As filed with the Securities and Exchange Commission on July 21, 1995
Subject to amendment.
Registration No. 33-
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-------------
E&B MARINE INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-2430891
(State or other jurisdic- (I.R.S. Employer
tion of incorporation Identification No.)
or organization)
----------------
201 Meadow Road
Edison, New Jersey 08818
(Address of principal executive offices)
----------------
E&B MARINE INC.
AMENDED AND RESTATED
1983 STOCK OPTION PLAN
(Full title of the plan)
----------------
KENNETH G. PESKIN
Chairman of the Board and
Chief Executive Officer
E&B Marine Inc.
201 Meadow Road
Edison, New Jersey 08818
(908) 819-7400
(Name, address and telephone number,
including area code, of agent for service)
-----------------
Copy to:
BRADLEY P. COST, Esq.
Haythe & Curley
237 Park Avenue
New York, New York 10017
------------------
CALCULATION OF REGISTRATION FEE
===========================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share* price* fee
- ----------- ---------- ---------- -------- ----------
Common Stock 150,000 $5.25 $787,500 $271.56
($.001 par shares
value)
=========================================================================
*Estimated solely for purposes of calculating the registration fee on the
basis of the average of the high and low prices of the Common Stock on
July 18, 1995, as reported on the NASDAQ Stock Market's National Market.
=========================================================================
This Registration Statement is intended, pursuant to Rule 429 of the
Securities and Exchange Commission, to constitute Post-Effective Amendment
No. 2 to Registration Statement on Form S-8 (No. 2-91409) and Post-
Effective Amendment No. 1 on Form S-8 (No. 33-42413). See "Explanatory
Note."
Page 1 of 34 Pages
Exhibit Index Appears at Page 8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
----------------------------------------
The contents of Registration Statement No. 2-91409 as amended by
Registration Statement 33-42413, pursuant to which the Company registered
an aggregate of 500,000 shares of Common Stock for sale by the Company
pursuant to options granted under the Company's 1983 Stock Option Plan, and
all documents incorporated by reference therein, are incorporated by
reference in this Registration Statement.
Item 5. Interests of Named Experts and Counsel.
---------------------------------------
The validity of the securities being offered hereby is being
passed upon for the Company by Haythe & Curley, 237 Park Avenue, New York,
New York 10017. As of July 17, 1995, a partner in such firm, owned 250
shares of Common Stock and presently exercisable warrants to purchase
12,376 shares of Common Stock at an exercise price of $7.56 per share.
Item 8. Exhibits.
---------
The Exhibits required to be filed as part of this Registration
Statement are listed in the attached Index to Exhibits.
II-1
POWER OF ATTORNEY
The Registrant and each person whose signature appears below
hereby appoints Kenneth G. Peskin and Walfrido A. Martinez as
attorneys-in-fact with full power of substitution, severally, to execute
in the name and on behalf of the Registrant and each such person,
individually and in each capacity stated below, one or more post-effective
amendments to this Registration Statement as the attorney-in-fact acting
in the premises deems appropriate and to file any such amendment to this
Registration Statement with the Securities and Exchange Commission.
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 Edison, State of New Jersey on
the 17th day of July, 1995.
E&B MARINE INC.
By Kenneth G. Peskin
-----------------------
Kenneth G. Peskin
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
Kenneth G. Peskin Chairman of the Board, July 17, 1995
------------------------ Chief Executive Officer
Kenneth G. Peskin and Director (Principal
Executive Officer)
II-2
Bradford R. Klatt Director July 17, 1995
------------------------
Bradford R. Klatt
Richard E. Kroon Director July 17, 1995
------------------------
Richard E. Kroon
Theodore A. Pamperin Director July 17, 1995
------------------------
Theodore A. Pamperin
Paul B. Queally Director July 17, 1995
------------------------
Paul B. Queally
William V. Roberti Director July 17, 1995
------------------------
William V. Roberti
John H. Weiland Director July 17, 1995
------------------------
John H. Weiland
Walfrido A. Martinez Senior Vice President July 17, 1995
-------------------- and Chief Financial
Walfrido A. Martinez Officer (Principal
Financial Officer and
Principal Accounting
Officer)
II-3
CONSENT OF COUNSEL
The consent of Haythe & Curley is contained in their opinion
filed as Exhibit 5 to this Registration Statement.
