As filed with the Securities and Exchange Commission on February 10, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
Global DirectMail Corp
(Exact Name of issuer as specified in its charter)
Delaware 11-3262067
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
22 Harbor Park Drive
Port Washington, New York 11050
(516) 625-1555
(Address of principal executive offices)
______________________
Global DirectMail Corp
1995 Long-Term Stock Incentive Plan
(Full title of the Plan)
______________________
Curt S. Rush, Esq.
Secretary and General Counsel
Global DirectMail Corp
22 Harbor Park Drive
Port Washington, New York 11050
(Name and address of agent for service)
Telephone number, including area code, of agent for
service: (516) 625-1555
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities Amount to be Price Per Offering Registration
to be Registered Registered* Share** Price** Fee
Common Stock (par value 2,000,000 shares 31.4375 62,875,000 $21,681.03
$.01 per share).............
</TABLE>
* Plus an indeterminate number of additional shares which may be offered and
issued to prevent dilution resulting from stock splits, stock dividends or
similar transactions
** Estimated pursuant to Rule 457 of the General Rules and Regulations under
the Securities Act of 1933 solely for the purpose of computing the
registration fee, based on the average of the high and low sale prices of
the securities being registered hereby on the Composite Tape on
February 7, 1997.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Global DirectMail Corp (the "Company") hereby incorporates
herein by reference the following documents:
(1) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995;
(2) All reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since
December 31, 1995;
(3) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A dated June 1, 1995, filed
under the Exchange Act, including any amendment thereto or report filed for
the purpose of updating such description; and
(4) All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered herein have been sold or which
deregisters all securities then remaining unsold.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b)(7) of the Delaware General Corporation Law (the
"DGCL") enables a corporation in its original certificate of incorporation or
an amendment thereto to eliminate or limit the personal liability of a
director for violations of the director's fiduciary duty, except (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to
Section 174 of the DGCL (providing for liability of directors for unlawful
payment of dividends or unlawful stock purchases or redemptions) or (iv) for
any transaction from which a director derived an improper personal benefit.
The Company has adopted an amendment to its Certificate of Incorporation,
which eliminates the liability of directors to the extent permitted by Section
102(b)(7) of the DGCL.
Section 145 of the DGCL provides that a corporation may indemnify
directors and officers as well as other employees and individuals against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with specified actions, suits or proceedings, whether
civil, criminal, administrative or investigative (other than an action by or
in the right of the corporation (a "derivative action") if they acted in good
faith and in a manner they 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 their conduct was unlawful. A
similar standard is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys' fees) incurred
in connection with defense or settlement of such action, and the statute
requires court approval before there can be any indemnification where the
person seeking indemnification has been found liable to the corporation. The
statute provides that it is not exclusive of other indemnification that may be
granted by a corporation's charter, by-laws, disinterested director vote,
stockholder vote, agreement or otherwise. Article Ninth of the Restated
Certificate of Incorporation of the Company provides for indemnification of
its directors and officers to the fullest extent permitted by Delaware law.
In addition, the Company maintains a directors' and officers'
liability insurance policy.
EXHIBITS
The following is a complete list of exhibits filed as part of
this Registration Statement:
Exhibit
No.
4(a) Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Registration Statement on
Form S-1 (No. 33-92052) filed with the Securities and
Exchange Commission on May 9, 1995 (the "Form S-1")
4(b) By-Laws of the Company (incorporated by reference to Exhibit
3.2 to the
Form S-1)
4(c) 1995 Long-Term Stock Incentive Plan of the Company
5 Opinion of Davis Polk & Wardwell
23(a) Consent of Deloitte & Touche
23(b) Consent of Davis Polk & Wardwell (included in Exhibit 5)
24 Powers of Attorney
UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement; and
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each
filing of the registrant's Annual Report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's Annual
Report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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 the
7th day of February, 1997.
