As filed with the Securities and Exchange Commission on March 6, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
AUDITS & SURVEYS WORLDWIDE, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-1809586
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
650 Avenue of the Americas, New York, New York 10011
(Address of Principal Executive Offices) (Zip Code)
1994 Stock Option Plan
of
Audits & Surveys Worldwide, Inc.
(Full title of the plan)
Alan J. Ritter, Senior Vice President
Audits & Surveys Worldwide, Inc.
650 Avenue of the Americas
New York, New York 10011
(Name and address of agent for service)
(212) 627-9700
(Telephone number, including area code, of agent for service)
with a copy to:
Michael J. Shef, Esq.
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, New York 10036
Approximate date of commencement of proposed sale to public: As soon as
practicable after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price per offering registration
to be registered registered(1) share price fee
- --------------------------------------------------------------------------------
Common Stock, par
value $.01 per share 430,500 shares $2.00 (2) $ 861,000.00(2) $ 260.91
1,500 shares $2.15 (2) $ 3,225,00(2) $ .98
159,050 shares $2.75 (2) $ 437,387.50(2) $ 132.54
58,950 shares $3.125(3) $ 184,218.75(3) $ 55.82
- --------------------------------------------------------------------------------
Total 650,000 shares $1,485,831.25 $ 450.25
- --------------------------------------------------------------------------------
<PAGE>
(1) Pursuant to Rule 416(b), there shall also be deemed covered hereby all
additional securities resulting from anti-dilution adjustments under the
1994 Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee on
the basis of, pursuant to Rule 457(h), the exercise price of presently
outstanding options.
(3) Estimated solely for the purpose of calculating the registration fee on
the basis of, pursuant to Rule 457(c), the average of the high and low
sales prices per share of the registrant's Common Stock on the American
Stock Exchange on March 4, 1997.
<PAGE>
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by the registrant
with the Securities and Exchange Commission (Commission File No. 1-7675)
pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the "1934
Act") are incorporated herein by reference:
(a) The registrant's Annual Report on Form 10-K for the
year ended December 31, 1995;
(b) The registrant's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1996, June 30, 1996 and September 30, 1996; and
(c) The description of the registrant's Common Stock
contained in the registrant's Registration Statement on Form 8-A/A (Amendment
No. 1) filed on February 26, 1997, including any amendment or report filed for
the purpose of updating such descriptions.
All documents filed subsequent to the date of this
Registration Statement pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934
Act and prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of the filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
<PAGE>
Item 6. Indemnification of Directors and Officers.
(a) Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") provides, in general, that a corporation incorporated
under the laws of the State of Delaware, such as the registrant, may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person 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 such person's conduct was
unlawful.
In the case of a derivative action, a Delaware corporation may
indemnify any such person against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or any other court in which such
action was brought determines such person is fairly and reasonably entitled to
indemnity for such expenses.
(b) Section NINTH of the registrant's Certificate of
Incorporation, as amended, provides: "No director of the corporation shall be
liable to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, provided that the foregoing shall not eliminate or
limit liability of a director (i) for any breach of such 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) under Section 174 of Title 8 of the Delaware Code, or (iv) for any
transaction from which such director derived an improper personal benefit.
Neither the amendment nor repeal of this Article Ninth, nor the adoption of any
provision of this Restated Certificate of Incorporation inconsistent with this
Article Ninth, shall eliminate or reduce the effect of this Article Ninth in
respect of any matter occurring, or any cause of action, suit or claim that, but
for this Article Ninth would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision."
(c) Article VII of the registrant's By-Laws provides: "The
corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
is or was or has agreed to become a director, officer, employee or agent of the
corporation, or is or was serving or has agreed to serve at the request of the
corporation as a director, officer, employee
<PAGE>
or agent of another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been taken or omitted in
such capacity, against expenses, including, without limitation, expenses of
investigations, judicial or administrative proceedings or appeals, amounts paid
in settlement by or on behalf of the indemnitee, attorneys' fees and
disbursements and any expenses of establishing a right to indemnification under
this Article VII (the "Expenses"), judgments, fines and penalties actually and
reasonably incurred by him or on his behalf in connection with such action, suit
or proceeding and any appeal therefrom, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plead of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful."
"The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was or has agreed to
become a director, officer, employee or agent of the corporation, or is or was
serving or has agreed to serve at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action alleged to have been taken
or omitted in such capacity, against Expenses, judgments, fines or penalties
actually and reasonably incurred by him or on his behalf in connection with the
defense or settlement of such action or suit and any appeal therefrom, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of such liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such costs,
charges and expenses which the Court of Chancery of Delaware or such other court
shall deem proper."
