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FORM 8-B
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
REGISTRATION OF SECURITIES OF CERTAIN SUCCESSOR ISSUERS
FILED PURSUANT TO SECTION 12(b) or (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AMERICAN PREMIER GROUP, INC.
(successor to American Premier Underwriters, Inc.)
(Exact name of registrant as specified in its charter)
Ohio 31-1422526
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Identification No.)
Organization)
One East Fourth Street
Cincinnati, Ohio 45202
(Address of Principal (Zip Code)
Executive Offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on
to be so registered which each class is to be
registered
Common Stock, $1 par value New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
(Title of Class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. General Information.
(a) American Premier Group, Inc. (the "Company") was
formed as an Ohio corporation on December 9, 1994.
(b) the Company's fiscal year ends December 31 of each
year.
Item 2. Transaction of Succession.
(a) The predecessor corporations to the Company are
American Premier Underwriters, Inc., a Pennsylvania corporation
("Old American Premier"), and American Financial Corporation, an
Ohio corporation ("AFC" and, collectively with Old American
Premier, the "Predecessors"). The common stock of Old American
Premier was registered pursuant to Section 12(b) of the
Securities Exchange Act of 1934 (the "Exchange Act"). The common
stock of AFC was not registered under the Exchange Act, but AFC
does have securities registered under Section 12(b) of the
Exchange Act.
(b) On April 3, 1995, pursuant to an Agreement and Plan
of Acquisition and Reorganization dated December 9, 1994, as
amended (the "Acquisition Agreement") which was approved by the
shareholders of Old American Premier at a Special Meeting of
Shareholders held on March 23, 1995, (a) Old American Premier
merged with a subsidiary of the Company and each share of Old
American Premier common stock was converted into one share of
Company common stock and (b) AFC merged with another subsidiary
of the Company and each share of AFC common stock was converted
into 1.435 shares of Company common stock (after giving effect to
a litigation settlement). As a result of the above transactions,
the Predecessors each became subsidiaries of the Company. See
the Acquisition Agreement which is Exhibit 1 to this Registration
Statement and is incorporated herein by reference.
Item 3. Securities to be Registered.
The Company has authorized 200,000,000 shares of common
stock of which 51,325,798 shares were outstanding as of April 3,
1995. Such shares do not include 9,953,392 shares of Common
Stock owned by the Company's 83%-owned subsidiary, American
Financial Enterprises, Inc. ("AFEI"), which AFEI is not entitled
to vote and which are therefore not considered to be outstanding.
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Item 4. Description of Registrant's Securities to Be Registered.
For a description of the Company common stock, see the
information set forth under the captions "DESCRIPTION OF CAPITAL
STOCKS - New American Premier" in the Proxy Statement/Prospectus
which is Exhibit 99.1 to this Registration Statement. Such
information is incorporated herein by reference. Copies of such
Proxy Statement/Prospectus have previously been filed with the
New York Stock Exchange.
Item 5. Financial Statements and Exhibits
(a) Financial Statements.
Not Applicable (See Instructions as to Financial
Statements (a))
(b) Exhibits.
Exhibit
Number Exhibit
(1) Agreement and Plan of Acquisition and *
Reorganization dated December 9, 1994, as
amended (incorporated by reference to
Exhibit 2 to Amendment No. 3 to the
Registration Statement on Form S-4 of the
Company, Registration No. 33-56813, filed on
February 17, 1995).
(3)(i) Amended and Restated Articles of Incorpora-
tion of the Company.
(3)(ii) Code of Regulations of the Company.
(4)(i) Order No. 3708 of the United States District *
Court for the Eastern District of Pennsyl-
vania in In the Matter of Penn Central
Transportation Company, Debtor, Bankruptcy
No. 70-347 dated August 17, 1978 directing
the consummation of the Plan of Reorganiza-
tion for Penn Central Transportation Company
for August 1978, incorporated by reference
to Exhibit 4 to Form 8-K Current Report of
Penn Central Transportation Company for
August 1978.
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Exhibit
Number Exhibit
(4)(ii)(a)(i) Indenture dated as of August 1, 1989 between *
the Company and Morgan Guaranty Trust
Company of New York, as Trustee, regarding
the Company's Subordinated Debt Securities
(the "Indenture"), incorporated by reference
to Exhibit 4.1 to Old American Premier's
Form 8-K Current Report dated August 10,
1989.
(4)(ii)(a)(ii) Instrument of Resignation of Trustee and *
Appointment and Acceptance of Successor
Trustee and Appointment of Agent dated as of
November 15, 1991 among the Company, Morgan
Guaranty Trust Company of New York as
Resigning Trustee and Star Bank, N.A. as
Successor Trustee, incorporated by reference
to Exhibit (4)(ii)(d)(ii) to Old American
Premier's Annual Report on Form 10-K for
1991.
(4)(ii)(a)(iii) Officer's Certificate Pursuant to Sections *
102 and 301 of the Indenture relating to
authentication and designation of the
Company's 9-3/4% Subordinated Notes due Au-
gust 1, 1999, to which is attached the Form
of Note, incorporated by reference to
Exhibit 4.2 to Old American Premier's Form
8-K Current Report dated August 10, 1989.
(4)(ii)(a)(iv) Officer's Certificate Pursuant to Sections *
102 and 301 of the Indenture relating to
authentication and designation of the
Company's 10-5/8% Subordinated Notes due
April 15, 2000, to which is attached the
Form of Note, incorporated by reference to
Exhibit 4.1 to Old American Premier's Form
8-K Current Report dated April 19, 1990.
(4)(ii)(a)(v) Officer's Certificate Pursuant to Sections *
102 and 301 of the Indenture relating to
authentication and designation of the
Company's 10-7/8% Subordinated Notes due May
1, 2011, to which is attached the Form of
Note, incorporated by reference to Exhibit
4.1 to Old American Premier's Form 8-K Cur-
rent Report dated May 7, 1991.
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Exhibit
Number Exhibit
(4)(ii)(a)(vi) Articles of Incorporation of AFC, filed for *
the purpose of describing rights of holders
of American Financial Corporation Preferred
Stock, incorporated by reference to Exhibit
4 to the Form 10-K report of AFC for 1994.
(4)(ii)(a)(vii) AFC has no outstanding debt issues exceeding
10% of its assets and those of its consoli-
dated subsidiaries but will furnish a copy
of all such agreement to the Commission upon
request.
(10)(i) Stock Purchase Agreement, dated as of June *
10, 1993, among the Company, PCC Technical
Industries, Inc. and Tracor, Inc., incorpo-
rated by reference to Exhibit (99) to Old
American Premier's Current Report on Form 8-
K dated May 26, 1993.
Exhibits (10)(iii)(a) through (10)(iii)(i) are compensatory
plans and arrangements in which directors or executive officers
participate:
(10)(iii)(a)(i) The Company's Stock Option Plan, as amended
and restated April 3, 1995.
(10)(iii)(a)(ii) The Company's Employee Stock Purchase Plan,
as amended and restated April 3, 1995.
(10)(iii)(a)(iii) Forms of stock option agreements used to *
evidence options granted under the Company's
Stock Option Plan to officers and directors
of the Company, incorporated by reference to
Exhibit (10)(iii)(a)(iii) to Old American
Premier's Annual Report on Form 10-K for
1992.
(10)(iii)(a)(iv) The Company's Stock Option Loan Program, as *
amended February 8, 1991, incorporated by
reference to Exhibit 10(iii)(a)(v) to Old
American Premier's Annual Report on Form 10-
K for 1990.
(10)(iii)(b) The Company's Annual Incentive Compensation *
Plan, as amended February 12, 1992, incorpo-
rated by reference to Exhibit (10)(iii)(b)
to Old American Premier's Annual Report on
Form 10-K for 1991.
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Exhibit
Number Exhibit
(10)(iii)(c) Description of the Company's retirement pro- *
gram for outside directors, as adopted by
the Company's Board of Directors on March
23, 1983, incorporated by reference to Ex-
hibit (10)(iii)(i) to Old American Premier's
Annual Report on Form 10-K for 1982.
(10)(iii)(d) The Company's Employee Stock Redemption Pro- *
gram, as adopted by the Company's Board of
Directors on March 28, 1985, incorporated by
reference to Exhibit (10)(iii)(j) to Old
American Premier's Annual Report on Form 10-
K for 1984.
(10)(iii)(e)(i) Severance Agreement dated March 28, 1987 be- *
tween the Company and Alfred W. Martinelli,
a director of the Company, incorporated by
reference to Exhibit (10)(iii)(a)(i) to Old
American Premier's Form 10-Q Quarterly
Report For Quarter Ended March 31, 1987.
(10)(iii)(e)(ii) Consulting Agreement dated as of March 29, *
1987 between the Company and Alfred W.
Martinelli, incorporated by reference to
Exhibit (10)(iii)(a)(ii) to Old American
Premier's Form 10-Q Quarterly Report for the
Quarter Ended March 31, 1987.
(10)(iii)(e)(iii) Letter agreement amending the foregoing Con- *
sulting and Severance Agreements dated
December 9, 1991 between the Company and
Alfred W. Martinelli, incorporated by refer-
ence to Exhibit (10)(iii)(e)(iii) to Old
American Premier's Annual Report on Form 10-
K for 1991.
(10)(iii)(e)(iv) Letter agreement amending the foregoing Con- *
sulting and Severance Agreements dated June
29, 1994 between the Company and Alfred W.
Martinelli, incorporated by reference to
Exhibit (10)(iii)(e)(iv) to Old American
Premier's Annual Report on Form 10-K for
1994.
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Exhibit
Number Exhibit
(10)(iii)(f) Letters dated April 9, 1987 from the Company *
to each of Neil M. Hahl and Robert W. Olson,
officers of the Company, with respect to
severance arrangements, as supplemented by
letters dated June 26, 1987 to each such
officer, incorporated by reference to Exhib-
it (10)(iii)(a) to Old American Premier's
Form 10-Q Quarterly Report for the Quarter
Ended June 30, 1987.
(10)(iii)(g) Book Value Incentive Plan of AFC, *
incorporated by reference to Exhibit 10(a)
of AFC's Annual Report on Form 10-K for
1994.
(10)(iii)(h) Option Agreement of AFC, incorporated by *
reference to Exhibit 10(b) of AFC's Annual
Report on Form 10-K for 1994.
(10)(iii)(i) Non-Qualified ESORP Plan of AFC, *
incorporated by reference to Exhibit 10(c)
of AFC's Annual Report on Form 10-K for
1994.
(21) List of subsidiaries of the Company: Old *
American Premier and its subsidiaries are
incorporated by reference to Exhibit (21) to
Old American Premier's Annual Report on Form
10-K for 1994 and AFC and its subsidiaries
are incorporated by reference to Exhibit
(21) to AFC's Annual Report on Form 10-K for
1994.
(28) Information from reports provided to state *
regulatory authorities incorporated by
reference to Exhibit (28) to Old American
Premier's Annual Report on Form 10-K for
1994 and Exhibit (28) to AFC's Annual Report
on Form 10-K for 1994.
(99.1) Proxy Statement/Prospectus dated *
February 17, 1995 of Old American Premier,
incorporated by reference to the filing made
under Rule 424 of the Securities Act of 1933
on February 21, 1995.
_____________________
*Incorporated herein by reference as indicated.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
AMERICAN PREMIER GROUP, INC.
Date: April 17, 1995 By: Robert W. Olson
Robert W. Olson
Senior Vice President
and Secretary
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AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
AMERICAN PREMIER GROUP, INC.
FIRST. The name of the corporation is AMERICAN PREMIER
GROUP, INC. (the "Corporation").
SECOND. The place in the State of Ohio where the
Corporation's principal office is to be located is the City of
Cincinnati in Hamilton County, Ohio.
THIRD. The purpose for which the Corporation is organized
shall be to engage in any lawful act or activity for which
corporations may be formed under the Ohio General Corporation
Law, Ohio Revised Code Sections 1701.01 et seq..
FOURTH. The aggregate number of shares of stock which the
Corporation shall have authority to issue is Two Hundred Twenty
Five Million (225,000,000) shares, which shall be divided into
two classes, consisting of:
(a) Twenty Five Million (25,000,000) shares of preferred
stock ("Preferred Stock") without par value; and,
(b) Two Hundred Million (200,000,000) shares of common stock
("Common Stock") with a par value of $1.00 per share.
PART ONE: PREFERRED STOCK
(a) Except as otherwise provided by this Article Fourth or by
the amendment or amendments adopted by the Board of Directors
providing for the issue of any series of Preferred Stock, the
Preferred Stock may be issued at any time or from time to time in
any amount, not exceeding in the aggregate, including all shares
of any and all series thereof theretofore issued, the Twenty Five
Million (25,000,000) shares of Preferred Stock hereinabove
authorized, as Preferred Stock of one or more series, as
hereinafter provided, and for such lawful consideration as shall
be fixed from time to time by the Board of Directors.
Twelve Million Five Hundred Thousand (12,500,000) shares
of Preferred Stock shall have voting rights as provided in clause
(b) of this Part One of Article Fourth (collectively, "Voting
Preferred Stock").
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Twelve Million Five Hundred Thousand (12,500,000) shares
of Preferred Stock shall have no voting power whatsoever, except
as may be otherwise provided by law or except as may arise upon a
default, failure or other contingency (collectively, "Non-Voting
Preferred Stock"). The Career Shares Series created by Part Two
of this Article Fourth are shares of Non-Voting Preferred Stock.