GLOBAL DIRECTMAIL CORP
By /s/ Richard Leeds
--------------------
Richard Leeds
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Richard Leeds Chairman and Chief Executive February 7, 1997
_________________ Officer
(Richard Leeds) (Principal Executive Officer)
Bruce Leeds* Vice Chairman and President February 7, 1997
_________________ of International Operations
(Bruce Leeds)
Robert Leeds* Vice Chairman and President February 7, 1997
_________________ of Domestic Operations
(Robert Leeds)
Robert Dooley* Director and Senior Vice February 7, 1997
_________________ President - Worldwide
(Robert Dooley) Computer Sales and
Marketing
Leslie Biggs* Commercial and Financial February 7, 1997
_________________ Director of European
(Leslie Biggs) Operations
Kenneth J. Hall* Chief Financial Officer February 7, 1997
_________________ (Principal Financial Officer)
Howard Kohos* Corporate Controller February 7, 1997
________________ Principal Accounting Officer)
(Howard Kohos)
Curt S. Rush* Secretary and General February 7, 1997
________________ Counsel
(Curt S. Rush)
Robert D. Rosenthal* Director February 7, 1997
________________
(Robert D. Rosenthal)
Stacy S. Dick* Director February 7, 1997
________________
(Stacy S. Dick)
* By /s/ Richard Leeds
---------------------
Richard Leeds,
Attorney-in-Fact
INDEX TO EXHIBITS
The following is a complete list of exhibits filed as part of this
Registration Statement:
Sequentially
Exhibit Numbered
Number Exhibit Page
- ------- ------- ------------
4(a) Certificate of Incorporation of the
Company (incorporated by reference
to Exhibit 3.1 to the Registration
Statement on Form S-1 (No. 33-92052)
filed with the Securities and Exchange
Commission on May 9, 1995 (the "Form S-1")
4(b) By-Laws of the Company (incorporated by
reference to Exhibit 3.2 to the Form S-1)
4(c) 1995 Long-Term Stock Incentive Plan of the
Company
5 Opinion of Davis Polk & Wardwell
23(a) Consent of Deloitte & Touche
23(b) Consent of Davis Polk & Wardwell
(included in Exhibit 5)
24 Powers of Attorney
Exhibit 4(c)
GLOBAL DIRECTMAIL CORP
1995 Long-Term Stock Incentive Plan
SECTION 1. Purpose. The purposes of this Global DirectMail Corp
1995 Long Term Stock Incentive Plan are to promote the interests of Global
DirectMail Corp and its stockholders by (i) attracting and retaining
exceptional executive personnel and other key employees, including consultants
and advisors to the Company and its Affiliates, as defined below; (ii)
motivating such employees, consultants and advisors by means of
performance-related incentives to achieve longer-range performance goals; and
(iii) enabling such employees, consultants and advisors to participate in the
long-term growth and financial success of the Company.
SECTION 2. Definitions. As used in the Plan, the following terms
shall have the meanings set forth below:
"Affiliate" shall mean (i) any entity that, directly or indirectly,
is controlled by the Company and (ii) any entity in which the Company has a
significant equity interest, in either case as determined by the Committee.
"Award" shall mean any Option, Stock Appreciation Right, Restricted
Stock Award, Performance Award or Other Stock-Based Award.
"Award Agreement" shall mean any written agreement, contract, or
other instrument or document evidencing any Award, which may, but need not, be
executed or acknowledged by a Participant.
"Board" shall mean the Board of Directors of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Committee" shall mean a committee of the Board designated by the
Board to administer the Plan and composed of not less than the minimum number
of persons from time to time required by Rule 16b-3, each of whom, to the
extent necessary to comply with Rule 16b-3 only, is a "disinterested person"
within the meaning of Rule 16b-3.
"Company" shall mean Global DirectMail Corp, together with any
successor thereto.
"Employee" shall mean (i) an employee of the Company or of any
Affiliate and (ii) an individual providing consulting or advisory services to
the Company or any Affiliate as an independent contractor.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" shall mean the fair market value of the property
or other item being valued, as determined by the Committee in its sole
discretion.
"Incentive Stock Option" shall mean a right to purchase Shares from
the Company that is granted under Section 6 of the Plan and that is intended
to meet the requirements of Section 422 of the Code or any successor provision
thereto.
"Non-Qualified Stock Option" shall mean a right to purchase Shares
from the Company that is granted under Section 6 of the Plan and that is not
intended to be an Incentive Stock Option.
"Option" shall mean an Incentive Stock Option or a Non-Qualified
Stock Option and shall include a Restoration Option.
"Other Stock-Based Award" shall mean any right granted under Section
10 of the Plan.
"Participant" shall mean any Employee selected by the Committee to
receive an Award under the Plan.
"Performance Award" shall mean any right granted under Section 9 of
the Plan.
"Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization,
government or political subdivision thereof or other entity.
"Plan" shall mean this Global DirectMail Corp
1995 Long-Term Stock Incentive Plan.
"Restoration Option" shall mean an Option granted pursuant to Section
6(e) of the Plan.
"Restricted Stock" shall mean any Share granted under Section 8 of
the Plan.
"Restricted Stock Unit" shall mean any unit granted under Section 8
of the Plan.
"Rule 16b-3" shall mean Rule 16b-3 as promulgated and interpreted by
the SEC under the Exchange Act, or any successor rule or regulation thereto as
in effect from time to time.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto and shall include the Staff thereof.
"Shares" shall mean the common shares of the Company, $0.01 par
value, or such other securities of the Company as may be designated by the
Committee from time to time.
"Stock Appreciation Right" shall mean any right granted under Section
7 of the Plan.
"Substitute Awards" shall mean Awards granted in assumption of, or in
substitution for, outstanding awards previously granted by a company acquired
by the Company or with which the Company combines.
SECTION 3. Administration. (a) The Plan shall be administered by
the Committee. Subject to the terms of the Plan and applicable law, and in
addition to other express powers and authorizations conferred on the Committee
by the Plan, the Committee shall have full power and authority to: (i)
designate Participants; (ii) determine the type or types of Awards to be
granted to an eligible Employee; (iii) determine the number of Shares to be
covered by, or with respect to which payments, rights, or other matters are to
be calculated in connection with, Awards; (iv) determine the terms and
conditions of any Award; (v) determine whether, to what extent, and under what
circumstances Awards may be settled or exercised in cash, Shares, other
securities, other Awards or other property, or canceled, forfeited, or
suspended and the method or methods by which Awards may be settled, exercised,
canceled, forfeited, or suspended; (vi) determine whether, to what extent, and
under what circumstances cash, Shares, other securities, other Awards, other
property, and other amounts payable with respect to an Award shall be deferred
either automatically or at the election of the holder thereof or of the
Committee; (vii) interpret and administer the Plan and any instrument or
agreement relating to, or Award made under, the Plan; (viii) establish, amend,
suspend, or waive such rules and regulations and appoint such agents as it
shall deem appropriate for the proper administration of the Plan; and (ix)
make any other determination and take any other action that the Committee
deems necessary or desirable for the administration of the Plan.
