As filed with the Securities and Exchange Commission
on November 15, 1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
REGISTRATION STATEMENT
ON FORM S-8
UNDER THE SECURITIES ACT OF 1933
AMTRUST CAPITAL CORP.
(Exact name of registrant as specified in its
charter)
Delaware 35-1940250
(State or other jurisdiction of (I.R.S. Employer
incoration or organization) Identification No.)
20 West Fifth Street, Peru, Indiana 46970
(Address of principal executive offices) (Zip Code)
AMTRUST CAPITAL CORP.
1995 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
Gary A. Lax, P.C.
Silver, Freedman & Taff, L.L.P.
(a limited liability partnership including professional corporations)
Suite 700 East
1100 New York Avenue, N.W.
Washington, DC 20005-3934
(Name and address of agent for service)
(202) 414-6100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering agregate Amount of
be to be price offering registration
registered registered per share price fee
Common
Stock, par
value $.01 58,006
per share shares $10.50(2) $604,263.50(2) $184.00(2)
(1) Pursuant to Rule 416 under the Securities Act of
1933, as amended, this Registration Statement
covers, in addition to the number of shares set
forth above, an indeterminate number of shares
which, by reason of certain events specified in the
Plan, may become subject to the Plan.
(2) Estimated in accordance with Rule 457(h), solely
for the purpose of calculating the registration fee.
48,407 shares are being registered based upon the
exercise price of $10.50 per share ($508,273.50 in
the aggregate) and the remaining 9,599 shares being
registered hereby are being registered based upon
the average of the high and low sales price of the
Common Stock on the Nasdaq SmallCap Market of $10.00
per share on November 11, 1996 ($95,990 in the
aggregate).
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information
specified in Part I of Form S-8 will be sent or
given to participants in the AmTrust Capital Corp.
1995 Stock Option and Incentive Plan (the "Plan") as
specified by Rule 428(b)(1) promulgated by the
Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as
amended (the "Securities Act").
Such document(s) are not being filed with
the Commission, but constitute (along with the
documents incorporated by reference into the
Registration Statement pursuant to Item 3 of Part II
hereof) a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by
Reference.
The following documents previously or
concurrently filed by AmTrust Capital Corp. (the
"Company") with the Commission are hereby
incorporated by reference in this Registration
Statement:
(a) the Company's Annual Report on Form 10-KSB
for the fiscal year ended June 30, 1996
(File No. 0-25484) filed pursuant to Rule
13a-1 of the Securities Exchange Act of
1934, as amended (the "Exchange Act");
(b) all other reports filed by the Company
pursuant to Section 12 or 15(d) of the
Exchange Act since the end of the fiscal
year covered by the Annual Report referred
to above;
(c) the Company's definitive Proxy Statement
for its Annual Meeting of Stockholders held
on October 21, 1996;
(d) the description of the common stock, par
value $.01 per share, of the Company
contained in the Company's Registration
Statement on Form 8-A (File No. 0-25484)
filed with the Commission on February 2,
1995 and all amendments or reports filed
for the purpose of updating such
description.
All documents subsequently filed by the
Company with the Commission pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act,
after the date hereof, and prior to the filing of a
post-effective amendment which indicates that all
securities offered hereby have been sold or which
deregisters all securities then remaining unsold,
shall be deemed incorporated by reference into this
Registration Statement and to be a part thereof from
the date of the filing of such documents. Any
statement contained in the documents incorporated,
or deemed to be incorporated, by reference herein or
therein shall be deemed to be modified or superseded
for purposes of this Registration Statement and the
Prospectus to the extent that a statement contained
herein or therein or in any other subsequently filed
document which also is, or is deemed to be,
incorporated by reference herein or therein modifies
or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part
of this Registration Statement and the Prospectus.
The Company shall furnish without charge to
each person to whom the Prospectus is delivered, on
the written or oral request of such person, a copy
of any or all of the documents incorporated by
reference, other than exhibits to such documents
(unless such exhibits are specifically incorporated
by reference to the information that is
incorporated). Requests should be directed to Jami
L. Cornish, Treasurer and Chief Financial Officer,
AmTrust Capital Corp., 20 West Fifth Street, Peru,
Indiana 46970, telephone number (317) 472-1991.
All information appearing in this
Registration Statement and the Prospectus is
qualified in its entirety by the detailed
information, including financial statements,
appearing in the documents incorporated herein or
therein by reference.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Article ELEVENTH of the Company's
Certificate of Incorporation provides for
indemnification of directors and officers of the
Registrant against any and all liabilities,
judgments, fines and reasonable settlements, costs,
expenses and attorneys' fees incurred in any actual,
threatened or potential proceeding, except to the
extent that such indemnification is limited by
Delaware law and such law cannot be varied by
contract or bylaw. Article ELEVENTH also provides
for the authority to purchase insurance with respect
thereto.
Section 145 of the General Corporation Law
of the State of Delaware authorizes a corporation's
board of directors to grant indemnity under certain
circumstances to directors and officers, when made,
or threatened to be made, parties to certain
proceedings by reason of such status with the
corporation, against judgments, fines, settlements
and expenses, including attorneys' fees. In
addition, under certain circumstances such persons
may be indemnified against expenses actually and
reasonably incurred in defense of a proceeding by or
on behalf of the corporation. Similarly, the
corporation, under certain circumstances, is
authorized to indemnify directors and officers of
other corporations or enterprises who are serving as
such at the request of the corporation, when such
persons are made, or threatened to be made, parties
to certain proceedings by reason of such status,
against judgments, fines, settlements and expenses,
including attorneys' fees; and under certain
circumstances, such persons may be indemnified
against expenses actually and reasonably incurred in
connection with the defense or settlement of a
proceeding by or in the right of such other
corporation or enterprise. Indemnification is
permitted where such person (i) was acting in good
faith, (ii) was acting in a manner he reasonably
believed to be in or not opposed to the best
interests of the corporation or other corporation or
enterprise, as appropriate, (iii) with respect to a
criminal proceeding, had no reasonable cause to
believe his conduct was unlawful, and (iv) was not
adjudged to be liable to the corporation or other
corporation or enterprise (unless the court where
the proceeding was brought determines that such
person is fairly and reasonably entitled to
indemnity).
Unless ordered by a court, indemnification
may be made only following a determination that such
indemnification is permissible because the person
being indemnified has met the requisite standard of
conduct. Such determination may be made (i) by the
corporation's board of directors by a majority vote
of a quorum consisting of directors not at the time
parties to such proceeding; or (ii) if such a quorum
cannot be obtained or the quorum so directs, then by
independent legal counsel in a written opinion; or
(iii) by the stockholders.
Section 145 also permits expenses incurred
by directors and officers in defending a proceeding
to be paid by the corporation in advance of the
final disposition of such proceedings upon the
receipt of an undertaking by the director or officer
to repay such amount if it is ultimately determined
that he is not entitled to be indemnified by the
corporation against such expenses.
Under a directors' and officers' liability
insurance policy, directors and officers of the
Company are insured against certain liabilities.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Reference to
Regulation Prior Filing or
S-B Exhibit Exhibit Number
Number Document Attached Hereto
4 Instruments Defining the Rights of
Security Holders, Including
Indentures:
Certificate of Incorporation of
AmTrust Capital Corp. *
Bylaws of AmTrust Capital Corp. *
Specimen form of common stock
certificate of AmTrust Capital Corp. *
AmTrust Capital Corp. 1995 Stock
Option and Incentive Plan, form of
Incentive Stock Option Agreement
and form of Non-Qualified Stock Attached as
Option Agreement Exhibit 4
5 Opinion of Silver, Freedman & Attached as
Taff, L.L.P. Exhibit 5
23 Consent of Experts and Counsel:
Consent of Silver, Freedman & Attached as
Taff, L.L.P. Exhibit 23.1
Consent of Geo. S. Olive & Attached as
Co., LLC Exhibit 23.2
24 Power of Attorney Contained on
Signature Page
* Filed as exhibits to the Registrant's
Registration Statement on Form S-1 (File No.