All shares of any one series of Preferred Stock shall be
alike in every particular, each series thereof shall be
distinctively designated by letter or descriptive words, and all
series of Preferred Stock shall rank equally and be identical in
all respects except as provided above with respect to Voting
Preferred Stock and Non-Voting Preferred Stock or as permitted by
the provisions of Clause (b) of this Part One of Article Fourth.
(b) Authority is hereby expressly granted to the Board of
Directors from time to time to adopt amendments to these Articles
of Incorporation providing for the issue in one or more series of
any unissued or treasury shares of the Preferred Stock, and
providing, to the fullest extent now or hereafter permitted by
the laws of the State of Ohio and notwithstanding the provisions
of any other Article of these Articles of Incorporation of the
Corporation, in respect of the matters set forth in the following
subdivisions (i) to (x), inclusive, as well as any other rights
or matters pertaining to such series:
(i) The designation and number of shares of such series;
(ii) With respect to the Voting Preferred Stock only,
voting rights (to the fullest extent now or hereafter permitted
by the laws of the State of Ohio);
(iii) With respect to the Non-Voting Preferred Stock
only, voting rights upon a default, failure or other contingency;
(iv) The dividend rate or rates of such series (which may
be a variable rate and which may be cumulative);
(v) The dividend payment date or dates of such series;
(vi) The price or prices at which shares of such series
may be redeemed;
(vii) The amount of the sinking fund, if any, to be
applied to the purchase or redemption of shares of such series
and the manner of its application;
(viii) The liquidation price or prices of such series;
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(ix) Whether or not the shares of such series shall be
made convertible into, or exchangeable for, shares of any other
class or classes or of any other series of the same class of
stock of the Corporation or any other property, and if made so
convertible or exchangeable, the conversion price or prices, or
the rates of exchange at which such conversion or exchange may be
made and the adjustments thereto, if any; and,
(x) Whether or not the issue of any additional shares of
such series or any future series in addition to such series shall
be subject to any restrictions and, if so, the nature of such
restrictions.
Any of the voting rights (with respect to the Voting Preferred
Stock only), voting rights upon a default, failure or other
contingency (with respect to the Non-Voting Preferred Stock
only), dividend rate or rates, dividend payment date or dates,
redemption rights and price or prices, sinking fund requirements,
liquidation price or prices, conversion or exchange rights and
restrictions on issuance of shares of any such series of
Preferred Stock may, to the fullest extent now or hereafter
permitted by the laws of the State of Ohio, be made dependent
upon facts ascertainable outside these Articles of Incorporation
or outside the amendment or amendments providing for the issue of
such Preferred Stock adopted by the Board of Directors pursuant
to authority expressly vested in it by this Article Fourth. If
the then-applicable laws of the State of Ohio do not permit the
Board of Directors to fix, by the amendment creating a series of
Voting Preferred Stock, the voting rights of shares of such
series, each holder of a share of such series of Voting Preferred
Stock shall, except as may be otherwise provided by law, be
entitled to one (1) vote for each share of Voting Preferred Stock
of such series held by such holder.
PART TWO: CAREER SHARES
(a) Two series of such Preferred Stock shall be as follows:
SECTION 1. Designation.
(A) Forty Nine Thousand Eight Hundred Eighty Eight (49,888)
shares designated as the "$3.76 Convertible Preferred Stock,
First Series", the shares of which shall be entitled to
cumulative cash dividends at the annual rate of $3.76 per share
and which shall be convertible into Common Stock at the initial
rate of 2.0110 shares of Common Stock for each share of such
Preferred Stock; and,
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(B) One Hundred Sixty Two Thousand Eight Hundred Ten
(162,810) shares designated as the "$4.20 Convertible Preferred
Stock, Second Series", the shares of which shall be entitled to
cumulative cash dividends at the annual rate of $4.20 per share
and which shall be convertible into Common Stock at the initial
rate of 2.1281 shares of Common Stock for each share of such
Preferred Stock.
SECTION 2. General Terms. (A) The series of Preferred
Stock designated in Section 1 will be referred to hereinafter
collectively as Career Share Series and any shares of any thereof
as Career Shares. Except as to designation, annual dividend rate
and initial conversion rate, the terms of the shares of any
Career Share Series shall be identical to the terms of the shares
of each other Career Share Series. The terms on which Career
Shares may be converted into Common Stock and the payment of
dividends at the rate specified in Section 1 shall be subject to,
and terms of the Career Shares generally shall be as set forth
in, the remaining Sections of this paragraph (a) of this Part Two
of Article Fourth.
(B) Nothing herein shall be deemed to constitute a limitation
on the authority of the Board of Directors to designate by
amendment or amendments adopted by the Board of Directors, out of
the authorized Preferred Stock, series of Preferred Stock not
governed by the terms of this paragraph (a) of this Part Two of
Article Fourth.
SECTION 3. Dividend Rights. Holders of record of shares
of Career Share Series shall be entitled to receive, as and if
declared by the Board of Directors, out of assets legally
available therefor, cumulative cash dividends at the annual rate
set forth in Section 1. Dividends on such Career Shares will
accrue from the respective dates of original issuance of such
shares and, with respect to each such share, will be payable
quarterly on February 15, May 15, August 15 and November 15 in
each year commencing on the first of such dates occurring more
than 30 days after the date of issuance of such share. In the
event that full cumulative dividends on outstanding shares of any
Career Share Series have not been paid when scheduled, no
dividends shall be declared or paid on, and no such amounts shall
be set aside or applied to the redemption or purchase of, any
shares of Common Stock of the Corporation or any other shares of
capital stock of the Corporation ranking subordinate to such
Career Share Series with respect to the payment of dividends
(other than a dividend in capital stock ranking subordinate to
Career Share Series as to dividends), and, in such event, all
dividends declared on the Career Shares and any other series of
capital stock of the Corporation ranking on a parity as to
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dividends with such Career Share Series shall be declared pro
rata among each such series.
SECTION 4. Subordination. The rights of any Career Share
Series with respect to dividends shall be subordinate to any
shares of capital stock of the Corporation which are by their
terms superior to the rights of such Career Shares Series with
respect to dividends. The rights of the Common Stock of the
Corporation shall be subordinate to Career Shares with respect to
the dividend rights set forth in Section 3.
SECTION 5. Conversion Privilege and Price. Career Shares
shall be convertible into shares of Common Stock at any time and
from time to time, at the option of the holder thereof, provided,
however, that such conversion privilege shall be subject to any
contractual agreements between the Corporation and the holder
thereof regarding such privilege for so long as such holder
continues to hold shares of such Career Share Series. The rate
at which shares of Common Stock shall be delivered upon
conversion shall initially be as set forth in Section 1.
All conversions of Career Shares into shares of Common Stock
shall be subject to the following terms and conditions:
(A) The Corporation shall make no payment or adjustment on
account of any dividends declared but unpaid on the Common Stock
issuable upon conversion.
(B) The number of shares of Common Stock into which Career
Shares are convertible shall be subject to adjustment from time
to time as follows except that no adjustment need be made unless,
by reason of the happening of any one or more of the events
specified in this Section 5(B), the conversion rate then in
effect shall be changed by 1% or more, but any adjustment of less
than 1% that would otherwise be required then to be made shall be
carried forward and shall be made at the time of and together
with any subsequent adjustment which, together with any
adjustment or adjustments so carried forward, amounts to 1% or
more, provided that such adjustment shall be made in all events
(regardless of whether or not the amount thereof or the
cumulative amount thereof amounts to 1% or more) after a period
of three years from the date of happening of an event requiring
adjustment as specified in this Section 5(B):
(i) In case the Corporation shall issue rights or
warrants to holders of shares of Common Stock entitling them (for
a period expiring within 90 days after the record date mentioned
below) to subscribe for or purchase shares of Common Stock at a
price less than the current market price per share of Common
Stock (as determined pursuant to Subsection 5(B)(vi) on the
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record date mentioned below), the conversion rate (such rate
being initially as set forth in Section 1) shall be adjusted so
that the conversion rate shall equal the rate determined by
multiplying the conversion rate in effect immediately prior to
the date of issuance of such rights or warrants by a fraction
whose numerator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants
plus the number of shares which the aggregate exercise price of
the shares of Common Stock called for by all rights or warrants
issued would purchase at such current market price, and whose
denominator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants
plus the number of additional shares of Common Stock called for
by such rights or warrants. Such adjustment shall be made
whenever such rights or warrants are issued and shall be
retroactively effective as of immediately after the record date
for the determination of holders of Common Stock entitled to
receive such rights or warrants.
(ii) In case the Corporation shall at any time or times
(1) pay a dividend on the Common Stock in shares of capital
stock, (2) subdivide its outstanding shares of Common Stock into
a greater number of shares, (3) combine its outstanding shares of
Common Stock into a smaller number of shares or (4) issue by
reclassification of its shares of Common Stock, or any
recapitalization or reorganization of the Corporation, any shares
of capital stock of the Corporation (other than a change from par
value to no par value), then, in each such case, the conversion
rate (such rate being initially as set forth in Section 1) in
effect immediately prior thereto shall be adjusted so that the
holder of any Career Shares thereafter surrendered for conversion
shall be entitled to receive the number and kinds of shares of
capital stock which he would have owned or would have been
entitled to receive immediately after the happening of any of the
events described above had such Career Shares been converted
immediately prior to the happening of such event. An adjustment
made pursuant to this Subsection 5(B)(ii) shall become effective
as of immediately after the record date in those cases specified
in clause (1) of this Subsection 5(B)(ii) and shall become
effective as of immediately after the effective date in those
cases specified in clauses (2), (3) and (4) of this Subsection
5(B)(ii).
(iii) In case the Corporation shall distribute to
holders of its Common Stock evidence of its indebtedness or
assets or rights to subscribe for or warrants to purchase
(excluding those referred to in Subsection 5(B)(i)) shares of
Common Stock or any other security, or shall make a capital
distribution on its shares of Common Stock, then in each such
case the conversion rate shall be adjusted so that the conversion
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rate (such rate being initially as set forth in Section 1) shall
equal the rate determined by multiplying the conversion rate in
effect immediately prior to the date of such distribution by a
fraction whose numerator shall be the current market price per
share of Common Stock (determined as provided in Subsection
5(B)(vi)) on the effective date of distribution minus the then
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and evidenced by a Board
resolution) of the portion of the assets or evidences of
indebtedness so distributed or of such subscription rights or
warrants, or of the capital distribution, applicable to one share
of Common Stock and whose denominator shall be such current
market price per share of the Common Stock. Such adjustment
shall be made whenever any such distribution is made and shall be
retroactively effective as of immediately after the record date
for the determination of holders of Common Stock entitled to
receive such distribution.
(iv) In case the Corporation shall issue to holders of
shares of Common Stock shares of Common Stock pursuant to any
dividend reinvestment plan at a price less than the current
market price per share of Common Stock (determined as provided in
Subsection 5(B)(vi) below) on the date of issuance of such shares
pursuant to such dividend reinvestment plan, then in each such
case, the conversion rate (such rate being initially as set forth
in Section 1) shall equal the rate determined by multiplying the
conversion rate in effect immediately prior to the date of
issuance of such shares by a fraction whose numerator shall be
the number of shares of Common Stock outstanding on the date of
issuance of such shares plus the number of shares of Common Stock
which the aggregate purchase price for shares being purchased on
such date of issuance pursuant to any such dividend reinvestment
plan would purchase at such current market price, and whose
denominator shall be the number of shares of Common Stock
outstanding on such date of issuance plus the number of
additional shares of Common Stock issued pursuant to any such
dividend reinvestment plan. Such adjustment shall be
retroactively effective as of immediately after such date of
issuance.
(v) If any capital reorganization or reclassification of
the capital stock of the Corporation, or consolidation or merger
of the Corporation with another corporation, or the sale of all
or substantially all of its assets to another corporation, shall
be effected in such a way that holders of shares of Common Stock
shall be entitled to receive stock, securities or assets with
respect to or in exchange for shares of Common Stock, then, as a
condition of such reorganization, reclassification,
consolidation, merger or sale, the Corporation or such successor
or purchasing corporation, as the case may be, shall make
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provision that the holder of each Career Share shall have the
right thereafter to convert such share into the kind and amount
of stock, securities or assets receivable upon such
reorganization, reclassification, consolidation, merger or sale
by a holder of the number of shares of Common Stock into which
such share might have been converted immediately prior to such
reorganization, reclassification, consolidation, merger or sale,
subject to adjustments which shall be as nearly equivalent as may
be practicable to the adjustments provided for in this Section
5(B).
(vi) For the purpose of any computation of current market
price per share of Common Stock under this Section 5(B), the
current market price per share of Common Stock on any date shall
be deemed to be the average of the daily closing prices for the
10 consecutive business days commencing 15 business days before
the day in question. The closing price for each day shall be the
last reported sales price regular way or, in case no such
reported sale takes place on such day, the average of the
reported closing bid and asked prices regular way, in either case
on the New York Stock Exchange, or, if the Common Stock is not
listed or admitted to trading on such Exchange, on the principal
national securities exchange on which the Common Stock is listed
or admitted to trading, or, if not listed or admitted to trading
on any national securities exchange, the average of the closing
bid and asked prices in the over-the-counter market, as furnished
by any New York Stock Exchange firm selected from time to time by
the Corporation for that purpose. For purposes of this Subsection
5(B)(vi), the term business day shall not include any day on
which securities are not traded on such exchange or in such
market.