(b) Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations, and other decisions under or
with respect to the Plan or any Award shall be within the sole discretion of
the Committee, may be made at any time and shall be final, conclusive, and
binding upon all Persons, including the Company, any Affiliate, any
Participant, any holder or beneficiary of any Award, any shareholder and any
Employee.
SECTION 4. Shares Available for Awards.
(a) Shares Available. Subject to adjustment as provided in Section
4(b), the number of Shares with respect to which Awards may be granted under
the Plan shall be 2,000,000. If, after the effective date of the Plan, any
Shares covered by an Award granted under the Plan, or to which such an Award
relates, are forfeited, or if an Award is settled for cash or otherwise
terminates or is canceled without the delivery of Shares, then the Shares
covered by such Award, or to which such Award relates, or the number of Shares
otherwise counted against the aggregate number of Shares with respect to which
Awards may be granted, to the extent of any such settlement, forfeiture,
termination or cancellation, shall again be, or shall become, Shares with
respect to which Awards may be granted. In the event that any Option or other
Award granted hereunder is exercised through the delivery of Shares, the
number of Shares available for Awards under the Plan shall be increased by the
number of Shares surrendered, to the extent permissible under Rule 16b-3.
Notwithstanding the foregoing and subject to adjustment as provided in Section
4(b), no more than 800,000 Shares shall be available for Awards of Restricted
Stock and Restricted Stock Units.
(b) Adjustments. In the event that the Committee determines that
any dividend or other distribution (whether in the form of cash, Shares, other
securities, or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of Shares or other securities of the Company, issuance
of warrants or other rights to purchase Shares or other securities of the
Company, or other similar corporate transaction or event affects the Shares
such that an adjustment is determined by the Committee to be appropriate in
order to prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, then the Committee shall, in
such manner as it may deem equitable, adjust any or all of (i) the number of
Shares or other securities of the Company (or number and kind of other
securities or property) with respect to which Awards may be granted, (ii) the
number of Shares or other securities of the Company (or number and kind of
other securities or property) subject to outstanding Awards, and (iii) the
grant or exercise price with respect to any Award or, if deemed appropriate,
make provision for a cash payment to the holder of an outstanding Award;
provided, in each case, that with respect to Awards of Incentive Stock Options
no such adjustment shall be authorized to the extent that such authority would
cause the Plan to violate Section 422(b)(1) of the Code, as from time to time
amended.
(c) Substitute Awards. Any Shares underlying Substitute Awards
shall not, except in the case of Shares with respect to which Substitute
Awards are granted to Employees who are officers or directors of the Company
for purposes of Section 16 of the Exchange Act or any successor section
thereto, be counted against the Shares available for Awards under the Plan.
(d) Sources of Shares Deliverable Under Awards. Any Shares
delivered pursuant to an Award may consist, in whole or in part, of authorized
and unissued Shares or of treasury Shares.
SECTION 5. Eligibility. Any Employee, including any officer or
employee-director of the Company, who is not a member of the Committee shall
be eligible to be designated a Participant.
SECTION 6. Stock Options.
(a) Grant. Subject to the provisions of the Plan, the Committee
shall have sole and complete authority to determine the Employees to whom
Options shall be granted, the number of Shares to be covered by each Option,
the option price therefor and the conditions and limitations applicable to the
exercise of the Option. The Committee shall have the authority to grant
Incentive Stock Options, or to grant Non-Qualified Stock Options, or to grant
both types of options. In the case of Incentive Stock Options, the terms and
conditions of such grants shall be subject to and comply with such rules as
may be prescribed by Section 422 of the Code, as from time to time amended,
and any regulations implementing such statute.
(b) Exercise Price. The Committee in its sole discretion shall
establish the exercise price at the time each Option is granted.
(c) Exercise. Each Option shall be exercisable at such times and
subject to such terms and conditions as the Committee may, in its sole
discretion, specify in the applicable Award Agreement or thereafter. The
Committee may impose such conditions with respect to the exercise of Options,
including without limitation, any relating to the application of federal or
state securities laws, as it may deem necessary or advisable.
(d) Payment. No Shares shall be delivered pursuant to any exercise
of an Option until payment in full of the option price therefor is received by
the Company. Such payment may be made in cash, or its equivalent, or, if and
to the extent permitted by the Committee, by exchanging Shares owned by the
optionee (which are not the subject of any pledge or other security interest),
or by a combination of the foregoing, provided that the combined value of all
cash and cash equivalents and the Fair Market Value of any such Shares so
tendered to the Company as of the date of such tender is at least equal to
such option price.