"Notwithstanding the other provisions of this Article VII, to
the extent that a director, officer, employee or agent of the corporation has
been successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice in defense of any action, suit or
proceeding referred to in the immediately preceding two paragraphs, or in
defense of any claim, issue or matter therein, he shall be indemnified against
all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith."
Item 7. Exemption from Registration Claimed.
Not Applicable.
<PAGE>
Item 8. Exhibits.
Exhibit
Number Description
- ------ -----------
4.01 Restated and Amended Certificate of Incorporation of the
registrant. Incorporated by reference to Exhibit 4.1 to the
registrant's Report on Form 10-Q/A for the quarter ended March
31, 1995.
4.02 Amended and Restated By-Laws of the registrant. Incorporated
by reference to Exhibit 2(b) to the registrant's registration
statement on Form 8-A/A (Amendment No. 1), filed with the
Securities and Exchange Commission on February 26, 1997.
4.03 Registration Rights Agreement among the registrant, H. Arthur
Bellows, Jr., Carl Ravitch and the Estate of Irving I.
Roshwalb, dated March 24, 1995. Incorporated by reference to
Exhibit 4.3 to the registrant's Report on Form 10-Q/A for the
quarter ended March 31, 1995.
4.04 Shareholders Agreement among the registrant, H. Arthur
Bellows, Jr., Solomon Dutka, Solomon Dutka Trust for James
Dutka, Solomon Dutka Trust for Michael Dutka, Solomon Dutka
Trust for Joyce Dutka, Carl Ravitch, Anthony Timiraos, Dexter
Neadle, Lawrence Karp, George Fabian, Fred Winkel, Joel S.
Klein, William Liebman, Nagesh Gupta, Thomas Ryan, Joel
Dorfman, Josh Libresco, Donald Pace, Paul Donato, Fred
Nicholson and Joel J. Klein, dated March 24, 1995.
Incorporated by reference to Exhibit 4.4 to the registrant's
Report on Form 10-Q/A for the quarter ended March 31, 1995.
4.05 Shareholders Agreement between The Triangle Corporation and
the Estate of Irving I. Roshwalb, dated February 9, 1995.
Incorporated by reference to Exhibit 4.5 to the registrant's
Report on Form 10-Q/A for the quarter ended March 31, 1995.
*4.06 1994 Stock Option Plan.
*5.01 Opinion of Parker Chapin Flattau & Klimpl, LLP as to the
legality of the Common Stock being offered.
*23.01 Consent of Deloitte & Touche LLP.
*23.02 Consent of Parker Chapin Flattau & Klimpl, LLP (contained in
Exhibit 5.01).
*24.01 Power of attorney of certain officers and directors of the
registrant (contained in the signature page).
- ------------------
* Filed herewith.
<PAGE>
Item 9. Undertakings.
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;
(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;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, and the information required 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 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference 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.
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 this registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
<PAGE>
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 described in Item
6 above, 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.
<PAGE>
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 28th day of
February,1997.
AUDITS & SURVEYS WORLDWIDE, INC.
By: /s/ H. Arthur Bellows, Jr.
---------------------------------
H. Arthur Bellows, Jr.
President and Chief Operating Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature below constitutes and appoints each of H. Arthur Bellows, Jr. and Alan
J. Ritter his true and lawful attorney-in-fact and agent, each with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or either of them or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 28th day of February, 1997.
Signature Title
--------- -----
/s/ Soloman Dutka Chairman, Chief Executive Officer and Director
-----------------
Solomon Dutka
/s/ H. Arthur Bellows, Jr. President and Chief Operating Officer and
------------------------- Director
H. Arthur Bellows, Jr.
/s/ Carl Ravitch Executive Vice President and Director
----------------
Carl Ravitch
<PAGE>
/s/ Alan J. Ritter Senior Vice President and Treasurer (Principal
--------------------------- Financial and Accounting Officer)
Alan J. Ritter
/s/ Charles E. Bradley Director
---------------------------
Charles E. Bradley
/s/ Brian G. Dyson Director
---------------------------
Brian G. Dyson
/s/ Matthew Goldstein Director
---------------------------
Matthew Goldstein
/s/ Robert Miller Director
---------------------------
Robert Miller
/s/ William Newman Director
---------------------------
William Newman
--------------------------- Director
Sol Young
--------------------------- Director
William A. Zebedee
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
4.01 Restated and Amended Certificate of Incorporation of the
registrant. Incorporated by reference to Exhibit 4.1 to the
registrant's Report on Form 10-Q/A for the quarter ended March
31, 1995.
4.02 Amended and Restated By-Laws of the registrant. Incorporated
by reference to Exhibit 2(b) to the registrant's registration
statement on Form 8-A/A (Amendment No. 1), filed with the
Securities and Exchange Commission on February 26, 1997.
