<PAGE> 1
As filed with the Securities and Exchange Commission on May __, 1997
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
STERLING BANCORP
(Exact name of registrant as specified in its charter)
NEW YORK 13-2565216
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
430 Park Avenue, New York, New York 10022-3299
(Address of Principal Executive Offices)
Sterling Bancorp Stock Incentive Plan
(Full title of the plan)
Jerrold Gilbert
Executive Vice President, General Counsel and Secretary
STERLING BANCORP
430 Park Avenue
New York, New York 10022-3299
(212) 826-8044
(Name, address and telephone number of agent for service)
THE EXHIBIT INDEX APPEARS ON PAGE 11
Page 1 of 29 pages
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title Of Amount Proposed Maximum Proposed Amount
Securities To Be Offering Price Maximum Of
To Be Registered Per Share (1) Aggregate Registration
Registered Offering Fee
Price
<S> <C> <C> <C> <C>
Common Stock 942,000 466,000 at $17.0625 $7,951,125 $4,261
$1.00 Par Value 60,000 at $ 7.25 435,000
(including 37,000 at $ 8.00 296,000
associated and 16,000 at $ 7.25 116,000
attached rights 102,000 at $12.50 1,275,000
to purchase 16,000 at $11.375 182,000
shares of 229,000 at $15.50 3,549,500
capital stock 16,000 at $16.00 256,000
under the ----------
Company's Rights $14,060,125
Agreement dated
as of March 3,
1989.
</TABLE>
(1) The amount of the registration fee has been calculated on the basis of the
aggregate offering price for the amount of the registrant's securities
issuable under the Incentive Plan based, pursuant to Rules 457(c) and
457(h)(1), as follows: with respect to 463,500 shares representing shares
which remain to be awarded, on the average of the high and low prices per
share of the Company's common stock on the New York Exchange composite
tape on May 19, 1997, and, with respect to 476,000 shares awarded in the
form of options, on the price at which the options may be exercised.
PART I
Item 1. Plan Information
The documents containing the information called for by Item I of Form S-8 will
be provided to participants in the Sterling Bancorp Stock Incentive Plan
("Incentive Plan") in accordance with the rules and regulations of the
Securities and Exchange Commission (the "Commission").
Item 2. Registrant Information and Employee Plan Annual Information
Not applicable.
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PART II
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended ("Exchange Act") are incorporated by
reference and shall be deemed a part hereof:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996.
(b) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1997.
(c) Amended and restated Certificate of Incorporation filed with
the State of New York, Department of State, August 14, 1986
(filed as Exhibit 3.3 to Registrant's Form 10-K for the fiscal
year ended December 31, 1986).
(d) Certificate of Amendment of Certificate of Incorporation filed
with the State of New York, Department of State, June 13, 1988
(filed as Exhibit 3.5 to Registrant's Form 10-K for the fiscal
year ended December 31, 1988).
(e) Certificate of Amendment of Certificate of Incorporation filed
with the State of New York, Department of State, March 5, 1993
(filed as Exhibit 4.1 to Registrant's Form 8-K dated March 5,
1993).
(f) By-Laws as in effect on March 15, 1993 (filed as Exhibit 3.3
to Registrant's Form 10-K for the fiscal year ended December
31, 1992).
(g) All other reports filed since December 31, 1996 to the date
hereof pursuant to Sections 13(a) or 15(d) of the Exchange
Act.
(h) The description of the Company's Common Stock, $1.00 par
value, contained in the Company's Registration Statement filed
under the Exchange Act, including all amendments or reports
filed for the purpose of updating such description, and the
description of rights associated and attached to the Common
Stock ("Rights") to purchase the Company's Series C Preferred
Shares, $5.00 par value ("Preferred Shares"), or fractions
thereof, at a Purchase Price of $35.00 per one one- hundredth
of a Preferred Share, contained in the
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Company's Registration Statement therefor filed under the
Exchange Act on March 6, 1989, including all amendments or
reports filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated herein by reference in this Registration Statement on Form S-8, and
shall be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
An opinion upon the validity of the securities being registered
hereunder has been given by Jerrold Gilbert, Esq., General Counsel of the
Company. Mr. Gilbert holds options to purchase 32,000 Common Shares, with
attached and associated Rights, being registered hereunder.
Item 6. Indemnification of Directors and Officers.
Section 722 of the Business Corporation Law of the State of New York
permits a corporation to indemnify any person who is a director or officer of
the corporation against expenses (including attorneys' fees), judgments, fines
and settlements actually and necessarily incurred by him in connection with any
action, suit, or proceeding brought by a third party, if such person acted in
good faith for a purpose of which he reasonably believed to be in or not opposed
to the best interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. In a derivative action (an action by or in the right of the
corporation to procure a judgment in its favor), indemnification may be made
only for amounts paid in settlement and for reasonable expenses actually and
necessarily incurred, and only with respect to a matter as to which the person
acted in good faith for a purpose which he reasonably believed to be in or not
opposed to the best interests of the corporation, except that no indemnification
shall be made with respect to a person who shall have been adjudged liable to
the corporation, unless, and only to the extent, the court in which the action
or suit was brought determines upon application that the person is reasonably
entitled to indemnity for such expenses despite such adjudication of liability.
