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As filed with the Securities and Exchange Commission on June 28, 1996
Registration No. 333-______
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
PACIFIC GREYSTONE CORPORATION
(Exact name of registrant as specified in its charter)
___________________
Delaware 95-4337490
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6767 Forest Lawn Drive, Suite 300, Los Angeles, California 90068
(Address of principal executive offices)
AMENDED AND RESTATED
1995 ELIGIBLE DIRECTORS STOCK OPTION PLAN
(Full title of the plan)
___________________
ROBERT W. GARCIN, ESQ.
PACIFIC GREYSTONE CORPORATION
6767 Forest Lawn Drive, Suite 300
Los Angeles, California 90068
(Name and address of agent for service)
___________________
Telephone number, including area code, of agent for service: (213) 436-6300
___________________
Copy to:
Richard A. Boehmer, Esq.
O'Melveny & Myers LLP
400 South Hope Street, Suite 1500
Los Angeles, California 90071
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per unit price fee
- --------------------------------------------------------------------------------
Common Stock, $.01 75,000(1) $11.6875(2) $876,562.50(2) $302.26(2)
par value shares
- --------------------------------------------------------------------------------
(1) This Registration Statement covers, in addition to the number of shares of
Common Stock stated above, options and other rights to purchase or acquire
the shares of Common Stock covered by the Prospectus and, pursuant to Rule
416, an additional indeterminate number of shares which by reason of
certain events specified in the Plan may become subject to the Plan.
(2) Pursuant to Rule 457(h), the maximum offering price, per share and in the
aggregate, and the registration fee were calculated based upon the average
of the high and low prices of the Common Stock on June 25, 1996 as reported
on the New York Stock Exchange and published in the Western Edition of the
Wall Street Journal.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 (plan information and registrant information) will be sent or given to
employees as specified by Securities and Exchange Commission Rule 428(b)(1).
Such documents need not be filed with the Securities and Exchange Commission
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents, which include the statement
of availability required by Item 2 of Form S-8, and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Form S-8
(Part II hereof), taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act of 1933.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Pacific Greystone Corporation (the
"Company") filed with the Securities and Exchange Commission are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1995;
(b) The Company's Quarterly Report on Form 10-Q for the period ending
March 31, 1996; and
(c) The description of the Company's Common Stock contained in its Form 8-
A, dated June 20, 1996 and 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 Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, are deemed to be incorporated by reference into the prospectus and to be
a part hereof from the date of filing of such documents. Any statement
contained herein or in a document, all or a portion of which is 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 or is 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 amended, 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
Delaware law provides for the indemnification of officers and
directors in terms sufficiently broad to include indemnification under certain
circumstances for liabilities (including reimbursement for expenses incurred)
arising under the Securities Act of 1933. Pursuant to Section 145 of the
Delaware General Corporation Law, a corporation may indemnify an officer or
director if that person acted in good faith and in a manner reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to criminal actions or proceedings, had no reason to believe the conduct
was unlawful.
The Company has adopted provisions in its Bylaws which limit the
liability of its directors and officers to the fullest extent permitted by
Delaware law. The Company will indemnify its directors and officers for claims
against them arising out of their duties as directors or officers of the
Company. Such indemnification includes any judgments, fines and amounts paid in
settlement actually or reasonably incurred by a director or officer, provided
such director or officer acted in good faith and in a manner reasonably believed
to be in or not opposed to the best interests of the Company. The Company may
also advance expenses (including attorneys' fees) to its directors and officers
relating to such claims. The Company has purchased and maintains insurance
covering any liabilities asserted against and incurred by its directors and
officers acting in such capacities, whether or not the Company would have the
power or obligation to indemnify such directors or officers under its Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index.
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 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or
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in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
the Registration Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") that are incorporated by
reference in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Los Angeles, State of California, on this 25th day of
June, 1996.
PACIFIC GREYSTONE CORPORATION
By: /s/ Jack R. Harter
---------------------------
Jack R. Harter
Chairman, President and
Chief Executive Officer
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.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Jack R. Harter Chairman, President and June 25, 1996
- ------------------------- Chief Executive Officer
Jack R. Harter (Principal Executive Officer)
/s/ Antonio B. Mon Vice Chairman and Chief June 25, 1996
- ------------------------- Financial Officer
Antonio B. Mon (Principal Financial
Officer)
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/s/ Bruce E. Gross Vice President and June 25, 1996
- ------------------------- Controller (Principal
Bruce E. Gross Accounting Officer)
/s/ Sidney Lapidus Director June 25, 1996
- -------------------------
Sidney Lapidus
/s/ Reuben S. Leibowitz Director June 25, 1996
- -------------------------
Reuben S. Leibowitz
/s/ John D. Santoleri Director June 25, 1996
- -------------------------
John D. Santoleri
/s/ David Kaplan Director June 25, 1996
- -------------------------
David Kaplan
7
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EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4 Amended and Restated Pacific
Greystone Corporation 1995 Eligible
Directors Stock Option Plan
5. Opinion of O'Melveny & Myers LLP
(opinion re legality).
