kind
otherwise due to the Employee.
5.3 Parachute Payments
In the event that the aggregate present value of the payments
to the Employee under this Agreement, and any other plan, program, or
arrangement or agreement maintained by the Company (a Subsidiary, or, if
applicable, a Parent) constitutes an "excess parachute payment" (within the
meaning of Section 280G(b)(1) of the Code and reduced by amounts treated as
reasonable compensation under Section 280G(b)(4) of the Code) and the excise tax
under Section 4999 of the Code on such payment would cause the net parachute
payments (after taking into account federal, state and local income and excise
taxes) to which the Employee otherwise would be entitled to be less than what
the Employee would have netted (after taking into account federal, state and
local income taxes) had the present value of his total parachute payments
equaled $1.00 less than three times his "base amount" (within the meaning of
Code Section 280(G)(b)(3)(A)), the Employee's total "parachute payments" (within
the meaning of Code Section 280G(b)(2)(A)) shall be reduced (by the minimum
possible amount) so that their aggregate present value equals $1.00 less than
three times such base amount. For purposes of this calculation, it shall be
assumed that the Employee's tax rate will be the maximum marginal federal,
10
<PAGE>
state and local income tax rate on earned income, with such maximum federal rate
to be computed with regard to Code Section l(g), if applicable. In the event
that the Employee and the Company are unable to agree as to the amount of the
reduction described above, if any, the Employee shall select a law firm or
accounting firm reasonably acceptable to the Company regarding federal income
tax or employee benefit matters and such law firm or accounting firm shall
determine the amount of such reduction and such determination shall be final and
binding upon the Employee and the Company.
5.4 No Right to Continued Employment
Nothing in this Agreement or in the Plan shall confer upon the
Employee any right to continue in the employ of the Employer or shall interfere
with or restrict in any way the rights of the Employer, which are hereby
expressly reserved, to discharge the Employee at any time for any reason
whatsoever, with or without cause, subject to the terms of any separate
agreement with the Employee.
5.5 Entire Agreement; Amendment
This Agreement together with the Plan constitutes the entire
agreement between the parties with respect to the subject matter hereof. Any
term or provision of this Agreement may be waived at any time by the party which
is entitled to the benefits thereof, and any term or provision of this Agreement
may be amended or supplemented at any time by the mutual consent of the parties
hereto, except that any waiver of any term or condition, or any amendment, of
this Agreement must be in writing.
11
<PAGE>
5.6 Governing Law
The laws of the State of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement
regardless of the law that might be applied under principles of conflict of
laws.
5.7 Successors
This Agreement shall be binding upon and inure to the benefit
of the successors, assigns and heirs of the respective parties.
5.8 Notices
All notices or other communications made or given in
connection with this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by registered or certified mail, return
receipt requested, to those listed below at their following respective addresses
or at such other address as each may specify by notice to the others:
To the Employee:
Jeffrey J. Kaplan
16 Tor Terrace
New City, New York 10956
To the Company:
International Post Limited
545 Fifth Avenue
New York, N.Y. 10017
Attention: Chairman of the Board of Directors
12
<PAGE>
5.9 Waiver
The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver thereof
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
5.10 Titles; Construction
Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of the Agreement. The
masculine pronoun shall include the feminine and neuter and the singular shall
include the plural, when the context so indicates. IN WITNESS WHEREOF, the
parties hereto have duly executed this Agreement as of the day and year first
above written.
INTERNATIONAL POST LIMITED (formerly,
INTERNATIONAL POST GROUP INC.)
