<PAGE> 1
As filed with the Securities and Exchange Commission on February 27, 1998
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
---------------------------
BUDGET GROUP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 59-3227576
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
125 BASIN STREET, SUITE 210
DAYTONA BEACH, FLORIDA 32114
(Address, including zip code, of registrant's principal executive offices)
AMERICAN LAND CRUISERS, INC.
1987 STOCK OPTION PLAN
(Full title of plan)
ROBERT L. APRATI
EXECUTIVE VICE PRESIDENT,
SECRETARY AND GENERAL COUNSEL
BUDGET GROUP, INC.
4225 NAPERVILLE ROAD
LISLE, ILLINOIS 60532-3662
(Name and address of agent for service)
(630) 955-7571
(Telephone number, including area code, of agent for service)
COPIES TO:
JEFFREY M. STEIN
KING & SPALDING
191 PEACHTREE STREET
ATLANTA, GEORGIA 30303-1763
(404) 572-4600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered Per Share Offering Price Fee
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock,
par value $.01 per share.... 111,478 shares $19.59 (1) $1,433,892 (1) $423
- ---------------------------------------------------------------------------------------------------
</TABLE>
(1) Calculated in accordance with Rule 457(h) and based upon options
exercisable for the following aggregate numbers of shares of the Company's
Class A Common Stock, par value $.01 per share, at the indicated exercise
prices: (a) 84,107 shares at $10.69 per share, (b) 25,266 shares at $19.59
per share and (c) 2,105 shares at $18.92 share.
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<PAGE> 2
PART II
This Registration Statement on Form S-8 relates to 111,478 shares of
the Class A Common Stock, par value $.01 per share, of Budget Group, Inc.
("Budget" or the "Company") to be issued to current or former employees and
directors of Cruise America, Inc., a wholly owned subsidiary of the Company
("Cruise America"). Cruise America became a wholly owned subsidiary of the
Company on January 28, 1998 (the "Effective Time") when CA Acquisition
Corporation, a wholly owned subsidiary of the Company ("CA Acquisition"), merged
with and into Cruise America pursuant to the Agreement and Plan of Merger dated
November 25, 1997 (the "Merger Agreement") between the Company, Cruise America,
and CA Acquisition. Pursuant to the Merger Agreement, at the Effective Time all
outstanding options to purchase shares of Cruise America Common Stock were
converted into options to purchase shares of Class A Common Stock, par value
$.01 per share, of Budget (the "Class A Common Stock").
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission are hereby incorporated by reference into this Registration
Statement:
(a) The Annual Report of the Company on Form 10-K for the year
ended December 31, 1996;
(b) All reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") since December 31, 1996.
(c) The description of the Company's Class A Common Stock
contained in the Company's Registration Statement on Form 8-A
dated April 15, 1997, including any amendment or report filed
for the purpose of updating such description.
All documents filed by the Company subsequent to the date of this
Registration Statement pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all such securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Inapplicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The following summary is qualified in its entirety by reference to the
complete statute, Certificate of Incorporation, Bylaws and agreement referred to
below.
Section 145 of the General Corporation Law of the State of Delaware
("DGCL") provides that a corporation has the power to indemnify any director or
officer, or former director or officer, who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) against the expenses,
(including attorney's fees), judgments, fines or amounts paid in settlement
actually and reasonably incurred by them in connection with the defense of any
action by reason of being or having been directors or officers, if such person
shall have acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interest of the corporation, and, with respect to any
criminal action or proceeding, provided that such person had no reasonable cause
to believe his conduct was unlawful, except that, if such action shall be in the
right of the corporation, no such indemnification shall be provided as to any
claim, issue or matter as to which such person shall have been judged to have
been liable to the corporation unless and to the extent that the Court of
Chancery of the State of Delaware, or any court in which such suit or action was
brought, shall determine upon application that, in view of all of the
circumstances of the case, such person is fairly and reasonably entitled to
indemnify for such expenses as such court shall deem proper.
As permitted by Section 102(b)(7) of the DGCL, the Amended and Restated
Certificate of Incorporation of the Registrant (the "Restated Certificate of
Incorporation") provides that no director shall be liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a director
other than (i) for breaches of the director's duty of loyalty to the Registrant
and its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) for the
unlawful payment of dividends or unlawful stock purchases or redemptions under
Section 174 of the DGCL, and (iv) for any transaction from which the director
derived an improper personal benefit.