23.1 Consent of Independent Public
Accountants.
23.2 Consent of Counsel (included in
Exhibit 5).
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EXHIBIT 4
AMENDED AND RESTATED
PACIFIC GREYSTONE CORPORATION
1995 ELIGIBLE DIRECTORS STOCK OPTION PLAN
<PAGE>
TABLE OF CONTENTS
PAGE NO.
-------
ARTICLE 1. THE PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Administration . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Shares Available for Options . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2. THE OPTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Automatic Option Grants. . . . . . . . . . . . . . . . . . . . . . 2
2.2 Payment of Exercise Price. . . . . . . . . . . . . . . . . . . . . 3
2.3 Option Period. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.4 Effect of Termination of Service . . . . . . . . . . . . . . . . . 3
2.5 Limitations on Exercise and Vesting of Options . . . . . . . . . . 3
ARTICLE 3. OTHER PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1 Rights of Participants and Beneficiaries . . . . . . . . . . . . . 4
3.2 Adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.3 Acceleration Upon a Change in Control Event. . . . . . . . . . . . 5
3.4 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . 5
3.5 Plan Amendment, Stockholder Approval and Suspension; Changes in
Outstanding Options. . . . . . . . . . . . . . . . . . . . . . . . 6
3.6 Privileges of Stock Ownership. . . . . . . . . . . . . . . . . . . 6
3.7 Effective Date of Plan . . . . . . . . . . . . . . . . . . . . . . 7
3.8 Term of Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.9 Legal Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 4. RESTRICTIONS ON TRANSFER AND VOTING; STATUS UNDER
SHAREHOLDERS' AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . 8
4.1 Restrictions on Transfer.. . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 5. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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PACIFIC GREYSTONE CORPORATION
AMENDED AND RESTATED
1995 ELIGIBLE DIRECTORS STOCK OPTION PLAN
ARTICLE 1. THE PLAN
1.1 PURPOSE.
The purpose of this Plan is to promote the success of the Corporation by
providing an additional means through the grant of Options to attract, motivate
and retain experienced and knowledgeable Eligible Directors. Capitalized terms
are defined in Article 5.
1.2 ADMINISTRATION.
(a) AUTHORITY AND POWERS; INTERPRETATION. This Plan shall be, to the
maximum extent possible, self-effectuating. This Plan shall be interpreted and,
to the extent any determinations are required hereunder, shall be administered
by the Committee. Action of the Committee with respect to the administration of
this Plan shall be taken pursuant to a majority vote or by unanimous written
consent of its members. Subject to the express provisions of this Plan, the
Committee shall have the authority to construe and interpret this Plan and any
agreements defining the rights and obligations of the Corporation and
Participants under this Plan.
(b) BINDING DETERMINATIONS. Any action taken by, or inaction of, the
Corporation, the Board or the Committee relating or pursuant to this Plan shall
be within the absolute discretion of that entity and shall be conclusive and
binding upon all persons. No member of the Board, the Committee nor any officer
of the Corporation shall be liable for any such action or inaction, except in
circumstances involving such person's bad faith.
(c) RELIANCE ON EXPERTS. In making any determination or in taking or not
taking any action under this Plan, the Board or the Committee may obtain and may
rely upon the advice of experts, including professional advisors to the
Corporation. No director, officer or agent of the Corporation shall be liable
for any such action or determination taken or made or omitted in good faith.
(d) DELEGATION. The Committee may delegate ministerial, non-
discretionary functions to individuals who are officers of the Corporation.
1.3 SHARES AVAILABLE FOR OPTIONS.
Subject to the provisions of Section 3.2, the capital stock that may be
delivered under this Plan shall be shares of the Corporation's authorized but
unissued Common Stock and (if permitted under applicable state law) any shares
of its Common
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Stock held as treasury shares. The shares may be delivered for any lawful
consideration, but not for less than the minimum lawful consideration under
applicable state law.
(a) NUMBER OF SHARES. The maximum number of shares of Common Stock that
may be issued or delivered pursuant to Options granted to Eligible Directors
under this Plan shall not exceed 75,000 shares, subject to adjustments
contemplated by Section 3.2.
(b) CALCULATION OF AVAILABLE SHARES AND REPLENISHMENT. Shares subject
to outstanding Options shall be reserved for issuance. If any Option to acquire
shares of Common Stock under an Option shall expire or be cancelled or
terminated without having been exercised in full, the undelivered shares subject
thereto shall again be available for the purposes of this Plan; provided,
however, that if the Corporation withholds Common Stock pursuant to Section
3.10, the aggregate number of shares issuable with respect to the applicable
Option and under this Plan shall be reduced by the number of shares so withheld
and such shares shall not be available for additional Options under this Plan.