By: /S/ MARTIN IRWIN
----------------
Name: Martin Irwin
Title: President and
Chief Executive Officer
EMPLOYEE
/S/ JEFFREY J. KAPLAN
---------------------
Name: Jeffrey J. Kaplan
13
SCHEDULE I
Notations As to Partial Exercise
Number of Balance of
Date of Purchased Shares on Authorized Notation
Exercise Shares Option Signature Date
14
<PAGE>
EXHIBIT 5
<PAGE>
SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
919 THIRD AVENUE
NEW YORK, N.Y. 10022-9998
January 28, 1997
International Post Limited
545 Fifth Avenue
New York, New York 10017
Dear Sirs:
International Post Limited, a Delaware corporation (the "Company"),
intends to transmit for filing with the Securities and Exchange Commission a
registration statement on Form S-8 under the Securities Act of 1933, as amended
(the "Registration Statement"), relating to 600,000 shares of the Company's
common stock, par value $.01 per share (the "Common Stock"), which are issuable
under the Company's 1993 Long-Term Incentive Plan (the "Plan") and 37,000 shares
of Common Stock (collectively, the "Shares"), which are issuable under the
Company's Restricted Share Plan for Directors (the "Director Plan"). This
opinion is an exhibit to the Registration Statement.
We have acted as counsel to the Company in connection with the proposed
offer and sale of the Shares as contemplated by the Registration Statement.
However, we are not general counsel to the Company and would not ordinarily be
familiar with or aware of matters relating to the Company unless they are
brought to our attention by representatives of the Company.
We have examined copies (in each case signed, certified or otherwise
proved to our satisfaction) of the Company's Certificate of Incorporation, its
By-Laws as presently in effect, minutes and other instruments evidencing actions
taken by its directors and stockholders, and such other documents and
instruments relating to the Company and the proposed offering as we have deemed
necessary under the circumstances. In our examination of all such agreements,
documents, certificates and instruments, we have assumed the genuineness of all
signatures and the authenticity of all agreements, documents, certificates and
instruments submitted to us as originals and the conformity with the originals
of all agreements, instruments, documents and certificates submitted to us as
copies. Insofar as this opinion relates to securities to be issued in the
future, we have assumed that all applicable laws, rules and regulations in
effect at the time of such issuance are the same as such laws, rules and
regulations in effect as of the date hereof.
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We note that we are members of the Bar of the State of New York and
that we are not admitted to the Bar of any other state. Insofar as this opinion
may involve the laws of the State of Delaware, our opinion is based solely upon
our reading of the Delaware General Corporation Law as reported in the
Prentice-Hall Corporation Law Service.
Based on the foregoing, and subject to and in reliance on the accuracy
and completeness of the information relevant thereto provided to us, it is our
opinion that:
1. The Company has been duly incorporated under the
laws of the State of Delaware and has an
authorized capital stock consisting of 15,000,000
shares of Common Stock and 3,000,000 shares of
preferred stock, par value $.01 per share.
2. The Shares to be issued (i) upon the exercise of
options issued pursuant to the Plan, (ii) as awards
of restricted shares pursuant to the Plan, and (iii)
in settlement of stock appreciation rights issued
under the Plan have been duly authorized, and
(subject to the effectiveness of the Registration
Statement and compliance with applicable state
securities laws), when issued and paid for in
accordance with the terms of the Plan, will be
legally and validly issued, fully paid and
non-assessable.
3. The Shares to be issued as awards of restricted
shares pursuant to the Director Plan have been duly
authorized, and (subject to the effectiveness of the
Registration Statement and compliance with applicable
state securities laws), when issued and paid for in
accordance with the terms of the Director Plan will
be legally and validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and as an exhibit to any filing made by the Company under
the securities or "Blue Sky" laws of any state.
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This opinion is furnished to you in connection with the filing of the
Registration Statement, and is not to be used, circulated, quoted or otherwise
relied upon for any other purposes, except as expressly provided in the
preceding paragraph.
Very truly yours,
/S/ SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
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SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
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EXHIBIT 23.1
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-8 of our
report dated September 25, 1996 included in International Post Limited's Form
10-K for the year ended July 31, 1996 and to all references to our Firm included
in this registration statement.
/S/ ARTHUR ANDERSEN LLP
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ARTHUR ANDERSEN LLP
New York, New York
January 22, 1997
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