33-87580) filed with the Commission on
December 19, 1994 pursuant to Section 5 of
the Securities Act of 1933 and all amendments
thereto or reports filed for the purpose of
updating such description. All of such
previously filed documents are hereby
incorporated herein by reference in
accordance with Item 601 of Regulation S-B.
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 to include any
material information with respect to
the plan of distribution not previously
disclosed in the registration statement
or any material change to such
information in the registration
statement.
(2) That, for the purpose of determining
any liability under the Securities Act
of 1933, each such post-effective
amendment shall be deemed to be a new
registration statement relating to the
securities offered therein, and the
offering of such securities at that
time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of
a post-effective amendment any of the
securities being registered which
remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes
that, for purposes of determining any
liability under the Securities Act of 1933,
each filing of the Registrant's annual
report pursuant to Section 13(a) or 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 foregoing provisions, or
otherwise, the Registrant has been advised
that in the opinion of the Securities and
Exchange Commission such indemnification is
against public policy as expressed in the
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 of
expenses incurred or paid by a director,
officer or controlling person in the
successful defense of any action, suit or
proceeding) is asserted by such director,
officer or controlling person in connection
with the securities being registered, the
Registrant will, unless in the opinion of
its counsel the matter has been settled by
controlling precedent, submit to a court of
appropriate jurisdiction the question
whether such indemnification by it is
against public policy as expressed in the
Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized in the City of Peru,
Indiana on _____________________, 1996.
AMTRUST CAPITAL CORP.
By: /s/ Bruce M. Borst
Bruce M. Borst, President,
Chief Executive Officer and
Director (Duly Authorized
Representative)
KNOW ALL MEN BY THESE PRESENTS, that each person
whose signature appears below constitutes and appoints Bruce M. Borst his
true and lawful attorney-in-fact and agent, with full power of substitution
and re-substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and all 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 said
attorney-in-fact and agent 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 signed below by the following persons in
the capacities and on the dates indicated.
/s/ Kenneth L. Hasselkus /s/ Bruce M. Borst
Kenneth L. Hasselkus, Chairman Bruce M. Borst, President, Chief
of the Board Executive Officer and Director
(Principal Executive and Operating
Officer)
November 15, 1996 November 15, 1996
/s/ Dean H. Hartley /s/ Roderic E. Daniels
Dean H. Hartley, Director Roderic E. Daniels, Director
November 15, 1996 November 15, 1996
/s/ Thomas A. Kirk /s/ Jami L. Cornish
Thomas A. Kirk, Director Jami L. Cornish, Treasurer and
Chief Financial Officer (Principal
Financial and Accounting Officer)
November 15, 1996 November 15, 1996
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
TO
REGISTRATION STATEMENT ON FORM S-8
UNDER
THE SECURITIES ACT OF 1933
AMTRUST CAPITAL CORP.
EXHIBIT INDEX
Reference to
Regulation Prior Filing or
S-B Exhibit Exhibit Number
Number Document Attached Hereto
Certificate of Incorporation of
AmTrust Capital Corp. *
Bylaws of AmTrust Capital Corp. *
Specimen form of common stock
certificate of AmTrust Capital Corp. *
4 AmTrust Capital Corp. 1995 Stock
Option and Incentive Plan, form of
Incentive Stock Option Agreement
and form of Non-Qualified Stock
Option Agreement Page ___
5 Opinion of Silver, Freedman &
Taff, L.L.P. Page ___
23.1 Consent of Silver, Freedman &
Taff, L.L.P. Page ___
23.2 Consent of Geo. S. Olive &
Co., LLC Page ___
24 Power of Attorney Contained on
Signature Page
* Filed as exhibits to the Registrant's
Registration Statement on Form S-1 (File No.
33-87580) filed with the Commission on
December 19, 1994 pursuant to Section 5 of
the Securities Act of 1933 and all amendments
thereto or reports filed for the purpose of
updating such description. All of such
previously filed documents are hereby
incorporated herein by reference in
accordance with Item 601 of Regulation S-B.
<PAGE>
EXHIBIT 4
<PAGE>
AMTRUST CAPITAL CORP.
1995 STOCK OPTION AND INCENTIVE PLAN
1. Plan Purpose. The purpose of the Plan is to
promote the long-term interests of the Corporation
and its stockholders by providing a means for
attracting and retaining directors, officers and em-
ployees of the Corporation and its Affiliates. It
is intended that designated Options granted pursuant
to the provisions of this Plan to persons employed
by the Corporation or its Affiliates will qualify as
Incentive Stock Options. Options granted to persons
who are not employees will be Non-Qualified Stock
Options.
2. Definitions. The following definitions are
applicable to the Plan:
"Affiliate" - means any "parent corporation" or
"subsidiary corporation" of the Corporation, as such
terms are defined in Section 424(e) and (f),
respectively, of the Code.
"Bank" - means AmericanTrust Federal Savings
Bank, and any successor entity.
"Award" - means the grant of an Incentive Stock
Option, a Non-Qualified Stock Option, a Stock
Appreciation Right, a Limited Stock Appreciation
Right, or any combination thereof, as provided in
the Plan.
"Code" - means the Internal Revenue Code of
1986, as amended.
"Committee" - means the Committee referred to
in Section 3 hereof.
"Continuous Service" - means the absence of any
interruption or termination of service as a
director, advisory director, officer or employee of
the Corporation or an Affiliate, except that when
used with respect to persons granted an Incentive
Option means the absence of any interruption or
termination of service as an employee of the
Corporation or an Affiliate. Service shall not be
considered interrupted in the case of sick leave,
military leave or any other leave of absence
approved by the Corporation or in the case of
transfers between payroll locations of the
Corporation or between the Corporation, its parent,
its subsidiaries or its successor. With respect to
any advisory director, continuous service shall plan
mean availability to perform such functions as may
be required of the Bank's advisory directors.
"Corporation" - means AmTrust Capital Corp., a
Delaware corporation.
"Disinterested Person" - means any member of
the Board of Directors of the Corporation who is not
being and within the prior year has not been granted
any awards related to the Shares under this Plan or
any other plan of the Corporation or any of its
Affiliates except for awards which (i) are
calculated in accordance with a formula as
contemplated in paragraph (c)(2)(ii) of Rule 16b-3
("Rule 16b-3") under the Securities Exchange Act of
1934; (ii) result from participation in an ongoing
securities acquisition plan meeting the conditions
of paragraph (d)(2) of Rule 16b-3; or, (iii) arise
from an election by a director to receive all or
part of his board fees in securities. No recipient
of an award granted pursuant to Section 19 hereof
shall be deemed not to be a Disinterested Person
solely by reason of such grant.
"Employee" - means any person, including an
officer or director, who is employed by the
Corporation or any Affiliate.
"ERISA" - means the Employee Retirement Income
Security Act of 1974, as amended.
"Exercise Price" - means (i) in the case of an
Option, the price per Share at which the Shares
subject to such Option may be purchased upon
exercise of such Option and (ii) in the case of a
Right, the price per Share (other than the Market
Value per Share on the date of exercise and the
Offer Price per Share as defined in Section 10
hereof) which, upon grant, the Committee determines
shall be utilized in calculating the aggregate value
which a Participant shall be entitled to receive
pursuant to Sections 9, 10 or 12 hereof upon
exercise of such Right.
"Incentive Stock Option" - means an option to
purchase Shares granted by the Committee pursuant to
Section 6 hereof which is subject to the limitations
and restrictions of Section 8 hereof and is intended
to qualify under Section 422 of the Code.
"Limited Stock Appreciation Right" - means a
stock appreciation right with respect to Shares
granted by the Committee pursuant to Sections 6 and
10 hereof.
"Market Value" - means the average of the high
and low quoted sales price on the date in question
(or, if there is no reported sale on such date, on
the last preceding date on which any reported sale
occurred) of a Share on the Composite Tape for the
New York Stock Exchange-Listed Stocks, or, if on
such date the Shares are not quoted on the Composite
Tape, on the New York Stock Exchange, or, if the
Shares are not listed or admitted to trading on such
Exchange, on the principal United States securities
exchange registered under the Securities Exchange
Act of 1934 on which the Shares are listed or
admitted to trading, or, if the Shares are not
listed or admitted to trading on any such exchange,
the mean between the closing high bid and low asked
quotations with respect to a Share on such date on
the National Association of Securities Dealers,
Inc., Automated Quotations System, or any similar
system then in use, or, if no such quotations are
available, the fair market value on such date of a
Share as the Committee shall determine.