(e) Restoration Options. In the event that any Participant delivers
Shares in payment of the exercise price of any Option granted hereunder in
accordance with Section 6(d), the Committee shall have the authority to grant
or provide for the automatic grant of a Restoration Option to such
Participant. The grant of a Restoration Option shall be subject to the
satisfaction of such conditions or criteria as the Committee in its sole
discretion shall establish from time to time. A Restoration Option shall
entitle the holder thereof to purchase a number of Shares equal to the number
of such Shares so delivered upon exercise of the original Option and, in the
discretion of the Committee, the number of Shares, if any, tendered to the
Company to satisfy any withholding tax liability arising in connection with
the exercise of the original Option. A Restoration Option shall have a per
share exercise price of not less than 100% of the per Share Fair Market Value
on the date of grant of such Restoration Option, a term not longer than the
remaining term of the original Option at the time of exercise thereof, and
such other terms and conditions as the Committee in its sole discretion shall
determine.
SECTION 7. Stock Appreciation Rights.
(a) Grant. Subject to the provisions of the Plan, the Committee
shall have sole and complete authority to determine the Employees to whom
Stock Appreciation Rights shall be granted, the number of Shares to be covered
by each Stock Appreciation Right Award, the grant price thereof and the
conditions and limitations applicable to the exercise thereof. Stock
Appreciation Rights may be granted in tandem with another Award, in addition
to another Award, or freestanding and unrelated to another Award. Stock
Appreciation Rights granted in tandem with or in addition to an Award may be
granted either at the same time as the Award or at a later time. Stock
Appreciation Rights shall not be exercisable earlier than six months after
grant.
(b) Exercise and Payment. A Stock Appreciation Right shall entitle
the Participant to receive an amount equal to the excess of the Fair Market
Value of a Share on the date of exercise of the Stock Appreciation Right over
the grant price thereof, provided that the Committee may for administrative
convenience determine that, with respect to any Stock Appreciation Right which
is not related to an Incentive Stock Option and which can only be exercised
for cash during limited periods of time in order to satisfy the conditions of
Rule 16b-3, the exercise of such Stock Appreciation Right for cash during such
limited period shall be deemed to occur for all purposes hereunder on the day
during such limited period on which the Fair Market Value of the Shares is the
highest. Any such determination by the Committee may be changed by the
Committee from time to time and may govern the exercise of Stock Appreciation
Rights granted prior to such determination as well as Stock Appreciation
Rights thereafter granted. The Committee shall determine whether a Stock
Appreciation Right shall be settled in cash, Shares or a combination of cash
and Shares.
(c) Other Terms and Conditions. Subject to the terms of the Plan
and any applicable Award Agreement, the Committee shall determine, at or after
the grant of a Stock Appreciation Right, the term, methods of exercise,
methods and form of settlement, and any other terms and conditions of any Stock
Appreciation Right. Any such determination by the Committee may be changed by
the Committee from time to time and may govern the exercise of Stock
Appreciation Rights granted or exercised prior to such determination as well
as Stock Appreciation Rights granted or exercised thereafter. The Committee
may impose such conditions or restrictions on the exercise of any Stock
Appreciation Right as it shall deem appropriate.
SECTION 8. Restricted Stock and Restricted Stock Units.
(a) Grant. Subject to the provisions of the Plan, the Committee
shall have sole and complete authority to determine the Employees to whom
Shares of Restricted Stock and Restricted Stock Units shall be granted, the
number of Shares of Restricted Stock and/or the number of Restricted Stock
Units to be granted to each Participant, the duration of the period during
which, and the conditions under which, the Restricted Stock and Restricted
Stock Units may be forfeited to the Company, and the other terms and
conditions of such Awards.
(b) Transfer Restrictions. Shares of Restricted Stock and
Restricted Stock Units may not be sold, assigned, transferred, pledged or
otherwise encumbered, except, in the case of Restricted Stock, as provided in
the Plan or the applicable Award Agreements. Certificates issued in respect
of Shares of Restricted Stock shall be registered in the name of the
Participant and deposited by such Participant, together with a stock power
endorsed in blank, with the Company, or with an escrow agent designated by the
Company. Upon the lapse of the restrictions applicable to such Shares of
Restricted Stock, the Company shall deliver such certificates to the
Participant or the Participant's legal representative.
(c) Payment. Each Restricted Stock Unit shall have a value equal to
the Fair Market Value of a Share. Restricted Stock Units shall be paid in
cash, shares, other securities or other property, as determined in the sole
discretion of the Committee. Dividends paid on any Shares of Restricted Stock
may be paid directly to the Participant, or may be reinvested in additional
Shares of Restricted Stock or in additional Restricted Stock Units, as
determined by the Committee in its sole discretion.
SECTION 9. Performance Awards.
(a) Grant. The Committee shall have sole and complete authority to
determine the Employees who shall receive a "Performance Award", which shall
consist of a right which is (i) denominated in cash or Shares, (ii) valued,
as determined by the Committee, in accordance with the achievement of such
performance goals during such performance periods as the Committee shall
establish, and (iii) payable at such time and in such form as the Committee
shall determine.