The Registrant's Bylaws provide indemnification of the Registrant's
directors and officers, both past and present, to the fullest extent permitted
by the DGCL, and allow the Registrant to advance or reimburse litigation
expenses upon submission by the director or officer of an undertaking to repay
such advances or reimbursements if it is ultimately determined that
indemnification is not available to such director or officer pursuant to the
Bylaws. The Registrant's Bylaws will also authorize the Registrant to purchase
and maintain insurance on behalf of an officer or director, past or present,
against any liability asserted against him in any such capacity whether or not
the Registrant would have the power to indemnify him against such liability
under the provisions of the Restated Certificate of Incorporation or Section 145
of the DGCL.
The Registrant has entered into indemnification agreements with each of
its directors and certain of its executive officers. The indemnification
agreements require the Registrant, among other things, to indemnify such
directors and officers against certain liabilities that may arise by
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<PAGE> 4
reason of their status or service as directors or officers (other than
liabilities arising from willful misconduct of a culpable nature), and to
advance their expenses incurred as a result of any proceeding against them as to
which they could be indemnified.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
<TABLE>
<S> <C> <C>
4.1 -- Amended and Restated Certificate of Incorporation of
the Registrant (incorporated by reference to Exhibit
3.1 to Registrant's Registration Statement on Form
S-1, File No. 33-78274, dated April 28, 1994).
4.2 -- Amendment to Amended and Restated Certificate of
Incorporation of the Registrant (incorporated by
reference to Exhibit 3.2 to Amendment No. 2 to the
Registrant's Registration Statement on Form S-1, File
No. 333-4507, dated June 28, 1996).
4.3 -- Amendment to Amended and Restated Certificate of
Incorporation of the Registrant (incorporated by
reference to Exhibit 3.3 to the Registrant's
Registration Statement on Form S-1, File No.
333-34799, dated September 26, 1997).
4.4 -- Registrant's Series A Preferred Stock Certificate of
Designations (incorporated by reference to Exhibit
3.4 to the Registrant's Registration Statement on
Form S-1, File No. 333-34799, dated September 26,
1997).
4.5 -- By-Laws of the Registrant (incorporated by reference
to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-1, File No. 33- 78274, dated
April 28, 1994).
5.1 -- Opinion of King & Spalding regarding the validity of
the securities being registered
23.1 -- Consent of King & Spalding (included as part of
Exhibit 5.1)
23.2 -- Consent of Arthur Andersen LLP
23.3 -- Consent of KPMG Peat Marwick LLP
23.4 -- Consent of Deloitte & Touche LLP
24.1 -- Power of Attorney (included on signature page)
99.1 -- American Land Cruisers, Inc. 1987 Stock Option Plan
</TABLE>
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<PAGE> 5
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, as amended (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 in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high end of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
registration statement.
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the Registration Statement
is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of
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.
(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 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the
-4-
<PAGE> 6
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
foregoing provisions, 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.
EXPERTS
The consolidated financial statements of Budget and its subsidiaries,
as of and for the year ended December 31, 1996, incorporated by reference in
Budget's current report on Form 8-K dated December 1, 1997, as amended, have
been audited by Arthur Andersen LLP, independent certified public accountants,
as indicated in their report with respect thereto and are incorporated by
reference herein in reliance upon the authority of said firm as experts in
accounting and auditing.
The consolidated financial statements as of December 31, 1995 and for
each of the two years in the period ended December 31, 1995 incorporated in this
registration statement appearing in Budget Group, Inc.'s current report on Form
8-K dated December 1, 1997, as amended, and appearing in the Annual Report on
Form 10-K for the year ended December 31, 1996 have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their reports, which are
incorporated herein by reference, and have been incorporated in reliance upon
the reports of such firm given upon their authority as experts in accounting and
auditing.
The consolidated financial statements of Budget Rent a Car Corporation
as of December 31, 1995 and 1996 and for each of the years in the three-year
period ended December 31, 1996 have been incorporated by reference herein in
reliance upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein and upon the authority of said
firm as experts in accounting and auditing.
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<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Lisle, State of Illinois on the 27th day of February,
1998.