"Non-Qualified Stock Option" - means an option
to purchase Shares granted by the Committee pursuant
to Section 6 hereof, which option is not intended to
qualify under Section 422(b) of the Code.
"Option" - means an Incentive Stock Option or a
Non-Qualified Stock Option.
"Participant" - means any officer or employee
of the Corporation or any Affiliate who is selected
by the Committee to receive an Award and any
director or advisory director of the Corporation who
is granted an Award pursuant to Section 19 hereof.
"Plan" - means the Stock Option and Incentive
Plan of the Corporation.
"Related" - means (i) in the case of a Right, a
Right which is granted in connection with, and to
the extent exercisable, in whole or in part, in lieu
of, an Option or another Right and (ii) in the case
of an Option, an Option with respect to which and to
the extent a Right is exercisable, in whole or in
part, in lieu thereof has been granted.
"Right" - means a Limited Stock Appreciation
Right or a Stock Appreciation Right.
"Shares" - means the shares of common stock of
the Corporation.
"Senior Officer" - means the Corporation's
president, principal financial officer or principal
accounting officer, any vice president of the
Corporation in charge of a principal business unit,
division or function (such as sales, administration
or finance), any other officer who performs a
policy-making function, or any other person who
performs similar policy-making functions for the
Corporation. Officers of the Corporation's
Affiliates shall be deemed Senior Officers of the
Corporation if they perform such policy-making
functions for the Corporation.
"Stock Appreciation Right" - means a stock
appreciation right with respect to Shares granted by
the Committee pursuant to Sections 6 and 9 hereof.
"Ten Percent Beneficial Owner" - means the
beneficial owner of more than ten percent of any
class of the Corporation's equity securities
registered pursuant to Section 12 of the Securities
Exchange Act of 1934.
3. Administration. The Plan shall be
administered by a Committee consisting of two or
more members, each of whom shall be a Disinterested
Person and each of whom shall be an "outside
director," as set forth in Section 162(m) of the
Code and defined in the regulations promulgated
thereunder. The members of the Committee shall be
appointed by the Board of Directors of the
Corporation. Except as limited by the express
provisions of the Plan, the Committee shall have
sole and complete authority and discretion to (i)
select Participants and grant Awards; (ii) determine
the number of Shares to be subject to types of
Awards generally, as well as to individual Awards
granted under the Plan; (iii) determine the terms
and conditions upon which Awards shall be granted
under the Plan; (iv) prescribe the form and terms of
instruments evidencing such grants; and (v)
establish from time to time regulations for the
administration of the Plan, interpret the Plan, and
make all determinations deemed necessary or
advisable for the administration of the Plan. The
Committee may maintain, and update from time to time
as appropriate, a list designating selected direc-
tors as Disinterested Persons. The purpose of such
list shall be to evidence the status of such indi-
viduals as Disinterested Persons, and the Board of
Directors may appoint to the Committee any
individual actually qualifying as a Disinterested
Person, regardless of whether identified as such on
said list.
A majority of the Committee shall constitute a
quorum, and the acts of a majority of the members
present at any meeting at which a quorum is present,
or acts approved in writing by a majority of the
Committee without a meeting, shall be acts of the
Committee.
4. Participation in Committee Awards. The
Committee may select from time to time Participants
in the Plan from those directors, advisory
directors, officers and employees (other than
Disinterested Persons), of the Corporation or its
Affiliates who, in the opinion of the Committee,
have the capacity for contributing to the successful
performance of the Corporation or its Affiliates.
5. Shares Subject to Plan. Subject to
adjustment by the operation of Section 11 hereof,
the maximum number of Shares with respect to which
Awards may be made under the Plan is 10% of the
total Shares issued in the Bank's conversion to the
capital stock form. The Shares with respect to
which Awards may be made under the Plan may be
either authorized and unissued shares or issued
shares heretofore or hereafter reacquired and held
as treasury shares. Shares which are subject to
Related Rights and Related Options shall be counted
only once in determining whether the maximum number
of Shares with respect to which Awards may be
granted under the Plan has been exceeded. An Award
shall not be considered to have been made under the
Plan with respect to any Option or Right which
terminates and new Awards may be granted under the
Plan with respect to the number of Shares as to
which such termination or forfeiture has occurred.
Any award made pursuant to this Plan, which Award is
subject to the requirements of Office of Thrift
Supervision Regulations, shall vest in five equal
annual installments with the first installment
vesting on the one year anniversary date of grant,
except in the event of death or total or partial
disability.
In the event Office of Thrift Supervision
Regulations are amended (the "Amended Regulations")
to permit shorter vesting periods, any Award made
pursuant to this Plan, which Award is subject to the
requirements of such Amended Regulations, may vest,
at the sole discretion of the Committee, in
accordance with such Amended Regulations.
6. General Terms and Conditions of Options and
Rights. The Committee shall have full and complete
authority and discretion, except as expressly
limited by the Plan, to grant Options and/or Rights
and to provide the terms and conditions (which need
not be identical among Participants) thereof. In
particular, the Committee shall prescribe the
following terms and conditions: (i) the Exercise
Price of any Option or Right, which shall not be
less than the Market Value per Share at the date of
grant of such Option or Right, (ii) the number of
Shares subject to, and the expiration date of, any
Option or Right, which expiration date shall not
exceed ten years from the date of grant, (iii) the
manner, time and rate (cumulative or otherwise) of
exercise of such Option or Right, and (iv) the
restrictions, if any, to be placed upon such Option
or Right or upon Shares which may be issued upon
exercise of such Option or Right. The Committee
may, as a condition of granting any Option or Right,
require that a Participant agree not to thereafter
exercise one or more Options or Rights previously
granted to such Participant. Notwithstanding the
foregoing and subject to compliance with applicable
Office of Thrift Supervision Regulations, no
individual shall be granted Awards with respect to
more than 25% of the total Shares subject to the
Plan in any calendar year.
7. Exercise of Options or Rights.
(a) Except as provided herein, an Option or Right
granted under the Plan shall be exercisable during
the lifetime of the Participant to whom such Option
or Right was granted only by such Participant and,
except as provided in paragraphs (c) and (d) of this
Section 7, no such Option or Right may be exercised
unless at the time such Participant exercises such
Option or Right, such Participant has maintained
Continuous Service since the date of grant of such
Option or Right. Cash settlements of Rights may be
made only in accordance with any applicable
restrictions pursuant to Rule 16b-3(e) under the
Securities Exchange Act of 1934 or any similar or
successor provision.
(b) To exercise an Option or Right under the Plan,
the Participant to whom such Option or Right was
granted shall give written notice to the Corporation
in form satisfactory to the Committee (and, if
partial exercises have been permitted by the
Committee, by specifying the number of Shares with
respect to which such Participant elects to exercise
such Option or Right) together with full payment of
the Exercise Price, if any and to the extent
required. The date of exercise shall be the date on
which such notice is received by the Corporation.
Payment, if any is required, shall be made either
(i) in cash (including check, bank draft or money
order) or (ii) by delivering (A) Shares already
owned by the Participant and having a fair market
value equal to the applicable exercise price, such
fair market value to be determined in such ap-
propriate manner as may be provided by the Committee
or as may be required in order to comply with or to
conform to requirements of any applicable laws or
regulations, or (B) a combination of cash and such
Shares.
(c) If a Participant to whom an Option or Right was
granted shall cease to maintain Continuous Service
for any reason (including total or partial
disability, but excluding death and termination of
employment by the Corporation or any Affiliate for
cause), such Participant may, but only within the
period of three months immediately succeeding such
cessation of Continuous Service and in no event af-
ter the expiration date of such Option or Right,
exercise such Option or Right to the extent that
such Participant was entitled to exercise such
Option or Right at the date of such cessation,
provided, however, that such right of exercise after
cessation of Continuous Service shall not be
available to a Participant if the Committee
otherwise determines and so provides in the
applicable instrument or instruments evidencing the
grant of such Option or Right. If the Continuous
Service of a Participant to whom an Option or Right
was granted by the Corporation is terminated for
cause, all rights under any Option or Right of such
Participant shall expire immediately upon the giving
to the Participant of notice of such termination.