4.03 Registration Rights Agreement among the registrant, H. Arthur
Bellows, Jr., Carl Ravitch and the Estate of Irving I.
Roshwalb, dated March 24, 1995. Incorporated by reference to
Exhibit 4.3 to the registrant's Report on Form 10-Q/A for the
quarter ended March 31, 1995.
4.04 Shareholders Agreement among the registrant, H. Arthur
Bellows, Jr., Solomon Dutka, Solomon Dutka Trust for James
Dutka, Solomon Dutka Trust for Michael Dutka, Solomon Dutka
Trust for Joyce Dutka, Carl Ravitch, Anthony Timiraos, Dexter
Neadle, Lawrence Karp, George Fabian, Fred Winkel, Joel S.
Klein, William Liebman, Nagesh Gupta, Thomas Ryan, Joel
Dorfman, Josh Libresco, Donald Pace, Paul Donato, Fred
Nicholson and Joel J. Klein, dated March 24, 1995.
Incorporated by reference to Exhibit 4.4 to the registrant's
Report on Form 10-Q/A for the quarter ended March 31, 1995.
4.05 Shareholders Agreement between The Triangle Corporation and
the Estate of Irving I. Roshwalb, dated February 9, 1995.
Incorporated by reference to Exhibit 4.5 to the registrant's
Report on Form 10-Q/A for the quarter ended March 31, 1995.
*4.06 1994 Stock Option Plan.
*5.01 Opinion of Parker Chapin Flattau & Klimpl, LLP, as to the
legality of the Common Stock being offered.
*23.01 Consent of Deloitte & Touche LLP.
*23.02 Consent of Parker Chapin Flattau & Klimpl, LLP (contained in
Exhibit 5.01).
*24.01 Power of attorney of certain officers and directors of the
registrant (contained in the signature page).
- -----------------
* Filed herewith
<PAGE>
EXHIBIT 4.06
<PAGE>
1994 STOCK OPTION PLAN
of
AUDITS & SURVEYS WORLDWIDE, INC.
1. PURPOSES OF THE PLAN. This stock option plan (the "Plan")
is designed to provide an incentive to key employees (including directors and
officers who are key employees) and to consultants, advisors and directors who
are not employees of Audits & Surveys Worldwide, Inc., a Delaware corporation
(the "Company"), and its present and future subsidiary corporations, as defined
in Paragraph 19 ("Subsidiaries"), and to offer an additional inducement in
obtaining the services of such individuals. The Plan provides for the grant of
"incentive stock options" ("ISOs") within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), and nonqualified stock
options ("NQSOs"), but the Company makes no warranty as to the qualification of
any option as an "incentive stock option" under the Code.
2. STOCK SUBJECT TO THE PLAN. Subject to the provisions of
Paragraph 12, the aggregate number of shares of Common Stock, $.01 par value per
share, of the Company ("Common Stock") for which options may be granted under
the Plan shall not exceed 650,000. Such shares of Common Stock may, in the
discretion of the Board of Directors of the Company (the "Board of Directors"),
consist either in whole or in part of authorized but unissued shares of Common
Stock or shares of Common Stock held in the treasury of the Company. The Company
shall at all times during the term of the Plan reserve and keep available such
number of shares of Common Stock as will be sufficient to satisfy the
requirements of the Plan. Subject to the provisions of Paragraph 13, any shares
of Common Stock subject to an option which for any reason expires, is cancelled
or is terminated unexercised or which ceases for any reason to be exercisable
shall again become available for the granting of options under the Plan.
3. ADMINISTRATION OF THE PLAN. The Plan shall be administered
by a committee of the Board of Directors (the "Committee") consisting of not
less than two directors. During such time as the Company has a class of equity
securities registered under Section 12 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), each member of the Committee shall be (a) until
November 21, 1996 a "disinterested person" within the meaning of Rule 16b-3 (or
any successor rule or regulation) promulgated under the Exchange Act and (b)
from and after November 21, 1996 a "non-employee director" within the meaning of
Rule 16b-3 (as the same may be in effect and interpreted from time to time,
"Rule 16b-3"). A majority of the members 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, and any acts approved in writing by all members
without a meeting, shall be the acts of the Committee.