(vii) The Corporation shall not be required to issue
fractional shares of Common Stock upon conversion of Career
Shares. If more than one share of any Career Shares Series shall
be surrendered for conversion at one time by the same holder, the
number of full shares of Common Stock issuable upon conversion
thereof shall be computed on the basis of the aggregate number of
shares so surrendered. If any fractional interest in a share of
Common Stock would be deliverable upon the conversion of any
Career Shares, the Corporation, in lieu of delivering the
fractional share therefor, shall make an adjustment therefor in
cash at the market value thereof. For the purpose of making a
cash adjustment in lieu of delivering fractional shares, the
market value of a share of Common Stock shall be the last
reported sales price regular way or, in case no such reported
sale takes place on such day, the average of the reported closing
bid and asked prices regular way, in either case on the New York
Stock Exchange on the last business day prior to the conversion
date, or, if the Common Stock is not then listed or admitted to
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trading on such Exchange, on the principal national securities
exchange on which the Common Stock is listed or admitted to
trading, or, if not listed or admitted to trading on any national
securities exchange, the average of the closing bid and asked
prices in the over-the-counter market as furnished by any New
York Stock Exchange firm selected from time to time by the
Corporation for that purpose. For purposes of this Subsection
5(B)(vii), the term business day shall not include any day on
which securities are not traded on such exchange or in such
market.
(viii) Whenever any event occurs which would cause an
adjustment of the securities or other assets into which any
Career Shares would be converted, as herein provided, the
Corporation shall promptly file with the transfer agent or agents
for such Career Share Series (and with any conversion agent other
than the transfer agent or agents) a report prepared by the
Corporation accompanied by an opinion of a firm of independent
public accountants selected by the Board of Directors (who may be
the accountants regularly employed by the Corporation) setting
forth the conversion rate applicable after such adjustment and
setting forth a brief statement of the facts requiring such
adjustment. Such report and opinion shall be conclusive evidence
of the correctness of such adjustment and neither the transfer
agent or agents nor any conversion agent shall be under any duty
or responsibility with respect to any such report or opinion
except to exhibit the same from time to time to any holder of any
Career Share desiring an inspection thereof. Promptly after
filing such report and opinion, the Corporation shall cause
notice to be mailed specifying such adjustment to each holder of
record of shares of such Career Share Series at his last address
appearing on the books of the Corporation. Neither the transfer
agent or agents nor any conversion agent shall at any time be
under any duty or responsibility to any such holder to determine
whether any facts exist which may require any adjustment of the
conversion rate, or with respect to the nature and extent of such
adjustment when made, or with respect to the method employed in
making the same.
(C) The Corporation shall at all times reserve and keep
available, out of its authorized but unissued shares of Common
Stock or out of shares of Common Stock held in its treasury, the
full number of shares of Common Stock into which all Career
Shares from time to time outstanding are convertible.
(D) The issuance of stock certificates on conversions of
Career Shares into shares of Common Stock shall be without charge
to the converting stockholders for any issue tax. The
Corporation shall not, however, be required to pay any tax which
may be payable in respect of any transfer involved in the issue
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and delivery of shares of Common Stock in any name other than
that of the registered holder of the Career Shares converted, and
the Corporation shall not be required to issue or deliver any
such stock certificate unless and until the person or persons
requesting the issuance thereof shall have paid to the
Corporation the amount of such tax or shall have established to
the satisfaction of the Corporation that such tax has been paid.
(E) Any holder of Career Shares who shall choose to convert
Career Shares held by him pursuant to this Section 5 shall, as a
condition of conversion, present the certificates for such Career
Shares (which certificate or certificates, if the Corporation
shall so require, shall be duly endorsed or accompanied by
appropriate instruments of transfer satisfactory to the
Corporation) at the office of the transfer agent or agents for
such Career Shares, or at such other office as may be designated
by the Corporation, and shall give written notice to the
Corporation at said office that such holder elects to convert the
same or part thereof and shall state in writing therein the name
or names in which such holder wishes the certificate or
certificates for shares of Common Stock to be issued. The
Corporation will, as soon as practicable thereafter, issue and
deliver at said office to such holder, or to the designee of such
holder, certificates for the number of full shares of Common
Stock to which such holder or its designee shall be entitled as
aforesaid, together with cash in lieu of any fraction of a share
as hereinabove provided and certificates for the Career Shares,
if any, not converted. Career Shares shall be deemed to have
been converted as of the close of business on the date of the
presentation of such shares for conversion as provided above, and
the person or persons entitled to receive the shares of Common
Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such shares of Common
Stock as of such time and date.
SECTION 6. Voting. (A) The holders of Career Shares
shall not be entitled to vote at any meeting of the shareholders
of the Corporation or on any other occasion where shareholders
are entitled to vote, except as otherwise expressly provided in
this Section 6. The holders of shares of any Career Share Series
shall vote as a single or separate class with the holders of all
other series of Preferred Stock, or as a single or separate
series of Preferred Stock, as and to the extent provided in
Subsection 6(B) and by Ohio law.
(B) The Corporation may, in the manner provided in Article
Fifth and as permitted by Ohio law, from time to time alter or
change the voting rights, dividend rate or rates, dividend
payment date or dates, redemption rights and price, sinking fund
requirements, conversion rights and restrictions on issuance of
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any Career Share Series; provided, however, that without the
affirmative vote of the holders of at least two-thirds of the
outstanding shares of all series of Preferred Stock, the
Corporation shall not amend, alter, change, add or insert any
provision in the Articles which, or authorize the merger or
consolidation of the Corporation with any other corporation if
the plan of such merger or consolidation contains any provision
which if contained in the Articles, would (i) make any adverse
change in the voting rights, dividend rate or rates, dividend
payment date or dates, redemption rights and price, sinking fund
requirements, conversion rights and restrictions on issuance or
special or relative rights of Preferred Stock, (ii) authorize a
new class of stock senior or superior to Preferred Stock, or
(iii) increase the number of authorized shares of a senior or
superior class of stock, and, without the affirmative vote of the
holders of at least a majority of the outstanding shares of all
series of Preferred Stock, the Corporation shall not amend,
alter, change, add or insert any provision in the Articles which,
or authorize the merger or consolidation of the Corporation with
any other corporation if the plan of such merger or consolidation
contains any provision which if contained in the Articles, would
increase the authorized number of shares of Preferred Stock.
Without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of any Career Shares Series,
the Corporation shall not amend, alter, change, add or insert any
provision in the Articles which, or authorize the merger or
consolidation of the Corporation with any other corporation if
the plan of such merger or consolidation contains any provision
which if contained in the Articles, would adversely affect such
Career Share Series but would not adversely affect each other
series of Preferred Stock. Nothing in this Section 6 shall
require a class vote or consent in connection with the
authorization,designation, increase or issuance of any shares of
any class or series of capital stock which is subordinate to
shares of any Career Share Series as to dividends, or in
connection with the authorization, designation, increase or
issuance of any bonds, mortgages, debentures or other obligations
of the Corporation, or because of any adjustment in the
provisions of any Career Share Series made pursuant to Section
5(B).
SECTION 7. No Liquidation Preference. The holders of
Career Shares shall not be entitled to any payment out of the
assets of the Corporation in the event of a voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation, which is preferential to the rights of the holders
of Common Stock.
SECTION 8. Status of Career Shares After Redemption.
Career Shares of any series redeemed or purchased by the
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Corporation shall be retired and cancelled and shall not be
reissued by the Board of Directors of the Corporation and shall
be restored to the status of authorized but unissued shares of
Preferred Stock. The Board of Directors shall, upon the
redemption or repurchase of all the outstanding shares of any
series of Career Shares, adopt an amendment to these Articles of
Incorporation to eliminate all references to the shares of such
series of Career Shares and to make such other appropriate
changes as are required by such elimination.
FIFTH. Amendment to Articles of Incorporation. The
Corporation shall have the right to amend, alter, change or
repeal any provision contained in these Articles of Incorporation
or any provision that may be added or inserted in these Articles
of Incorporation, provided that:
(a) Such amendment, alteration, change, repeal, addition or
insertion is consistent with law and is accomplished in the
manner now or hereafter prescribed by statute or these Articles;
(b) Any provision of these Articles of Incorporation which
requires, or the change of which requires, the vote or consent of
all or a specific number or percentage of the holders of shares
of any class or series shall not be amended, altered, changed or
repealed by any lesser amount, number or percentage of votes or
consents of such class or series; and,
(c) No amendment to these Articles of Incorporation pursuant
to Ohio Revised Code Section 1701.69(B)(10) or any successor
provision may be adopted without the affirmative vote or consent
of the holders of an aggregate of two-thirds of the total voting
power of the Corporation.
Any rights at any time conferred upon the shareholders of the
Corporation are granted subject to the provisions of this
Article.
SIXTH. No holder of any shares of this Corporation shall
have any preemptive rights to subscribe for or to purchase any
shares of this Corporation of any class, whether such shares or
such class be now or hereafter authorized, or to purchase or
subscribe for any security convertible into, or exchangeable for,
shares of any class or to which shall be attached or appertained
any warrants or rights entitling the holder thereof to purchase
or subscribe for shares of any class.
SEVENTH. This Corporation, through its Board of Directors,
shall have the right and power to purchase any of its outstanding
shares at such price and upon such terms as may be agreed upon
between the Corporation and any selling shareholder.
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EIGHTH. Subject to the provisions of Article Fifth hereof,
the affirmative vote of shareholders entitled to exercise a
majority of the voting power of this Corporation shall be
required to amend these Articles of Incorporation, approve
mergers and to take any other action which by law must be
approved by a specified percentage of the voting power of the
Corporation or of all outstanding shares entitled to vote.
NINTH. The provisions of Ohio Revised Code Chapter 1704 or
any successor provisions relating to transactions involving
interested shareholders shall not be applicable to the
Corporation.
TENTH. The provisions of Ohio Revised Code Section 1701.831
or any successor provisions relating to control share
acquisitions shall not be applicable to the Corporation.
ELEVENTH. These Amended and Restated Articles of
Incorporation take the place of and supersede the existing
Articles of Incorporation of the Corporation as heretofore
amended.
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CODE OF REGULATIONS
OF
AMERICAN PREMIER GROUP, INC.
ARTICLE I
Shareholders
Section 1. Annual Meetings. The Annual Meeting of the
Shareholders of this Corporation, for the election of the Board
of Directors and the transaction of such other business as may
properly be brought before such meeting, shall be held at the
time, date and place designated by the Board of Directors or, if
it shall so determine, by the Chairman of the Board or the
President. If the Annual Meeting is not held or if Directors are
not elected thereat, a Special Meeting may be called and held for
that purpose.
Section 2. Special Meetings. Special meetings of the Share-
holders may be held on any business day when called by the
Chairman of the Board, the President, a majority of Directors, or
persons holding twenty percent of all voting power of the
Corporation and entitled to vote at such meeting.
Section 3. Place of Meetings. Any meeting of Shareholders may
be held at such place within or without the State of Ohio as may
be designated in the Notice of said meeting.
Section 4. Notice of Meeting and Waiver of Notice
4.1 Notice. Written notice of the time, place and pur-
poses of any meeting of Shareholders shall be given to each
Shareholder entitled thereto not less than seven (7) days nor
more than sixty (60) days before the date fixed for the
meeting and as prescribed by law. Such notice shall be given
either by personal delivery or mail to the Shareholders at
their respective addresses as they appear on the records of
the Corporation. Notice shall be deemed to have been given on
the day mailed. If any meeting is adjourned to another time
or place, no notice as to such adjourned meeting need be given
other than by announcement at the meeting at which such an
adjournment is taken. No business shall be transacted at any
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such adjourned meeting except as might have been lawfully
transacted at the meeting at which such adjournment was taken.
4.2 Notice to Joint Owners. All notices with respect to
any shares to which persons are entitled by joint or common
ownership may be given to that one of such persons who is
named first upon the books of this Corporation, and notice so
given shall be sufficient notice to all the holders of such
shares.
4.3 Waiver. Notice of any meeting may be waived in
writing by any Shareholder either before or after any meeting,
or by attendance at such meeting without protest to its
commencement.
Section 5. Shareholders Entitled to Notice and to Vote. If a
record date shall not be fixed, the record date for the
determination of Shareholders entitled to notice of or to vote at
any meeting of Shareholders shall be the close of business on the
twentieth day prior to the date of the meeting and only
Shareholders of record at such record date shall be entitled to
notice of and to vote at such meeting.
Section 6. Quorum and Voting. The holders of shares entitling
them to exercise a majority of the voting power of the
Corporation, present in person or by proxy, shall constitute a
quorum for any meeting. The Shareholders present in person or by
proxy, whether or not a quorum be present, may adjourn the
meeting from time to time without notice other than by
announcement at the meeting.
In any other matter brought before any meeting of Sharehold-
ers, the affirmative vote of the holders of shares representing a
majority of the votes actually cast shall be the act of the
Shareholders provided, however, that no action required by law,
the Articles, or these Regulations to be authorized or taken by
the holders of a designated proportion of the shares of the
Corporation may be authorized or taken by a lesser proportion.
Section 7. Organization of Meetings.
7.1 Presiding Officer. The Chairman of the Board, or in
his absence the President, or the person designated by the
Board of Directors, shall call all meetings of the Sharehold-
ers to order and shall act as Chairman thereof; if all are
absent, the Shareholders shall elect a Chairman.