(d) In the event of the death of a Participant while
in the Continuous Service of the Corporation or an
Affiliate or within the three-month period referred
to in paragraph (c) of this Section 7, the person to
whom any Option or Right held by the Participant at
the time of his death is transferred by will or the
laws of descent and distribution, or in the case of
an Award other than an Incentive Stock Option,
pursuant to a qualified domestic relations order, as
defined in the Code or Title 1 of ERISA or the rules
thereunder may, but only to the extent such Partici-
pant was entitled to exercise such Option or Right
immediately prior to his death, exercise such Option
or Right at any time within a period of one year
succeeding the date of death of such Participant,
but in no event later than ten years from the date
of grant of such Option or Right. Following the
death of any Participant to whom an Option was
granted under the Plan, irrespective of whether any
Related Right shall have theretofore been granted to
the Participant or whether the person entitled to
exercise such Related Right desires to do so, the
Committee may, as an alternative means of settlement
of such Option, elect to pay to the person to whom
such Option is transferred by will or by the laws of
descent and distribution, or in the case of an
Option other than an Incentive Stock Option,
pursuant to a qualified domestic relations order, as
defined in the Code or Title I of ERISA or the rules
thereunder, the amount by which the Market Value per
Share on the date of exercise of such Option shall
exceed the Exercise Price of such Option, multiplied
by the number of Shares with respect to which such
Option is properly exercised. Any such settlement
of an Option shall be considered an exercise of such
Option for all purposes of the Plan.
8. Incentive Stock Options. Incentive Stock
Options may be granted only to Participants who are
Employees. Any provision of the Plan to the
contrary notwithstanding, (i) no Incentive Stock
Option shall be granted more than ten years from the
date the Plan is adopted by the Board of Directors
of the Corporation and no Incentive Stock Option
shall be exercisable more than ten years from the
date such Incentive Stock Option is granted,
(ii) the Exercise Price of any Incentive Stock
Option shall not be less than the Market Value per
Share on the date such Incentive Stock Option is
granted, (iii) any Incentive Stock Option shall not
be transferable by the Participant to whom such In-
centive Stock Option is granted other than by will
or the laws of descent and distribution, and shall
be exercisable during such Participant's lifetime
only by such Participant, (iv) no Incentive Stock
Option shall be granted to any individual who, at
the time such Incentive Stock Option is granted,
owns stock possessing more than ten percent of the
total combined voting power of all classes of stock
of the Corporation or any Affiliate unless the
Exercise Price of such Incentive Stock Option is at
least 110 percent of the Market Value per Share at
the date of grant and such Incentive Stock Option is
not exercisable after the expiration of five years
from the date such Incentive Stock Option is
granted, and (v) the aggregate Market Value
(determined as of the time any Incentive Stock
Option is granted) of the Shares with respect to
which Incentive Stock Options are exercisable for
the first time by a Participant in any calendar year
shall not exceed $100,000.
9. Stock Appreciation Rights. A Stock
Appreciation Right shall, upon its exercise, entitle
the Participant to whom such Stock Appreciation
Right was granted to receive a number of Shares or
cash or combination thereof, as the Committee in its
discretion shall determine, the aggregate value of
which (i.e., the sum of the amount of cash and/or
Market Value of such Shares on date of exercise)
shall equal (as nearly as possible, it being
understood that the Corporation shall not issue any
fractional shares) the amount by which the Market
Value per Share on the date of such exercise shall
exceed the Exercise Price of such Stock Appreciation
Right, multiplied by the number of Shares with
respect of which such Stock Appreciation Right shall
have been exercised. A Stock Appreciation Right may
be Related to an Option or may be granted
independently of any Option as the Committee shall
from time to time in each case determine. At the
time of grant of an Option the Committee shall
determine whether and to what extent a Related Stock
Appreciation Right shall be granted with respect
thereto; provided, however, and notwithstanding any
other provision of the Plan, that if the Related
Option is an Incentive Stock Option, the Related
Stock Appreciation Right shall satisfy all the
restrictions and limitations of Section 8 hereof as
if such Related Stock Appreciation Right were an
Incentive Stock Option and as if other rights which
are Related to Incentive Stock Options were
Incentive Stock Options. In the case of a Related
Option, such Related Option shall cease to be exer-
cisable to the extent of the Shares with respect to
which the Related Stock Appreciation Right was
exercised. Upon the exercise or termination of a
Related Option, any Related Stock Appreciation Right
shall terminate to the extent of the Shares with re-
spect to which the Related Option was exercised or
terminated. Notwithstanding the foregoing, no Stock
Appreciation Right shall be exercisable by a
director, Senior Officer or Ten Percent Beneficial
Owner of the Corporation within six months of the
date of its grant.
10. Limited Stock Appreciation Rights. At the
time of grant of an Option or Stock Appreciation
Right to any Participant, the Committee shall have
full and complete authority and discretion to also
grant to such Participant a Limited Stock Ap-
preciation Right which is Related to such Option or
Stock Appreciation Right; provided, however and
notwithstanding any other provision of the Plan,
that if the Related Option is an Incentive Stock
Option, the Related Limited Stock Appreciation Right
shall satisfy all the restrictions and limitations
of Section 8 hereof as if such Related Limited Stock
Appreciation Right were an Incentive Stock Option
and as if all other Rights which are Related to
Incentive Stock Options were Incentive Stock
Options. Subject to vesting requirements contained
in 12 C.F.R. 563b.3(g)(4) or any successor
regulation, a Limited Stock Appreciation Right shall
be exercisable only during the period beginning on
the first day following the date of expiration of
any "offer" (as such term is hereinafter defined)
and ending on the forty-fifth day following such
date, provided, however, that no Limited Stock
Appreciation Right shall be exercisable by a direc-
tor, Senior Officer or Ten Percent Beneficial Owner
within six months of the date of its grant.
A Limited Stock Appreciation Right shall, upon
its exercise, entitle the Participant to whom such
Limited Stock Appreciation Right was granted to
receive an amount of cash equal to the amount by
which the "Offer Price per Share" (as such term is
hereinafter defined) or the Market Value on the date
of such exercise, as shall have been provided by the
Committee in its discretion at the time of grant,
shall exceed the Exercise Price of such Limited
Stock Appreciation Right, multiplied by the number
of Shares with respect to which such Limited Stock
Appreciation Right shall have been exercised. Upon
the exercise of a Limited Stock Appreciation Right,
any Related Option and/or Related Stock Appreciation
Right shall cease to be exercisable to the extent of
the Shares with respect to which such Limited Stock
Appreciation Right was exercised. Upon the exercise
or termination of a Related Option or Related Stock
Appreciation Right, any Related Limited Stock Appre-
ciation Right shall terminate to the extent of the
Shares with respect to which such Related Option or
Related Stock Appreciation Right was exercised or
terminated.
For the purposes of this Section 10, the term
"Offer" shall mean any tender offer or exchange
offer for Shares other than one made by the
Corporation, provided that the corporation, person
or other entity making the offer acquires pursuant
to such offer either (i) 25% of the Shares
outstanding immediately prior to the commencement of
such offer or (ii) a number of Shares which,
together with all other Shares acquired in any
tender offer or exchange offer (other than one made
by the Corporation) which expired within sixty days
of the expiration date of the offer in question,
equals 25% of the Shares outstanding immediately
prior to the commencement of the offer in question.
The term "Offer Price per Share" as used in this
Section 10 shall mean the highest price per Share
paid in any Offer which Offer is in effect any time
during the period beginning on the sixtieth day
prior to the date on which a Limited Stock
Appreciation Right is exercised and ending on the
date on which such Limited Stock Appreciation Right
is exercised. Any securities or property which are
part or all of the consideration paid for Shares in
the Offer shall be valued in determining the Offer
Price per Share at the higher of (A) the valuation
placed on such securities or property by the
corporation, person or other entity making such
Offer or (B) the valuation placed on such securities
or property by the Committee.