Section 726 of the Business Corporation Law permits a corporation to obtain
insurance on behalf of any person who is a director or officer of the
corporation against liability
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incurred by him in any such capacity, or arising out of his status as such,
whether or not he could be indemnified against such liability under Section 772.
Section 721 of the Business Corporation Law provides that the provisions of the
Business Corporation Law relating to indemnification do not preclude a
corporation from affording other rights of indemnification to directors and
officers in the corporation's certificate of incorporation or by-laws, by
resolution of the shareholders or directors, or by agreement, provided that no
indemnification may be made to or on behalf of any director or officer if a
judgment or other final adjudication establishes that he acted in bad faith or
with active and deliberate dishonesty, or that he personally gained a financial
advantage to which he was not legally entitled.
The Company's By-Laws contain the following provisions with respect to
indemnification:
(a) Each person made, or threatened to be made, a party to an action or
proceeding, including a derivative action, whether civil or criminal (a
"Proceeding"), by reason of the fact that he, or a person of whom he is the
legal representative, is or was a director or an officer of the Company or,
while a director or officer is or was serving at the request of the Company as a
director or officer of another corporation or of a partnership, joint venture,
trust, or other enterprise, including service with respect to employee benefit
plans, whether the basis of the Proceeding is alleged action in an official
capacity as a director or an officer or in any other capacity while serving as a
director or an officer, shall be indemnified and held harmless by the Company to
the fullest extent authorized by the New York Business Corporation Law against
all judgments, fines (including any excise tax deemed a fine under the
applicable provisions of the Business Corporation Law), amounts paid in
settlement (provided that such settlement was made with the prior written
consent of the Company or that the Company unreasonably refused or withheld
consent), and reasonable expenses, including attorneys' fees incurred as a
result of a Proceeding and any appeals therein.
(b) Expenses incurred (including attorneys' fees) by any person
indemnified under the By-Laws in defending a Proceeding shall be paid by the
Company after the final disposition of such Proceeding. The Company's obligation
to pay such expenses shall be subject to the receipt of an undertaking by or on
behalf of such person to repay such amount to the extent it exceeds the
indemnification to which such person is ultimately found to be entitled under
the By-Laws or otherwise.
(c) The indemnification rights conferred on any person by the By-Laws are
in addition to the rights to indemnification that
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such person may have under the Business Corporation Law or other applicable law.
(d) Any amendment or repeal of the indemnification provisions of the
By-Laws shall not adversely affect any right or protection of any director or
officer existing at the time of such amendment or repeal, unless the Proceeding
is based upon an alleged act or omission occurring more than 30 days after such
director or officer received notice of such amendment or repeal.
(e) No indemnification may be made to or on behalf of any director or
officer if a judgment or other final adjudication adverse to him establishes
that his acts were committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of action so adjudicated,
or that he actually and personally gained a financial profit or other advantage
to which he was not legally entitled.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable.
As permitted by the New York Business Corporation Law, the Company's
Certificate of Incorporation includes a provision reducing or eliminating, in
certain circumstances, the liability of its directors to the Company or its
shareholders for monetary damages resulting from a breach of fiduciary duty.
Consistent with the New York Business Corporation Law, the Certificate of
Incorporation does not permit any reduction or elimination of a director's
liability for a breach of his duty of loyalty, for failing to act in good faith,
for engaging in intentional misconduct or knowingly violating the law, for
obtaining an improper personal benefit, or for paying a dividend, approving a
stock repurchase, distributing corporate assets, or making any loan which is
illegal under New York law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5 Opinion of Jerrold Gilbert, Esq.
23.1 Consent of KPMG Peat Marwick LLP dated May 19, 1997
23.2 Consent of Jerrold Gilbert, Esq. (included in Exhibit 5
to this Registration Statement).
6
<PAGE> 7
24 Power of Attorney (included as part of the signature
pages to this Registration Statement).
99.1 Stock Incentive Plan, as Amended
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(b) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(c) to include any material information with respect to the plan
of distribution not previously disclosed in this registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(a) and (b) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for purposes of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Act of 1934 (and, where applicable, each filing of an
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<PAGE> 8
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant
to the indemnification provisions referred to in this
registration statement, or otherwise, the Registrant has
been advised that in the opinion of the Securities and
Exchange Commission, such indemnification is against public
policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel that
matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
8
<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on May 15, 1997.
STERLING BANCORP
By: s/Louis J. Cappelli
----------------------------
Louis J. Cappelli
Chairman of the Board
and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Louis J. Cappelli, John C. Millman, and Jerrold
Gilbert, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this registration and
to file the same, with exhibits thereto, and other documents in connection
therewith with the Securities and Exchange Commission, granting unto said
attorney-in fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent or either of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been duly signed by the following persons in the capacities and on
the date indicated.