7.2 Minutes. The Secretary of the Corporation, or in
his absence, an Assistant Secretary, or, in the absence of
both, a person appointed by the Chairman of the meeting, shall
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act as Secretary of the meeting and shall keep and make a
record of the proceedings thereat.
Section 8. Voting. Except as provided by statute or in the
Articles, every Shareholder entitled to vote shall be entitled to
cast one vote on each proposal submitted to the meeting for each
share held of record on the record date for the determination of
the Shareholders entitled to vote at the meeting. At any meeting
at which a quorum is present, all questions and business which
may come before the meeting shall be determined by a majority of
votes cast, except when a greater proportion is required by law,
the Articles, or these Regulations.
Section 9. Proxies. A person who is entitled to attend a
Shareholders' meeting, to vote thereat, or to execute consents,
waivers and releases, may be represented at such meeting or vote
thereat, and execute consents, waivers, and releases and exercise
any of his rights, by proxy or proxies appointed by a writing
signed by such person, or by his duly authorized attorney which
may be transmitted physically, by facsimile or by other
electronic medium.
Section 10. List of Shareholders. At any meeting of
Shareholders a list of Shareholders, alphabetically arranged,
showing the number and classes of shares held by each on the
record date applicable to such meeting, shall be produced on the
request of any Shareholder.
ARTICLE II
Directors
Section 1. General Powers.
The authority of this Corporation shall be exercised by or
under the direction of the Board of Directors, except where the
law, the Articles or these Regulations require action to be
authorized or taken by the Shareholders.
Section 2. Election, Number and Qualification of Directors.
2.1 Election. The Directors shall be elected at the annual
meeting of the Shareholders, or if not so elected, at a special
meeting of Shareholders called for that purpose. The only
candidates who shall be eligible for election at such meeting
shall be those who have been nominated by or at the direction of
the Board of Directors (which nominations shall be either made at
such meeting or disclosed in a proxy statement, or supplement
thereto, distributed to Shareholders for such meeting or at the
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direction of the Board of Directors) and those who have been
nominated at such meeting by a Shareholder who has complied with
the procedures set forth in this Section 2. A Shareholder may
make a nomination for the office of director only if such
Shareholder has first delivered or sent by certified mail, return
receipt requested, to the Secretary of the Corporation notice in
writing at least fifteen and no more than thirty days prior to
such meeting of Shareholders, which notice shall set forth or be
accompanied by (a) the name and residence of such Shareholder;
(b) a representation that such Shareholder is a holder of record
of voting stock of the Corporation and intends to appear in
person or by proxy at such meeting to nominate the person or
persons specified in the notice; (c) the name and residence of
each such nominee; and (d) the consent of such nominee to serve
as director if so elected.
2.2 Number. The number of Directors, which shall not be less
than the lesser of three or the number of Shareholders of record,
may be fixed or changed at a meeting of the Shareholders called
for the purpose of electing Directors at which a quorum is
present, by the affirmative vote of the holders of a majority of
the shares represented at the meeting and entitled to vote on
such proposal. In addition, the number of Directors may be fixed
or changed by action of the Directors at any meeting at which a
quorum is present by a majority vote of the Directors present at
the meeting. The Directors then in office may fill any
Director's office that is created by an increase in the number of
Directors. The number of Directors elected shall be deemed to be
the number of Directors fixed unless otherwise fixed by
resolution adopted at the meeting at which such Directors are
elected.
2.3 Qualifications. Directors need not be Shareholders of
the Corporation.
Section 3. Term of Office of Directors.
3.1 Term. Each Director shall hold office until the next
annual meeting of the Shareholders and until his successor has
been elected or until his earlier resignation, removal from
office, or death. Directors shall be subject to removal as
provided by statute or by other lawful procedures and nothing
herein shall be construed to prevent the removal of any or all
Directors in accordance therewith.
3.2 Resignation. A resignation from the Board of Directors
shall be deemed to take effect immediately upon its being
received by any incumbent corporate officer other than an officer
who is also the resigning Director, unless some other time is
specified therein.
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3.3 Vacancy. In the event of any vacancy in the Board of
Directors for any reason, the remaining Directors, though less
than a majority of the whole Board, may fill any such vacancy for
the unexpired term.
Section 4. Meetings of Directors.
4.1 Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times and places as may be fixed
by the Directors.
4.2 Special Meetings. Special Meetings of the Board of
Directors may be held at any time upon call of the Chairman of
the Board, the President, any Vice President, or any two Direc-
tors.
4.3 Place of Meeting. Any meeting of Directors may be held
at such place within or without the State of Ohio as may be
designated in the notice of said meeting.
4.4 Notice of Meeting and Waiver of Notice. Notice of the
time and place of any regular or special meeting of the Board of
Directors shall be given to each Director by personal delivery,
telephone, facsimile transmission or mail at least forty-eight
hours before the meeting, which notice need not specify the
purpose of the meeting.
Section 5. Quorum and Voting.
At any meeting of Directors, not less than one-half of the
whole authorized number of Directors is necessary to constitute a
quorum for such meeting, except that a majority of the remaining
Directors in office shall constitute a quorum for filling a
vacancy in the Board. At any meeting at which a quorum is
present, all acts, questions, and business which may come before
the meeting shall be determined by a majority of votes cast by
the Directors present at such meeting, unless the vote of a
greater number is required by the Articles or Regulations.
Section 6. Committees.
6.1 Appointment. The Board of Directors may from time to
time appoint certain of its members to act as a committee or
committees in the intervals between meetings of the Board and may
delegate to such committee or committees power to be exercised
under the control and direction of the Board. Each committee
shall be composed of at least three directors unless a lesser
number is allowed by law. Each such committee and each member
thereof shall serve at the pleasure of the Board.
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6.2 Executive Committee. In particular, the Board of
Directors may create from its membership and define the powers
and duties of an Executive Committee. During the intervals
between meetings of the Board of Directors, the Executive Commit-
tee shall possess and may exercise all of the powers of the Board
of Directors in the management and control and the business of
the Corporation to the extent permitted by law. All action taken
by the Executive Committee shall be reported to the Board of
Directors at its first meeting thereafter.
6.3 Committee Action. Unless otherwise provided by the Board
of Directors, a majority of the members of any committee
appointed by the Board of Directors pursuant to this Section
shall constitute a quorum at any meeting thereof and the act of a
majority of the members present at a meeting at which a quorum is
present shall be the act of such committee. Any such committee
shall prescribe its own rules for calling and holding meetings
and its method of procedure, subject to any rules prescribed by
the Board of Directors, and shall keep a written record of all
action taken by it.
Section 7. Action of Directors Without a Meeting.
Any action which may be taken at a meeting of Directors or any
committee thereof may be taken without a meeting if authorized by
a writing or writings signed by all the Directors or all of the
members of the particular committee, which writing or writings
shall be filed or entered upon the records of the Corporation.
Section 8. Compensation of Directors.
The Board of Directors may allow compensation to directors for
performance of their duties and for attendance at meetings or for
any special services, may allow compensation to members of any
committee, and may reimburse any Director for his expenses in
connection with attending any Board or committee meeting.
Section 9. Relationship with Corporation.
Directors shall not be barred from providing professional or
other services to the Corporation. No contract, action or
transaction shall be void or voidable with respect to the Cor-
poration for the reason that it is between or affects the
Corporation and one or more of its Directors, or between or
affects the Corporation and any other person in which one or more
of its Directors are directors, trustees or officers or have a
financial or personal interest, or for the reason that one or
more interested Directors participate in or vote at the meeting
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of the Directors or committee thereof that authorizes such
contract, action or transaction, if in any such case any of the
following apply:
9.1 the material facts as to the Director's relationship or
interest and as to the contract, action or transaction are
disclosed or are known to the Directors or the committee and the
Directors or committee, in good faith, reasonably justified by
such facts, authorize the contract, action or transaction by the
affirmative vote of a majority of the disinterested Directors,
even though the disinterested Directors constitute less than a
quorum;
9.2 the material facts as to the Director's relationship or
interest and as to the contract, action or transaction are
disclosed or are known to the shareholders entitled to vote
thereon and the contract, action or transaction is specifically
approved at a meeting of the shareholders held for such purpose
by the affirmative vote of the holders of shares entitling them
to exercise a majority of the voting power of the Corporation
held by persons not interested in the contract, action or
transaction; or
9.3 the contract, action or transaction is fair as to the
Corporation as of the time it is authorized or approved by the
Directors, a committee thereof or the shareholders.
Section 10. Attendance at Meetings of Persons
Who Are Not Directors
Unless waived by a majority of Directors in attendance, not
less than twenty-four (24) hours before any regular or special
meeting of the Board of Directors, any Director who desires the
presence at such meeting of a person who is not a Director shall
so notify all other Directors, request the presence of such
person at the meeting, and state the reason in writing. Such
person will not be permitted to attend the Directors' meeting
unless a majority of the Directors in attendance vote to admit
such person to the meeting. Such vote shall constitute the first
order of business for any such meeting of the Board of Directors.
Such right to attend, whether granted by waiver or vote, may be
revoked at any time during any such meeting by the vote of a
majority of the Directors in attendance.
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ARTICLE III
Officers
Section 1. General Provisions.
The Board of Directors shall elect a President, a Secretary
and a Treasurer, and may elect a Chairman of the Board, a Chief
Executive Officer, one or more Vice Presidents, and such other
officers and assistant officers as the Board may from time-to-
time deem necessary. The Chairman of the Board, if any, shall be
a Director, but none of the other officers need be a Director.
Any two or more offices may be held by the same person, but no
officer shall execute, acknowledge or verify any instrument in
more than one capacity if such instrument is required to be
executed, acknowledged or verified by two or more officers.
Section 2. Powers and Duties.
All officers, as between themselves and the Corporation, shall
respectively have such authority and perform such duties as are
customarily incident to their respective offices, and as may be
specified from time to time by the Board of Directors, regardless
of whether such authority and duties are customarily incident to
such office. The Chief Executive Officer shall also serve either
as Chairman of the Board or President and shall have plenary
power over the business and activities of the Corporation and
over its officers and employees, subject, however, to the control
of the Board of Directors and any limitations thereon contained
in these Regulations. In the absence of any officer of the Cor-
poration, or for any other reason the Board of Directors may deem
sufficient, the powers or duties of such officer, or any of them
may be delegated to any other officer or to any Director. The
Board of Directors may from time to time delegate to any officer
authority to appoint and remove subordinate officers and to pre-
scribe their authority and duties.
Section 3. Term of Office and Removal.
3.1 Term. Each officer of the Corporation shall hold office
at the pleasure of the Board of Directors.
3.2 Removal. The Board of Directors may remove any officer
at any time with or without cause by the affirmative vote of a
majority of Directors in office.
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Section 4. Compensation of Officers.
The Directors shall establish the compensation of officers and
employees or may, to the extent not prohibited by law, delegate
such authority to one or more officers or Directors as they
determine.
ARTICLE IV
Indemnification
Section 1. Right to Indemnification.
Each person who was or is made a party or is threatened to be
made a party to or is otherwise involved (including, without
limitation, as a witness) in any actual or threatened action,
suit, or proceeding, whether civil, criminal, administrative, or
investigative (hereinafter a "proceeding"), by reason of the fact
that he or she is or was a director or officer of the Corporation
or that, being or having been such a director or officer of the
Corporation, he or she is or was serving at the request of an
executive officer of the Corporation as a director, officer,
partner, employee, or agent of another corporation or of a
partnership, joint venture, trust, limited liability company, or
other enterprise, including service with respect to an employee
benefit plan (hereinafter an "indemnitee"), whether the basis of
such proceeding is alleged action in an official capacity as such
a director, officer, partner, employee, or agent, shall be
indemnified and held harmless by the Corporation to the fullest
extent permitted by the General Corporation Law of Ohio, as the
same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than
permitted prior thereto), or by other applicable law as then in
effect, against all expense, liability, and loss (including,
without limitation, attorneys' fees, costs of investigation,
judgments, fines, excise taxes or penalties arising under the
Employee Retirement Income Security Act of 1974 ("ERISA") or
other federal or state acts) actually incurred or suffered by
such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a
director, officer, employee, or agent and shall inure to the
benefit of the indemnitee's heirs, executors, and administrators.
Except as provided in Section 2 with respect to proceedings
seeking to enforce rights to indemnification, the Corporation
shall indemnify any such indemnitee in connection with a
proceeding (or part thereof) initiated by such indemnitee only if
such proceeding (or part thereof) was authorized or ratified by
the Board of Directors of the Corporation.
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The right to indemnification conferred in this Section 1 shall
be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"). An advancement of expenses incurred
by an indemnitee in his or her capacity as a director, officer or
employee (and not in any other capacity in which service was or
is rendered by such indemnitee including, without limitation,
service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of
such indemnitee to repay all amounts so advanced if it is proved
by clear and convincing evidence in a court of competent
jurisdiction that his omission or failure to act involved an act
or omission undertaken with deliberate intent to cause injury to
the Corporation or undertaken with reckless disregard for the
best interests of the Corporation. An advancement of expenses
shall not be made if the Corporation's Board of Directors makes a
good faith determination that such payment would violate
applicable law.
Section 2. Right of Indemnitee to Bring Suit.