11. Adjustments Upon Changes in Capitalization.
In the event of any change in the outstanding Shares
subsequent to the effective date of the Plan by
reason of any reorganization, recapitalization,
stock split, stock dividend, combination or exchange
of shares, merger, consolidation or any change in
the corporate structure or Shares of the
Corporation, the maximum aggregate number and class
of shares as to which Awards may be granted under
the Plan and the number and class of shares with
respect to which Awards theretofore have been
granted under the Plan shall be appropriately
adjusted by the Committee, whose determination shall
be conclusive.
12. Effect of Merger. In the event of any
merger, consolidation or combination of the
Corporation (other than a merger, consolidation or
combination in which the Corporation is the
continuing entity and which does not result in the
outstanding Shares being converted into or exchanged
for different securities, cash or other property, or
any combination thereof) pursuant to a plan or
agreement the terms of which are binding upon all
stockholders of the Corporation (except to the
extent that dissenting stockholders may be entitled,
under statutory provisions or provisions contained
in the certificate of incorporation, to receive the
appraised or fair value of their holdings), any
Participant to whom an Option or Right has been
granted at least six months prior to such event
shall have the right (subject to the provisions of
the Plan and any limitation applicable to such
Option or Right), thereafter and during the term of
each such Option or Right, to receive upon exercise
of any such Option or Right an amount equal to the
excess of the fair market value on the date of such
exercise of the securities, cash or other property,
or combination thereof, receivable upon such merger,
consolidation or combination in respect of a Share
over the Exercise Price of such Right or Option,
multiplied by the number of Shares with respect to
which such Option or Right shall have been
exercised. Such amount may be payable fully in
cash, fully in one or more of the kind or kinds of
property payable in such merger, consolidation or
combination, or partly in cash and partly in one or
more of such kind or kinds of property, all in the
discretion of the Committee.
13. Assignments and Transfers. No Award nor
any right or interest of a Participant under the
Plan in any instrument evidencing any Award under
the Plan may be assigned, encumbered or transferred
except, in the event of the death of a Participant,
by will or the laws of descent and distribution or
in the case of Awards other than Incentive Stock
Options pursuant to a qualified domestic relations
order, as defined in the Code or Title I of ERISA or
the rules thereunder.
14. Employee Rights Under the Plan. No
director, officer or employee shall have a right to
be selected as a Participant nor, having been so
selected, to be selected again as a Participant and
no director, officer, employee or other person shall
have any claim or right to be granted an Award under
the Plan or under any other incentive or similar
plan of the Corporation or any Affiliate. Neither
the Plan nor any action taken thereunder shall be
construed as giving any employee any right to be re-
tained in the employ of the Corporation or any
Affiliate.
15. Delivery and Registration of Stock. The
Corporation's obligation to deliver Shares with
respect to an Award shall, if the Committee so
requests, be conditioned upon the receipt of a
representation as to the investment intention of the
Participant to whom such Shares are to be delivered,
in such form as the Committee shall determine to be
necessary or advisable to comply with the provisions
of the Securities Act of 1933 or any other Federal,
state or local securities legislation or regulation.
It may be provided that any representation
requirement shall become inoperative upon a
registration of the Shares or other action eliminat-
ing the necessity of such representation under such
Securities Act or other securities legislation. The
Corporation shall not be required to deliver any
Shares under the Plan prior to (i) the admission of
such shares to listing on any stock exchange on
which Shares may then be listed, and (ii) the
completion of such registration or other
qualification of such Shares under any state or
Federal law, rule or regulation, as the Committee
shall determine to be necessary or advisable.
This Plan is intended to comply with Rule 16b-3
under the Securities Exchange Act of 1934. Any
provision of the Plan which is inconsistent with
said Rule shall, to the extent of such
inconsistency, be inoperative and shall not affect
the validity of the remaining provisions of the
Plan.
16. Withholding Tax. The Corporation shall
have the right to deduct from all amounts paid in
cash with respect to the exercise of a Right under
the Plan any taxes required by law to be withheld
with respect to such cash payments. Where a
Participant or other person is entitled to receive
Shares pursuant to the exercise of an Option or
Right pursuant to the Plan, the Corporation shall
have the right to require the Participant or such
other person to pay the Corporation the amount of
any taxes which the Corporation is required to
withhold with respect to such Shares.
17. Amendment or Termination. The Board of
Directors of the Corporation may amend, suspend or
terminate the Plan or any portion thereof at any
time, but (except as provided in Section 11 hereof)
no amendment shall be made without approval of the
stockholders of the Corporation which shall (i)
materially increase the aggregate number of Shares
with respect to which Awards may be made under the
Plan (except pursuant to Section 11), (ii)
materially increase the benefits accruing to
Participants, (iii) materially change the
requirements as to eligibility for participation in
the Plan or (iv) change the class of persons
eligible to participate in the Plan, provided,
however, that no such amendment, suspension or
termination shall impair the rights of any
Participant, without his consent, in any Award
theretofore made pursuant to the Plan.
18. Effective Date and Term of Plan. The Plan
shall become effective upon its approval by the
stockholders of the Corporation. It shall continue
in effect for a term of ten years unless sooner
terminated under Section 19 hereof.
19. Initial Grant. By, and simultaneously
with, the approval of the Plan by the stockholders
of the Corporation, each member of the Board of
Directors of the Corporation who is not an Employee,
is hereby granted a ten-year, Non-Qualified Stock
Option to purchase a number of shares equal to .5%
of the shares issued in the conversion at an
Exercise Price per share equal to the Market Value
on the date of the grant, which shall be the date of
stockholder approval of the Plan. In addition, each
non-employee director of the Corporation elected
after stockholder ratification of the Plan is hereby
granted as of the date he or she is elected and
qualified ("election date") a ten-year Non-Qualified
Stock Option to Purchase a number of shares equal to
.5% of the shares issued in the conversion at the
applicable Market Value on the election date,
subject to availability. All options granted
pursuant to this Section 19 shall vest in five equal
annual installments with the first installment
vesting on the one-year anniversary of the date of
grant, subject to the Director maintaining
Continuous Service with the Company and its
affiliates from the date of grant. Each such Option
shall be evidenced by a Non-Qualified Stock Option
Agreement in a form approved by the Company and
shall be subject in all respects to the terms and
conditions of this Plan, which are controlling. All
options granted pursuant to this Section 19 shall be
rounded down to the nearest whole share to the
extent necessary to ensure that no options to
purchase stock representing fractional shares are
granted.
20. Notwithstanding anything else in this Plan
to the contrary, to the extent that the Plan
provides for formula awards, as defined in
Rule 16b-3(c)(2)(ii) under the Securities Exchange
Act of 1934, such provisions may not be amended more
than once every six months, other than to comport
with changes in the Code, ERISA or the rules
thereunder.
<PAGE>
AMTRUST CAPITAL CORP.
1995 STOCK OPTION AND INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
ISO NO. ___
This option is granted on October 23, 1995 (the
"Grant Date") by AmTrust Capital Corp. (the
"Corporation") to ______________________ (the
"Optionee"), in accordance with the following terms
and conditions:
1. Option Grant and Exercise Period. The
Corporation hereby grants to the Optionee an Option
(the "Option") to purchase, pursuant to the
Corporation's 1995 Stock Option and Incentive Plan,
as the same may be from time to time amended (the
"Plan"), and upon the terms and conditions therein
and hereinafter set forth, an aggregate of ______
shares (the "Option Shares") of the Common Stock,
par value $.01 per share ("Common Stock"), of the
Corporation at the price (the "Exercise Price") of
$______ per share. A copy of the Plan as currently
in effect, is incorporated herein by reference and
is attached hereto.