II-4
Independent Auditors' Consent
------------------------------
The Board of Directors
E&B Marine Inc.:
We consent to incorporation by reference in this registration statement on
Form S-8 of E&B Marine Inc. of our report dated February 17, 1995, relating
to the consolidated balance sheets of E&B Marine Inc. and subsidiaries as
of December 31, 1994 and December 25, 1993, and the related consolidated
statements of operations, shareholders' equity (deficit), and cash flows
for each of the years in the three-year period ended December 31, 1994,
which report appears in the December 31, 1994 annual report on Form 10-K
of E&B Marine Inc.
Our report refers to a change in the method of accounting for income taxes.
KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Short Hills, New Jersey
July 19, 1995
II-5
EXPLANATORY NOTE
----------------
This Registration Statement is intended, pursuant to Rule 429 of
the Securities and Exchange Commission, to constitute Post-Effective
Amendment No. 2 to Registration Statement on Form S-8 (No. 2-91409) and
Post-Effective Amendment No. 1 to Registration Statement on Form S-8 (No.
33-42413).
II-6
INDEX TO EXHIBITS
Number Description of Exhibit Page
- ------ ------------------------------- ----
4(i) - E&B Marine Inc. 1983 Stock Option Plan,
as amended (the "Stock Option Plan") 9
4(ii) - Form of Stock Option Certificate under the
Stock Option Plan 15
4(iii) - Form of Incentive Stock Option Certificate
under the Stock Option Plan 24
5 - Opinion of Haythe & Curley 35
23(i) - Consent of KPMG Peat Marwick LLP, Independent
Auditors (see "Consent of Independent Auditors"
in the Registration Statement) --
23(iii) - Consent of Haythe & Curley (contained in Exhibit 5) --
24 - Power of Attorney (see "Power of
Attorney" in the Registration Statement) --
II-7
Exhibit 4 (i)
E&B MARINE INC.
1983 STOCK OPTION PLAN
as Amended and Restated, Effective June 20, 1995
1. Purposes of Plan. The purposes of the Plan, which
shall be known as the E&B Marine Inc. 1983 Stock Option Plan and
is hereinafter referred to as the "Plan", are (i) to provide
incentives for key employees, directors, consultants and other
individuals providing services to E&B Marine Inc. (the "Company")
and its subsidiary corporations (within the meaning of Section
424(f) of the Internal Revenue Code of 1986, as amended (the
"Code"), and referred to herein as "Subsidiary") by encouraging
their ownership of the common stock, $.001 par value, of the
Company (the "Stock") and (ii) to aid the Company in retaining
such key employees, directors, consultants and other individuals
upon whose efforts the Company's success and future growth
depends, and attracting other such employees, directors,
consultants and other individuals.
2. Administration. The Plan shall be administered by
the Compensation and Stock Option Committee (the "Committee") of
the Board of Directors, as hereinafter provided. For purposes of
administration, the Committee, subject to the terms of the Plan,
shall have plenary authority to establish such rules and
regulations, to make such determinations and interpretations, and
to take such other administrative actions as it deems necessary
or advisable. All determinations and interpretations made by the
Committee shall be final, conclusive and binding on all persons,
including optionees and their legal representatives and
beneficiaries. Notwithstanding the foregoing, in the event that
there is no Compensation Committee, then the powers to be
exercised by the Compensation Committee hereunder shall be
exercised by the Board of Directors.