If a claim under Section 1 is not paid in full by the
Corporation within thirty days after a written claim has been
received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period
shall be twenty days, the indemnitee may at any time thereafter
bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such
suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking,
the indemnitee shall also be entitled to be paid the expense of
prosecuting or defending such suit. The indemnitee shall be
presumed to be entitled to indemnification under this Article IV
upon submission of a written claim (and, in an action brought to
enforce a claim for an advancement of expenses, where the
required undertaking has been tendered to the Corporation), and
thereafter the Corporation shall have the burden of proof to
overcome the presumption that the indemnitee is not so entitled.
Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its shareholders) to
have made a determination prior to the commencement of such suit
that indemnification of the indemnitee is proper in the
circumstances, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel or
its shareholders) that the indemnitee is not entitled to
indemnification shall be a defense to the suit or create a
presumption that the indemnitee is not so entitled.
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Section 3. Nonexclusivity and Survival of Rights.
The rights to indemnification and to the advancement of
expenses conferred in this Article IV shall not be exclusive of
any other right which any person may have or hereafter acquire
under any statute, provisions of the Articles of Incorporation,
Code of Regulations, agreement, vote of shareholders or
disinterested directors, or otherwise.
Notwithstanding any amendment to or repeal of this Article IV,
or of any of the procedures established by the Board of Directors
pursuant to Section 6, any indemnitee shall be entitled to
indemnification in accordance with the provisions hereof and
thereof with respect to any acts or omissions of such indemnitee
occurring prior to such amendment or repeal.
Without limiting the generality of the foregoing paragraph,
the rights to indemnification and to the advancement of expenses
conferred in this Article IV shall, notwithstanding any amendment
to or repeal of this Article IV, inure to the benefit of any
person who otherwise may be entitled to be indemnified pursuant
to this Article IV (or the estate or personal representative of
such person) for a period of six years after the date such
person's service to or in behalf of the Corporation shall have
terminated or for such longer period as may be required in the
event of a lengthening in the applicable statute of limitations.
Section 4. Insurance, Contracts, and Funding.
The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of
the Corporation or another corporation, partnership, joint
venture, trust, or other enterprise against any expense,
liability, or loss, whether or not the Corporation would have the
power to indemnify such person against such expense, liability,
or loss under the General Corporation Law of Ohio. The
Corporation may enter into contracts with any indemnitee in
furtherance of the provisions of this Article IV and may create a
trust fund, grant a security interest, or use other means
(including, without limitation, a letter of credit) to ensure the
payment of such amounts as may be necessary to effect
indemnification as provided in this Article IV.
Section 5. Indemnification of Employees and Agents
of the Corporation.
The Corporation may, by action of its Board of Directors,
authorize one or more executive officers to grant rights to
advancement of expenses to employees or agents of the Corporation
on such terms and conditions no less stringent than provided in
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Section 1 hereof as such officer or officers deem appropriate
under the circumstances. The Corporation may, by action of its
Board of Directors, grant rights to indemnification and
advancement of expenses to employees or agents or groups of
employees or agents of the Corporation with the same scope and
effect as the provisions of this Article IV with respect to the
indemnification and advancement of expenses of directors and
officers of the Corporation; provided, however, that an
undertaking shall be made by an employee or agent only if
required by the Board of Directors.
Section 6. Procedures for the Submission of Claims.
The Board of Directors may establish reasonable procedures for
the submission of claims for indemnification pursuant to this
Article IV, determination of the entitlement of any person
thereto, and review of any such determination. Such procedures
shall be set forth in an appendix to these Code of Regulations
and shall be deemed for all purposes to be a part hereof.
ARTICLE V
Amendments
This Code of Regulations may be amended by the affirmative
vote or the written consent of the Shareholders entitled to
exercise a majority of the voting power on such proposal. If an
amendment is adopted by written consent the Secretary shall mail
a copy of such amendment to each Shareholder who would be
entitled to vote thereon and did not participate in the adoption
thereof. This Code of Regulations may also be amended by the
affirmative vote of a majority of the directors to the extent
permitted by Ohio law at the time of such amendment.
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AMERICAN PREMIER GROUP, INC. STOCK OPTION PLAN
----------------------------------------------
1. PURPOSES
-------------
The American Premier Group, Inc. Stock Option Plan (the
"Plan") is divided into two programs: a key employee stock option
program (the "Key Employee Program") and an outside director
stock option program (the "Outside Director Program").
The purposes of the Key Employee Program are to aid American
Premier Underwriters, Inc. (the "Company") and its Subsidiaries
in attracting and retaining employees of outstanding competence
and to enable selected key employees of the Company and any
Subsidiary to acquire or increase ownership interests in the
Company on a basis that will encourage them to perform at
increasing levels of effectiveness and use their best efforts to
promote the growth and profitability of the Company or any
Subsidiary. Consistent with these objectives, the Plan
authorizes the granting to selected key employees of options to
acquire shares of Company stock ("Options") pursuant to the terms
and conditions hereinafter set forth. As used herein, the term
"Subsidiary" means any domestic or foreign corporation, at least
50% of the outstanding voting stock or voting power of which is
beneficially owned, directly or indirectly, by the Company.
The purposes of the Outside Director Program are to provide to
each of the Outside Directors added incentive to continue in the
service of the Company and a more direct interest in the future
success of the operations of the Company. Consistent with these
objectives, the Plan authorizes the automatic granting to Outside
Directors of Options pursuant to the terms and conditions
hereinafter set forth. As used herein, the term "Outside
Director" means a member of the Board of Directors of the Company
who is not an employee of the Company or a Subsidiary.
2. EFFECTIVE DATE
-------------------
The Plan became effective on September 9, 1980 (the "Effective
Date"). The Plan was assumed by the Company from its Subsidiary,
American Premier Underwriters, Inc., and adopted, amended and
restated, effective April 3, 1995, subject to approval at the
1995 Annual Meeting of Shareholders by the affirmative vote of
shareholders entitled to cast at least the majority of the total
number of votes represented (a quorum being present) at such
Annual Meeting.
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3. ADMINISTRATION
-------------------
(a) The Plan shall be administered by a committee of the Board
of Directors of the Company (the "Board of Directors"), consist-
ing of at least two directors designated by the Board of Direc-
tors (the "Committee"), each of whom shall be a "disinterested
person" as defined in Rule 16b-3(c)(2) under the Securities
Exchange Act of 1934, as from time to time amended. All Committee
members shall serve, and may be removed, at the pleasure of the
Board of Directors.
(b) For purposes of administration of the Plan, a
majority of the members of the Committee (but not less than two)
eligible to serve as such shall constitute a quorum, and any
action taken by a majority of such members of the Committee
present at any meeting at which a quorum is present, or acts
approved in writing by a majority of such members of the
Committee, shall be the acts of the Committee.
(c) Subject to the express provisions of the Key Employee
Program, the Committee shall have full and final authority to
decide when Options will be granted under the Key Employee
Program, to select the key employees to whom the Options will be
granted, and to determine the number of Shares (as defined in
Paragraph 4 hereof) to be covered by each Option, the price at
which such Shares may be purchased and other terms and conditions
of such purchase. In making these determinations, the Committee
may take into account the key employee's present and potential
contributions to the Company's or a Subsidiary's success and any
other factors which the Committee may deem relevant.
(d) The Committee shall have no authority or discretion or
power to select the participants who will receive Options under
the Outside Director Program, to set the number of Shares to be
covered by each Option under the Outside Director Program, or to
set the Option price or the period within which the Options
granted under the Outside Director Program may be exercised or to
alter any other terms or conditions specified in the Outside
Director Program.
(e) Subject to the express provisions of the Plan, and, in
particular, the limitations set forth in Paragraph 3(d) hereof,
the Committee shall have full authority to interpret the Plan and
any stock option agreements evidencing Options granted hereunder,
to issue rules for administering the Plan, to change, alter,
amend or rescind such rules, and to make all other determinations
necessary or appropriate for the administration of the Plan. All
determinations, interpretations and constructions made by the
Committee pursuant to this Paragraph 3 shall be final and conclu-
sive. No member of the Board of Directors or the Committee shall
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<PAGE>
be liable for any action, determination or omission taken or made
in good faith with respect to the Plan or any Option granted
hereunder.
4. OPTION SHARES
------------------
(a) The stock subject to the Options granted under the Plan
shall be shares of Common Stock, $l.00 par value, of the Company
("Shares") and except as otherwise required by Subparagraph (b)
of this Paragraph 4, the aggregate number of Shares with respect
to which Options may be granted under the Plan shall not exceed
13,237,163 Shares, consisting of 9,237,613 shares with respect to
which Options had been exercised or were outstanding as of April
3, 1995 plus 4,000,000 Shares with respect to which Options may
be granted after April 3, 1995, provided, however, that Options
to acquire no more than 250,000 Shares may be granted pursuant to
the Outside Director Program. Options to acquire no more than
500,000 Shares may be granted to any participant in the Plan in
any twelve-month period, except as otherwise required by
Subparagraph (b) of this Paragraph 4. If an Option expires,
terminates, or is otherwise surrendered, in whole or in part, the
Shares allocable to the unexercised portion of such Option shall
again become available for grants of Options under the Plan. As
determined from time to time by the Board of Directors, the
Shares available under the Plan for grants of Options may consist
either in whole or in part of authorized but unissued Shares or
Shares which have been reacquired by the Company or a Subsidiary
following original issuance.
(b) The aggregate number of Shares purchasable under Options
pursuant to the provisions of the Plan and the number of Shares
and the Option price for Shares covered by each outstanding
Option shall be proportionately adjusted for any increase or
decrease in the number of issued Shares resulting from any stock
dividend, stock split or similar event, any other capital adjust-
ment (including a reclassification of Shares or recapitalization
or reorganization of the Company), or the distribution to holders
of Shares of rights, warrants, assets or evidences of indebted-
ness (other than regular cash dividends) in such manner as the
Committee in its sole judgment determines to be equitable.
5. KEY EMPLOYEE PROGRAM
-------------------------
The provisions of this Paragraph 5 are applicable only to
Options granted pursuant to the Key Employee Program and Options
to key employees shall be granted only in accordance with the
provisions of this Paragraph 5.
(a) Effective Date. The Key Employee Program became
effective on September 9, 1980.
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(b) Eligibility. Grants of Options under the Key Employee
Program shall be confined to key employees of the Company or a
Subsidiary (including officers and directors who are also employ-
ees of the Company or a Subsidiary) who can make a meaningful
contribution to the Company's or Subsidiary's success; provided,
however, that no Option under the Key Employee Program shall be
granted to any member of the Committee.
(c) Incentive and Non-Incentive Options.
(i) Subject to the provisions of Paragraphs 5(c)(ii) and
5(e), Options granted under the Key Employee Program shall be
designated either (A) "Incentive Options" (which term, as used
herein, shall mean stock options intended to be "incentive
stock options" within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code")) or (B)
"Non-Incentive Options" (which term, as used herein, shall
mean stock options not intended to be "incentive stock
options" within the meaning of said Section 422). In the case
of Options granted prior to January 1, 1987, the aggregate
fair market value of the Shares (determined as of the date the
Option is granted) for which an Optionee may, in any calendar
year, be granted "incentive stock options" under this Key
Employee Program and all other option plans of the Company and
its subsidiaries (and any other corporation that may become a
"parent corporation" of the Company within the meaning of
Section 424(e) of the Code) shall not exceed $100,000 plus any
applicable unused limit carryover to such calendar year. In
the case of Options granted after December 31, 1986, the
preceding sentence shall not apply. The limitations of the
preceding sentences shall not apply to the grant of Options
designated Non-Incentive Options under the Plan.
For purposes of the Key Employee Program: (1) the "fair
market value" of a Share shall be the mean between the high
and the low prices of the Shares on such date on the New York
Stock Exchange Composite Tape (or the principal market in
which the Shares are traded, if the Shares are not listed on
that Exchange on such date) or, if the Shares were not traded
on such date, the mean between the high and the low prices of
the Shares on the next preceding trading day during which the
Shares were traded, (2) the "fair market value" of any other
stock shall be such amount as determined by the Committee in
accordance with the provisions of the Code and the Income Tax
Regulations thereunder then in effect with respect to
"incentive stock options" and (3) the "unused limit carryover"
from a calendar year shall be 1/2 of the amount (determined as
of the time the option is granted) by which $100,000 exceeds
the aggregate fair market
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value of the stock for which an Optionee (as defined in
Paragraph 5(d) below) was granted "incentive stock options"
(within the meaning of said Section 422) in such calendar year
under all plans of the Company and its Subsidiaries (and any
corporation that may become a "parent corporation" of the
Company within the meaning of Section 424(e) of the Code),
provided that there will be no unused limit carryover from any
calendar year prior to 1981.
No Incentive Option may be granted to any individual who,
at the time of grant, owns stock possessing more than 10% of
the total combined voting power of all classes of stock of the
Company or any Subsidiary (or any corporation that is a
"parent corporation" of the Company (within the meaning of
Section 424(e) of the Code)).
To the extent that any provisions of the Key Employee
Program relate to Incentive Options, such provisions shall be
interpreted in a manner consistent with the requirements of
Section 422 of the Code, so that Incentive Options will
qualify as "incentive stock options" under said Section 422.
(ii) Each Option granted under the Key Employee Program
prior to January 1, 1982 shall (A), if the aggregate fair
market value of the Shares covered thereby shall be $100,000
or less, be designated an Incentive Option or (B), if the
aggregate fair market value of the Shares covered thereby
shall exceed $100,000, be split into (1) an Incentive Option
for Shares having an aggregate fair market value as close as
practicable to, but not exceeding, $100,000 and (2) a Non--
Incentive Option for the remaining Shares which are not
covered by the Incentive Option; provided that the Optionee
shall, prior to August 13, 1982, have entered into an amended
stock option agreement (or, if the Optionee's Option shall
have been split as aforesaid, separate amended stock option
agreements) with the Company providing for Incentive and Non-
Incentive Options as aforesaid. In the event that the
Optionee shall not have entered into an amended stock option
agreement (or agreements) prior to August 13, 1982, any Option
granted to such Optionee prior to January 1, 1982 shall be a
Non-Incentive Option.