ARTICLE 2. THE OPTIONS
2.1 AUTOMATIC OPTION GRANTS. Subject to adjustments contemplated by
Section 3.2,
(a) OPTION DATE AND AMOUNT. There shall be granted to any person who
becomes an Eligible Director of the Corporation after the Board and stockholders
of the Corporation approve this Plan an Option (the Option Date of which shall
be the first day of the first month at least 10 days after the date such person
takes office) to purchase 5,000 shares of Common Stock.
(b) SUBSEQUENT OPTIONS. On the close of business on the date of the
annual shareholders meeting in each calendar year during the term of this Plan,
commencing in 1997, there shall be granted automatically (without any action by
the Board) an Option (the Option Date of which shall be the date of such annual
shareholders meeting) to purchase 1,000 shares of Common Stock, to each person
who is a continuing Eligible Director.
(c) MAXIMUM NUMBER OF SHARES. Any annual grant under Section 2.1(b)
that would otherwise exceed the maximum number of shares under Section 1.3(a)
shall be prorated within such limitation among the number of Eligible Directors
entitled thereto.
(d) OPTION PRICE. The exercise price per share of the Common Stock
covered by each Option granted pursuant to Section 2.1 shall be the Fair Market
Value of the Common Stock on the Option Date.
(e) OPTION PERIOD AND EXERCISABILITY. Each Option shall become
exercisable in cumulative installments at the rate of one-third of the shares
underlying such Option on the first
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anniversary of the Option Date and an additional one-third of such shares on
each of the next two anniversaries thereof.
(f) NON-QUALIFIED OPTIONS. Each Option granted under this Plan is
intended to be a non-qualified stock option (i.e., not an "incentive stock
option") under the Code and shall be so designated.
(g) OPTION AGREEMENTS. Each Option granted under this Plan shall be
evidenced by an Option Agreement substantially in the form attached hereto as
Exhibit A and shall be executed by the Participant and the Corporation.
2.2 PAYMENT OF EXERCISE PRICE.
The exercise price of any Option granted under this Plan shall be paid in
full at the time of each exercise in cash or by check or (if the Corporation is
a Public Company) in shares of Common Stock valued at their Fair Market Value on
the date of exercise of the Option, or partly in such shares and partly in cash,
PROVIDED THAT any such shares used in payment shall have been owned by the
Participant at least six months prior to the date of exercise.
2.3 OPTION PERIOD.
Each Option granted under this Plan and all rights or obligations
thereunder shall expire five (5) years after the Option Date and shall be
subject to earlier termination as provided herein.
2.4 EFFECT OF TERMINATION OF SERVICE.
If a Participant's services as a member of the Board terminate for any
reason, then any portion of an Option granted pursuant to this Plan which is not
then exercisable shall terminate and any portion of such Option which is then
exercisable may be exercised for six (6) months after the date of such
termination or until the expiration of the stated term, whichever first occurs,
and shall thereafter terminate.
2.5 LIMITATIONS ON EXERCISE AND VESTING OF OPTIONS.
(a) PROVISIONS FOR EXERCISE. To the extent an Option becomes
exercisable, it shall remain exercisable until the expiration or earlier
termination of the Option.
(b) PROCEDURE. An exercisable Option may be exercised only by delivery
to the Secretary of the Corporation of written notice of such exercise from the
Participant, together with the required payment of the exercise price and any
documents required by the provisions of Sections 3.4 and 4.3.
(c) FRACTIONAL SHARES/MINIMUM ISSUE. Fractional share interests shall
be disregarded, but may be accumulated. No fewer than 100 shares (subject to
adjustments under Section 3.2) may be purchased on exercise of any Option at one
time unless
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the number purchased is the total number at the time available for purchase
under the Option.
ARTICLE 3. OTHER PROVISIONS.
3.1 RIGHTS OF PARTICIPANTS AND BENEFICIARIES.
(a) NO SERVICE COMMITMENT. Nothing contained in this Plan (or in any
other documents related to this Plan or to any Option) shall confer upon any
Participant any right to continue to serve as a director of the Corporation nor
shall interfere in any way with the right of the Corporation to change director
compensation or other benefits or to terminate the director's service as a
director, with or without cause, subject to applicable law (including any
applicable charter provisions). Nothing contained in this Plan or any document
related hereto, however, shall influence the construction or interpretation of
the Corporation's Certificate of Incorporation or Bylaws regarding service on
the Board or adversely affect any independent contractual right of any Eligible
Director without his or her consent thereto.