Signature Title Date
--------- ----- ----
s/Louis J. Cappelli Chairman of the Board
- ------------------- Chief Executive Officer
Louis J. Cappelli and Director May 15, 1997
s/John C. Millman President and Director May 15, 1997
- ------------------
John C. Millman
9
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s/John W. Tietjen Senior Vice President,
- ----------------- Treasurer, and Chief
John W. Tietjen Financial Officer May 15, 1997
s/Joseph M. Adamko Vice Chairman of the
- ------------------ Board and Director May 15, 1997
Joseph M. Adamko
s/Lillian Berkman Director May 15, 1997
- -----------------
Lillian Berkman
s/Walter Feldesman Director May 15, 1997
- ------------------
Walter Feldesman
s/Allan F. Hershfield Director May 15, 1997
- ---------------------
Allan F. Hershfield
s/Henry J. Humphreys Director May 15, 1997
- --------------------
Henry J. Humphreys
s/Maxell M. Rabb Director May 15, 1997
- ----------------
Maxwell M. Rabb
s/Eugene T. Rossides Director May 15, 1997
- --------------------
Eugene T. Rossides
s/William C. Warren Director May 15, 1997
- -------------------
William C. Warren
10
<PAGE> 11
EXHIBIT INDEX TO FORM S-8 REGISTRATION STATEMENT
OF
STERLING BANCORP
Exhibit Description Page No.
- ------- ----------- --------
5 Opinion of Jerrold Gilbert, Esq.
23.1 Consent of KPMG Peat Marwick LLP
dated May 19, 1997
23.2 Consent of Jerrold Gilbert, Esq.
(included in Exhibit 2 to this
Registration Statement)
24 Power of Attorney (included as
part of the signature pages to
this Registration Statement)
99.1 Stock Incentive Plan,
as Amended
11
<PAGE> 1
[JERROLD GILBERT LETTERHEAD]
May 15, 1997
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Sterling Bancorp
430 Park Avenue
New York, New York 10022-3505
Form S-8 Registration Statement under
The Securities Act of 1933
Ladies and Gentlemen:
I am General Counsel to Sterling Bancorp (the "Company") and have
acted as counsel to the Company in connection with the Sterling Bancorp Stock
Incentive Plan, as amended (the "Incentive Plan"); the shares of the Company's
common stock, $1.00 par value, (the "Common Shares") issued or to be issued
pursuant to the provisions of the Incentive Plan; and the rights associated and
attached to the Common Shares (the "Rights") to: (i) purchase the Company's
Series C Preferred Shares, $5.00 par value ("Preferred Shares"), or fractions
thereof; or, (ii) under certain conditions, purchase a number of Common Shares
having a market value equal to twice the purchase price of Preferred Shares in
lieu of purchasing Preferred Shares; or,(iii) under certain conditions, receive,
upon payment of the purchase price of the Preferred Shares, that number of
common shares having a market value equal to twice the purchase price of
Preferred Shares of any company acquiring the Company, all as more fully set
forth in a certain Rights Agreement (the "Rights Agreement") between the Company
and Manufacturers Hanover Trust Company, as Rights Agent. I am an owner of
Common Shares of the Company, with Rights, and I hold options to purchase 32,000
additional Common Shares with Rights.
I have reviewed the Articles of Incorporation of the Company, the
By-laws of the Company, the Incentive Plan, the Rights Agreement and such other
documents as I deemed necessary or advisable for purposes of the opinion set
forth below. I have assumed the authenticity of all documents submitted to me as
originals, the genuineness of all signatures, the legal capacity of
<PAGE> 2
Securities and Exchange Commission
May 15, 1997
Page 2
natural persons and the conformity to the originals of all documents.
Based upon the foregoing, I am of the opinion that:
1. The Common Shares, when sold or otherwise transferred in
accordance with the Incentive Plan, will be legally issued, fully paid and
non-assessable.
2. The Rights Agreement constitutes a legal, valid and binding
agreement enforceable against the Company according to its terms, except to the
extent such enforcement may be limited by bankruptcy, insolvency, and other laws
affecting creditors' rights generally and the application of equitable
principles and remedies, whether in a proceeding at law or in equity; the
Company has the power, authority and legal right to make, deliver and perform
the Rights Agreement and all of the transactions contemplated by the Rights
Agreement; and the execution and delivery of the Rights Agreement by the Company
and the performance by the Company of the Company's obligations thereunder do
not violate any provision of the Company's certificate of incorporation or
by-laws, or any mortgage, indenture, contract, or other agreement to which the
Company is a party or by which the Company or any of its property may be bound.
3. The Preferred Shares, when sold in accordance with the Rights
Agreement, will be legally issued, fully paid and non-assessable.
4. Such Common Shares as are sold in lieu of Preferred Shares in
accordance with the Rights Agreement will be legally issued, fully paid and
non-assessable.