BUDGET GROUP, INC.
By: Robert L. Aprati
------------------------------------------
Robert L. Aprati
Executive Vice President,
General Counsel and Secretary
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert L. Aprati and Scott R. White and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution for such person and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange 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 and 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, and any of them, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
as of the 27th day of February, 1998.
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<PAGE> 8
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
Chairman of the Board,
Sanford Miller Chief Executive Officer
- -------------------------- (Principal Executive Officer)
Sanford Miller and Director
Michael Clauer Chief Financial Officer
- -------------------------- (Principal Financial Officer)
Michael Clauer
Thomas Kram Vice President - Controller
- -------------------------- (Principal Accounting Officer)
Thomas Kram
John Kennedy
- -------------------------- Director
John Kennedy
Jeffrey Congdon
- -------------------------- Director
Jeffrey Congdon
Ronald D. Agronin
- -------------------------- Director
Ronald D. Agronin
- -------------------------- Director
Stephen L. Weber
Jeffrey Mirkin
- -------------------------- Director
Jeffrey Mirkin
- -------------------------- Director
Alan Liker
James F. Calvano
- -------------------------- Director
James F. Calvano
Martin P. Gregor
- -------------------------- Director
Martin P. Gregor
</TABLE>
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<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Exhibit
- ------- -------
<S> <C> <C>
4.1 -- Amended and Restated Certificate of Incorporation of
the Registrant (incorporated by reference to Exhibit
3.1 to Registrant's Registration Statement on Form
S-1, File No. 33-78274, dated April 28, 1994).
4.2 -- Amendment to Amended and Restated Certificate of
Incorporation of the Registrant (incorporated by
reference to Exhibit 3.2 to Amendment No. 2 to the
Registrant's Registration Statement on Form S-1, File
No. 333-4507, dated June 28, 1996).
4.3 -- Amendment to Amended and Restated Certificate of
Incorporation of the Registrant (incorporated by
reference to Exhibit 3.3 to the Registrant's
Registration Statement on Form S-1, File No.
333-34799, dated September 26, 1997).
4.4 -- Registrant's Series A Preferred Stock Certificate of
Designations (incorporated by reference to Exhibit
3.4 to the Registrant's Registration Statement on
Form S-1, File No. 333-34799, dated September 26,
1997).
4.5 -- By-Laws of the Registrant (incorporated by reference
to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-1, File No. 33- 78274, dated
April 28, 1994).
5.1 -- Opinion of King & Spalding regarding the validity of
the securities being registered
23.1 -- Consent of King & Spalding (included as part of
Exhibit 5.1)
23.2 -- Consent of Arthur Andersen LLP
23.3 -- Consent of KPMG Peat Marwick LLP
23.4 -- Consent of Deloitte & Touche LLP
24.1 -- Power of Attorney (included on signature page)
99.1 -- American Land Cruisers, Inc. 1987 Stock Option Plan
</TABLE>
<PAGE> 1
EXHIBIT 5.1
February 27, 1998
Budget Group, Inc.
125 Basin Street, Suite 201
Daytona Beach, Florida 32114
Re: Budget Group, Inc. -- Form S-8 Registration Statement
Ladies and Gentlemen:
We have acted as counsel for Budget Group, Inc., a Delaware corporation
(the "Company"), in connection with the preparation of a Registration Statement
on Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission. The Registration Statement relates to 111,478 shares of the
Company's Class A common stock, par value $.01 per share, to be issued upon
exercise of options ("Options") granted pursuant to the American Land Cruisers
1987 Stock Option Plan (the "Stock Plan") (all such shares are referred to
herein as the "Shares").
As such counsel, we have examined and relied upon such records,
documents, certificates and other instruments as in our judgment are necessary
or appropriate to form the basis for the opinions hereinafter set forth. In all
such examinations, we have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies submitted
to us as certified, conformed or photographic copies, and as to certificates of
public officials, we have assumed the same to have been properly given and to be
accurate.
For purposes of the opinion set forth in clause (b) below, we have
assumed the following: (i) the Shares that may be issued upon exercise of the
Options will continue to be duly authorized, and the Company will have
sufficient authorized but unissued Class A common stock, par value $.01 per
share, on the dates of such issuance and (ii) on the date on which any Option is
exercised, such Option will have been duly executed, issued and delivered by the
Company and will constitute the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms subject,
as to enforceability, to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally, general
equitable principles and the discretion of courts in granting equitable
remedies.