Subject to the express provisions of the Plan, the Committee
shall have the authority, in its sole discretion, to determine the key employees
who shall receive Employee Options (as defined in Paragraph 19), the consultants
and advisors who shall receive Consultant Options (as defined in Paragraph 19),
and the directors who shall receive Outside Director Options (as defined in
Paragraph 19); the times when they shall receive options; whether an Employee
Option shall be an ISO or a NQSO; the number of shares of Common Stock to be
subject to each option; the term of each option; the date each option shall
become exercisable; whether an option shall be exercisable in whole, in part
<PAGE>
or in installments, and, if in installments, the number of shares of Common
Stock to be subject to each installment; whether the installments shall be
cumulative; the date each installment shall become exercisable and the term of
each installment; whether to accelerate the date of exercise of any installment;
whether shares of Common Stock may be issued on exercise of an option as partly
paid, and, if so, the dates when future installments of the exercise price shall
become due and the amounts of such installments; the exercise price of each
option; the form of payment of the exercise price; the fair market value of a
share of Common Stock; whether to restrict the sale or other disposition of the
shares of Common Stock acquired upon the exercise of an option and to waive any
such restriction; whether to subject the exercise of all or any portion of an
option to the fulfillment of contingencies as specified in the contract referred
to in Paragraph 11 (the "Contract"), including without limitation, contingencies
relating to entering into a covenant not to compete with the Company and its
Parent (as defined in Paragraph 19) and Subsidiaries, to financial objectives
for the Company, a Subsidiary, a division, a product line or other category,
and/or the period of continued employment of the optionee with the Company or
its Subsidiaries, and to determine whether such contingencies have been met; the
amount, if any, necessary to satisfy the Company's obligation to withhold taxes
or other amounts; with the consent of the optionee, to cancel or modify an
option, provided such option as modified would be permitted to be granted on
such date under the terms of the Plan; to construe the respective Contracts and
the Plan; to prescribe, amend and rescind rules and regulations relating to the
Plan; and to make all other determinations necessary or advisable for
administering the Plan. The determinations of the Committee on the matters
referred to in this Paragraph 3 shall be conclusive.
No member or former member of the Committee shall be liable
for any action or determination made in good faith with respect to the Plan or
any option granted hereunder. In addition, each member and former member of the
Committee shall be indemnified and held harmless by the Company from and against
any liability, claim for damages and expenses in connection therewith by reason
of any action or failure to act under or in connection with the Plan or any
option granted hereunder to the fullest extent permitted with respect to
directors under the Company's certificate of incorporation, by-laws and
applicable law.
4. ELIGIBILITY. The Committee may from time to time,
consistent with the purposes of the Plan, grant (a) Employee Options to key
employees (including officers and directors who are key employees) of the
Company or any of its Subsidiaries, (b) Consultant Options to consultants and
advisors of the Company or any of its Subsidiaries, (c) prior to November 21,
1996 Outside Director Options to directors of the Company who at the time of
grant are neither common law employees of the Company or of any of its
Subsidiaries nor a member of the Committee and (d) on or after November 21, 1996
Outside Director Options to directors of the Company who at the time of grant
are not common law employees of the Company or of any of its Subsidiaries. Such
options granted shall cover such number of shares of Common Stock as the
Committee may determine; provided, however, that the maximum number of shares
subject to Employee Options that may be granted to any individual during any
calendar year under the Plan shall not exceed 100,000 shares; and provided
further that the aggregate market value (determined at the time the option is
granted) of the shares of Common Stock for which any eligible employee may be
granted ISOs under the Plan or any other plan of the Company, or of a Parent or
a Subsidiary of the Company, which are exercisable for the first time by such
optionee during any calendar year shall not exceed $100,000. The $100,000 ISO
limitation shall be applied by taking ISOs into account in the order in which
they
<PAGE>
were granted. Any option (or the portion thereof) granted in excess of such
amount shall be treated as a NQSO.
5. EXERCISE PRICE. The exercise price of the shares of Common
Stock under each option shall be determined by the Committee; provided, however,
that the exercise price of an ISO shall not be less than the fair market value
of the Common Stock subject to such option on the date of grant; and provided
further that if, at the time an ISO is granted, the optionee owns (or is deemed
to own under Section 424(d) of the Code) stock possessing more than 10% of the
total combined voting power of all classes of stock of the Company, of any of
its Subsidiaries or of a Parent, the exercise price of such ISO shall not be
less than 110% of the fair market value of the Common Stock subject to such ISO
on the date of grant.