(d) Terms and Conditions of Options Granted to Key Employees.
Each Option granted pursuant to the Key Employee Program shall
be evidenced by a written stock option agreement between the
Company and the key employee to whom the Option is granted (the
"Optionee") in such form or forms as the Committee, from time to
time, shall prescribe, which agreements need not be identical to
each other but shall comply, inter alia, with and be
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<PAGE>
subject to the terms and conditions of this Paragraph 5(d). In
addition, the Committee may, in its absolute discretion, include
in any such stock option agreement other terms, conditions and
provisions that are not inconsistent with the express provisions
of the Key Employee Program. Separate forms of stock option
agreements shall be used to evidence Incentive Options and Non-
Incentive Options.
(i) Option Price. The price at which each Share may be
purchased pursuant to an Option granted under the Key Employee
Program shall be not less than 100% of the higher of the "fair
market value" for each such Share (A) on the date the
Committee approves the granting of such Option (the "Date of
Grant") or (B) on a future date if such is fixed on the Date
of Grant by the Committee, and in no event shall such price be
less than the par value of such Shares. The "fair market
value" of the Shares on any date shall be the mean between the
high and the low prices of the Shares on such date on the New
York Stock Exchange Composite Tape (or the principal market in
which the Shares are traded, if the Shares are not listed on
that Exchange on such date), or if the Shares were not traded
on such date, the mean between the high and the low prices of
the Shares on the next preceding trading day during which the
Shares were traded. Anything contained in this Subparagraph
(i) of Paragraph 5(d) to the contrary notwithstanding, in the
event that the number of Shares subject to any Option is
adjusted pursuant to Paragraph 4(b) hereof, a corresponding
adjustment shall be made in the price at which the Shares
subject to such Option may thereafter be purchased.
(ii) Duration of Options. Each Option granted under the
Key Employee Program shall expire and all rights to purchase
Shares pursuant thereto shall cease on the date (the
"Expiration Date") which shall be the tenth anniversary of the
Date of Grant of the Option; provided, however, that the
Expiration Date of any Non-Incentive Option granted on or
after May 17, 1984 shall be the third day after the tenth
anniversary of the Date of Grant of such Non-Incentive Option;
provided, further, that the Committee may specify for any
Option on the Date of Grant of the Option any shorter period
than the foregoing.
(iii) Vesting of Options. Each Option granted hereunder
may only be exercised to the extent that the Optionee is
vested in such Option. An Optionee shall vest separately in
each Option granted hereunder in accordance with a schedule
determined by the Committee in its sole discretion, which will
be appended to the stock option agreement. In the
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absence of any special circumstances, the Committee will cause
the Options to vest in accordance with the following schedule:
Number of years the Optionee
has remained in the employ Extent to which
of the Company or a Subsidiary the Option is
following the grant of the Option vested
Under one 0%
At least one but less than two 20%
At least two but less than three 40%
At least three but less than four 60%
At least four but less than five 80%
Five or more 100%
In the event that an Incentive Option and a Non-Incentive
Option have been granted simultaneously to an Optionee, they
shall be considered a single Option for (but only for)
purposes of the foregoing schedule and the portion thereof
attributable to the Incentive Option shall vest in accordance
with such schedule before any of the portion attributable to
the Non-Incentive Option shall vest. Anything contained in
this Subparagraph (iii) of Paragraph 5(d) to the contrary
notwithstanding, an Optionee shall become fully (100%) vested
in each of his or her Options upon his or her termination of
employment with the Company or a Subsidiary for reasons of
death, Disability or Retirement (as defined in Subparagraph
(v)(D) of this Paragraph 5(d)); upon his or her termination of
employment by the Company or a Subsidiary for a reason other
than discharge for cause within one year of the merger of the
Company into, consolidation of the Company with, or sale or
transfer of all or substantially all the Company's assets to,
another corporation or the acquisition of effective voting
control of the Company by any individual or company or by any
individuals or companies acting in concert (a good faith
determination by the Board of Directors that such control has
been acquired shall be final and conclusive); if in the sole
discretion of the Committee, the Committee determines that
acceleration of the Option vesting schedule would be desirable
for the Company; or if such Options vest pursuant to Paragraph
7 of the Plan.
(iv) Exercise of Options. A person entitled to exercise
an Option may exercise it in whole at any time, or in part
from time to time, by delivering to the Secretary of the
Company written notice specifying the number of Shares with
respect to which the Option is being exercised, together with
payment in full of the purchase price of such Shares plus any
applicable federal, state or local taxes for which
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the Company (or a Subsidiary) has a withholding obligation in
connection with such exercise. Such payment shall be made in
whole or in part (A) in cash or by certified check or bank
draft to the order of the Company, (B) in the case of either
an Incentive Option granted after March 23, 1983 which so
provides at the time of grant or any Non-Incentive Option, by
personal check or money market check to the order of the
Company or the exchange of Common Stock of the Company
acquired by the person entitled to exercise the Option more
than 6 months prior to the date of exercise and having a "fair
market value" on the date of exercise at least equal to the
price for which the Shares may be purchased pursuant to the
Option plus any applicable federal, state or local taxes for
which the Company (or a Subsidiary) has a withholding
obligation as noted above (including any such taxes with
respect to income recognized by the Optionee upon the
disposition of the Common Stock of the Company used to effect
such exchange), or (C) in the case of either an Incentive
Option granted on or after January 26, 1984 which so provides
at the time of grant or any Non-Incentive Option, by a
promissory note payable to the Company but only in accordance
with the provisions of, and from a person otherwise eligible
under, the Company's Stock Option Loan Program, or any
successor program, as in effect from time to time (the "Loan
Program"), (1) in a principal amount up to 100% of the payment
or such applicable lower percentage as may be specified by the
Committee pursuant to the Loan Program and (2) bearing
interest at a rate not less than the applicable test rate
prescribed under Sections 483 and 1274 of the Code, or any
successor provision, or such higher rate as may be specified
by the Committee pursuant to the Loan Program.
Notwithstanding the foregoing, the Committee may, in its sole
discretion, authorize such payment, in whole or in part, in
any other form. Each Incentive Option granted under the Plan
before January 1, 1987 shall by its terms provide that it may
not be exercised while there is outstanding any "incentive
stock option" (within the meaning of Section 422 of the Code)
which was granted to the Optionee at any earlier time to
purchase stock in the Company or in a corporation which, at
the time of the granting of such Incentive Option, is a
Subsidiary (or a corporation that is a "parent corporation" of
the Company within the meaning of Section 424(e) of the Code)
or in a predecessor corporation of any such corporation. For
purposes of the preceding sentence, any "incentive stock
option" (within the meaning of Section 422 of the Code) which
has not been exercised in full (including an "incentive stock
option" which has been "modified," within the meaning of
Section 424(h)(3) of the Code, prior to being exercised in
full) shall be considered outstanding until the
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expiration of the period during which under its initial terms
it could have been exercised.
(v) Termination of Employment. Unless otherwise
determined by the Committee, the following rules shall apply
in the event of an Optionee's termination of employment with
the Company or a Subsidiary:
(A) Except as provided in Subparagraph (v)(G)
hereof, in the event of an Optionee's termination of
employment with the Company or a Subsidiary either (1)
for cause or (2) voluntarily on the part of the Optionee
and without the written consent of the Company, his or
her Option shall immediately terminate.
(B) In the event of an Optionee's termination of
employment with the Company or a Subsidiary under
circumstances other than those specified in Subparagraph
(v)(A) hereof and for reasons other than death,
Disability or Retirement (as defined in Subparagraph
(v)(D) hereof), such Option shall terminate on the date
which is 90 days from the date of such termination of
employment or on its Expiration Date, whichever shall
first occur, provided, however, that if (x) the Optionee
is a former officer of the Company subject to the
provisions of Section 16(a) of the Securities Exchange
Act of 1934 and (y) such Option is an Incentive Option
granted on or after March 28, 1985 or a Non-Incentive
Option, such Option shall terminate on (1) the date which
is the later of (a) 90 days from the date of such
termination of employment or (b) six months and ten days
after such officer's last purchase or sale of Shares
prior to his or her ceasing to be such an officer or (2)
its Expiration Date, which ever shall first occur, and
provided further that the Committee may, in its sole
discretion if determined by the Committee that it would
be desirable for the Company, fix a date for termination
of such Option which is not later than the third
anniversary of such termination of employment or on its
Expiration Date, whichever shall first occur.
(C) In the event of the death of an Optionee and
either while he or she is employed by the Company or a
Subsidiary or, if Subparagraph (v)(B) or (v)(D) hereof is
applicable, during a period of time following his or her
termination of employment, such Option shall terminate on
the first anniversary of the Optionee's death or on its
Expiration Date, whichever shall first occur.
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(D) In the event of the Optionee's termination of
employment with the Company or a Subsidiary for reasons
of the inability, due to mental or physical infirmity, of
the Optionee to discharge the regular responsibilities
and duties of his or her employment with the Company or a
Subsidiary, as the case may be ("Disability"), or for
reasons of termination of employment other than discharge
for cause (1) at or after age 65 or (2) before age 65
provided the Optionee has at the time of such termination
satisfied the age and vesting requirements for normal or
early retirement pursuant to the terms of any "defined
benefit plan" (as such term is defined in Section 3(35)
of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or any successor provision)
maintained by the Company or a Subsidiary (including the
American Premier Underwriters, Inc. Retirement Income
Guarantee Plan and any similar Subsidiary plans) in which
the Optionee participates or (3), if the Optionee does
not participate at the time of such termination in such a
"defined benefit plan," at or after age 55 and before age
65 provided the Optionee has been employed by the Company
or any of its Subsidiaries for at least five full years
(any of which terminations shall constitute
"Retirement"), such Option shall terminate on the date
which is two years after the date of such termination of
employment or on its Expiration Date, whichever shall
first occur.
(E) An Optionee's transfer of employment between the
Company and a Subsidiary or between Subsidiaries shall
not constitute a termination of employment and the
Committee shall determine in each case whether an
authorized leave of absence for military service or
otherwise shall constitute a termination of employment.
(F) For purposes of this Subparagraph (v) of
Paragraph 5(d), employment with any corporation that is a
"parent corporation" of the Company (within the meaning
of Section 424(e) of the Code) shall be treated in the
same manner as employment with a Subsidiary and, with
respect to any Incentive Option, the term "employment"
shall be defined in accordance with Section 1.421-7(h) of
the Income Tax Regulations (or any successor
regulations).
(vi) Surrender of Options. The Committee may permit the
voluntary surrender of all or a portion of any Option to be
conditioned upon the granting to the Optionee under this Key
Employee Program of a new Option for the same or a
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different number of Shares as the Option surrendered, or may
require such voluntary surrender as a condition precedent to a
grant of a new Option to such Optionee. Such new Option shall
be exercisable at the price, during the period, and in
accordance with any other terms or conditions specified by the
Committee at the time the new Option is granted, all
determined in accordance with the provisions of this Key
Employee Program without regard to the price, period of
exercise, or any other terms or conditions of the Option
surrendered except as provided in the final proviso in
Paragraph 5(d)(iv) above.
6. OUTSIDE DIRECTOR PROGRAM
-----------------------------
The provisions of this Paragraph 6 are applicable only to
Options granted pursuant to the Outside Director Program and
Options to Outside Directors shall be granted only in accordance
with the provisions of this Paragraph 6.
(a) Effective Date. The Outside Director Program became
effective on October 27, 1988.
(b) Terms and Conditions of Options Granted to Outside Directors.
Each Option granted pursuant to the Outside Director Program
shall be evidenced by a written stock option agreement between
the Company and the Outside Director to whom the Option is
granted (the "Optionee") in such form or forms as the Committee,
from time to time, shall prescribe, which agreements need not be
identical to each other but shall comply, inter alia, with and be
subject to the terms and conditions of this Paragraph 6(b). In
addition, the Committee may, in its absolute discretion, but
subject to the provisions of Paragraph 3(d), include in any such
stock option agreement other terms, conditions and provisions
that are not inconsistent with the express provisions of the
Outside Director Program.
(i) Initial Automatic Grant. Each Outside Director shall
be granted an Option designated a Non-Incentive Option for
5,000 Shares on the later of (A) October 27, 1988 or (B) the
effective date of such Outside Director's initial election as
a member of the Board of Directors. Such grant shall occur
automatically without any further action by the Board of
Directors.
(ii) Subsequent Automatic Annual Grant. On each June 1
occurring prior to the termination of the Plan, beginning June
1, 1989, each Outside Director who is in office on such June 1
shall be granted an Option designated a Non-Incentive
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Option for 1,000 Shares automatically without any further
action by the Board of Directors.