The opinions expressed herein are limited in all respects to the
federal laws of the United States of America and the laws of the State of
Delaware, and no opinion is expressed with respect to the laws of any other
jurisdiction or any effect which such laws may have on the opinions expressed
herein. This opinion is limited to the matters stated herein, and no opinion is
implied or may be inferred beyond the matters expressly stated herein.
Based upon the foregoing and subject to the limitations, qualifications
and assumptions set forth herein, we are of the opinion that:
(a) The Shares are duly authorized; and
<PAGE> 2
(b) When the Shares are issued upon exercise of the Options
against payment therefor, as provided in the Stock Plan, such
Shares will be validly issued, fully paid and nonassessable.
This opinion is given as of the date hereof, and we assume no
obligation to advise you after the date hereof of facts or circumstances that
come to our attention or changes in law that occur which could affect the
opinions contained herein. This letter is being rendered solely for the benefit
of Budget Group, Inc. in connection with the matters addressed herein. This
opinion may not be furnished to or relied upon by any person or entity for any
purpose without our prior written consent.
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ King & Spalding
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report on the
consolidated financial statements of Budget Group, Inc. (formerly known as Team
Rental Group, Inc.) and subsidiaries as of and for the year ended December 31,
1996, dated March 14, 1997, (except with respect to certain matters discussed
in Note 16 as to which the dates are April 22, April 29, July 10 and July 31,
1997) and our examination and review reports on the pro forma consolidated
statements of operations of Budget Group, Inc. for the year ended December 31,
1996, and the six months ended June 30, 1997, respectively, dated September 4,
1997, included in Budget Group, Inc.'s Current Report on form 8-K, as amended,
dated December 1, 1997, and to all references to our firm included in or made a
part of this registration statement.
/s/ Arthur Andersen LLP
February 26, 1998
Orlando, Florida
<PAGE> 1
EXHIBIT 23.3
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors of
Budget Rent a Car Corporation:
We consent to the incorporation by reference in this Registration
Statement of Budget Group, Inc. on Form S-8, of our report dated February 18,
1997, from Budget Group, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1996, and to the reference to our firm under the heading "Experts"
in this Registration Statement.
/s/ KPMG Peat Marwick LLP
February 26, 1998
Chicago, Illinois
<PAGE> 1
EXHIBIT 23.4
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this registration statement of
Budget Group, Inc. (formerly known as Team Rental Group, Inc.) on Form S-8 of
our reports dated April 12, 1996 appearing in Budget Group, Inc's current
report on Form 8-K dated December 1, 1997, as amended, and appearing in the
Annual Report on Form 10-K of Budget Group, Inc. for the year ended December
31, 1996.
/s/ Deloitte & Touche
DELOITTE & TOUCHE LLP
Indianapolis, Indiana
February 26, 1998
<PAGE> 1
EXHIBIT 99.1
AMERICAN LAND CRUISERS, INC.
1987 STOCK OPTION PLAN
1. Purpose. The purpose of this Plan is to advance the interests
of American Land Cruisers, Inc. (the "Company") by providing an additional
incentive to attract and retain qualified and competent employees upon whose
efforts and judgment the success of the Company is largely dependent, through
the encouragement of stock ownership in the Company by such employees.
2. Definitions. As used herein, the following terms shall have
the meaning indicated:
(a) "Board" shall mean the Board of Directors of the
Company.
(b) "Committee" shall mean any committee to which the
Board has delegated power to act pursuant to Section 4 hereof. In the event that
the Board has not delegated such power, the term "Committee" shall refer to the
full Board of Directors.
(c) "Company" shall mean American Land Cruisers, Inc., a
Florida corporation.
(d) "Director" shall mean a member of the Board.
(e) "Disability" or "Disabled" shall mean the inability
to engage in any substantial gainful activity by reason of a medically
determinable physical or mental impairment which has lasted, or can be expected
to last, for a period of not less than 12 months.