I express no opinion with respect to the legal issuance, full
payment status, or non-assessability of any common shares of any company
acquiring the Company that the holders of Rights may acquire pursuant to the
Rights Agreement.
I hereby consent to the incorporation by reference in the captioned
Registration Statement of the opinion set forth above.
Very truly yours,
/s/ Jerrold Gilbert
Jerrold Gilbert
JG:leg
<PAGE> 1
[KPMG PEAT MARWICK LLP LETTERHEAD]
The Board of Directors
Sterling Bancorp
We consent to the use of our report incorporated herein by reference in the
registration statement.
/s/ KPMG Peak Marwick LLP
New York, New York
May 19, 1997
[LOGO] Member Firm of KPMG International
<PAGE> 1
STERLING BANCORP STOCK INCENTIVE PLAN
(AMENDED AND RESTATED AS OF JANUARY 29, 1997)
1. PURPOSES
The purposes of this Sterling Bancorp Stock Incentive Plan (the
"Plan") are (i) to strengthen the ability of Sterling Bancorp (the "Company")
and its subsidiaries to attract and retain employees and directors of high
competence and (ii) to increase the identity of interests of such employees and
directors with those of the Company's shareholders.
2. ELEMENTS OF THE PLAN
The Plan provides the Company's Board of Directors (the "Board")
with the discretion to grant or award participants incentives relating to the
Company's Common Shares, $1 par value (the "Shares"), utilizing (1) incentive
stock options, (2) nonqualified stock options and (3) restricted stock. In
connection with the grant of options, the Board shall have the authority to
grant stock appreciation rights. Options, restricted stock and stock
appreciation rights (collectively, "Awards") may be granted to participants
singly or in any combination which the Board deems appropriate, provided that no
stock appreciation right may be granted unless in connection with an option.
3. SHARES SUBJECT TO THE PLAN
The maximum aggregate number of Shares as to which options may be
granted or restricted stock awarded under this Plan shall be 1,050,000 Shares.
Such Shares shall be subject to adjustment as provided in Section 12 hereof and
may be either authorized but unissued Shares, or Shares previously issued and
reacquired by the Company. If and to the extent options granted under the Plan
terminate, expire or are canceled without having been exercised, or if any
Shares of restricted stock are forfeited, the Shares subject to such option or
award shall again be available for purposes of the Plan.
4. PLAN ADMINISTRATION
The Plan shall be administered by the Board. The Board may delegate
this or any other authority granted it hereunder to a committee which shall
consist of at least three members of the Board (the "Stock Plans Committee").
Other than as stated in Appendix I hereto, no member of the Stock Plans
Committee shall be eligible to participate in the Plan. Any references herein to
the "Board" shall be deemed to refer to either the Board or the Stock Plans
Committee if authority to administer the Plan has been delegated to such
Committee. The Board shall have the sole authority to determine (a) the officers
and employees to whom Awards shall be granted under the Plan; (b) the type, size
and terms of the Awards to be made to each officer or employee selected; (c) the
time when Awards will be granted and the duration of the exercise period; and
(d) any other matters arising under the Plan. The Board shall have full power
and authority to administer and interpret the Plan and to adopt or amend such
rules, regulations, agreements and instruments for implementing the Plan and for
conduct of its business as it deems necessary or advisable. The Board's
interpretations of the Plan and all determinations made by the Board pursuant to
the powers vested in hereunder shall be conclusive and binding on all persons
having any interest in the Plan or in any Awards granted hereunder.
A majority of the Board shall constitute a quorum for purposes of
meetings which may be held at such times and places and on such notice as the
Board deems appropriate. All actions and determinations of the Board shall
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be made by not less than a majority of its members and may be made at a meeting
or by written consent in lieu of a meeting.
5. ELIGIBILITY FOR PARTICIPATION
All officers and other key employees (the "Participants") of the
Company or any of its subsidiaries (as defined in Section 424(f) of the Internal
Revenue Code of 1986, as amended (the "Code")) (the "Subsidiaries"), and all
members of the Board who are not also employees or officers of the Company or
any of its Subsidiaries (the "Non-Employee Directors") will be eligible to
participate in the Plan. The provisions pertaining to option grants to
Non-Employee Directors and terms and conditions of such options are contained
exclusively in Appendix I hereto. Nothing contained in this Plan shall be
construed to limit the right of the Company or any Subsidiary to grant options
otherwise than under this Plan in connection with the acquisition, by purchase,
lease, merger, consolidation, or otherwise, of the business or assets of any
corporation, firm or association, including options granted to officers or
employees thereof who become officers or employees of the Company or a
Subsidiary, or for other proper corporate purposes.