(b) PLAN NOT FUNDED. Options payable under this Plan shall be payable
in shares and (except as provided in Section 1.3 (b)) no special or separate
reserve, fund or deposit shall be made to assure payment of such Options.
3.2 ADJUSTMENTS.
If there shall occur any extraordinary distribution in respect of the
Common Stock (whether in the form of Common Stock, other securities, or other
property), or any recapitalization, stock split (including a stock split in the
form of a stock dividend), reverse stock split, reorganization, merger,
combination, consolidation, split-up, spin-off, combination, or exchange of
Common Stock or other securities of the Corporation, or a sale of substantially
all of the assets of the Corporation as an entirety, then the Committee shall,
in such manner and to such extent (if any) as may be appropriate and equitable,
(1) proportionately adjust any or all of (a) the number and type of shares of
Common Stock (or other securities) which thereafter may be made the subject of
Options (including the specific maxima and numbers of shares set forth elsewhere
in this Plan), (b) the number, amount and type of shares of Common Stock (or
other securities or property) subject to any or all outstanding Options and the
vesting provisions of the Options, (c) the grant, purchase, or exercise price of
any or all outstanding Options, (d) the securities, cash or other property
deliverable upon exercise of any outstanding Options, or (2) in the case of an
extraordinary distribution, merger, reorganization, consolidation, combination,
sale of assets, split up, exchange, or spin off, make provision for a
substitution or exchange of any or all outstanding Options or for a change in
the securities, cash or property deliverable upon exercise of outstanding
Options, based upon the distribution or consideration payable to holders of the
Common Stock of the Corporation upon or in respect of such event; PROVIDED,
HOWEVER,
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that (i) such adjustment and the Committee's actions in respect thereof are
based on objective criteria, (ii) such adjustment is consistent with adjustments
to comparable options (if any) held by persons other than directors of the
Corporation under any similar plan of the Corporation, and (iii) such adjustment
of consideration payable on exercise in the case of an event described in clause
(2) that involves a Change in Control Event is consistent with the terms of a
reorganization agreement (if any) approved by the shareholders of the
Corporation.
3.3 ACCELERATION UPON A CHANGE IN CONTROL EVENT.
Each Option granted under this Plan shall become immediately exercisable
in full immediately prior to adjustments contemplated by Section 3.2 upon the
occurrence of a Change in Control Event; provided, however, that none of the
Options granted under this Plan shall be accelerated to a date less than six
months after the Option Date of such Option. To the extent that any Option
granted under this Plan is not exercised prior to (i) dissolution of the
Corporation or (ii) a merger or other corporate event that the Corporation does
not survive, and no provision is (or consistent with the provisions of Section
3.2 can be) made for the payment, assumption, conversion, substitution or
exchange of the Option, the Option shall terminate upon the occurrence of such
event. If a Change in Control Event under Section 5.1(c)(i), (ii) or (iii) has
occurred but the shareholder approved transaction is abandoned or terminated,
the acceleration with respect to the Options outstanding on the date of such
abandonment or termination shall be rescinded.
3.4 COMPLIANCE WITH LAWS.
This Plan, the granting and vesting of Options under this Plan and the
issuance and delivery of shares of Common Stock, and/or of other securities or
property pursuant to Section 3.2, under this Plan or under Options granted
hereunder are subject to compliance with all applicable federal and state laws,
rules and regulations (including but not limited to state and federal tax and
securities laws) and to such approvals by any listing, regulatory or
governmental authority as may, in the opinion of counsel for the Corporation, be
necessary or advisable in connection therewith. Any securities delivered under
this Plan shall be subject to such restrictions, and the person acquiring such
securities shall, if requested by the Corporation, provide such assurances and
representations to the Corporation, as the Corporation may deem necessary or
desirable to assure such compliance.
3.5 PLAN AMENDMENT, STOCKHOLDER APPROVAL AND SUSPENSION; CHANGES IN
OUTSTANDING OPTIONS.
(a) BOARD AUTHORIZATION. The Board may, at any time, terminate or, from
time to time, amend, modify or suspend this Plan, in whole or in part. No
Options may be granted during any suspension of this Plan or after termination
of this Plan, but the Committee shall retain jurisdiction as to Options then
outstanding in accordance with the terms of this Plan.
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(b) STOCKHOLDER APPROVAL. To the extent required by law or (if the
directors are then subject to Section 16) the provisions of Rule 16b-3 (whether
to assure disinterested administration of other plans or to assure the exempt
status of transactions under this Plan intended to qualify for exemption by
virtue of stockholder approval), any amendment to this Plan or any then
outstanding Option shall be subject to stockholder approval.