The fair market value of a share of Common Stock on any day
shall be (a) if the principal market for the Common Stock is a national
securities exchange, the average between the high and low sales prices per share
of the Common Stock on such day as reported by such exchange or on a
consolidated tape reflecting transactions on such exchange, (b) if the principal
market for the Common Stock is not a national securities exchange and the Common
Stock is quoted on the National Association of Securities Dealers Automated
Quotations System ("NASDAQ"), and (i) if actual sales price information is
available with respect to the Common Stock, the average between the high and low
sales prices per share of the Common Stock on such day on NASDAQ, or (ii) if
such information is not available, the average between the highest bid and the
lowest asked prices per share for the Common Stock on such day on NASDAQ, or (c)
if the principal market for the Common Stock is not a national securities
exchange and the Common Stock is not quoted on NASDAQ, the average between the
highest bid and lowest asked prices per share for the Common Stock on such day
as reported on the NASDAQ OTC Bulletin Board Service, National Quotation Bureau,
Incorporated or a comparable service; provided that if clauses (a), (b) and (c)
of this Paragraph are all inapplicable, or if no trades have been made or no
quotes are available for such day, the fair market value of a share of Common
Stock shall be determined by the Committee by any method consistent with
applicable regulations adopted by the Treasury Department relating to stock
options. The determination of the Committee shall be conclusive in determining
the fair market value of the Common Stock.
6. TERM. The term of each option granted pursuant to the Plan
shall be such term as is established by the Committee, in its sole discretion,
at or before the time such option is granted; provided, however, that the term
of each ISO granted pursuant to the Plan shall be for a period not exceeding 10
years from the date of grant thereof, and provided further that if, at the time
an ISO is granted, the optionee owns (or is deemed to own under Section 424(d)
of the Code) stock possessing more than 10% of the total combined voting power
of all classes of stock of the Company, of any of its Subsidiaries or of a
Parent, the term of the ISO shall be for a period not exceeding five years from
the date of grant. Options shall be subject to earlier termination as
hereinafter provided.
7. EXERCISE. An option (or any part or installment thereof),
to the extent then exercisable, shall be exercised by giving written notice to
the Company at its principal office stating which option is being exercised,
specifying the number of shares of Common Stock as to which such option is being
exercised and accompanied by payment in full of the aggregate exercise price
therefor
<PAGE>
(or the amount due on exercise if the Contract permits installment payments) (a)
in cash or by certified check, or (b) if the applicable Contract permits, with
previously acquired shares of Common Stock having an aggregate fair market
value, on the date of exercise, equal to the aggregate exercise price of all
options being exercised, or with any combination of cash, certified check or
shares of Common Stock. In such case, the fair market value of the Common Stock
shall be determined in accordance with Paragraph 5.
The Committee may, in its discretion, permit payment of the
exercise price of an option by delivery by the optionee of a properly executed
notice, together with a copy of his irrevocable instructions to a broker
acceptable to the Committee to deliver promptly to the Company the amount of
sale or loan proceeds sufficient to pay such exercise price. In connection
therewith, the Company may enter into agreements for coordinated procedures with
one or more brokerage firms.
A person entitled to receive Common Stock upon the exercise of
an option shall not have the rights of a stockholder with respect to such shares
of Common Stock until the date of issuance of a stock certificate to him for
such shares; provided, however, that until such stock certificate is issued, any
option holder using previously acquired shares of Common Stock in payment of an
option exercise price shall continue to have the rights of a stockholder with
respect to such previously acquired shares.
In no case may a fraction of a share of Common Stock be
purchased or issued under the Plan.
8. TERMINATION OF RELATIONSHIP. Except as may otherwise be
expressly provided in the applicable Contract, any holder of an Employee Option
whose employment with the Company and its Parent and Subsidiaries) has
terminated for any reason other than his death or Disability (as defined in
Paragraph 19) may exercise such option, to the extent exercisable on the date of
such termination, at any time within three months after the date of termination,
but not thereafter and in no event after the date the option would otherwise
have expired; provided, however, that if his employment is terminated either (a)
for cause, or (b) without the consent of the Company, such option shall
terminate immediately. Except as may otherwise be expressly provided in the
applicable Contract, Employee Options granted under the Plan shall not be
affected by any change in the status of the holder so long as he continues to be
an employee or a consultant or advisor of the Company, its Parent or any of the
Subsidiaries (regardless of having been transferred from one corporation to
another).
For the purposes of the Plan, an employment relationship shall
be deemed to exist between an individual and a corporation if, at the time of
the determination, the individual was an employee of such corporation for
purposes of Section 422(a) of the Code. As a result, an individual on military,
sick leave or other bona fide leave of absence shall continue to be considered
an employee for purposes of the Plan during such leave if the period of the
leave does not exceed 90 days, or, if longer, so long as the individual's right
to reemployment with the Company (or a related corporation) is guaranteed either
by statute or by contract. If the period of leave exceeds 90 days and the
<PAGE>
individual's right to reemployment is not guaranteed by statute or by contract,
the employment relationship shall be deemed to have terminated on the 91st day
of such leave.