6. GRANTING OF OPTIONS
(a) The Board shall have the right to grant Participants stock
options on the terms and conditions set forth herein. Such options shall be
"Incentive Stock Options" if the Board so designates such options and they
comply with Section 422 of the Code; otherwise they shall be "Nonqualified Stock
Options". The purchase price of each Share subject to an Incentive Stock Option
shall be the fair market value of a share of such stock on the date such
Incentive Stock Option is granted, provided, however, that any Incentive Stock
Option granted to a Participant who owns more than 10% of the total combined
voting power of all classes of stock of the Company or any subsidiary or any
parent corporation (as defined in Section 424(e) of the Code) of the Company (a
"10% Stockholder") shall not be less than 110% of such fair market value. The
purchase price of each Share subject to a Nonqualified Stock Option shall be
such price (which may be less than its fair market value) as is determined by
the Board on or before the date such Nonqualified Stock Option is granted. The
fair market value shall be determined in any reasonable manner approved by the
Board.
(b) The Board may prescribe such other terms as it deems desirable
or as may be necessary to qualify the grant of Incentive Stock Options under the
provisions of Section 422 of the Code. The Board may also authorize acceleration
of the exercisability of an option or installment thereof.
(c) The Board may grant at any time new Incentive Stock Options to a
Participant who has previously received Incentive Stock Options or other options
whether such prior Incentive Stock Options or other options are still
outstanding, have previously been exercised in whole or in part, or are canceled
in connection with the issuance of new Incentive Stock Options. If the aggregate
fair market value (determined as of
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the date of grant) of the Shares subject to Incentive Stock Options that first
become exercisable by a Participant in any calendar year exceeds $100,000, the
excess is to be treated as Nonqualified Stock Options to the extent required by
Section 422(d) of the Code.
7. TERMS OF OPTIONS
Unless the option agreement provides otherwise, options granted hereunder
shall be exercisable for a term of ten years from the date of grant; provided,
however, that any Incentive Stock Option granted to a 10% Stockholder may not be
exercisable for a term of more than five years from the date of grant.
8. EXERCISE OF OPTIONS
(a) Unless the option agreement provides otherwise, options granted
hereunder shall be exercisable for cash or any other property (including Shares
or, to the extent permitted by applicable corporate law, promissory notes)
deemed acceptable by the Board; provided that, in the case of payment by a
promissory note the Participant shall pay in cash or other property an amount
equal to at least the par value of the Shares being purchased, and, if the
option is an Incentive Stock Option, the note shall bear a sufficient rate of
interest so that the exercise price for the purpose of the Code shall be no less
than the fair market value on the date such Incentive Stock Option was granted
on the Common Shares being purchased. Unless the Board provides otherwise, or if
the following sentence or Section 12(d) below applies, Incentive Stock Options
will become exercisable in installments on a cumulative basis at a rate of
twenty-five percent (25%) per year, beginning on the first anniversary of the
date of grant and Nonqualified Stock Options will become exercisable six months
after the date of grant. Notwithstanding anything in this Section 8 to the
contrary, all unexercised options granted to any Participant under this Plan
shall become immediately exercisable upon termination of the Participant's
employment by the Company or any of its Subsidiaries without "Cause." For
purposes of this Plan, a Participant's employment shall be deemed to be
terminated for "Cause" only if the Participant is discharged by the Company or
any of its Subsidiaries on account of (i) being convicted of, or pleading guilty
or no contest to, a felony, (ii) the Stock Plans Committee's determination that
the Participant has engaged or is about to engage in conduct materially
injurious to the Company or any of its Subsidiaries or (iii) the Participant's
continuous use of illegal drugs or alcohol which significantly impacts the
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Participant's performance of his duties to the Company or any of its
Subsidiaries.
(b) No fractional Shares, or cash in lieu thereof, shall be issued
under this Plan or under any option granted hereunder. Except as otherwise
provided herein, no option may be exercised at any time, unless the holder is
then an officer or employee of the Company or a Subsidiary and has continuously
remained an officer or employee at all times (other than on an absence for an
approved leave of absence or service in the Armed Forces) since the date of
grant of such option.
(c) Options shall be exercised by a Participant giving written
notice of such exercise to the Company, provided that an option may not be
exercised at any one time as to less than 100 Shares (or such number of Shares
as to which the option is then exercisable if less than 100).
(d) An Incentive Stock Option shall be exercisable during a
Participant's lifetime only by the Participant, or, if the Participant has
become disabled, by his legal representative.
9. EXERCISE ON TERMINATION OF EMPLOYMENT
(a) If a Participant ceases to be an officer or employee for any
reason other than death, disability or termination of employment by the Company
with Cause, any unexercised portion of his option shall remain exercisable for a
period of three months after the date of such termination to the extent that it
was exercisable at the time of such cessation
(b) If, prior to the expiration date of the option, a Participant
shall cease to be an officer or employee by reason of disability (with respect
to a holder of an Incentive Stock Option, within the meaning of Section 22(e)(3)
of the Code and, with respect to a holder of a Nonqualified Stock Option,
permanent and total disability, as determined by the Board), he may exercise any
option he holds for a period of one year after the date of cessation of his
service as an officer or employee to the extent that it was exercisable at the
time of such cessation.