(c) LIMITATIONS ON AMENDMENTS TO PLAN AND OPTIONS. No amendment,
suspension or termination of this Plan or change of or affecting any outstanding
Option shall, without written consent of the Participant, affect in any manner
materially adverse to the Participant any rights or benefits of the Participant
or obligations of the Corporation under any Option granted under this Plan prior
to the effective date of such change. Changes contemplated by Section 3.2 shall
not be deemed to constitute changes or amendments for purposes of this Section
3.5. If and for so long as the Corporation is a Public Company, the provisions
of this Plan shall not be amended more than once every six months (other than as
may be necessary to conform to any applicable changes in the Code or the rules
thereunder), unless such amendment would be consistent with the provisions of
Rule 16b-3 (or any successor provision). Notwithstanding the foregoing, after
the Transition Period with respect to Rule 16b-3, the Board may authorize
discretionary grants of Options to Eligible Directors subject only to the
limitations under Sections 1.3, 2.1(c) and 2.1(d).
3.6 PRIVILEGES OF STOCK OWNERSHIP.
Except as otherwise expressly authorized by this Plan, a Participant
shall not be entitled to any privilege of stock ownership as to any Director
Shares prior to the satisfaction of all conditions to the valid exercise of the
Option.
3.7 EFFECTIVE DATE OF PLAN.
This Plan shall be effective as of the date of its approval by the Board
and the requisite majority of stockholders of the Corporation.
3.8 TERM OF PLAN.
No Option shall be granted more than five (5) years after the effective
date of this Plan. Unless otherwise expressly provided in this Plan or in an
applicable Option Agreement, any Option theretofore granted may extend beyond
such date, and this Plan shall continue to apply thereto.
3.9 LEGAL ISSUES.
(a) CHOICE OF LAW. This Plan, the Options, all documents evidencing
Options and all other related documents shall be governed by, and construed in
accordance with the laws of the state of incorporation of the Corporation.
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(b) SEVERABILITY. If any provision shall be held by a court of
competent jurisdiction to be invalid and unenforceable, the remaining provisions
of this Plan shall continue in effect.
(c) PLAN CONSTRUCTION. It is the intent of the Corporation that this
Plan and Options hereunder satisfy and be interpreted in a manner that in the
case of persons who are or may be subject to Section 16 of the Exchange Act
satisfies the applicable requirements of Rule 16b-3 so that such persons will be
entitled to the benefits of Rule 16b-3 or other exemptive rules under Section 16
of the Exchange Act, will not be subjected to avoidable liability thereunder,
and will be Disinterested for purposes of administration of other discretionary
plans of the Corporation or its affiliates. If any provision of this Plan or of
any Option would otherwise frustrate or conflict with the intent expressed
above, that provision to the extent possible shall be interpreted and deemed
amended so as to avoid such conflict, but to the extent of any remaining
irreconcilable conflict with such intent as to such persons in the
circumstances, such provision shall be disregarded.
(d) NON-EXCLUSIVITY OF PLAN. Nothing in this Plan shall limit or be
deemed to limit the authority of the Board to grant awards or authorize any
other compensation under any other plan or authority.
ARTICLE 4. RESTRICTIONS ON TRANSFER AND VOTING; STATUS UNDER SHAREHOLDERS'
AGREEMENT
4.1 RESTRICTIONS ON TRANSFER.
(a) NO TRANSFERABILITY OF OPTIONS. No Option shall be transferrable by
the Participant or, if the Participant has died, the Participant's Beneficiary
or, if the Participant has suffered a Total Disability, the Participant's
Personal Representative, if any, or shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge (other than to the Corporation), except by will or the laws of descent
and distribution, or pursuant to a qualified domestic relations order as defined
under the Code. Any attempted transfer in violation of these provisions shall
be void and the Corporation shall disregard any attempt at transfer, assignment
or other alienation prohibited hereby. The designation of a Beneficiary to
receive a Director's benefits or rights under outstanding Options in the event
of such Director's death shall not constitute a transfer for these purposes.
Notwithstanding the foregoing, if and for so long as the Corporation is a Public
Company, the Committee may permit the transfer of an Option in a particular case
if to do so will not compromise the status of this Plan (or of the subject
Options (without the holder's consent) or of other Options) under Rule 16b-3 or
the disinterested administration of any of the Corporation's other stock
incentive plans that are subject to Section 16 of the Exchange Act.
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ARTICLE 5. MISCELLANEOUS
5.1 DEFINITIONS.
(a) "BENEFICIARY" shall mean the person, persons, trust or trusts
designated by a Participant or, in the absence of a designation, entitled by
will or the laws of descent and distribution to receive the benefits specified
in the Option Agreement and under this Plan in the event of a Participant's
death, and shall mean the Participant's executor or administrator if no other
Beneficiary is identified and able to act under the circumstances.
(b) "BOARD" shall mean the Board of Directors of the Corporation or,
with respect to administrative matters (as distinguished from Plan amendments,
suspension, or termination), any duly authorized Committee of members of the
Board designated to administer this Plan.