Except as may otherwise be expressly provided in the
applicable Contract, the holder of a Consultant Option whose consulting or
advisory relationship with the Company (and its Parent and Subsidiaries) has
terminated for any reason may exercise such option to the extent exercisable on
the date of such termination, at any time within three months after the date of
termination, but not thereafter and in no event after the date the option would
otherwise have expired; provided, however, that if such relationship was
terminated either (a) for cause or (b) without the consent of the Company (other
than as a result of the death or Disability of the holder or a key employee of
the holder), such option shall terminate immediately. Except as may otherwise be
expressly provided in the applicable Contract, Consultant Options granted under
the Plan shall not be affected by a change in the relationship with the holder,
so long as the holder of the option continues to be a consultant of the Company,
its Parent or any of its Subsidiaries (regardless of having ceased to be a
consultant for any other of such corporations).
Except as may otherwise be expressly provided in the
applicable Contract, the holder of an Outside Director Option whose directorship
with the Company has terminated for any reason other than his death or
Disability may exercise such option, to the extent exercisable on the date of
such termination, at any time within three months after the date of termination,
but not thereafter and in no event after the date the option would otherwise
have expired; provided, however, that if his directorship shall be terminated
for cause, such option shall terminate immediately.
Nothing in the Plan or in any option granted under the Plan
shall confer on any person any right to continue in the employ or as a
consultant or advisor of the Company, its Parent or any of its Subsidiaries, or
as a director of the Company, or interfere in any way with any right of the
Company, its Parent or any of its Subsidiaries to terminate the holder's
relationship at any time for any reason whatsoever without liability to the
Company, its Parent or any of its Subsidiaries.
9. DEATH OR DISABILITY OF AN OPTIONEE. Except as may otherwise
be expressly provided in the applicable Contract, if an optionee dies (a) while
he is employed by the Company, its Parent or any of its Subsidiaries, (b) within
three months after the termination of his employment (unless such termination
was for cause or without the consent of the Company) or (c) within one year
following the termination of his employment by reason of Disability, his
Employee Option may be exercised, to the extent exercisable on the date of his
death, by his Legal Representative (as defined in Paragraph 19), at any time
within one year after death, but not thereafter and in no event after the date
the option would otherwise have expired. Except as may otherwise be expressly
provided in the applicable Contract, any optionee whose employment has
terminated by reason of Disability may exercise his Employee Option, to the
extent exercisable upon the effective date of such termination, at any time
within one year after such date, but not thereafter and in no event after the
date the option would otherwise have expired.
The termination of a Consultant Option as a result of the
death or Disability of the holder of the option (or a key employee thereof)
shall be governed by Paragraph 8.
<PAGE>
Except as may otherwise be expressly provided in the
applicable Contract, if an optionee dies (a) while he is a director of the
Company, (b) within three months after the termination of his directorship with
the Company (unless such termination was for cause) or (c) within one year after
the termination following the termination of his directorship by reason of
Disability, his Outside Director Options may be exercised, to the extent
exercisable on the date of his death, by his Legal Representative at any time
within one year after death, but not thereafter and in no event after the date
the option would otherwise have expired. Except as may otherwise be expressly
provided in the applicable Contract, an optionee whose directorship with the
Company has terminated by reason of Disability, may exercise his Outside
Director Options, to the extent exercisable on the effective date of such
termination, at any time within one year after such date, but not thereafter and
in no event after the date the option would otherwise have expired.
10. COMPLIANCE WITH SECURITIES LAWS. The Committee may
require, in its discretion, as a condition to the exercise of any option that
either (a) a Registration Statement under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the shares of Common Stock to be issued
upon such exercise shall be effective and current at the time of exercise, or
(b) there is an exemption from registration under the Securities Act for the
issuance of shares of Common Stock upon such exercise. Nothing herein shall be
construed as requiring the Company to register shares subject to any option
under the Securities Act.
The Committee may require the optionee to execute and deliver
to the Company his representations and warranties, in form and substance
satisfactory to the Committee, that (a) the shares of Common Stock to be issued
upon the exercise of the option are being acquired by the optionee for his own
account, for investment only and not with a view to the resale or distribution
thereof, and (b) any subsequent resale or distribution of shares of Common Stock
by such optionee will be made only pursuant to (i) a Registration Statement
under the Securities Act which is effective and current with respect to the
shares of Common Stock being sold, or (ii) a specific exemption from the
registration requirements of the Securities Act, but in claiming such exemption,
the optionee shall prior to any offer of sale or sale of such shares of Common
Stock provide the Company with a favorable written opinion of counsel, in form
and substance satisfactory to the Company, as to the applicability of such
exemption to the proposed sale or distribution.
In addition, if at any time the Committee shall determine in
its discretion that the listing or qualification of the shares of Common Stock
subject to such option on any securities exchange or under any applicable law,
or the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition to, or in connection with, the granting of an option or
the issue of shares of Common Stock thereunder, such option may not be exercised
in whole or in part unless such listing, qualification, consent or approval
shall have been effected or obtained free of any conditions not acceptable to
the Committee.