The Committee shall be appointed from time to time by the Board
of Directors and shall consist of not fewer than three of its
members. Unless otherwise determined by the Board of Directors,
no member of the Board of Directors who serves on the Committee
shall be eligible to participate in the Plan. The Board of
Directors shall designate one of the members of the Committee as
its Chairman. The Committee shall hold its meetings at such
times and places as it may determine. A majority of its members
shall constitute a quorum. All determinations of the Committee
shall be made by a majority of its members. Any decision or
determination reduced to writing and signed by all members shall
be as effective as if it had been made by a majority vote at a
meeting duly called and held. The Committee may appoint a
secretary (who need not be a member of the Committee). No member
of the Committee shall be liable for any act or omission with
respect to his service on the Committee, if he acts in good faith
and in a manner he reasonably believes to be in or not opposed to
the best interests of the Company.
3. Stock Available for Options. There shall be
available for options under the Plan a total of 650,000 shares of
Stock, subject to any adjustments which may be made pursuant to
Section 5(f) hereof. Shares of Stock used for purposes of the
Plan may be either authorized and unissued shares, or previously
issued shares held in the treasury of the Company, or both.
Shares of Stock covered by options which have terminated or
expired prior to exercise shall be available for further options
hereunder.
2
4. Eligibility. Options under the Plan may be granted
to key employees of the Company or any Subsidiary, including
officers or directors of the Company or any Subsidiary, and to
directors, consultants and other individuals providing services
to the Company or any Subsidiary. Options may be granted to
eligible employees whether or not they hold or have held options
previously granted under the Plan or otherwise granted or assumed
by the Company. In selecting employees for options, the
Committee may take into consideration any factors it may deem
relevant, including its estimate of the employee's present and
potential contributions to the success of the Company and its
Subsidiaries. Service as a director, officer or consultant of or
to the Company or any Subsidiary shall be considered employment
for purposes of the Plan (and the period of such service shall be
considered the period of employment for purposes of Section 5(d)
of the Plan); provided, however, that incentive stock options may
be granted under the Plan only to an individual who is an
"employee" (as such term is used in Section 422 of the Code) of
the Company or any Subsidiary.
5. Terms and Conditions of Options. The Committee
shall, in its discretion, prescribe the terms and conditions of
the options to be granted hereunder, which terms and conditions
need not be the same in each case, subject to the following:
(a) Option Price. The price at which each share of
Stock covered by an option granted under the Plan may be
purchased shall be determined by the Committee and shall not be
less than the lesser of (i) the tangible book value per share of
Stock, determined in accordance with generally accepted
accounting principles as of the end of the fiscal quarter of the
Company immediately preceding the fiscal quarter in which the
option is granted, or (ii) the market value per share of Stock on
the date of grant of the option. The date of grant of an option
shall be the date specified by the Committee in its grant of the
option.
(b) Option Period. The period for exercise of an
option shall in no event be more than ten years from the date of
grant, or in the case of any option intended to be an incentive
stock option granted to an individual owning, on the date of
grant, stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or any
Subsidiary, more than five years from the date of grant. Options
may, in the discretion of the Committee, be made exercisable in
installments during the option period. Any shares not purchased
on any applicable installment date may be purchased thereafter at
any time before the expiration of the option period. The
Committee shall have the authority at any time to accelerate the
exercisability of all or any portion of any option granted under
the Plan.
(c) Exercise of Options. In order to exercise an
option, the Optionee shall deliver to the Company written notice
specifying the number of shares of Stock to be purchased,
together with cash or a certified or bank cashier's check payable
to the order of the Company in the full amount of the purchase
price therefor; provided that, for the purpose of assisting an
Optionee to exercise an option, the Company may make loans to the
Optionee or guarantee loans made by third parties to the
Optionee, on such terms and conditions as the Board of Directors
may authorize; and provided further that such purchase price may
be paid in shares of Stock owned by the Optionee for a period of
at least six months having a market value on the date of exercise
equal to the aggregate purchase price, by the surrender of
options which are then exercisable, or in a combination of cash
and Stock and surrender of options.