This Option shall be exercisable only during
the period (the "Exercise Period") commencing on
October 23, 1996 and ending at 5:00 p.m., Peru,
Indiana time, on the date ten years after the Grant
Date, such later time and date being hereinafter
referred to as the "Expiration Date," provided the
Optionee has maintained "Continuous Service" (as
defined in the Plan) since the Grant Date. This
option shall vest and become exercisable according
to the following schedule:
Amount
of Initial
Date of Vesting Award Vested
October 23, 1996 20%
October 23, 1997 20%
October 23, 1998 20%
October 23, 1999 20%
October 23, 2000 20%
During the Exercise Period, only the vested portion
of this Option shall be exercisable in whole at any
time or in part from time to time subject to the
provisions of this Agreement, and further subject to
the condition that the aggregate Market Value (as
defined in the Plan and as determined as of the
Grant Date) of the Option Shares with respect to
which Incentive Stock Options (as defined in the
Plan) are exercisable for the first time by the
Optionee in any calendar year shall not exceed One
Hundred Thousand Dollars ($100,000.00). To the
extent that this Option, or any part thereof, does
not qualify as an Incentive Stock Option for any
reason, it shall become a Non-Qualified Stock Option
under the Plan.
2. Method of Exercise of This Option. This
Option may be exercised during the Exercise Period
by giving written notice to the Corporation
specifying the number of Option Shares to be
purchased. The notice must be in the form
prescribed by the committee referred to in Section 3
of the Plan or its successor (the "Committee") and
directed to the address set forth in Section 11
below. The date of exercise is the date on which
such notice is received by the Corporation. Such
notice must be accompanied by payment in full of the
Exercise Price for the Option Shares to be purchased
upon such exercise. Payment shall be made either
(i) in cash, which may be in the form of a check,
bank draft, or money order payable to the
Corporation, or (ii) by delivering shares of Common
Stock already owned by the Optionee having a Market
Value (as defined in the Plan) equal to the Exercise
Price for the number of Option Shares to be
purchased, or (iii) a combination of cash and such
shares. Promptly after such payment, subject to
Section 3 below, the Corporation shall issue and
deliver to the Optionee or other person exercising
this Option a certificate or certificates
representing the shares of Common Stock so
purchased, registered in the name of the Optionee
(or such other person), or, upon request, in the
name of the Optionee (or such other person) and in
the name of another jointly with right of
survivorship.
3. Delivery and Registration of Shares of
Common Stock. The Corporation's obligation to
deliver shares of Common Stock hereunder shall, if
the Committee so requests, be conditioned upon the
receipt of a representation as to the investment
intention of the Optionee or any other person to
whom such shares are to be delivered, in such form
as the Committee shall determine to be necessary or
advisable to comply with the provisions of the
Securities Act of 1933, as amended, or any other
federal, state or local securities law or
regulation. In requesting any such representation,
it may be provided that such representation
requirement shall become inoperative upon a
registration of such shares or other action
eliminating the necessity of such representation un-
der such Securities Act or other securities law or
regulation. The Corporation shall not be required
to deliver any shares upon exercise of this Option
prior to (i) the admission of such shares to listing
on any stock exchange or system on which the shares
of Common Stock may then be listed, and (ii) the
completion of such registration or other
qualification of such shares under any state or
federal law, rule or regulation, as the Committee
shall determine to be necessary or advisable.
4. Non-Transferability of This Option. This
Option may not be assigned, encumbered, or
transferred except, in the event of the death of the
Optionee, by will or the laws of descent and
distribution to the extent provided in Section 5
below. Except as provided herein, this Option is
exercisable during the Optionee's lifetime only by
the Optionee. The provisions of this Option shall
be binding upon, inure to the benefit of and be
enforceable by the parties hereto, the successors
and assigns of the Corporation and any person to
whom this Option is transferred by will or by the
laws of descent and distribution.
5. Termination of Service or Death of the
Optionee. Except as provided in the second or third
paragraphs of this Section 5 and notwithstanding any
other provision of this Option to the contrary, this
Option shall not be exercisable unless the Optionee,
at the time he exercises this Option, has maintained
"Continuous Service" (as defined in the Plan) since
the Grant Date.
If the Optionee shall cease to maintain
Continuous Service for any reason (excluding death
and termination of employment by the Corporation or
any Affiliate for cause), the Optionee may, but only
within the period of three months immediately
succeeding such cessation of Continuous Service and
in no event after the Expiration Date, exercise this
Option to the extent the Optionee was entitled to
exercise this Option at the date of cessation. If
the Optionee shall cease to maintain Continuous
Service because of termination of employment by the
Corporation or Affiliate for cause, all rights under
this Option shall expire immediately upon the giving
to the Optionee of notice of such termination.
In the event of the death of the Optionee while
in Continuous Service of the Corporation or during
the three-month period referred to in the
immediately preceding paragraph, the person to whom
the Option has been transferred by will or by the
laws of descent and distribution may, but only to
the extent the Optionee was entitled to exercise
this Option immediately prior to his death, exercise
this Option at any time within one year following
the death of the Optionee, but in no event later
than ten years from the Grant Date. Following the
death of the Optionee, the Committee may, as an
alternative means of settlement of this Option,
elect to pay to the person to whom this Option is
transferred by will or by the laws of descent and
distribution the amount by which the Market Value
(as defined in the Plan) per share of Common Stock
on the date of exercise of this Option shall exceed
the Exercise Price per Option Share, multiplied by
the number of Option Shares with respect to which
this Option is properly exercised. Any such
settlement of this Option shall be considered an
exercise of this Option for all purposes of this
Option and of the Plan. If the Optionee shall cease
to maintain Continuous Service due to death or
disability, this Option shall become exercisable in
full upon the happening of such event and remain
exercisable (i) in the event of death for the one-year
period described above or (ii) in the event of
disability for a three-month period following such
person's termination of service, but in no event
shall such Option be exercisable later than ten
years from the Grant Date.
6. Notice of Sale. The Optionee or any person
to whom the Option or the Option Shares shall have
been transferred by will or by the laws of descent
and distribution promptly shall give notice to the
Corporation in the event of the sale or other dis-
position of Option Shares within the later of (i)
two years from the Grant Date or (ii) one year from
the date of exercise of this Option. Such notice
shall specify the number of Option Shares sold or
otherwise disposed of and be directed to the address
set forth in Section 11 below.
7. Adjustments for Changes in Capitalization
of the Corporation. In the event of any change in
the outstanding shares of Common Stock by reason of
any reorganization, recapitalization, stock split,
stock dividend, combination or exchange of shares,
merger, consolidation, or any change in the
corporate structure of the Corporation or in the
shares of Common Stock, the number and class of
shares covered by this Option and the Exercise Price
shall be appropriately adjusted by the Committee,
whose determination shall be conclusive.
8. Effect of Merger. In the event of any
merger, consolidation or combination of the
Corporation (other than a merger, consolidation, or
combination in which the Corporation is the
continuing entity and which does not result in the
outstanding shares of Common Stock being converted
into or exchanged for different securities, cash or
other property, or any combination thereof) pursuant
to a plan or agreement the terms of which are
binding upon all stockholders of the Corporation
(except to the extent that dissenting stockholders
may be entitled, under statutory provisions or
provisions contained in the certificate of
incorporation, to receive the appraised or fair
value of their holdings), the Optionee shall,
provided the Option has been granted at least six
months prior to such event, have the right (subject
to the provisions of the Plan and the limitations
contained herein), thereafter and during the
Exercise Period, to receive upon exercise of this
Option an amount equal to the excess of the fair
market value on the date of such exercise of the
securities, cash or other property, or combination
thereof, receivable upon such merger, consolidation
or combination in respect of a share of Common Stock
over the Exercise Price, multiplied by the number of
Option Shares with respect to which this Option
shall have been exercised. Such amount may be
payable fully in cash, fully in one or more of the
kind or kinds of property payable in such merger,
consolidation or combination, or partly in cash and
partly in one or more of such kind or kinds of
property, all in the discretion of the Committee.
Notwithstanding the foregoing, nothing in this
section 8 shall be construed as permitting
accelerated vesting of this option, in whole or in
part, to the extent it was not exercisable upon the
occurrence of a merger, consolidation or combination
of the corporation described above.
9. Stockholder Rights Not Granted by This
Option. The Optionee is not entitled by virtue
hereof to any rights of a stockholder of the
Corporation or to notice of meetings of stockholders
or to notice of any other proceedings of the
Corporation.