(iii) Option Price. The price at which each Share may be
purchased pursuant to an Option granted under the Outside
Director Program shall be equal to the "fair market value" for
each such Share as of the date on which the Option is granted
(the "Date of Grant"), but in no event shall such price be
less than the par value of such Shares. The "fair market
value" of the Shares on any date shall be the mean between the
high and the low prices of the Shares on such date on the New
York Stock Exchange Composite Tape (or the principal market in
which the Shares are traded, if the Shares are not listed on
that Exchange on such date), or if the Shares were not traded
on such date, the mean between the high and the low prices of
the Shares on the next preceding trading day during which the
Shares were traded. Anything contained in this Subparagraph
(iii) of Paragraph 6(b) to the contrary notwithstanding, in
the event that the number of Shares subject to any Option is
adjusted pursuant to Paragraph 4(b) hereof, a corresponding
adjustment shall be made in the price at which the Shares
subject to such Option may thereafter be purchased.
(iv) Duration of Options. Each Option granted under the
Outside Director Program shall expire and all rights to
purchase Shares pursuant thereto shall cease on the date (the
"Expiration Date") which shall be the third day after the
tenth anniversary of the Date of Grant of such Option.
(v) Vesting of Options. Each Option granted under the
Outside Director Program shall be fully exercisable and vested
as of the Date of Grant.
(vi) Exercise of Options. A person entitled to exercise
an Option may exercise it in whole at any time, or in part
from time to time, by delivering to the Secretary of the
Company written notice specifying the number of Shares with
respect to which the Option is being exercised, together with
payment in full of the purchase price of such Shares plus any
applicable federal, state or local taxes for which the Company
(or a Subsidiary) has a withholding obligation in connection
with such exercise. Such payment shall be made in whole or in
part (A) in cash or by personal check, money market check,
certified check or bank draft to the order of the Company, (B)
by the exchange of Common Stock of the Company acquired by the
person entitled to exercise the Option more than 6 months
prior to the date of exercise and having a "fair market value"
on the date of exercise at
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least equal to the price for which the Shares may be purchased
pursuant to the Option plus any applicable federal, state or
local taxes for which the Company (or a Subsidiary) has a
withholding obligation as noted above (including any such
taxes with respect to income recognized by the Optionee upon
the disposition of the Common Stock of the Company used to
effect such exchange), or (C) by a promissory note payable to
the Company, but only in accordance with the provisions of,
and from a person otherwise eligible under, the Loan Program
(1) in principal amount up to 100% of the payment or such
applicable lower percentage as may be specified by the
Committee pursuant to the Loan Program and (2) bearing
interest at a rate not less than the applicable test rate
prescribed under Sections 483 and 1274 of the Code, or any
successor provision, or such higher rate as may be specified
by the Committee pursuant to the Loan Program.
Notwithstanding the foregoing, the Committee may, in its sole
discretion, authorize such payment, in whole or in part, in
any other form.
(vii) Termination of Service. In the event of an
Outside Director's termination of service as a member of the
Board of Directors for any reason, his or her Option(s)
granted pursuant to the Outside Director Program shall
terminate on (A) the date which is the later of (1) 90 days
from the date of such termination of service or (2) six months
and ten days after such Outside Director's last purchase or
sale of Shares prior to his or her ceasing to be a member of
the Board of Directors or (B) its Expiration Date, whichever
shall first occur.
(viii) Terms Control. Except as expressly provided in
this Paragraph 6, grants of Options made pursuant to this
Paragraph 6 shall be subject to the terms and conditions of
the Plan; however, if there is a conflict between the terms
and conditions of the Plan and this Paragraph 6, then the
terms and conditions of this Paragraph 6 shall control.
7. MERGER, CONSOLIDATION, ETC.
--------------------------------
In the event that the Company shall, pursuant to action by its
Board of Directors, at any time propose to merge into,
consolidate with, or sell or otherwise transfer all or substan-
tially all of its assets to another corporation and provision is
not made pursuant to the terms of such transaction for the
assumption by the surviving, resulting or acquiring corporation
of outstanding Options under the Plan, or for the substitution of
new options therefor, the Committee shall cause written notice of
the proposed transaction to be given to each Optionee not less
than 40 days prior to the anticipated effective date of the
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<PAGE>
proposed transaction, and his or her Option shall become fully
(100%) vested and, prior to a date specified in such notice,
which shall be not more than 10 days prior to the anticipated
effective date of the proposed transaction, each Optionee shall
have the right to exercise his or her Option to purchase any or
all Shares then subject to such Option, including those, if any,
which by reason of other provisions of the Plan have not then
become available for purchase. Each Optionee, by so notifying
the Company in writing, may, in exercising his or her Option,
condition such exercise upon, and provide that such exercise
shall become effective at the time of, but immediately prior to,
the consummation of the transaction, in which event such Optionee
need not make payment for the Shares to be purchased upon exer-
cise of such Option until 5 days after written notice by the
Company to such Optionee that the transaction has been consummat-
ed. If the transaction is consummated, each Option, to the
extent not previously exercised prior to the date specified in
the foregoing notice, shall terminate on the effective date of
such consummation. If the transaction is abandoned, (a) any
Shares not purchased upon exercise of such Option shall continue
to be available for purchase in accordance with the other provi-
sions of the Plan and (b) to the extent that any Option not
exercised prior to such abandonment shall have vested solely by
operation of this Paragraph 7, such vesting shall be deemed
annulled, and the vesting schedule set forth in Subparagraph
(iii) of Paragraph 5(d) shall be reinstituted, as of the date of
such abandonment.
8. NONTRANSFERABILITY
-----------------------
Options shall not be transferable other than by will or the
laws of descent and distribution or pursuant to a qualified
domestic relations order as defined by the Code or Title I of
ERISA, or the rules thereunder. Options may be exercised, during
the lifetime of the Optionee, only by the Optionee.
9. NO RIGHTS AS STOCKHOLDER OR TO CONTINUED EMPLOYMENT
--------------------------------------------------------
No Optionee shall have any rights as a stockholder of the
Company with respect to any Shares prior to the date of issuance
to him or her of the certificate or certificates for such Shares
and neither the Plan nor any Option granted under the Plan shall
confer upon an Optionee any right to continuance of employment by
the Company or any Subsidiary or interfere in any way with the
right of the Company or Subsidiary to terminate the employment of
such Optionee.
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<PAGE>
10. ISSUANCE OF SHARES; RESTRICTIONS
-------------------------------------
(a) Subject to the conditions and restrictions provided in
this Paragraph 10, the Company shall, within twenty business days
after an Option has been duly exercised in whole or in part,
deliver to the person who exercised the Option a certificate,
registered in the name of such person, for the number of Shares
with respect to which the Option has been exercised. The Company
may legend any stock certificate issued hereunder to reflect any
restrictions provided for in this Paragraph 10.
(b) Unless the Shares subject to Options granted under the
Plan have been registered under the Securities Act of 1933, as
amended (the "Act"), (and, in the case of any Optionee who may be
deemed an "affiliate" of the Company as defined in Rule 405 under
the Act, such Shares have been registered under the Act for
resale by such Optionee), or the Company has determined that an
exemption from registration is available, the Company may require
prior to and as a condition of the issuance of any Shares that
the person exercising an Option hereunder furnish the Company
with a written representation in a form prescribed by the Commit-
tee to the effect that such person is acquiring said Shares
solely with a view to investment for his or her own account and
not with a view to the resale or distribution of all or any part
thereof and that such person will not dispose of any of such
Shares otherwise than in accordance with the provisions of Rule
144 under the Act unless and until either the Shares are regis-
tered under the Act or the Company is satisfied that an exemption
for such registration is available.
(c) Anything contained herein to the contrary notwithstand-
ing, the Company shall not be obligated to sell or issue any
Shares under the Plan unless and until the Company is satisfied
that such sale or issuance complies with (i) all applicable
requirements of the New York Stock Exchange (or the governing
body of the principal market in which such Shares are traded, if
such Shares are not then listed on that Exchange), (ii) all
applicable provisions of the Act and (iii) all other laws or
regulations by which the Company is bound or to which the Company
is subject.
(d) Separate Share certificates shall be issued upon the
simultaneous exercise of Incentive Options and Non-Incentive
Options.
(e) Each Incentive Option shall require the Optionee to agree
that if he shall make a disposition (within the meaning of
Section 424(c) of the Code and the rules and regulations thereun-
der) of any Shares covered by such Incentive Option within one
year after the date of transfer to him of such Shares or within
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two years from the date of grant of such Incentive Option, then
in either such event the Optionee shall promptly notify the
Company, by delivery of written notice to the Secretary of the
Company, of (i) the date of such disposition, (ii) the number of
Shares covered by such Incentive Option which were disposed of
and (iii) the price at which such Shares were disposed of or the
amount of any other consideration received on such disposition.
Each Incentive Option granted under the Plan shall authorize the
Company (or a Subsidiary) to make such provision as it may deem
appropriate for the withholding of any applicable federal, state
or local taxes that it determines it may be obligated to withhold
or pay in connection with the exercise of such Incentive Option
or the disposition of Shares acquired upon exercise of such
Incentive Option.
11. SUBSTITUTE OPTIONS
-----------------------
Anything contained herein to the contrary notwithstanding,
Options may, at the discretion of the Committee, be granted under
the Plan in substitution for options to purchase shares of
capital stock of another corporation which is merged into,
consolidated with, or all or a substantial portion of the proper-
ty or stock of which is acquired by, the Company or a Subsidiary.
The terms, provisions and benefits to Optionees of such substi-
tute Options shall in all respects be identical to the terms,
provisions and benefits to optionees of the options of the other
corporation on the date of substitution, except that such substi-
tute Options shall provide for the purchase of Shares of the
Company instead of shares of such other corporation.
12. TERM OF THE PLAN
---------------------
Unless the Plan has been sooner terminated pursuant to
Paragraph 13 hereof, the Plan shall terminate on, and no Options
shall be granted after, September 9, 2000. The provisions of the
Plan, however, shall continue thereafter to govern all Options
theretofore granted, until the exercise, expiration or cancella-
tion of such Options.
13. AMENDMENT AND TERMINATION OF PLAN
--------------------------------------
The Board of Directors at any time may terminate the Plan or
amend it from time to time in such respects as it deems desir-
able; provided that, without the further approval of the share-
holders of the Company by the affirmative vote of shareholders
entitled to cast at least the majority of the total number of
votes represented (a quorum being present) at a meeting of
shareholders of the Company, no amendment shall (i) increase the
maximum aggregate number of Shares with respect to which Options
may be granted under the Plan, (ii) change the Option price
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provided for in Paragraphs 5(d)(i) and 6(b)(iii) hereof, or (iii)
change the eligibility provisions of Paragraphs 5(b) and 6
hereof; provided further that the provisions of the Plan
applicable to the Outside Director Program may not be amended
more than once every six months, other than to comport with
changes in the Code, ERISA, or the rules thereunder; and provided
moreover that, subject to the provisions of Paragraph 10 hereof,
no termination of or amendment to the Plan shall adversely affect
the rights of an Optionee or other person holding an Option
theretofore granted hereunder without the consent of such
Optionee or other person, as the case may be.
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AMERICAN PREMIER GROUP, INC. EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE
------------
The purpose of the American Premier Group, Inc. Employee Stock
Purchase Plan (the "Plan") is to enable employees of American
Premier Group, Inc. (the "Company") and its Subsidiaries to
acquire or increase ownership interests in the Company on a basis
that will encourage them to perform at increasing levels of
effectiveness and use their best efforts to promote the growth
and profitability of the Company and its Subsidiaries. This is
to be done by providing employees a continued opportunity to
purchase shares of the Company's Common Stock, $1.00 par value
("Shares"), from the Company through periodic offerings
commencing June 1, 1990 or as soon as practicable thereafter (the
"Effective Date"). For this purpose, except as otherwise
provided in Section 18, the maximum aggregate number of Shares
which Participating Employees (defined in Section 4 below) may
purchase under the Plan is 3,000,000.
The Plan is intended to comply with the provisions of section
423 of the Internal Revenue Code of 1986, as amended (the
"Code"), and the Plan shall be administered, interpreted and
construed accordingly.
2. ADMINISTRATION
-------------------
(a) The Plan shall be administered by a committee of the
Board of Directors designated by the Board of Directors (the
"Committee"), consisting of a least three members, each of whom
shall not have been eligible, during the one-year period prior to
the later of the Effective Date or such member's appointment to
the Committee, to receive a right to purchase Shares under this
Plan, or to receive stock or an option to purchase stock of the
Company or a Subsidiary under any other plan maintained by the
Company or a Subsidiary under which such member has been eligible
for selection on a discretionary basis. Any member of the
Committee who does not satisfy the foregoing requirement shall
not serve in his or her capacity as a Committee member for
purposes of administration of the Plan until one year has elapsed
from the date he or she was last eligible to receive such stock
or such an option under the Plan or such other plan. If, at any
time, there are fewer than three members of the Committee
eligible to serve in such capacity for purposes of administration
of the Plan as a result of the preceding sentence or otherwise,
the Board of Directors shall appoint one or more members of the
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<PAGE>
Board of Directors, who shall qualify hereunder, to serve as
members of the Committee solely for purposes of administration
of the Plan. All Committee members shall serve, and may be
removed, at the pleasure of the Board of Directors.
(b) For purposes of administration of the Plan, a
majority of the members of the Committee (but not less than two)
eligible to serve as such shall constitute a quorum, and any
action taken by a majority of such members of the Committee
present at any meeting at which a quorum is present, or acts
approved in writing by a majority of such members of the
Committee, shall be the acts of the Committee.