(c) If, prior to the expiration date of the option, a Participant
shall die while an officer or employee of the Company or a Subsidiary, any
unexercised portion of such option shall expire one year after his death, and
during such one year period, his legal representatives, heirs or legatees shall
have the same rights to exercise the unexercised portion of the option as the
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Participant would have had if he were still an officer or employee of the
Company.
(d) If, prior to the expiration of any option, a Participant ceases
to be an officer or employee by reason of termination of his employment by the
Company for Cause, the unexercised portion of such option shall automatically
terminate.
(e) Notwithstanding anything in this Section 9 to the contrary, in
no event shall any option be exercised after its expiration date.
10. STOCK APPRECIATION RIGHTS
(a) Concurrently with the grant of any option under this Plan, the
Board may award a Participant a "Stock Appreciation Right" which shall provide
the Participant the right to receive cash in lieu of the purchase of Shares
under such option. Such rights shall only be granted in conjunction with options
and may not be granted alone.
(b) Unless the Board, in its sole discretion, provides otherwise,
Stock Appreciation Rights shall be exercisable upon the same conditions as the
related option is exercisable under Section 7, 8 and 9 hereof.
(c) The amount to which a Participant shall be entitled upon the
exercise of any Stock Appreciation Right shall be determined multiplying (i) the
number of Shares with respect to which the Stock Appreciation Right is
exercisable by (ii) the amount, if any, by which the fair market value of a
Share on the exercise date exceeds the exercise price of the related option.
Such amount shall be payable in cash or Shares (valued at their fair market
value on the exercise date) or a combination of cash and shares, as determined
by the Board.
(d) The exercise of any Stock Appreciation Right shall reduce the
number of Shares subject to the related option.
11. RESTRICTED STOCK AWARDS
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(a) The Board shall have the authority to award Participants Shares
which shall be restricted as provided herein to avoid immediate taxation under
the Code.
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(b) Such restricted stock may not be sold, transferred or otherwise
disposed of and shall not be pledged or otherwise hypothecated by a Participant,
except as provided below. The Board may place such additional restrictions as it
may deem appropriate on the restricted stock. As a condition to the receipt of
any Shares awarded under this Plan, a Participant shall execute and deliver to
the Company an instrument in writing, in form approved by the Board, wherein he
agrees to the above restrictions and the legending of the certificates
representing his Shares with respect thereto. Notwithstanding such restrictions,
however, a Participant shall be entitled to receive all dividends declared on
and to vote any Shares held by him and to all other rights of a shareholder with
respect thereto.
(c) If a Participant terminates his service as an officer or
employee for any reason, his rights with respect to any Shares which remain
restricted hereunder shall be as provided in a written agreement between the
Participant and the Company relating to the award and forfeiture of Shares
hereunder.
(d) Subject to subsection (c) hereof or to the extent otherwise
provided in any written Agreement between the Participant and the Company
relating to the award of Shares hereunder, the restrictions set forth in this
Section on Shares awarded under this Plan shall lapse ratably over a period of
five years from the date of award. The Board may, in its discretion, waive such
restrictions at any time. Notwithstanding anything in this Section 11 to the
contrary, the restrictions on Shares awarded under this Section 11 shall
immediately lapse upon termination of the Participant's employment by the
Company without Cause.
12. ADJUSTMENTS FOR CERTAIN EVENTS
(a) If there is any change in the number of Shares through the
declaration of stock dividends or through recapitalization resulting in stock
splits, or combinations or exchanges of such Shares, the number of Shares
available for options or awards and the number of Shares covered by outstanding
options or awards, and the price per Share of such options or the applicable
market value of awards, shall be proportionately adjusted by the Board to
reflect any increase or decrease in the
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number of issued Shares; provided, however, that any fractional Shares resulting
from such adjustment shall be eliminated.
(b) In the event of any sale of all or substantially all of the
assets of the Company, merger or consolidation, corporate separation or division
(including split-up or split-off), or reorganization or dissolution or
liquidation of the Company (each such event, an "Event"), the Board shall make
such provision for the holders of Awards as it deems equitable. The actions
which the Board shall have authority to take shall include (i) adjustment of
outstanding options so that after the Event each holder of any option becomes
entitled to receive upon exercise of the option at the option price the kind and
amount of shares of stock or other securities, property, cash or combination
thereof to which a holder of the number of Shares for which the option might
have been exercised immediately prior to such Event is entitled thereafter; (ii)
if the Event involves the acquisition by another corporation of all or
substantially all of the Company's assets, or a merger or consolidation of the
Company in which another corporation is the surviving or resulting corporation
and if such other corporation is prepared to assume the options then outstanding
or to substitute its options therefor, provision for such assumption or
substitution; or (iii) provision that each Award granted under the Plan shall
terminate as of the date fixed by the Board, with not less than twenty (20) days
written notice of the date fixed to be given to each Participant and each
Participant to have the right during the twenty (20) days preceding such
termination to exercise the Awards as to all or any part of the Shares covered
thereby, including installments as to which such Awards would not otherwise be
exercisable.