(b) Terms and Conditions. Subject to the terms of the Plan and any
applicable Award Agreement, the Committee shall determine the performance
goals to be achieved during any performance period, the length of any
performance period, the amount of any Performance Award and the amount and
kind of any payment or transfer to be made pursuant to any Performance Award.
(c) Payment of Performance Awards. Performance Awards may be paid
in a lump sum or in installments following the close of the performance period
or, in accordance with procedures established by the Committee, on a deferred
basis.
SECTION 10. Other Stock-Based Awards.
(a) General. The Committee shall have authority to grant to
eligible Employees an "Other Stock-Based Award", which shall consist of any
right which is (i) not an Award described in Sections 6 through 10 above and
(ii) an Award of Shares or an Award denominated or payable in, valued in whole
or in part by reference to, or otherwise based on or related to, Shares
(including, without limitation, securities convertible into Shares), as deemed
by the Committee to be consistent with the purposes of the Plan; provided that
any such rights must comply, to the extent deemed desirable by the Committee,
with Rule 16b-3 and applicable law. Subject to the terms of the Plan and any
applicable Award Agreement, the Committee shall determine the terms and
conditions of any such Other Stock-Based Award. Except in the case of an
Other Stock-Based Award that is a Substitute Award, the price at which
securities may be purchased pursuant to any Other Stock-Based Award granted
under this Plan, or the provision, if any, of any such Award that is analogous
to the purchase or exercise price, shall not be less than 100% of the Fair
Market Value of the securities to which such Award relates on the date of
grant.
(b) Dividend Equivalents. In the sole and complete discretion of
the Committee, an Award, whether made as an Other Stock-Based Award under this
Section 10 or as an Award granted pursuant to Sections 6 through 9 hereof, may
provide the Participant with dividends or dividend equivalents, payable in
cash, Shares, other securities or other property on a current or deferred
basis.
SECTION 11. Amendment and Termination.
(a) Amendments to the Plan. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or any portion thereof at any time;
provided that no such amendment, alteration, suspension, discontinuation or
termination shall be made without shareholder approval if such approval is
necessary to comply with any tax or regulatory requirement, including for
these purposes any approval requirement which is a prerequisite for exemptive
relief from Section 16(b) of the Exchange Act. Notwithstanding anything to
the contrary herein, the Committee may amend the Plan in such manner as may be
necessary so as to have the Plan conform with local rules and regulations in
any jurisdiction outside the United States.
(b) Amendments to Awards. The Committee may waive any conditions or
rights under, amend any terms of, or alter, suspend, discontinue, cancel or
terminate, any Award theretofore granted, prospectively or retroactively;
provided that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would impair the rights of
any Participant or any holder or beneficiary of any Award theretofore granted
shall not to that extent be effective without the consent of the affected
Participant, holder or beneficiary.
(c) Adjustment of Awards Upon the Occurrence of Certain Unusual or
Nonrecurring Events. The Committee is hereby authorized to make adjustments
in the terms and conditions of, and the criteria included in, Awards in
recognition of unusual or nonrecurring events (including, without limitation,
the events described in Section 4(b) hereof) affecting the Company, any
Affiliate, or the financial statements of the Company or any Affiliate, or of
changes in applicable laws, regulations, or accounting principles, whenever
the Committee determines that such adjustments are appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits intended
to be made available under the Plan.
(d) Cancellation. Any provision of this Plan or any Award Agreement
to the contrary notwithstanding, the Committee may cause any Award granted
hereunder to be canceled in consideration of a cash payment or alternative
Award made to the holder of such canceled Award equal in value to the Fair
Market Value of such canceled Award.
SECTION 12. General Provisions.
(a) Nontransferability.
(i) Each Award, and each right under any Award, shall be exercisable
only by the Participant during the Participant's lifetime, or, if
permissible under applicable law, by the Participant's guardian or legal
representative or by a transferee receiving such Award pursuant to a
qualified domestic relations order ("QDRO"), as determined by the Committee.
(ii) No Award that constitutes a "derivative security", for purposes
of Section 16 of the Exchange Act, may be assigned, alienated, pledged,
attached, sold or otherwise transferred or encumbered by a Participant
otherwise than by will or by the laws of descent and distribution or
pursuant to a QDRO, and any such purported assignment, alienation, pledge,
attachment, sale, transfer or encumbrance shall be void and unenforceable
against the Company or any Affiliate; provided that the designation of a
beneficiary shall not constitute an assignment, alienation, pledge,
attachment, sale, transfer or encumbrance.
(b) No Rights to Awards. No Employee, Participant or other Person
shall have any claim to be granted any Award, and there is no obligation for
uniformity of treatment of Employees, Participants, or holders or
beneficiaries of Awards. The terms and conditions of Awards need not be the
same with respect to each recipient.
(c) Share Certificates. All certificates for Shares or other
securities of the Company or any Affiliate delivered under the Plan pursuant
to any Award or the exercise thereof shall be subject to such stop transfer
orders and other restrictions as the Committee may deem advisable under the
Plan or the rules, regulations, and other requirements of the Securities and
Exchange Commission, any stock exchange upon which such Shares or other
securities are then listed, and any applicable Federal or state laws, and the
Committee may cause a legend or legends to be put on any such certificates to
make appropriate reference to such restrictions.