(c) Subject to the express provisions of the Plan, the
Committee shall have full discretionary authority to interpret
the Plan, to issue rules for administering the Plan, to change,
alter, amend or rescind such rules, and to make all other
determinations necessary or appropriate for the admini- stration
of the Plan. All determinations, interpretations and
constructions made by the Committee pursuant to this Section
shall be final and conclusive. No member of the Board of
Directors of the Committee shall be liable for any action,
determination or omission taken or made in good faith with
respect to the Plan or any right granted hereunder.
(d) The Committee will engage a bank trust department or
other financial institution as agent (the "Agent") to perform
custodial and record-keeping functions for the Plan, such as
holding record title to the participating employees' Share
certificates, maintaining an individual investment account for
each such employee and providing periodic account status reports
to such employees.
(e) The Committee shall have full discretionary
authority to delegate ministerial functions to management of the
Company.
3. ELIGIBLE EMPLOYEES
-----------------------
All employees of the Company, and of such of its Subsidiaries
as may be designated for such purpose from time to time by the
Committee, shall be eligible to participate in the Plan, provided
each of such employees:
(a) has been employed by the Company or any of its
Subsidiaries for at least three months,
(b) is customarily employed for more than 20 hours
per week,
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(c) is customarily employed for more than five months
per calendar year, and
(d) does not own, immediately after the right to pur-
chase Shares under the Plan is granted, stock possessing 5% or
more of the total combined voting power or value of all classes
of stock of the Company or a Subsidiary. In determining stock
ownership for purposes of the preceding sentence, the rules of
section 424(d) of the Code shall apply and stock which the
employee may purchase under outstanding options shall be treated
as stock owned by the employee.
The term "Subsidiary" as used in the Plan shall mean any
corporation in an unbroken chain of corporations beginning with
the Company if each of the corporations other than the last
corporation in the unbroken chain owns stock possessing 50% or
more of the total combined voting power of all classes of stock
in one of the other corporations in such chain, and such term
shall also include any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company if each of
the corporations other than the Company owns stock possessing 50%
or more of the combined voting power of all classes of stock in
one of the other corporations in such chain.
For purposes of this Section, "employment" shall be defined in
accordance with the provisions of Section 1.421-7(h) of the
Treasury Regulations (or any successor regulations). Employees
eligible to participate in the Plan pursuant to the provisions of
this Section are hereinafter referred to as "Eligible Employees."
4. ELECTION TO PARTICIPATE
----------------------------
Each Eligible Employee may participate in the Plan by filing
with the Company an election to purchase form (the "Form")
authorizing specified regular payroll deductions. Eligible
Employees who so elect to participate in the Plan are hereinafter
referred to as "Participating Employees." The Form must specify
the date on which such deduction is to commence, which may not be
retroactive. Payroll deductions may be in any amount, but not
less than $10 per payroll period, specified by the Participating
Employee up to 25% (or such lower percentage as may be specified
by the Committee) of the Participating Employee's annual rate of
base compensation (as defined by the Committee) in effect at the
time of his filing of the Form. All regular payroll deductions
shall be recorded in a non-interest bearing account which the
Company (or the Subsidiary which employs the Participating
Employee) shall establish for Participating Employees (the
"Payroll Deduction Account").
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All funds recorded in Payroll Deduction Accounts may be used
by the Company and its Subsidiaries for any corporate purpose,
subject to the right of a Participating Employee to withdraw at
any time an amount equal to the balance accumulated in his or her
Payroll Deduction Account as described in Section 7 below. Funds
recorded in Payroll Deduction Accounts shall not be required to
be segregated from any funds of the Company or any of its
Subsidiaries.
5. DEDUCTION CHANGES
----------------------
A Participating Employee may at any time increase or decrease
his or her payroll deduction by filing a new Form. The change
may not become effective sooner than the next pay period after
receipt of the Form. A payroll deduction change (which shall
include any increase or decrease) may not be made more than twice
during any calendar year.
6. LIMITATION ON PURCHASE OF SHARES
-------------------------------------
No employee may be granted a right to purchase Shares under
this Plan, and any other stock purchase plan of the Company and
its Subsidiaries under section 423 of the Code, at a rate which
exceeds $25,000 of the fair market value of such Shares
(determined on the date of purchase of the Shares) for each
calendar year.
The foregoing limitation shall be interpreted by the
Committee in accordance with applicable rules and regulations
issued under the Code.
7. WITHDRAWAL OF FUNDS
------------------------
A Participating Employee may at any time prior to a Purchase
Date (defined in Section 8 below) and for any reason withdraw
from participation in the Plan, in which case the entire balance
accumulated in his or her Payroll Deduction Account shall be paid
to him or her as soon as practicable thereafter. Partial
withdrawals will not be permitted.
8. METHOD OF PURCHASE AND INVESTMENT ACCOUNTS
-----------------------------------------------
The term "Payroll Deduction Period" shall mean a period of
one, two or three calendar months, as determined by the
Committee. The term "Purchase Date" as used in the Plan shall
mean the last business day of each Payroll Deduction Period (or
as soon as practicable thereafter) commencing after the Effective
Date. Each Participating Employee having funds in his or her
Payroll Deduction Account on a Purchase Date shall be deemed,
without any further action, to have been granted on such Purchase
-55-
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Date, and to have exercised on such Purchase Date, the option to
purchase from the Company the number of whole and fractional
Shares which the funds in his or her Payroll Deduction Account
would purchase at the Purchase Price (as hereinafter defined) on
such Purchase Date, subject to the Share limitation in Section 1
and the restrictions set forth in Section 6. Such option will
be deemed exercised if the Participating Employee does not
withdraw such funds prior to the Purchase Date. All Shares so
purchased (including fractional Shares) shall be credited to a
separate Investment Account established by the Agent for each
Participating Employee. The Agent shall hold in its name or the
name of its nominee all certificates for Shares purchased until
Shares are withdrawn by a Participating Employee pursuant to
Section 10 below.
All cash dividends paid with respect to the whole and
fractional Shares in a Participating Employee's Investment
Account shall, unless otherwise directed by the Committee, be
credited to his or her Investment Account and used, in the same
manner as payroll deductions, to purchase additional Shares under
the Plan on the next Purchase Date, subject to the Share
limitation in Section 1 and the restrictions set forth in Section
6. Shares so purchased shall be added to the Shares held for the
Participating Employee in his or her Investment Account.
9. PURCHASE PRICE
-------------------
The Purchase Price for each whole or fractional Share shall be
85% of the fair market value of such whole or fractional Share on
the Purchase Date (as defined in Section 8 above), provided that
the Purchase Price shall in no event be less than the par value
of such Share.
Fair market value shall be the mean of the high and low sales
prices of such Shares on the Purchase Date on the New York Stock
Exchange Composite Tape (or the principal market in which the
Shares are traded, if the Shares are not listed on the New York
Stock Exchange on such Date), or, if the Shares shall not have
been traded on such Date, the mean of the high and low sales
prices of such Shares on the next preceding day on which sales
were made.
10. WITHDRAWAL OF CERTIFICATES
-------------------------------
Subject to Sections 13 and 21 below, a Participating Employee
shall have the right at any time to withdraw a certificate or
certificates for all or a portion of the Shares credited to his
or her Investment Account by giving written notice to the
Company, provided, however, that (a) no such request may be made
more frequently than once per calendar quarter and (b) no
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Participating Employee shall be entitled to receive a certificate
for any fractional Share. The Company will pay any stamp taxes
imposed in connection with the issuance of any certificate under
the Plan.
11. REGISTRATION OF CERTIFICATES
---------------------------------
Each certificate withdrawn by a Participating Employee may be
registered only in the name of the Participating Employee, or, if
the Participating Employee so indicated on the Participating
Employee's Form, in the Participating Employee's name jointly
with a member of the Participating Employee's family, with right
of survivorship. A Participating Employee who is a resident of a
jurisdiction which does not recognize such a joint tenancy may
have certificates registered in the Participating Employee's name
as tenant in common or as community property with a member of the
Participating Employee's family, without right of survivorship.
12. VOTING
-----------
The Agent shall vote all Shares held in an Investment Account
in accordance with the Participating Employee's instructions.
13. LIMITATION ON RESALE
-------------------------
Notwithstanding anything in the Plan to the contrary, if any
Participating Employee sells any Share purchased under the Plan
(or withdraws any certificate representing such Share) during the
first year following the date of purchase of such Share, such
Participating Employee shall not be eligible to make further
purchases under the Plan, or to have payroll deductions made for
such purpose, for a period of one year after such sale (or for
such shorter period, if any, as the Committee shall have
established).
14. RIGHTS ON RETIREMENT, DEATH OR OTHER TERMINATION OF
EMPLOYMENT
--------------------------------------------------------
In the event of a Participating Employee's retirement, death
or other termination of employment, or in the event that a
Participating Employee otherwise ceases to be an Eligible
Employee, (a) no payroll deduction shall be taken from any pay
due and owing to the Participating Employee thereafter, and the
balance in the Participating Employee's Payroll Deduction Account
shall be paid to the Participating Employee or, in the event of
the Participating Employee's death, to his or her designated
beneficiary under the Plan (and, if none, then to his or her
estate) and (b) a certificate for the full Shares credited to the
Participating Employee's Investment Account will be forwarded to
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the Participating Employee (or, in the case of his or her death,
such beneficiary or estate) and any fractional Share interest
held in such Investment Account will be disposed of and the
proceeds, less any selling expenses, will be remitted to the
Participating Employee (or, in the case of his or her death, such
beneficiary or estate).
15. RIGHTS NOT TRANSFERABLE
----------------------------
Rights under the Plan are not transferable by a Participating
Employee other than by will or the laws of descent and
distribution, and are exercisable during the employee's lifetime
only by the employee.
16. NO RIGHT TO CONTINUED EMPLOYMENT
-------------------------------------
Neither the Plan nor any right granted under the Plan shall
confer upon any Participating Employee any right to continuance
of employment with the Company or any Subsidiary, or interfere in
any way with the right of the Company or Subsidiary to terminate
the employment of such Participating Employee.
17. APPLICATION OF FUNDS
-------------------------
All funds received or held by the Company under this Plan may
be used for any corporate purpose.
18. ADJUSTMENT IN CASE OF CHANGES AFFECTING SHARES
---------------------------------------------------
In the event of a subdivision of outstanding Shares, or the
payment of a stock dividend, the Share limitation set forth in
Section 1 shall be adjusted proportionately, and such other
adjustments shall be made as may be deemed equitable by the
Committee. In the event of any other change affecting Shares
(including any event described in section 424(a) of the Code),
such adjustment shall be made as may be deemed equitable by the
Committee to give proper effect to such event, subject to the
limitations of section 424 of the Code.
19. AMENDMENT OF THE PLAN
--------------------------
The Board of Directors may at any time, or from time to time,
amend this Plan in any respect, except that, without approval
by the shareholders of the Company entitled to cast at least the
majority of the total number of votes represented (a quorum being
present), no amendment shall be made (i) increasing the maximum
aggregate number of Shares which may be purchased by
Participating Employees under this Plan other than as provided in
Section 18 or (ii) changing the designation of employees eligible
to participate in the Plan.
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20. TERMINATION OF THE PLAN
----------------------------
The Plan and all rights of employees under any offering
hereunder shall terminate:
(a) on the day that Participating Employees become
entitled to purchase a number of Shares greater than the number
of Shares remaining available for purchase in accordance with
Section 1, as adjusted by Section 18. If the number of Shares so
purchasable is greater than the Shares remaining available, the
available Shares shall be allocated by the Committee among such
Participating Employees on a pro rata basis; or
(b) at any time at the discretion of the Board of
Directors.
Upon termination of this Plan (i) all amounts in the Payroll
Deduction Accounts of Participating Employees shall be carried
forward into the Participating Employee's Payroll Deduction
Account under a successor plan, if any, or promptly refunded,
(ii) all certificates for the full Shares credited to a
Participating Employee's Investment Account shall be forwarded to
him or her and (iii) any fractional Share interest held in a
Participating Employee's Investment Account shall be disposed of
and the proceeds, less any selling expenses, shall be remitted to
him or her.
The Board of Directors shall have the right to suspend the
Plan at any time.
21. GOVERNMENTAL REGULATIONS
-----------------------------
(a) Anything contained in the Plan to the contrary
notwithstanding, the Company shall not be obligated to sell or
deliver any Shares or certificates under the Plan unless and
until the Company is satisfied that such sale or delivery
complies with (i) all applicable requirements of the New York
Stock Exchange (or the governing body of the principal market in
which such Shares are traded, if such Shares are not then listed
on that Exchange), (ii) all applicable provisions of the
Securities Act of 1933 and (iii) all other laws or regulations by
which the Company is bound or to which the Company is subject.
(b) The Company (or a Subsidiary) may make such pro-
visions as it may deem appropriate for the withholding of any
taxes or payment of any taxes which it determines it may be
required to withhold or pay in connection with any Shares. The
obligation of the Company to deliver certificates under this Plan
is conditioned upon the satisfaction of the provisions set forth
in the preceding sentence.
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22. SOURCE OF SHARES
---------------------
Shares to be purchased from the Company under the Plan shall
be (a) previously acquired treasury Shares or (b) authorized but
unissued Shares. Notwithstanding anything to the contrary in
this Plan, if and to the extent authorized by the Committee, the
Agent may make purchases of Shares on behalf of Participating
Employees under the Plan through market transactions rather than
purchases from the Company.
23. REPURCHASE OF SHARES
-------------------------
The Company shall not be required to repurchase from any
Participating Employee any Shares which such Participating
Employee acquires under the Plan.
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