3
Upon surrender of options in payment of the purchase price the
optionee shall be entitled to receive that number of shares of
Stock determined by dividing (x) the difference between the
aggregate market value on the date of exercise of the shares of
Stock issuable in respect of the options so surrendered and the
aggregate exercise price of the options so surrendered by (y) the
market value per share of Stock on the date of exercise. For
purposes of this Section 5(c), the market value per share of
Stock shall be the last sale price regular way on the date of
reference, or, in case no sale takes place on such date, the
average of the high bid and low bid prices, in either case on the
principal national securities exchange on which the Stock is
listed or admitted to trading, or if the Stock is not listed or
admitted to trading on any national securities exchange, the last
sale price reported on the National Market System of the National
Association of Securities Dealers Automated Quotation System
("NASDAQ") on such date, or the average of the closing high bid
and low asked prices of the Stock in the over-the-counter market
reported on NASDAQ on such date, whichever is applicable, or if
there are no such prices reported on NASDAQ on such date, as
furnished to the Committee by any New York Stock Exchange member
selected from time to time by the Committee for such purpose. If
there is no bid or asked price reported on any such date, the
market value shall be determined by the Committee in accordance
with the regulations promulgated under Section 2031 of the Code,
or by any other appropriate method selected by the Committee. If
the Optionee so requests, shares of Stock purchased upon exercise
of an option may be issued in the name of the Optionee or another
person. An Optionee shall have none of the rights of a
stockholder until the shares of Stock are issued to him. An
option may not be exercised for less than ten shares of Stock, or
the number of shares of Stock remaining subject to such option,
whichever is smaller.
(d) Effect of Termination of Employment. An option may
not be exercised after the Optionee has ceased to be in the
employ of the Company or any Subsidiary, except in the following
circumstances:
(i) If the Optionee's employment is terminated by action
of his employer, or by reason of disability or retirement under
any retirement plan maintained by the Company or any Subsidiary,
the option may be exercised by the Optionee within three months
after such termination, but only as to any shares exercisable on
the date the Optionee's employment so terminates;
(ii) In the event of the death of the Optionee during the
three month period after termination of employment covered by (i)
above, the person or persons to whom his rights are transferred
by will or the laws of descent and distribution shall have a
period of one year from the date of his death to exercise any
options which were exercisable by the Optionee at the time of his
death;
(iii) In the event of the death of the Optionee while
employed, (a) any option granted prior to June 20, 1995 shall
thereupon become exercisable in full and (b) any option granted
on or after June 20, 1995 shall be exercisable only to the extent
exercisable by the Optionee at the time of his death, and, in the
case of either (a) or (b), the person or persons to whom the
Optionee's rights are transferred by and will or the laws of descent
and distribution shall have a period of one year from the date
of the Optionee's death to exercise such option. The provisions
of the foregoing sentence shall apply to any outstanding options
which are incentive stock options to the extent permitted by
Section 422(d) of the Code and such outstanding options in excess
thereof shall, immediately upon the occurrence of the event
4
described in the preceding sentence, be treated for all purposes
of the Plan as nonstatutory stock options and shall be
immediately exercisable as such as provided in the foregoing
sentence.
Notwithstanding any provision of the Plan to the contrary, the
Committee shall have the authority to extend the period during
which any option may be exercised; provided, however, that an
option may not be exercised more than eighteen (18) months after
termination of employment and in no event shall any option be
exercisable more than ten years from the date of grant thereof.
Nothing in the Plan or in any option granted pursuant to the Plan
(in the absence of an express provision to the contrary) shall
confer on any individual any right to continue in the employ of
the Company or any Subsidiary or interfere in any way with the
right of the Company to terminate his employment at any time.
(e) Nontransferability of Options. Except as provided in
the next sentence, (i) during the lifetime of an Optionee,
options held by such Optionee shall be exercisable only by him
and (ii) no option shall be transferable other than by will or
the laws of descent and distribution. The Committee shall have
the authority to make any option transferable in whole or part by
the optionee to members of the family of the optionee or to
trusts for the benefit of, or partnerships or other entities
beneficially owned by, the optionee or members of his family.