(d) Delegation. Subject to the terms of the Plan and applicable
law, the Committee may delegate to one or more officers or managers of the
Company or any Affiliate, or to a committee of such officers or managers, the
authority, subject to such terms and limitations as the Committee shall
determine, to grant Awards to, or to cancel, modify or waive rights with
respect to, or to alter, discontinue, suspend, or terminate Awards held by,
Employees who are not officers or directors of the Company for purposes of
Section 16 of the Exchange Act, or any successor section thereto, or who are
otherwise not subject to such Section.
(e) Withholding. A participant may be required to pay to the
Company or any Affiliate and the Company or any Affiliate shall have the right
and is hereby authorized to withhold from any Award, from any payment due or
transfer made under any Award or under the Plan or from any compensation or
other amount owing to a Participant the amount (in cash, Shares, other
securities, other Awards or other property) of any applicable withholding
taxes in respect of an Award, its exercise, or any payment or transfer under
an Award or under the Plan and to take such other action as may be necessary
in the opinion of the Company to satisfy all obligations for the payment of
such taxes. The Committee may provide for additional cash payments to holders
of Awards to defray or offset any tax arising from the grant, vesting,
exercise or payments of any Award.
(f) Award Agreements. Each Award hereunder shall be evidenced by an
Award Agreement which shall be delivered to the Participant and shall specify
the terms and conditions of the Award and any rules applicable thereto,
including but not limited to the effect on such Award of the death, retirement
or other termination of employment of a Participant and the effect, if any, of
a change in control of the Company.
(g) No Limit on Other Compensation Arrangements. Nothing contained
in the Plan shall prevent the Company or any Affiliate from adopting or
continuing in effect other compensation arrangements, which may, but need not,
provide for the grant of options, restricted stock, Shares and other types of
Awards provided for hereunder (subject to shareholder approval if such
approval is required), and such arrangements may be either generally
applicable or applicable only in specific cases.
(h) No Right to Employment. The grant of an Award shall not be
construed as giving a Participant the right to be retained in the employ of
the Company or any Affiliate. Further, the Company or an Affiliate may at any
time dismiss a Participant from employment, free from any liability or any
claim under the Plan, unless otherwise expressly provided in the Plan or in
any Award Agreement.
(i) No Rights as Stockholder. Subject to the provisions of the
applicable Award, no Participant or holder or beneficiary of any Award shall
have any rights as a stockholder with respect to any Shares to be distributed
under the Plan until he or she has become the holder of such Shares.
Notwithstanding the foregoing, in connection with each grant of Restricted
Stock hereunder, the applicable Award shall specify if and to what extent the
Participant shall not be entitled to the rights of a stockholder in respect of
such Restricted Stock.
(j) Governing Law. The validity, construction, and effect of the
Plan and any rules and regulations relating to the Plan and any Award
Agreement shall be determined in accordance with the laws of the State of
Delaware.
(k) Severability. If any provision of the Plan or any Award is or
becomes or is deemed to be invalid, illegal, or unenforceable in any
jurisdiction or as to any Person or Award, or would disqualify the Plan or any
Award under any law deemed applicable by the Committee, such provision shall
be construed or deemed amended to conform the applicable laws, or if it cannot
be construed or deemed amended without, in the determination of the Committee,
materially altering the intent of the Plan or the Award, such provision shall
be stricken as to such jurisdiction, Person or Award and the remainder of the
Plan and any such Award shall remain in full force and effect.
(l) Other Laws. The Committee may refuse to issue or transfer any
Shares or other consideration under an Award if, acting in its sole
discretion, it determines that the issuance or transfer of such Shares or such
other consideration might violate any applicable law or regulation or entitle
the Company to recover the same under Section 16(b) of the Exchange Act, and
any payment tendered to the Company by a Participant, other holder or
beneficiary in connection with the exercise of such Award shall be promptly
refunded to the relevant Participant, holder or beneficiary. Without limiting
the generality of the foregoing, no Award granted hereunder shall be construed
as an offer to sell securities of the Company, and no such offer shall be
outstanding, unless and until the Committee in its sole discretion has
determined that any such offer, if made, would be in compliance with all
applicable requirements of the U.S. federal securities laws.
(m) No Trust or Fund Created. Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Affiliate and a Participant
or any other Person. To the extent that any Person acquires a right to receive
payments from the Company or any Affiliate pursuant to an Award, such right
shall be no greater than the right of any unsecured general creditor of the
Company or any Affiliate.
(n) No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award, and the Committee shall determine
whether cash, other securities, or other property shall be paid or transferred
in lieu of any fractional Shares or whether such fractional Shares or any
rights thereto shall be canceled, terminated, or otherwise eliminated.
(o) Headings. Headings are given to the Sections and subsections
of the Plan solely as a convenience to facilitate reference. Such headings
shall not be deemed in any way material or relevant to the construction or
interpretation of the Plan or any provision thereof.
SECTION 13. Term of the Plan.
(a) Effective Date. The Plan shall be effective as of the date of
its approval by the shareholders of the Company.