(c) "CHANGE IN CONTROL EVENT" shall mean the occurrence of any of the
following: (i) approval by the stockholders of the Corporation of the
dissolution or liquidation of the Corporation; (ii) approval by the stockholders
of the Corporation of an agreement to merge or consolidate, or otherwise
reorganize, with or into one or more entities that are not Subsidiaries, as a
result of which less than 50% of the outstanding voting securities of the
surviving or resulting entity immediately after the reorganization are, or will
be, owned, directly or indirectly, by stockholders of the Corporation
immediately before such reorganization (assuming for purposes of such
determination that there is no change in the record ownership of the
Corporation's securities from the record date for such approval until such
reorganization and that such record owners hold no securities of the other
parties to such reorganization, but including in such determination any
securities of the other parties to such reorganization held by affiliates of the
Corporation); (iii) approval by the stockholders of the Corporation of the sale,
lease, conveyance or other disposition of all or substantially all of the
Corporation's business and/or assets to a person or entity which is not a
wholly-owned subsidiary of the Corporation; (iv) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any person
described in and satisfying the conditions of Rule 13d-1(b)(1) thereunder),
other than a person who is the beneficial owner (as defined in Rule 13d-3 under
the Exchange Act) of more than 20% of the outstanding shares of Common Stock of
the Corporation at the time of the effectiveness of this Plan (or an affiliate,
successor, heir, descendent or related party of or to any such person), becomes
the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Corporation representing more than 25% of
the combined voting power of the Corporation's then outstanding securities
entitled to then vote generally in the election of directors of the Corporation;
or (v) a majority of the Board of Directors of the Corporation not being
comprised of Continuing Directors. For purposes of this clause, "Continuing
Directors" are persons who were (A) members of the Board of Directors of the
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Corporation at the time of adoption of this Plan or (B) nominated for election
or elected to the Board of Directors of the Corporation with the affirmative
vote of at least a majority of the directors who were Continuing Directors at
the time of such nomination or election.
(d) "CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
(e) "COMMISSION" shall mean the Securities and Exchange Commission.
(f) "COMMITTEE" shall mean the Board as a whole or a committee appointed
by the Board to administer this Plan, comprised of two or more directors or such
greater number of directors as may be required under applicable law.
(g) "COMMON STOCK" shall mean the Common Stock of the Corporation and
such other securities or property as may become the subject of Options, or
become subject to Options, pursuant to an adjustment made under Section 3.2 of
this Plan.
(h) "CORPORATION" shall mean Pacific Greystone Corporation, a Delaware
corporation, and its successors.
(i) "DIRECTOR SHAREHOLDER" shall mean a member of the Board of Directors
who acquires shares upon exercise of an Option granted under this Plan or, if
the Director Shareholder has died, the Director Shareholder's Beneficiary or, if
the Director Shareholder has suffered a Total Disability, the Director
Shareholder's Personal Representative.
(j) "DIRECTOR SHARES" shall mean the shares of Common Stock acquired upon
exercise of any Option under this Plan by a Participant (or, in the event of the
Participant's death or Total Disability, his Beneficiary or Personal
Representative, as applicable).
(k) "DISINTERESTED" shall mean disinterested for purposes of satisfying
the disinterested administration requirements of Rule 16b-3.
(l) "ELIGIBLE DIRECTOR" shall mean a member of the Board of Directors of
the Corporation who as of the applicable date of grant is NOT (1) an officer or
employee of the Corporation or any subsidiary; or (2) a person to whom equity
securities of the Corporation or an affiliate have been granted or awarded
within the prior year, under or pursuant to any other plan of the Corporation or
an affiliate (except this Plan or any other formula or ongoing securities
acquisition plan, the participation in which does NOT compromise the
disinterested administration of any other such plan under Rule 16b-3) that
provides for the grant or award of equity securities; or (3) an affiliate,
associate, officer or employee of Warburg, Pincus Investors, L.P.
(m) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
9
<PAGE>
(n) "FAIR MARKET VALUE" on any specified date shall mean :
(i) if the Corporation is a Public Company: (A) if the stock is
listed or admitted to trade on a national securities exchange, the
closing price of the stock on the Composite Tape, as published in the
Western Edition of The Wall Street Journal, of the principal national
securities exchange on which the stock is so listed or admitted to
trade, on such date, or, if there is no trading of the stock on such
date, then the closing price of the stock as quoted on such Composite
Tape on the next preceding date on which there was trading in such
shares; (B) if the stock is not listed or admitted to trade on a
national securities exchange, the last price for the stock on such
date, as furnished by the National Association of Securities Dealers,
Inc. ("NASD") through the NASDAQ National Market Reporting System or a
similar organization if the NASD is no longer reporting such
information; (C) if the stock is not listed or admitted to trade on a
national securities exchange and is not reported on the National
Market Reporting System, the mean between the bid and asked price for
the stock on such date, as furnished by the NASD or a similar
organization; or
(ii) if the Corporation is NOT a Public Company or the NASD or a
similar organization does not furnish the mean between the bid and
asked prices for the Common Stock on such date, the fair value of the
Common Stock as of the date of determination, on a consolidated,
fully diluted basis assuming the exercise of all outstanding options
and rights (whether or not vested), in good faith by the members of
the Board who are not eligible to participate in this Plan or by the
Committee, based on the most recent available quarterly financial
statements of the Corporation and such other factors (including but
not limited to the liquidity of the Common Stock (and recent trading
if any therein), material developments subsequent to the end of the
period covered by such financial statements, and industry and general
economic developments) as the determining body may deem relevant for
such purposes.