(f) "Disinterested Person" shall mean one who, at the
time he acts on the granting of any Option is not eligible, and within one year
prior thereto has not been eligible, to receive Shares, options for Shares or
any rights with respect to Shares under this Plan or any other Plan of the
Company or any of its affiliates.
(g) "Employee" shall mean all employees of the Company or
any subsidiary thereof (including, without limitation, an employee who also
serves as an officer or director of the Company or of a subsidiary).
(h) "Fair Market Value" of a Share on any date of
reference shall mean (1) if the Shares are listed or admitted for trading on any
United States national securities exchange, or are traded through the National
Market System of the National Association of Securities Dealers Automated
Quotation System ("NASDAQ"), the last reported sale price of the Shares on the
last business day prior to the date in question, or if no such sale is made on
such day, the average of the bid and asked prices for such day, as reported in
any newspaper of general circulation, (2) if the Shares are not so listed,
admitted to trading or traded, the average of the last bid and asked quotations
for Shares as reported by NASDAQ (or, if not so reported by NASDAQ, as reported
by the National Quotation Bureau, Inc.) on the last business day prior to the
date in question, or
<PAGE> 2
(3) if the Shares are not so listed, admitted to trading or traded and bid and
asked prices are not so reported, an amount, not less than book value,
determined in such reasonable manner as may be prescribed by the Committee.
(i) "Option" (when capitalized) shall mean any option
granted under this Plan.
(j) "Option Agreement" shall mean an agreement executed
by the Company and an Employee evidencing an Option granted pursuant to the
Plan.
(k) "Optionee" shall mean a person to whom a stock option
is granted under this Plan or any person who succeeds to the rights of such
person under this Plan by reason of the death of such person.
(l) "Plan" shall mean this 1987 Stock Option Plan.
(m) "Share(s)" shall mean a share or shares of the common
stock, par value $0.01 per share, of the Company.
3. Shares and Options.
(a) The Company may grant from time to time Options to
purchase an aggregate of up to 500,000 from Shares held in the Company's
treasury or from authorized and unissued Shares. In no event shall any Option
granted hereunder be deemed to be an "incentive stock option" as defined in
Section 422A of the Internal Revenue Code of 1986, as amended from time to time.
(b) All Options granted pursuant to the Plan shall be
treated as "outstanding" until they are exercised in full, terminate or expire,
or until they are canceled. If any Option shall terminate, expire or be canceled
as to any Shares, new Options may thereafter be granted covering such Shares.
(c) Except as set forth in Section 13 hereof, the
aggregate number of shares with respect to which Options may be granted shall be
subject to change only by means of an amendment of the Plan duly adopted by the
Board and approved by the shareholders within one year of the date of the
adoption.
4. Administration of the Plan.
(a) The Plan shall be administered either (i) by the
entire Board, or (ii) by a Committee consisting of not less than three (3)
Directors. If a Committee is appointed, the Committee shall have all of the
powers of the Board with respect to the Plan. Any member of the Committee may be
removed at any time, with or without cause, by resolution of the Board and any
vacancy occurring in the membership of the Committee shall be filled by
appointment by the Board.
<PAGE> 3
(b) Subject to the provisions of the Plan, the Committee
(or the Board, if no Committee is appointed) shall have the authority, in its
sole and absolute discretion, to:
(i) construe and interpret the provisions of the
Plan or of any Option or Option Agreement, adopt, amend and rescind all
rules, regulations and procedures and otherwise make any determinations
which it deems necessary or advisable for the administration of the
Plan, such interpretations, rule making and determinations to be final,
conclusive and binding on all persons having any interest therein;
(ii) determine who shall be granted Options;
(iii) determine the number of Shares with respect
to which Options shall be granted and the exercise price per share of
any Options granted; and
(iv) subject to the terms of the Plan, specify
the terms and conditions of any Options granted, including, without
limitation, (A) prescribing the date or dates on which an Option
becomes exercisable, (B) providing that an Option accrues or becomes
exercisable in installments over a period of years or upon the
attainment of stated goals, or both, and (C) relating an Option to the
continued employment of the Optionee for a stated period of time;
provided, that such terms and conditions are not more favorable to an
Optionee than those expressly permitted herein.
(c) Any and all decisions or determinations of the
Committee shall be made either (i) by a majority vote of the members of the
Committee at a meeting or (ii) without a meeting by the written approval of a
majority of the members of the Committee.