10. Withholding Tax. Upon the exercise of
this Option, the Corporation shall have the right to
require the Optionee or such other person as is
entitled to exercise this Option to pay to the
Corporation the amount of any taxes which the
Corporation or any of its Affiliates is required to
withhold with respect to such Option Shares, or, in
lieu thereof, to retain, or sell without notice, a
sufficient number of such shares to cover the amount
required to be withheld or in lieu of any of the
foregoing, to withhold a sufficient sum from the
Optionee's compensation payable by the Corporation
to satisfy the Corporation's tax withholding
requirements. The Corporation's method of
satisfying its withholding obligations shall be
solely in the discretion of the Corporation, subject
to applicable federal, state and local law.
11. Notices. All notices hereunder to the
Corporation shall be delivered or mailed to it
addressed to the Secretary of the Corporation at 20
West Fifth Street, Peru, Indiana 46970. Any notices
hereunder to the Optionee shall be delivered
personally or mailed to the Optionee's address noted
below. Such addresses for the service of notices
may be changed at any time provided written notice
of the change is furnished in advance to the
Corporation or to the Optionee, as the case may be.
12. Plan and Plan Interpretations as
Controlling. This Option and the terms and
conditions herein set forth are subject in all
respects to the terms and conditions of the Plan,
which are controlling. All determinations and
interpretations of the Committee shall be binding
and conclusive upon the Optionee or his legal
representatives with regard to any question arising
hereunder or under the Plan.
13. Optionee Service. Nothing in this Option
shall limit the right of the Corporation or any of
its Affiliates to terminate the Optionee's service
as an officer or employee, or otherwise impose upon
the Corporation or any of its Affiliates any
obligation to employ or accept the services of the
Optionee.
14. Optionee Acceptance. The Optionee shall
signify his acceptance of the terms and conditions
of this Option by signing in the space provided
below and returning a signed copy hereof to the
Corporation at the address set forth in Section 11
above. In signing this Agreement, the Optionee
acknowledges that the Option Shares may not be sold
or otherwise transferred by the Optionee for at
least six months from the Grant Date without
creating an obligation under Section 16 of the
Securities Act of 1934, as amended, to pay to the
Corporation the profit on any such transaction.
IN WITNESS WHEREOF, the parties hereto have
caused this INCENTIVE STOCK OPTION AGREEMENT to be
executed as of the date first above written.
AMTRUST CAPITAL CORP.
By:
Bruce M. Borst, President and
Chief Executive Officer
ACCEPTED:
(Street Address)
(City, State and Zip Code)
<PAGE>
AMTRUST CAPITAL CORP.
1995 STOCK OPTION AND INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
NQSO NO. ___
This option is granted on October 23, 1995 (the
"Grant Date") by AmTrust Capital Corp. (the
"Corporation") to ______________________ (the
"Optionee"), in accordance with the following terms
and conditions:
1. Option Grant and Exercise Period. The
Corporation hereby grants to the Optionee an Option
(the "Option") to purchase pursuant to the 1995
Stock Option and Incentive Plan, as the same may
from time to time be amended (the "Plan") and upon
the terms and conditions therein and hereinafter set
forth, an aggregate of _______ shares (the "Option
Shares") of the Common Stock, par value $.01 per
share ("Common Stock"), of the Corporation at the
price (the "Exercise Price") of $_______ per share.
A copy of the Plan as currently in effect, is
incorporated herein by reference and is attached
hereto.
This Option shall be exercisable only during
the period (the "Exercise Period") commencing from
October 23, 1996 and ending at 5:00 p.m., Peru,
Indiana time, on the date ten years after the Grant
Date, such later time and date being hereinafter
referred to as the "Expiration Date," provided the
Optionee has maintained "Continuous Service" (as
defined in the Plan) since Grant Date. This option
shall vest and become exercisable according to the
following schedule:
20% on the initial Option award amount on October 23, 1996
20% on the initial Option award amount on October 23, 1997
20% on the initial Option award amount on October 23, 1998
20% on the initial Option award amount on October 23, 1999
20% on the initial Option award amount on October 23, 2000
During the Exercise Period, only the vested portion
of this Option shall be exercisable in whole at any
time or in part from time to time subject to the
provisions of this Agreement.
2. Method of Exercise of This Option. This
Option may be exercised at any time during the
Exercise Period by giving written notice to the
Corporation specifying the number of Option Shares
to be purchased. The notice must be in the form
prescribed by the committee referred to in Section 3
of the Plan or its successor (the "Committee") and
directed to the address set forth in Section 10
below. The date of exercise is the date on which
such notice is received by the Corporation. Such
notice must be accompanied by payment in full for
the Option Shares to be purchased upon such
exercise. Payment shall be made either (i) in cash,
which may be in the form of a check, bank draft, or
money order payable to the Corporation, or (ii) by
delivering shares of Common Stock already owned by
the Optionee having a Market Value (as defined in
the Plan) equal to the Exercise Price for the number
of Option Shares to be purchased, or (iii) a
combination of cash and such shares. Promptly after
such payment, subject to Section 3 below, the
Corporation shall issue and deliver to the Optionee
or other person exercising this Option a certificate
or certificates representing the shares of Common
Stock so purchased, registered in the name of the
Optionee (or such other person), or, upon request,
in the name of the Optionee (or such other person)
and in the name of another jointly with right of
survivorship.
3. Delivery and Registration of Shares of
Common Stock. The Corporation's obligation to
deliver shares of Common Stock hereunder shall, if
the Committee so requests, be conditioned upon the
receipt of a representation as to the investment
intention of the Optionee or any other person to
whom such shares are to be delivered, in such form
as the Committee shall determine to be necessary or
advisable to comply with the provisions of the
Securities Act of 1933, as amended, or any other
federal, state or local securities law or
regulation. In requesting any such representation,
it may be provided that such representation
requirement shall become inoperative upon a
registration of such shares or other action
eliminating the necessity of such representation
under such Securities Act or other securities law or
regulation. The Corporation shall not be required
to deliver any shares upon exercise of this Option
prior to (i) the admission of such shares to listing
on any stock exchange or system on which the shares
of Common Stock may then be listed, and (ii) the
completion of such registration or other
qualification of such shares under any state or
Federal law, rule or regulation, as the Committee
shall determine to be necessary or advisable.
4. Non-Transferability of This Option. This
Option may not be assigned, encumbered, or
transferred except, in the event of the death of the
Optionee, by will or the laws of descent and
distribution or pursuant to a qualified domestic
relations order, as described in the Plan, to the
extent provided in Section 5 below. Except as
provided herein, this Option is exercisable during
the Optionee's lifetime only by the Optionee. The
provisions of this Option shall be binding upon,
inure to the benefit of and be enforceable by the
parties hereto, the successors and assigns of the
Corporation and any person to whom this Option is
transferred by will or by the laws of descent and
distribution or pursuant to a qualified domestic
relations order, as described in the Plan.
5. Termination of Service or Death of the
Optionee. Except as provided in the second or third
paragraphs of this Section 5 and notwithstanding any
other provision of this Option to the contrary, this
Option shall not be exercisable unless the Optionee,
at the time he exercises this Option, has maintained
"Continuous Service" (as defined in the Plan) since
the Grant Date.
If the Optionee shall cease to maintain
Continuous Service for any reason (excluding death
and termination of employment by the Corporation or
any Affiliate for cause), the Optionee may, but only
within the period of three months immediately
succeeding such cessation of Continuous Service and
in no event after the Expiration Date, exercise this
Option to the extent the Optionee was entitled to
exercise this Option at the date of cessation. If
the Optionee shall cease to maintain Continuous
Service because of termination of employment by the
Corporation or an Affiliate for cause, all rights
under this Option shall expire immediately upon the
giving to the Optionee of notice of such
termination.