(o) "OPTION" shall mean an option to purchase Common Stock authorized
and granted under this Plan.
(p) "OPTION AGREEMENT" shall mean an agreement substantially in the form
of Exhibit A, completed in the manner required by this Plan and executed on
behalf of the Corporation by an executive officer of the Corporation.
(q) "OPTION DATE" shall mean the applicable date set forth in Article 2.
(r) "PARTICIPANT" shall mean an Eligible Director who has been granted
an Option under the provisions of this Plan
10
<PAGE>
(including in respect of any outstanding Options only, a person who is not
eligible for additional Options).
(s) "PERSONAL REPRESENTATIVE" shall mean the person or persons who, upon
the disability or incompetence of a Participant, shall have acquired on behalf
of the Participant, by legal proceeding or otherwise, the power to exercise the
rights or receive benefits under this Plan and who shall have become the legal
representative of the Participant.
(t) "PLAN" shall mean this 1995 Eligible Directors Stock Option Plan, as
hereby amended.
(u) "PUBLIC COMPANY" shall mean a corporation, a class of the equity
securities of which is registered under Section 12 of the Exchange Act.
(v) "RULE 16b-3" shall mean Rule 16b-3 as promulgated by the Commission
pursuant to the Exchange Act, as amended from time to time.
(w) "SHARE" shall have the meaning ascribed to such term in Section 4.1
hereof.
(x) "SUBSIDIARY" shall mean any corporation or other entity a majority
of whose outstanding voting stock or voting power is beneficially owned directly
or indirectly by the Corporation.
(y) "TOTAL DISABILITY" shall mean a "permanent and total disability"
within the meaning of Section 22(e)(3) of the Code.
(z) "TRANSITION PERIOD" means the period ending on the day the
Corporation elects or is required to become subject to Rule 16b-3 as amended in
1996.
5.2 NOTICES.
Notices sent to the Corporation shall be sent to its principal executive
office (Attention: Corporate Secretary). Notices sent to an Optionee or
Participant shall be sent to his or her most recent address as set forth in the
Corporation's records.
11
<PAGE>
EXHIBIT A
PACIFIC GREYSTONE CORPORATION
ELIGIBLE DIRECTOR
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the _____ day of _____________, ____, between
Pacific Greystone Corporation, a Delaware corporation (the "Corporation"), and
________________ (the "Director"). Capitalized terms used herein without
definition shall have the meanings ascribed to them in the Amended and Restated
1995 Eligible Directors Stock Option Plan (the "Plan").
W I T N E S S E T H
WHEREAS, the Corporation has adopted and the shareholders of the
Corporation have approved the Plan.
WHEREAS, pursuant to Section 2.1 of the Plan, the Corporation has granted
an option (the "Option") to the Director upon the terms and conditions evidenced
hereby, as required by the Plan, which Option is not intended as and shall not
be deemed to be an incentive stock option within the meaning of Section 422 of
the Code.
NOW, THEREFORE, in consideration of the services rendered and to be
rendered by the Director, the Corporation and the Director agree to the terms
and conditions set forth herein, as required by the terms of the Plan.
1. OPTION GRANT. This Agreement evidences the grant to the Director,
as of ___________, ____ (the "Option Date"), of an Option to purchase an
aggregate of ___________ shares(*) of Common Stock, par value $.01 per share,
under Section 2.1 of the Plan, subject to the terms and conditions and to
adjustment as set forth herein or pursuant to the Plan and the limitations set
forth in the Plan.
2. EXERCISE PRICE. The Option entitles the Director to purchase
(subject to the terms of this Agreement and the Plan), all or any part of the
Option shares at a price per share of $________, which amount represents the
Fair Market Value of the shares on the Option Date.
- ------------------------
(*) If this is an initial award and an event requiring an adjustment
under Section 3.2 has occurred, insert adjusted number pursuant to Section 3.2
of the Plan in lieu of ___________.