(c) The foregoing adjustments and the manner of application of the
foregoing provisions shall be determined by the Board in its sole discretion.
Any such adjustment may provide for the elimination of fractional Shares, and,
provided that any such adjustment with respect to an Incentive Stock Option in
connection with a transaction to which Section 424(a) of the Code applies shall
be done in accordance with the provisions of such Section 424(a) unless the
Board specifically determines otherwise.
(d) In the event of a Change of Control, all Awards granted under
the Plan shall become immediately exercisable. For purposes of this Plan,
"Change of Control" shall mean the earliest to occur of: (i) any person (as
defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended
from time to time (the "Exchange Act")), excluding the Company, any
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Subsidiary and any employee benefit plan sponsored or maintained by the Company
or any Subsidiary (including any trustee of such plan acting as trustee), but
including a "group" as defined in Section 13(d) of the Exchange Act, becomes the
beneficial owner of the shares having at least 30% of the total number of votes
that may be cast for the election of directors of the Company; (ii) the
shareholders of the Company shall approve any Event other than an Event
involving only the Company and one or more of its Subsidiaries, or an Event
immediately following which the shareholders of the Company immediately prior to
the Event continue to have a majority of the voting power in the resulting
entity; provided, such Event occurs; or (iii) within any 24-month period
beginning on or after January 29, 1997, the persons who were directors of the
Company immediately before the beginning of such period (the "Incumbent
Directors") shall cease (for any reason other than death) to constitute at least
a majority of the Board or the board of directors of any successor to the
Company, provided that any director who was not a director as of January 29,
1997, shall be deemed to be an Incumbent Director if such director was elected
to the Board by, or on the recommendation of or with the approval of, at least
two-thirds of the directors who then qualified as Incumbent Directors either
actually or by prior operation of this Section 12(d), and not as a result of an
actual or threatened proxy contest.
13. FORFEITURE OF BENEFITS
Notwithstanding any other provision of this Plan, no payment of any unpaid
award shall be made and any and all unexercised options and all rights under the
Plan of a Participant who received such award or option grant (or his designated
beneficiary or legal representatives) to the payment or exercise thereof shall
be forfeited if, prior to the time of such payment or exercise, the Participant
shall (i) be employed by a competitor of, or shall be engaged in any activity in
competition with, the Company without the Company's consent, (ii) divulge
without the consent of the Company any secret or confidential information
belonging to the Company, or (iii) engage in any other activities which would
constitute grounds for his discharge by the Company for cause.
14. TRANSFERABILITY OF OPTION AND AWARDS
A Participant's rights and interests under the Plan may not be assigned or
transferred except, in the case of a Participant's death, by will or the laws of
descent and distribution.
15. AMENDMENT AND TERMINATION
The Board may at any time and from time to time terminate, modify or amend
the Plan in any respect; provided, however, that unless also approved or
ratified by a vote of the majority of the holders of the outstanding Shares of
the Company entitled to vote thereon, any such modification or amendment shall
not (subject, however, to the provisions of Section 12) increase the maximum
number of Shares for which Awards may be granted under the Plan. No such
termination, modification or amendment may affect the rights of a Participant
under an outstanding Award.
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Nevertheless, with the consent of the Participant affected, the Committee may
amend outstanding Awards in a manner not inconsistent with the terms of the
Plan.
16. FUNDING OF THE PLANS
This Plan shall be unfunded. The Company shall not be required to
establish any special or separate fund or to make any other segregation of
assets to assure the payment of any Award under this Plan and payment of Awards
shall be subordinate to the claims of the Company's general creditors. In no
event shall interest be paid or accrued on any Award, including unpaid
installments of Awards.
17. RIGHTS OF PARTICIPANTS
No Participant or other person shall have any claim or right to be granted
an Award under this Plan. Neither this Plan nor any action taken hereunder shall
be construed as giving any Participant any rights to be retained as an officer
or employee of the Company.
18. WITHHOLDING OF TAXES
The Company shall have the right to deduct from all Awards paid in cash
any federal, state or local taxes required by law to be withheld with respect to
such cash Awards and, in the case of Awards paid in Shares, the Participant or
other person receiving such Shares shall be required to pay to the Company the
amount of any such taxes which the Company is required to withhold with respect
to such Awards paid in Shares.
19. AGREEMENTS WITH PARTICIPANTS
Each Award granted under this Plan shall be evidenced by a written
instrument containing such terms and conditions as the Board shall approve.
20. REQUIREMENTS FOR ISSUANCE OF SHARES
No Shares shall be issued or transferred upon payment of any Award payable
hereunder unless and until all legal requirements applicable to the issuance or
transfer of such Shares have been complied with to the satisfaction of the
Board. The Board shall have the right to condition any award of issuance of
Shares made to any Participant hereunder on such Participant's undertaking in
writing to comply with such restrictions on his subsequent disposition of such
Shares as the Board shall deem necessary or advisable as a result of any
applicable law, regulation or official interpretation thereof, and certificates
representing such Shares may be legended to reflect any such restrictions.