(b) Expiration Date. No Award shall be granted under the Plan after
December 31, 2005; provided that the authority for grant of Restoration
Options hereunder in accordance with Section 6(e) shall continue, subject to
the provisions of Section 4, as long as any Option granted hereunder remains
outstanding. Unless otherwise expressly provided in the Plan or in an
applicable Award Agreement, any Award granted hereunder may, and the authority
of the Board or the Committee to amend, alter, adjust, suspend, discontinue,
or terminate any such Award or to waive any conditions or rights under any such
Award shall, continue after December 31, 2005.
Exhibit 5
February 7, 1997
Global DirectMail Corp
22 Harbor Park Drive
Port Washington, New York 11050
Ladies and Gentlemen:
We are acting as special counsel for Global DirectMail Corp in
connection with the filing of a Registration Statement (the "Registration
Statement") on Form S-8 under the Securities Act of 1933, as amended, relating
to 2,000,000 shares of common stock, par value $0.01 per share (the "Common
Stock"), deliverable in accordance with the Global DirectMail Corp 1995
Long-Term Stock Incentive Plan as referred to in such Form S-8 (the "Plan").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments relating to the
adoption and amendment of the Plan as we have deemed necessary or advisable
for the purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that the
Common Stock deliverable pursuant to the Plan, when delivered in accordance
with the Plan will be duly authorized, validly issued, fully paid and
nonassessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Davis Polk & Wardwell
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration statement
for the 1995 Long-Term Stock Incentive Plan of Global DirectMail Corp on
Form S-8 of the report of Deloitte & Touche LLP dated February 7, 1996,
appearing in the Annual Report on Form 10-K of Global DirectMail Corp for
the year ended December 31, 1995.
/s/ Deloitte & Touche LLP
-------------------------
DELOITTE & TOUCHE LLP
New York, New York
February 5, 1997
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her
capacity or capacities as an officer or director or both of Global DirectMail
Corp does hereby constitute and appoint Richard Leeds, Bruce Leeds and Robert
Leeds, and any of them, the true and lawful attorneys and agents of the
undersigned, each with power of substitution, to do any and all acts and
things for and on behalf of the undersigned and in the name of the undersigned
and in the capacity or capacities of the undersigned as aforesaid and to
execute any and all instruments for and on behalf of the undersigned and in
the name of the undersigned, which said attorneys and agents, or either of
them, may deem necessary or advisable to enable said corporation to comply
with the Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with this
Registration Statement, including specifically but without limitation, power
and authority to sign for the undersigned in the capacities indicated below,
any and all amendments (including post-effective amendments) hereto; and the
undersigned does hereby ratify and confirm all that the said attorneys and
agents, or their substitute or substitutes, or either of them, shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 7th day of February, 1997.
/s/ Bruce Leeds
---------------
BRUCE LEEDS
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her
capacity or capacities as an officer or director or both of Global DirectMail
Corp does hereby constitute and appoint Richard Leeds, Bruce Leeds and Robert
Leeds, and any of them, the true and lawful attorneys and agents of the
undersigned, each with power of substitution, to do any and all acts and
things for and on behalf of the undersigned and in the name of the undersigned
and in the capacity or capacities of the undersigned as aforesaid and to
execute any and all instruments for and on behalf of the undersigned and in
the name of the undersigned, which said attorneys and agents, or either of
them, may deem necessary or advisable to enable said corporation to comply
with the Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with this
Registration Statement, including specifically but without limitation, power
and authority to sign for the undersigned in the capacities indicated below,
any and all amendments (including post-effective amendments) hereto; and the
undersigned does hereby ratify and confirm all that the said attorneys and
agents, or their substitute or substitutes, or either of them, shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 7th day of February, 1997.
/s/ Robert Leeds
----------------
ROBERT LEEDS
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her
capacity or capacities as an officer or director or both of Global DirectMail
Corp does hereby constitute and appoint Richard Leeds, Bruce Leeds and Robert
Leeds, and any of them, the true and lawful attorneys and agents of the
undersigned, each with power of substitution, to do any and all acts and
things for and on behalf of the undersigned and in the name of the undersigned
and in the capacity or capacities of the undersigned as aforesaid and to
execute any and all instruments for and on behalf of the undersigned and in
the name of the undersigned, which said attorneys and agents, or either of
them, may deem necessary or advisable to enable said corporation to comply
with the Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with this
Registration Statement, including specifically but without limitation, power
and authority to sign for the undersigned in the capacities indicated below,
any and all amendments (including post-effective amendments) hereto; and the
undersigned does hereby ratify and confirm all that the said attorneys and
agents, or their substitute or substitutes, or either of them, shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 7th day of February, 1997.
/s/ Robert Dooley
-----------------
ROBERT DOOLEY
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her
capacity or capacities as an officer or director or both of Global DirectMail
Corp does hereby constitute and appoint Richard Leeds, Bruce Leeds and Robert
Leeds, and any of them, the true and lawful attorneys and agents of the
undersigned, each with power of substitution, to do any and all acts and
things for and on behalf of the undersigned and in the name of the undersigned
and in the capacity or capacities of the undersigned as aforesaid and to
execute any and all instruments for and on behalf of the undersigned and in
the name of the undersigned, which said attorneys and agents, or either of
them, may deem necessary or advisable to enable said corporation to comply
with the Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with this
Registration Statement, including specifically but without limitation, power
and authority to sign for the undersigned in the capacities indicated below,
any and all amendments (including post-effective amendments) hereto; and the
undersigned does hereby ratify and confirm all that the said attorneys and
agents, or their substitute or substitutes, or either of them, shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 7th day of February, 1997.