11. STOCK OPTION CONTRACTS. Each option shall be
evidenced by an appropriate Contract which shall be duly executed by the Company
and the optionee, and shall contain such terms and conditions not inconsistent
herewith as may be determined by the Committee.
<PAGE>
12. ADJUSTMENTS UPON CHANGES IN COMMON STOCK.
Notwithstanding any other provisions of the Plan, in the event of any change in
the outstanding Common Stock by reason of a stock dividend, recapitalization,
merger in which the Company is the surviving corporation, split-up, combination
or exchange of shares or the like, the aggregate number and kind of shares
subject to the Plan, the aggregate number and kind of shares subject to each
outstanding option and the exercise price thereof, and the maximum number of
shares subject to Employee Options that may be granted to any individual in any
calendar year, shall be appropriately adjusted by the Board of Directors, whose
determination shall be conclusive.
13. AMENDMENTS AND TERMINATION OF THE PLAN. The Plan was
adopted by the Board of Directors on August 7, 1994 and amended on November 21,
1996. No option may be granted under the Plan after August 6, 2004. The Board of
Directors, without further approval of the Company's stockholders, may at any
time suspend or terminate the Plan, in whole or in part, or amend it from time
to time in such respects as it may deem advisable, including, without
limitation, in order that ISOs granted hereunder meet the requirements for
"incentive stock options" under the Code, to comply with the provisions of Rule
16b-3 promulgated the Exchange Act or Section 162(m) of the Code, and to conform
to any change in applicable law or to regulations or rulings of administrative
agencies; provided, however, that no amendment shall be effective without the
requisite prior or subsequent stockholder approval which would (a) except as
contemplated in Paragraph 12, increase the maximum number of shares of Common
Stock for which options may be granted under the Plan, (b) prior to November 21,
1996 materially increase the benefits to participants under the Plan, (c) change
the eligibility requirements for individuals entitled to receive options
hereunder or (d) make any change for which applicable law or regulatory
authority requires stockholder approval. No termination, suspension or amendment
of the Plan shall, without the consent of the holder of an existing option
affected thereby, adversely affect his rights under such option. The power of
the Committee to construe and administer any options granted under the Plan
prior to the termination or suspension of the Plan nevertheless shall continue
after such termination or during such suspension.
14. NON-TRANSFERABILITY OF OPTIONS. No option granted under
the Plan shall be transferable otherwise than by will or the laws of descent and
distribution, and options may be exercised, during the lifetime of the holder
thereof, only by him or his legal representatives. Except to the extent provided
above, options may not be assigned, transferred, pledged, hypothecated or
disposed of in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment or similar process.
15. WITHHOLDING TAXES. The Company may withhold cash and/or
shares of Common Stock to be issued with respect thereto having an aggregate
fair market value equal to the amount which it determines is necessary to
satisfy its obligation to withhold Federal, state and local income taxes or
other amounts incurred by reason of the grant or exercise of an option, its
disposition, or the disposition of the underlying shares of Common Stock.
Alternatively, the Company may require the holder to pay to the Company such
amount, in cash, promptly upon demand. The Company shall not be required to
issue any shares of Common Stock pursuant to any such option until all required
payments have been made. Fair market value of the shares of Common Stock shall
be determined in accordance with Paragraph 5.
<PAGE>
16. LEGENDS; PAYMENT OF EXPENSES. The Company may endorse
such legend or legends upon the certificates for shares of Common Stock issued
upon exercise of an option under the Plan and may issue such "stop transfer"
instructions to its transfer agent in respect of such shares as it determines,
in its discretion, to be necessary or appropriate to (a) prevent a violation of,
or to perfect an exemption from, the registration requirements of the Securities
Act, (b) implement the provisions of the Plan or any agreement between the
Company and the optionee with respect to such shares of Common Stock, or (c)
permit the Company to determine the occurrence of a "disqualifying disposition,"
as described in Section 421(b) of the Code, of the shares of Common Stock
transferred upon the exercise of an ISO granted under the Plan.
The Company shall pay all issuance taxes with respect to the
issuance of shares of Common Stock upon the exercise of an option granted under
the Plan, as well as all fees and expenses incurred by the Company in connection
with such issuance.
17. USE OF PROCEEDS. The cash proceeds from the sale of
shares of Common Stock pursuant to the exercise of options under the Plan shall
be added to the general funds of the Company and used for such corporate
purposes as the Board of Directors may determine.