5. Eligibility for Grant of Options.
(a) All Employees and Directors shall be eligible to
receive Options under the Plan. Any person who files with the Committee, in a
form satisfactory to the Committee, a written waiver of eligibility to receive
any Option under this Plan shall not be eligible to receive any Option under
this Plan for the duration of such waiver.
(b) Notwithstanding subsection 5(a), the Committee may
grant Options to a person not then in the employ of the Company in order to
induce such person to become employed by the Company; provided, that the grant
of Options to such person shall be conditioned upon such person becoming an
Employee at or prior to the time of the execution of an Option Agreement
evidencing such Options, and in no event shall any such person have any rights
with respect to Options granted pursuant to the Plan prior to becoming an
Employee.
<PAGE> 4
6. Grant of Options.
(a) Subject to the terms of the Plan, the Committee may
from time to time grant Options with respect to the Shares covered by the Plan.
In granting Options, the Committee shall take into consideration the
contribution the person has made or may make to the success of the Company and
such other factors as the Committee shall determine. The Committee shall also
have the authority to consult with and receive recommendations from officers and
other personnel of the Company with regard to these matters.
(b) Each Option granted pursuant to the Plan shall be
evidenced by an Option Agreement in the form attached as Exhibit A hereto or in
such other form as the Committee shall from time to time approve, which
agreement may contain any terms and conditions deemed necessary or desirable by
the Committee, provided such terms and conditions are not inconsistent with this
Plan or any applicable law.
(c) The Options granted under this Plan shall be in
addition to regular salaries, pension, life insurance or other benefits related
to employment with the Company. Neither the Plan, any Option granted under the
Plan nor any Option Agreement shall confer upon any person any right to
continuance of employment by the Company.
(d) Notwithstanding any other provision of the Plan, and
in addition to any other requirements of the Plan, Options may not be granted to
a Director unless either (i) the grant of such Options is authorized by, and all
of the terms of such Options are determined by, a Committee appointed in
accordance with Section 14 of this plan, all of whose members are Disinterested
Persons, or (ii) such Options are granted in conformity with both of the
following requirements:
(A) The maximum number of Shares for which any one
Director may be granted Options in any calendar year
shall not exceed five percent (5%) of the total
number of Shares for which Options may be granted
under the Plan; and
(B) Any such Option may be exercised only after the
expiration of six (6) calendar months from the date
such Option is granted.
7. Option Price. The Committee shall determine the exercise price
of all Options granted pursuant to the Plan; provided, however, that in no event
shall the exercise price per Share of any Option be less than the Fair Market
Value per Share on the date such Option is granted.
8. Exercise of Options.
(a) An Option shall be deemed exercised when (i) the
Company has received written notice of such exercise in accordance with the
terms of the Option, (ii) full payment of
<PAGE> 5
the aggregate exercise price of the Shares as to which the Option is exercised
has been made, and (iii) arrangements which are satisfactory to the Committee in
its sole discretion have been made for the Optionee's payment to the Company of
the amount which is necessary for the Company to withhold in accordance with
applicable federal or state tax withholding requirements.
(b) Unless further limited by the Committee in any
Option, the exercise price of any Shares purchased shall be paid in cash, by
certified or cashier's check, by money order, with Shares (provided that at the
time of exercise the Committee, in its sole discretion, does not prohibit the
exercise of Options through the delivery of already-owned Shares) or by a
combination of the above; provided, however, that the Committee, in its sole
discretion, may accept a personal check in full or partial payment of any
Shares. If the exercise price is paid in whole or in part with Shares, the value
of Shares surrendered shall be their Fair Market Value. The Company, in its sole
discretion, may lend money to an Optionee, guarantee a loan to an Optionee or
otherwise assist an Optionee to obtain the cash necessary to exercise all or a
portion of an Option granted hereunder or to pay any tax liability of the
Optionee attributable to such exercise.
9. Exercisability of Options. Any Option shall become exercisable
in such amounts, at such intervals and upon such terms and conditions as the
Committee shall provide in the Option Agreement executed with respect to such
Option, except as otherwise provided in this Section 9.
(a) The expiration date of an Option shall be determined
by the Committee at the time of grant, but in no event shall an Option be
exercisable after the expiration of ten (10) years from the date of grant of the
Option.