/s/ Leslie Biggs
----------------
LESLIE BIGGS
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her
capacity or capacities as an officer or director or both of Global DirectMail
Corp does hereby constitute and appoint Richard Leeds, Bruce Leeds and Robert
Leeds, and any of them, the true and lawful attorneys and agents of the
undersigned, each with power of substitution, to do any and all acts and
things for and on behalf of the undersigned and in the name of the undersigned
and in the capacity or capacities of the undersigned as aforesaid and to
execute any and all instruments for and on behalf of the undersigned and in
the name of the undersigned, which said attorneys and agents, or either of
them, may deem necessary or advisable to enable said corporation to comply
with the Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with this
Registration Statement, including specifically but without limitation, power
and authority to sign for the undersigned in the capacities indicated below,
any and all amendments (including post-effective amendments) hereto; and the
undersigned does hereby ratify and confirm all that the said attorneys and
agents, or their substitute or substitutes, or either of them, shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 7th day of February, 1997.
/s/ Kenneth J. Hall
-------------------
KENNETH J. HALL
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her
capacity or capacities as an officer or director or both of Global DirectMail
Corp does hereby constitute and appoint Richard Leeds, Bruce Leeds and Robert
Leeds, and any of them, the true and lawful attorneys and agents of the
undersigned, each with power of substitution, to do any and all acts and
things for and on behalf of the undersigned and in the name of the undersigned
and in the capacity or capacities of the undersigned as aforesaid and to
execute any and all instruments for and on behalf of the undersigned and in
the name of the undersigned, which said attorneys and agents, or either of
them, may deem necessary or advisable to enable said corporation to comply
with the Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with this
Registration Statement, including specifically but without limitation, power
and authority to sign for the undersigned in the capacities indicated below,
any and all amendments (including post-effective amendments) hereto; and the
undersigned does hereby ratify and confirm all that the said attorneys and
agents, or their substitute or substitutes, or either of them, shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 7th day of February, 1997.
/s/ Howard Kohos
----------------
HOWARD KOHOS
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her
capacity or capacities as an officer or director or both of Global DirectMail
Corp does hereby constitute and appoint Richard Leeds, Bruce Leeds and Robert
Leeds, and any of them, the true and lawful attorneys and agents of the
undersigned, each with power of substitution, to do any and all acts and
things for and on behalf of the undersigned and in the name of the undersigned
and in the capacity or capacities of the undersigned as aforesaid and to
execute any and all instruments for and on behalf of the undersigned and in
the name of the undersigned, which said attorneys and agents, or either of
them, may deem necessary or advisable to enable said corporation to comply
with the Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with this
Registration Statement, including specifically but without limitation, power
and authority to sign for the undersigned in the capacities indicated below,
any and all amendments (including post-effective amendments) hereto; and the
undersigned does hereby ratify and confirm all that the said attorneys and
agents, or their substitute or substitutes, or either of them, shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 7th day of February, 1997.
/s/ Curt S. Rush
----------------
CURT S. RUSH
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her
capacity or capacities as an officer or director or both of Global DirectMail
Corp does hereby constitute and appoint Richard Leeds, Bruce Leeds and Robert
Leeds, and any of them, the true and lawful attorneys and agents of the
undersigned, each with power of substitution, to do any and all acts and
things for and on behalf of the undersigned and in the name of the undersigned
and in the capacity or capacities of the undersigned as aforesaid and to
execute any and all instruments for and on behalf of the undersigned and in
the name of the undersigned, which said attorneys and agents, or either of
them, may deem necessary or advisable to enable said corporation to comply
with the Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with this
Registration Statement, including specifically but without limitation, power
and authority to sign for the undersigned in the capacities indicated below,
any and all amendments (including post-effective amendments) hereto; and the
undersigned does hereby ratify and confirm all that the said attorneys and
agents, or their substitute or substitutes, or either of them, shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 7th day of February, 1997.
/s/ Robert D. Rosenthal
-----------------------
ROBERT D. ROSENTHAL
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in his or her
capacity or capacities as an officer or director or both of Global DirectMail
Corp does hereby constitute and appoint Richard Leeds, Bruce Leeds and Robert
Leeds, and any of them, the true and lawful attorneys and agents of the
undersigned, each with power of substitution, to do any and all acts and
things for and on behalf of the undersigned and in the name of the undersigned
and in the capacity or capacities of the undersigned as aforesaid and to
execute any and all instruments for and on behalf of the undersigned and in
the name of the undersigned, which said attorneys and agents, or either of
them, may deem necessary or advisable to enable said corporation to comply
with the Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with this
Registration Statement, including specifically but without limitation, power
and authority to sign for the undersigned in the capacities indicated below,
any and all amendments (including post-effective amendments) hereto; and the
undersigned does hereby ratify and confirm all that the said attorneys and
agents, or their substitute or substitutes, or either of them, shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 7th day of February, 1997.
/s/ Stacy S. Dick
-----------------
STACY S. DICK