21. HEADINGS
Section headings are for reference only. In the event of a conflict
between a title and the content of a Section, the content of the Section shall
control.
22. EFFECTIVE DATE AND DESIGNATION OF THE BOARD
This Plan shall be originally effective as of the date below (on which it
was adopted by the Board) and shall continue in effect thereafter until
terminated or suspended by the Board.
Dated: February 20, 1992
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APPENDIX I
OPTION GRANTS TO NON-EMPLOYEE DIRECTORS
(a) OPTION GRANT DATES. Non-qualified stock options to
purchase 2,000 shares (such number to be subject to adjustment in the same
manner as provided for outstanding options in Section 12 of the Plan) shall be
granted automatically to each Non-Employee Director on the last day that the
Company's Shares are traded on the New York Stock Exchange or other national
securities exchange upon which the Shares are traded, or if the Shares are not
then listed on a national securities exchange and are traded over-the-counter,
on the date of the last trade as reported by NASDAQ, or if not reported by
NASDAQ, on the day the last trade was reported, in each April from 1995 through
1999.
(b) PURCHASE PRICE. The purchase price of Shares upon exercise
of an option granted to a Non-Employee Director shall be 100% of the fair market
value of the Shares on the date of grant of an option; which shall be: (i) if
the Shares are then listed on a national securities exchange, the closing price
of the shares on such date; provided, however, if on such date the Shares were
traded on more than one national securities exchange, then the closing price on
the exchange on which the greatest volume of Shares were traded on such day;
(ii) if the Shares are not then listed on a national securities exchange and are
traded over the counter, the last sale price of the Shares on such date as
reported by NASDAQ or, if not reported by NASDAQ, the average of the closing bid
and asked prices for the Shares on such date; and (iii) if the Shares are
neither then listed on a national securities exchange nor traded in the
over-the-counter market, such value as the Committee shall in good faith
determine. If the Shares are then listed on a national securities exchange or
are traded over the counter but are not traded on the date of grant, then the
purchase price of such shares shall be the closing price on the last day prior
thereto on which such Shares were traded.
(c) EXERCISABILITY AND TERM OF OPTIONS. Each option granted a
Non-Employee Director under the Plan shall become exercisable in four equal
annual installments, commencing on the first anniversary of the date of grant.
Each such option granted under the Plan shall expire five years from the date of
the grant, and shall be subject to earlier termination as hereinafter provided.
Notwithstanding anything herein to the
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contrary, all outstanding options granted to a Non-Employee Director shall
become immediately exercisable upon the occurrence of a Change of Control.
(d) TERMINATION OF SERVICE. In the event of the termination of
service on the Board by a Non-Employee Director, who is a holder of any option,
other than by reason of death as set forth in paragraph (e) of this Appendix I
or by reason of such Non-Employee Director's commencement of employment with the
Company, the then outstanding options of such Non-Employee Director may be
exercised only to the extent that they were exercisable on the date of such
termination and shall expire three months after such termination, or on their
stated expiration date, whichever occurs first.
(e) DEATH. In the event of the death of the Non-Employee
Director who is a holder of any option, each of the then outstanding options of
such Non-Employee Director will immediately mature in full and become
exercisable by the Non-Employee Director's legal representative at any time
within a period of six months after death, but in no event after the expiration
date of the term of the option.
(f) PAYMENT. Options may be exercised only upon payment to the
Company in full of the purchase price of the Shares to be delivered. Such
payment shall be made only in cash or check at the time of purchase.
(g) OPTIONS NON-ASSIGNABLE AND NON-TRANSFERABLE. Each option
and all rights thereunder shall be non-assignable and non-transferable other
than by will or the laws of descent and distribution and shall be exercisable
during the Non-Employee Director's lifetime only by the Non-Employee Director or
the Non-Employee Director's guardian or legal representative.
(h) NO RIGHT TO CONTINUE AS A DIRECTOR. Neither the Plan nor
the granting of an option nor any other action taken pursuant to the Plan, shall
constitute or be evidence of any agreement or understanding, express or implied,
that a Non-Employee Director has a right to continue as a Director for any
period of time, or at any particular rate of compensation.
(i) NO STOCKHOLDERS' RIGHTS FOR HOLDERS OF OPTIONS. A holder
of options shall have no rights as a shareholder with respect to the Shares
covered by options granted hereunder until the date of the issuance of a stock
certificate therefore, and no adjustment will be made for regular cash
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dividend distributions for which the record date is prior to the date such
certificate is issued.
(j) LIMITATION ON AMENDMENT. In order to comply with the
executive provisions of Rule 16b-3 under the Exchange Act, no amendment of the
provisions of this Appendix I which might otherwise be permitted, shall be made
within six months of any other amendment hereto, unless such amendment shall be
made to comport with changes in the Internal Revenue Code, the Employee
Retirement Income Security Act or the rules thereunder.
(k) DEFINED TERMS. Capitalized terms not otherwise
defined in this Appendix I shall have the meaning given them in the Plan.
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