(b) Unless otherwise provided in any Option Agreement,
each outstanding Option shall become immediately and fully exercisable
(i) if there occurs any transaction (which shall
include a series of transactions occurring within 60 days or occurring
pursuant to a plan), which has the result that shareholders of the
Company immediately before such transaction cease to own at least 51%
of the voting stock of the Company or of any entity which results from
the participation of the Company in a reorganization, consolidation,
merger, liquidation or any form of corporate transaction;
(ii) if the shareholder of the Company shall
approve a plan of merger, consolidation, reorganization, liquidation or
dissolution in which the Company does not survive (unless the approved
merger, consolidation, reorganization, liquidation or dissolution is
subsequently abandoned); or
(iii) if the shareholders of the Company shall
approve a plan for the sale, lease, exchange or other disposition of
all or substantially all the property and assets of the Company (unless
such plan is subsequently abandoned).
<PAGE> 6
(c) The Committee may, in its sole discretion, accelerate
the date on which any Option may be exercised and may accelerate the vesting of
any Shares subject to any Option or previously acquired by the exercise of any
Option.
(d) The Committee, in its sole discretion, by giving
written notice ("cancellation notice") to all Optionees may cancel, effective
upon the date of the consummation of any corporate transaction described in
Subsections 9(b)(ii) and (iii) hereof, any Option which remains unexercised on
such date. Such cancellation notice shall be given a reasonable period of time
prior to the proposed date of such cancellation and may be given either before
or after shareholder approval of such corporate transaction.
10. Termination of Employment.
(a) An Optionee who ceases to be an Employee or Director
for any reason (including layoff) other than death, Disability or termination by
the Company for cause, may exercise within three (3) months after the date of
such termination of employment (but not later than the originally prescribed
expiration date) any Option granted to such Optionee, but only to the extent
that the right to exercise any such Option has accrued on such date.
(b) An Optionee whose employment is terminated by the
Company for "cause," or who is found to have engaged in conduct which would
constitute "cause," shall forthwith upon such termination or determination cease
to have any right to exercise any Option. For purposes of this paragraph,
"cause" shall be deemed to include (but shall not be limited to) employment in
any capacity with a competitor of the Company, commission of a felony,
dishonesty with respect to the Company, insubordination, substantial malfeasance
or non-feasance of duty, unauthorized disclosure of confidential information and
conduct substantially prejudicial to the business of the Company. The
determination of the Committee as to the existence of cause shall be conclusive
on the Optionee and the Company.
11. Disability.
(a) An Optionee who ceases to be an Employee or Director
by reason of a Disability may exercise within a period of one (1) year after the
date that the Optionee became Disabled (but not later than the originally
prescribed expiration date) any Option granted to such Optionee, but only to the
extent that the right to exercise any Option has accrued on the date such
Optionee becomes Disabled (notwithstanding that the Optionee might have been
able to exercise any such Option as to some or all of the Shares covered thereby
on a later date if the Optionee had not become Disabled).
(b) The Committee shall make the determination both of
whether a Disability has occurred and the date thereof. If requested, the
Optionee shall be examined by a physician selected or approved by the Committee,
the cost of which examination shall be paid for by the Company.
<PAGE> 7
12. Death. In the event that an Optionee ceases to be an Employee
or Director by reason of such Optionee's death, such Optionee's survivors may
exercise within a period of one (1) year after the date of death of such
Optionee (but not later than the originally prescribed expiration date) any
Option granted to such Optionee, but only to the extent that the right to
exercise any such Option has accrued on the date of the Optionee's death
(notwithstanding that the decedent might have been able to exercise any such
Option as to some or all of the Shares covered thereby on a later date if the
Optionee were alive and had continued to be an Employee).
13. Adjustment of Shares.
(a) In the event that the outstanding Shares of the
Company are changed into or exchanged for a different number or kind of shares
or other securities of the Company or of another corporation by reason of any
reorganization, merger, consolidation, recapitalization, reclassification,
change in par value, stock split-up, combination of shares or dividend payable
in capital stock, or the like:
(i) appropriate adjustment shall be made in the
maximum number and kind of shares with respect to which Options may be
granted under the Plan, so that the same percentage of the Company's
issued and outstanding capital stock shall continue to be subject to
the grant of Options under the Plan; and
(ii) appropriate adjustment to prevent dilution
or enlargement of the rights granted to or available for Optionees
shall be made in the number and kind of shares and in the exercise
price per Share with respect to outstanding Options.