In the event of the death of the Optionee while
in Continuous Service of the Corporation or during
the three-month period referred to in the
immediately preceding paragraph, the person to whom
the Option has been transferred by will or by the
laws of descent and distribution, or (pursuant to a
qualified domestic relations order, as described in
the Plan), may, but only to the extent the Optionee
was entitled to exercise this Option immediately
prior to his death, exercise this Option at any time
within one year following the death of the Optionee,
but in no event later than ten years from the Grant
Date. Following the death of the Optionee, the
Committee may, as an alternative means of settlement
of this Option, elect to pay to the person to whom
this Option is transferred by will or by the laws of
descent and distribution or (pursuant to a qualified
domestic relations order, as described in the Plan),
the amount by which the Market Value (as defined in
the Plan) per share of Common Stock on the date of
exercise of this Option shall exceed the Exercise
Price per Option Share, multiplied by the number of
Option Shares with respect to which this Option is
properly exercised. Any such settlement of this
Option shall be considered an exercise of this
Option for all purposes of this Option and of the
Plan. If the Optionee shall cease to maintain
Continuous Service due to death or disability, this
Option shall become exercisable in full upon the
happening of such event and remain exercisable (i)
in the event of death for the one-year period
described above or (ii) in the event of disability
for a three-month period following such person's
termination of service, but in no event shall such
Option be exercisable later than ten years from the
Grant Date.
6. Effect of Merger. In the event of any
merger, consolidation or combination of the
Corporation (other than a merger, consolidation, or
combination in which the Corporation is the
continuing entity and which does not result in the
outstanding shares of Common Stock being converted
into or exchanged for different securities, cash or
other property, or any combination thereof) pursuant
to a plan or agreement the terms of which are
binding upon all stockholders of the Corporation
(except to the extent that dissenting stockholders
may be entitled, under statutory provisions or
provisions contained in the certificate of
incorporation, to receive the appraised or fair
value of their holdings), the Optionee shall,
provided the Option has been granted at least six
months prior to such event, have the right (subject
to the provisions of the Plan and the limitations
contained herein), thereafter and during the
Exercise Period, to receive upon exercise of this
Option an amount equal to the excess of the fair
market value on the date of such exercise of the
securities, cash or other property, or combination
thereof, receivable upon such merger, consolidation
or combination in respect of a share of Common Stock
over the Exercise Price, multiplied by the number of
Option Shares with respect to which this Option
shall have been exercised. Such amount may be
payable fully in cash, fully in one or more of the
kind or kinds of property payable in such merger,
consolidation or combination, or partly in cash and
partly in one or more of such kind or kinds of
property, all in the discretion of the Committee.
7. Adjustments for Changes in Capitalization
of the Corporation. In the event of any change in
the outstanding shares of Common Stock by reason of
any reorganization, recapitalization, stock split,
stock dividend, combination or exchange of shares,
merger, consolidation, or any change in the
corporate structure of the Corporation or in the
shares of Common Stock, the number and class of
shares covered by this Option and the Exercise Price
shall be appropriately adjusted by the Committee,
whose determination shall be conclusive.
8. Stockholder Rights Not Granted by This
Option. The Optionee is not entitled by virtue
hereof to any rights of a stockholder of the
Corporation or to notice of meetings of stockholders
or to notice of any other proceedings of the
Corporation.
9. Withholding Tax. Where the Optionee or
another person is entitled to receive Option Shares
pursuant to the exercise of this Option, the
Corporation shall have the right to require the
Optionee or such other person to pay to the
Corporation the amount of any taxes which the
Corporation or any of its Affiliates is required to
withhold with respect to such Option Shares, or, in
lieu thereof, to retain, or sell without notice, a
sufficient number of shares to cover the amount
required to be withheld or in lieu of any of the
foregoing, to withhold a sufficient sum from the
Optionee's compensation payable by the Corporation
to satisfy the Corporation's tax withholding
requirements. The Corporation's method of
satisfying its withholding obligations shall be
solely in the discretion of the Corporation, subject
to applicable federal, state and local law.
10. Notices. All notices hereunder to the
Corporation shall be delivered or mailed to it
addressed to the Secretary of the Corporation at 20
West Fifth Street, Peru, Indiana 46970. Any notices
hereunder to the Optionee shall be delivered
personally or mailed to the Optionee's address noted
below. Such addresses for the service of notices
may be changed at any time provided written notice
of the change is furnished in advance to the
Corporation or the Optionee, as the case may be.
11. Plan and Plan Interpretations as
Controlling. This Option and the terms and
conditions herein set forth are subject in all
respects to the terms and conditions of the Plan,
which are controlling. All determinations and
interpretations of the Committee shall be binding
and conclusive upon the Optionee or his legal
representatives with regard to any question arising
hereunder or under the Plan.
12. Optionee Service. Nothing in this Option
shall limit the rights of the Corporation or any of
its Affiliates to terminate the Optionee's service
as a director or otherwise impose upon the
Corporation or any of its Affiliates any obligation
to employ or accept the services of the Optionee.
13. Optionee Acceptance. The Optionee shall
signify his acceptance of the terms and conditions
of this Option by signing in the space provided
below and returning a signed copy hereof to the
Corporation at the address set forth in Section 10
above. In signing this Agreement, the Optionee
acknowledges that the Option Shares may not be sold
or otherwise transferred by the Optionee for at
least six months from the Grant Date without
creating an obligation under Section 16 of the
Securities Act of 1934, as amended, to pay to the
Corporation any profit on any such transaction.
IN WITNESS WHEREOF, the parties hereto have
caused this NON-QUALIFIED STOCK OPTION AGREEMENT to
be executed as of the date first above written.
AMTRUST CAPITAL CORP.
By:
Bruce M. Borst, President and
Chief Executive Officer
ACCEPTED:
(Street Address)
(City, State and Zip
Code)
<PAGE>
EXHIBIT 5
<PAGE>
[SILVER, FREEDMAN & TAFF, L.L.P. LETTERHEAD]
November 12, 1996
Board of Directors
AmTrust Capital Corp.
20 West Fifth Street
Peru, Indiana 46970
Members of the Board:
We have acted as counsel to AmTrust Capital Corp. (the
"Corporation") in connection with the preparation and filing with the
Securities and Exchange Commission of a registration statement on Form S-8
under the Securities Act of 1933 (the "Registration Statement") relating to
58,006 shares of the Corporation's Common Stock, par value $.01 per share
(the "Common Stock"), to be offered pursuant to the 1995 Stock Option and
Incentive Plan of the Corporation (the "Plan").
In this connection, we have reviewed originals or copies,
certified or otherwise identified to our satisfaction, of the Plan and
agreements thereto, the Corporation's Certificate of Incorporation, Bylaws,
resolutions of its Board of Directors and such other documents and corporate
records as we deem appropriate for the purpose of rendering this opinion.
Based upon the foregoing, it is our opinion that:
1. The shares of Common Stock being so registered have been
duly authorized.
2. The shares of Common Stock to be offered by the
Corporation will be, when and if issued, sold and paid for
as contemplated by the Plan, legally issued, fully paid and
non-assessable shares of Common Stock of the
Corporation.
Very truly yours,
/s/ Silver, Freedman & Taff, L.L.P.
SILVER, FREEDMAN & TAFF, L.L.P.
<PAGE>
EXHIBIT 23.1
<PAGE>
[SILVER, FREEDMAN & TAFF, L.L.P.]
November 12, 1996
Board of Directors
AmTrust Capital Corp.
20 West Fifth Street
Peru, Indiana 46970
Members of the Board:
We hereby consent to the inclusion of our opinion as
Exhibit 5 of this Registration Statement and the reference to our firm in the
Prospectus. In giving this consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Silver, Freedman & Taff, L.L.P.
SILVER, FREEDMAN & TAFF, L.L.P.
<PAGE>
EXHIBIT 23.2
<PAGE>
[LETTERHEAD OF GEO. S. OLIVE & CO., LLC]
We consent to the incorporation by reference in this
Registration Statement on Form S-8 of AmTrust Capital Corp. (the
"Company") of our report dated August 1, 1996 on the consolidated
financial statements of the Company which report is incorporated by
reference in the Company's Annual Report on Form 10-KSB for the three
years ended June 30, 1996 filed pursuant to the Securities Exchange Act of
1934.
GEO. S. OLIVE & CO., LLC
Indianapolis, Indiana
November 11, 1996