<PAGE>
3. OPTION EXERCISABILITY AND TERM. The Option shall first become and
remain exercisable as to one-third of the number of shares in Section 1 on the
first anniversary of the Option Date and as to an additional one-third of the
number of shares in Section 1 on each of the next two anniversaries thereof,
subject to adjustments under Section 3.2 of the Plan and to acceleration under
Section 3.3 of the Plan. The Option shall terminate on the day before the fifth
anniversary of the Option Date, unless earlier terminated in accordance with the
terms of Sections 2.4 and 3.2 of the Plan.
4. SERVICE AND EFFECT OF TERMINATION OF SERVICE. The Director agrees
to serve as a director in accordance with the provisions of the Corporation's
Certificate of Incorporation, bylaws and applicable law. If the Director's
services as a member of the Board shall terminate, this Option shall terminate
at the times and to the extent set forth in Section 2.4 of the Plan.
5. GENERAL TERMS. The Option and this Agreement are subject to, and
the Corporation and the Director agree to be bound by, all of the provisions of
the Plan. Such provisions are incorporated herein by this reference. The
Director acknowledges receiving a copy of the Plan and reading and understanding
its terms and provisions.
6. NONTRANSFERABILITY OF OPTION. This Option shall be non-transferable
(except in the limited circumstances set forth in Section 4.1(a) of the Plan)
and shall be exercisable only by the Director. The grant of the Option is
intended to constitute an exempt transaction under Rule 16b-3 which does not
adversely affect the disinterested administration of any of the Corporation's
other stock incentive plans subject to Section 16 of the Exchange Act and any
provisions required to effect that result shall be deemed incorporated herein by
this reference.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PACIFIC GREYSTONE CORPORATION
(a Delaware corporation)
By ___________________________
Title _____________________
DIRECTOR
_____________________________
(Signature)
_____________________________
(Print Name)
_____________________________
(Address)
_____________________________
(City, State, Zip Code)
<PAGE>
- --------------------------------------------------------------------------------
SPOUSAL CONSENT
- --------------------------------------------------------------------------------
In consideration of the execution of the foregoing Stock Option Agreement
by Pacific Greystone Corporation, I, ____________________________, the spouse of
the Director therein named, do hereby agree to be bound by all of the terms and
provisions thereof and of the Plan.
DATED: ______________, 19__.
_________________________
Signature of Spouse
<PAGE>
CALIFORNIA-BASED OPTIONEE STATEMENT
REPRESENTATION RE OPTION AWARD
The undersigned recipient ("Optionee") of an Option under the Pacific Greystone
Corporation Amended and Restated 1995 Eligible Directors Stock Option Plan (the
"Plan"), evidenced by an Option Agreement dated as of __________, ____, hereby
represents, for purposes of California Corporations Code Section 25102(f) and
otherwise, that Optionee is acquiring the Option (and thus may be deemed to be
thereby acquiring the underlying shares) for Optionee's own account, for
investment and not with a view to or for sale of the Option or such shares in
connection with any distribution.
Optionee acknowledges and agrees that the Option is essentially non-transferable
under any circumstances as provided in Section 4.1 of the Plan and that unless
the issuance of the shares is registered under the Securities Act of 1933 prior
to exercise, the shares will be subject to substantial restrictions on transfer.
Executed as of the ____ day of ________________, ____.
______________________________
(Signature)
______________________________
(Print Name)
<PAGE>
EXHIBIT 5
[O'MELVENY & MYERS LLP LETTERHEAD]
June
25th
1 9 9 6
Pacific Greystone Corporation
6767 Forest Lawn Drive, Suite 300
Los Angeles, California 90068
Ladies and Gentlemen:
This opinion is rendered in connection with the filing by Pacific
Greystone Corporation, a Delaware corporation (the "Company"), of a Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act of
1933, as amended, covering 75,000 shares of Common Stock, $.01 par value (the
"Shares") of the Company to be issued pursuant to the Amended and Restated
Pacific Greystone Corporation 1995 Eligible Directors Stock Option Plan (the
"Plan").
We have examined such appropriate records of the Company and other
documents as we have deemed pertinent as a basis for this opinion.
Based upon such examination and upon such matters of fact and law as
we have deemed relevant, we are of the opinion that when the Shares are issued
and paid for in accordance with any appropriate action or authorization by the
Board of Directors of the Company as required or contemplated under the Plan and
with the provisions of the Plan and relevant agreements duly authorized by and
completed in accordance with the terms of the Plan, the Shares will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
O'MELVENY & MYERS LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 and related Prospectus pertaining to the Amended and Restated Pacific
Greystone Corporation 1995 Eligible Directors Stock Option Plan of our report
dated January 24, 1996 included in the Pacific Greystone Corporation Annual
Report on Form 10-K for the year ended December 31, 1995.
ERNST & YOUNG LLP
Los Angeles, California
June 25, 1996