(b) Except as otherwise expressly provided herein, the
issuance by the Company of its capital stock of any class, or securities
convertible into shares of capital stock of any class, either in connection with
direct sale or upon the exercise of rights or warrants to subscribe therefor, or
upon conversion of shares or obligations of the Company convertible into such
shares or other securities, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number of Options then subject to
outstanding Options granted under the Plan or the exercise prices of such
Options.
(c) Without limiting the generality of the foregoing, the
existence of outstanding Options granted under the Plan shall not affect in any
manner the right or power of the Company to make, authorize or consummate (i)
any or all adjustments, recapitalizations, reorganizations or other changes in
the Company's capital structure or its business; (ii) any merger or
consolidation of the Company; (iii) any issuance by the Company of debt
securities, or preferred or preference stock which would rank above the Shares
subject to outstanding Options; (iv) the dissolution or liquidation of the
Company; (v) any sale, transfer or assignment of all or any part of the assets
or business of the Company; or (vi) any other corporate act or proceeding,
whether of a similar character or otherwise.
14. Transferability and Assignability of Options. An Option shall
not be transferable by the Optionee otherwise than by will or the laws of
descent and distribution. So long as an
<PAGE> 8
Optionee lives, only such Optionee or his guardian or legal representative shall
have the right to exercise the Option. An Option shall not be assigned, pledged
or hypothecated in any manner (whether by operation of law or otherwise) and
shall not be subject to execution, attachment or similar process. Any attempted
transfer, assignment, pledge or hypothecation, or the levy of any attachment or
similar process, shall render the Option subject thereto null and void.
15. Issuance of Shares. As a condition of any sale or issuance of
Shares upon exercise of any Option, the Committee may require such agreements or
undertakings, if any, as the Committee may deem necessary or advisable to assure
compliance with any federal or state securities law or regulation including, but
not limited to, the following: (a) a representation and warranty by the Optionee
to the Company, at the time any Option is exercised, that he is acquiring the
Shares to be issued to him for investment and not with a view to, or for sale in
connection with, the distribution of any such Shares; and (b) a representation,
warranty or agreement to be bound by any legends that are, in the opinion of the
Committee, necessary or appropriate to comply with the provisions of any law or
regulation deemed by the Committee to be applicable to the issuance of the
Shares and are endorsed upon the Share certificates.
16. Rights as a Shareholder. No Optionee to whom an Option has
been granted shall have any rights as a shareholder with respect to any Shares
covered by such Option except as to such Shares as shall have been issued to and
registered in the Company's share register in the name of such Optionee upon the
due exercise of the Option.
17. Interpretation.
(a) If any provision of the Plan should be held invalid
for any reason, such holding shall not affect the remaining provisions hereof,
but instead the Plan shall be construed and enforced as if such provision had
never been included in the Plan.
(b) The Plan shall be governed by, and construed and
interpreted in accordance with, the laws of the State of Florida.
18. Amendment and Discontinuation of the Plan. The Committee may
from time to time amend the Plan or any Option; provided, however, that without
approval by the shareholders of the Company, no such amendment shall materially
(i) increase the benefits accruing to participants under the plan, (ii) increase
the number of Shares reserved for Options under the Plan, or (iii) modify or
change the class of employees eligible to receive Options; and provided further,
that, except to the extent provided in Section 9, no amendment, suspension or
cancellation of the Plan or any Option issued hereunder shall substantially
impair any Option previously granted to any Optionee without the consent of such
Optionee.
19. Termination of the Plan. The Plan shall terminate ten (10)
years from the date of its adoption by the Board. The Plan may be terminated at
an earlier date by a vote of the shareholders of the Company; provided, however,
that any such earlier termination shall not affect any Options granted or Option
Agreements executed prior to the effective date of such termination.
<PAGE> 9
20. Effective Date and Termination Date. This Plan shall become
effective as of the date on which the Board adopts the Plan, but shall be
subject within one (1) year after such adoption to the approval of the
shareholders of the Company.