18. SUBSTITUTIONS AND ASSUMPTIONS OF OPTIONS OF CERTAIN
CONSTITUENT CORPORATIONS. Anything in this Plan to the contrary notwithstanding,
the Board of Directors may, without further approval by the stockholders,
substitute new options for prior options of a Constituent Corporation (as
defined in Paragraph 19) or assume the prior options of such Constituent
Corporation.
19. DEFINITIONS.
(a) Subsidiary. The term "Subsidiary" shall have the
same definition as "subsidiary corporation" in Section 424(f) of the Code.
(b) Parent. The term "Parent" shall have the same
definition as "parent corporation" in Section 424(e) of the Code.
(c) Constituent Corporation. The term "Constituent
Corporation" shall mean any corporation which engages with the Company, its
Parent or any Subsidiary in a transaction to which Section 424(a) of the Code
applies (or would apply if the option assumed or substituted were an ISO), or
any Parent or any Subsidiary of such corporation.
(d) Disability. The term "Disability" shall mean a
permanent and total disability within the meaning of Section 22(e)(3) of the
Code.
(e) Employee Option. The term "Employee Option"
shall mean an option granted pursuant to the Plan to an individual who, at the
time of grant, is a key employee of the Company or a Subsidiary of the Company.
<PAGE>
(f) Consultant Option. The term "Consultant Option"
shall mean a NQSO granted pursuant to the Plan to a person who, at the time of
grant, is a consultant or advisor of the Company or a Subsidiary of the Company,
and at such time is neither a common law employee of the Company or any of its
Subsidiaries nor a director of the Company.
(g) Outside Director Option. The term "Outside
Director Option" shall mean a NQSO granted pursuant to the Plan to a director of
the Company who, at the time of the grant, (x) is neither a common law employee
of the Company or any of its Subsidiaries nor a member of the Committee if the
grant is made prior to November 21, 1996 and (y) is not a common law employee of
the Company or any of its Subsidiaries if the grant is made on or after November
21, 1996.
(h) Legal Representative. The term "Legal
Representative" shall mean, with respect to an optionee, his executor,
administrator or other person at the time entitled by law to his rights under an
option granted pursuant to the Plan.
20. GOVERNING LAW. The Plan, such options as may be
granted hereunder and all related matters shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without regard to conflict
of law provisions.
21. PARTIAL INVALIDITY. The invalidity or illegality of
any provision herein shall not affect the validity of any other provision.
22. STOCKHOLDER APPROVAL. The Plan shall be subject to
approval by a majority of the votes present in person or by proxy at the next
duly held meeting of the Company's stockholders at which a quorum is present. No
options granted hereunder may be exercised prior to such approval, provided that
the date of grant of any options granted hereunder shall be determined as if the
Plan had not been subject to such approval. Notwithstanding the foregoing, if
the Plan is not approved by a vote of the stockholders of the Company on or
before August 6, 1995, the Plan and any options granted hereunder shall
terminate.
EXHIBIT 5.01
<PAGE>
March 6, 1997
Audits & Surveys Worldwide, Inc.
650 Avenue of the Americas
New York, New York 10011
Gentlemen:
We have acted as counsel to Audits & Surveys Worldwide, Inc.
(the "Registrant") in connection with its Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to 650,000 shares of Common Stock, par value $.01 per share,
of the Registrant (the "Shares"), issuable upon exercise of options granted or
to be granted under the Registrant's 1994 Stock Option Plan (the "Plan").
In connection with the foregoing, we have examined, among
other things, the Plan, the Registration Statement and originals or copies,
satisfactory to us, of all such corporate records and of all such agreements,
certificates and other documents as we have deemed relevant and necessary as a
basis for the opinion hereinafter expressed. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity with the original documents of
documents submitted to us as copies. As to any facts material to such opinion,
we have, to the extent that relevant facts were not independently established by
us, relied on certificates of public officials and certificates, oaths and
declarations of officers or other representatives of the Registrant.
Based upon and subject to the foregoing, we are of the opinion
that the Shares to be issued pursuant to the exercise of options granted or to
be granted under the Plan will be, when issued pursuant to the provisions of the
Plan, validly issued, fully paid and non-assessable.
We hereby consent to the filing of a copy of this opinion as
an exhibit to the Registration Statement.
Very truly yours,
/s/ Parker Chapin Flattau & Klimpl, LLP
---------------------------------------
Parker Chapin Flattau & Klimpl, LLP
EXHIBIT 23.01
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to use in this Registration Statement on Form S-8 relating to the
1994 Stock Option Plan of Audits & Surveys Worldwide, Inc. of our report dated
March 15, 1996 appearing in the Annual Report on Form 10-K of Audits & Surveys
Worldwide, Inc.
/s/ Deloitte & Touche LLP
New York, New York
March 3, 1997