(f) Adjustments for Change in Stock Subject to Plan. In
the event of a reorganization, recapitalization, stock split,
stock dividend, combination of shares, merger, consolidation,
rights offering, extraordinary dividend or divestiture (including
a spin-off) or any other change in the corporate structure or
shares of the Company, (i) except as provided in (ii) below, the
Committee shall make such adjustments, if any, as it deems
appropriate in the number and kind of shares subject to the Plan,
in the number and kind of shares covered by outstanding options,
or in the option price per share, or both and (ii) the Board of
Directors of the Company shall make such adjustments, if any, as
it deems appropriate in the maximum number of shares which may be
subject to options granted to all directors of the Company and in
the maximum number of shares which may be subject to options
granted to each director, in each case pursuant to Section 5(j),
in the number and kind of shares covered by outstanding options,
or in the option price per share, or both, with respect to
options held by directors of the Company.
(g) Acceleration of Exercisability of Options Upon
Occurrence of Certain Events. In connection with any merger or
consolidation in which the Company is not the surviving
corporation and which results in the holders of the outstanding
voting securities of the Company (determined immediately prior to
such merger or consolidation) owning less than a majority of the
outstanding voting securities of the surviving corporation
(determined immediately following such merger or consolidation),
or any sale or transfer by the Company of all or substantially
all its assets or any tender offer or exchange offer for or the
acquisition, directly or indirectly, by any person or group of
all or a majority of the then outstanding voting securities of the
Company, all outstanding options under the Plan shall become
exercisable in full, notwithstanding any other provision of the
Plan or of any outstanding options granted thereunder, on and
after (i) the fifteenth day prior to the effective date of such
merger, consolidation, sale, transfer or acquisition or (ii) the
date of commencement of such tender offer or exchange offer, as
the case may be. The provisions of the foregoing sentence shall
apply to any outstanding options which are incentive stock
options to the extent permitted by Section 422(d) of the Code and
such outstanding options in excess thereof shall, immediately
upon the occurrence of the event described in clause (i) or (ii)
of the foregoing sentence, be treated for all purposes of the
plan as nonstatutory stock options and shall be immediately
5
exercisable as such as provided in the foregoing sentence.
Notwithstanding the foregoing, in no event shall any option be
exercisable after the date of termination of the exercise period
of such option specified in Sections 5(b), 5(d) and 5(j)(2). The
provisions of this Section 5(g) shall apply to all options
granted under the Plan prior to June 20, 1995, but shall apply to
options granted after that date only if the option certificate
evidencing such grant so provides.
(h) Registration, Listing and Qualification of Shares of
Stock. Each option shall be subject to the requirement that if
at any time the Board of Directors shall determine that the
registration, listing or qualification of the shares of Stock
covered thereby upon any securities exchange or under any federal
or state law, or the consent or approval of any governmental
regulatory body is necessary or desirable as a condition of, or
in connection with, the granting of such option or the purchase
of shares of Stock thereunder, no such option may be exercised
unless and until such registration, listing, qualification,
consent or approval shall have been effected or obtained free of
any conditions not acceptable to the Board of Directors. The
Company may require that any person exercising an option shall
make such representations and agreements and furnish such
information as it deems appropriate to assure compliance with the
foregoing or any other applicable legal requirement.
(i) Other Terms and Conditions. The Committee may impose
such other terms and conditions, not inconsistent with the terms
hereof, on the grant or exercise of options, as it deems
advisable.
(j) Terms and Conditions of Options Granted to Directors.
Notwithstanding any provision contained in the Plan to the
contrary, during any period when any member of the Committee
shall not be a "disinterested person" as defined in Rule 16b-3
under the Securities Exchange Act of 1934, as such Rule was in
effect at April 30, 1991, then, the terms and conditions of
options granted under the Plan to any director of the Company
during such period shall be as follows:
(1) The price at which each share of Stock subject to an
option may be purchased shall, subject to any adjustments which
may be made pursuant to Section 5(f), in no event be less than
the market value per share of Stock on the date of grant, and
provided further that in the event the option is intended to be
an incentive stock option pursuant to Section 6 and the Optionee
owns on the date of grant securities possessing more than 10% of
the total combined voting power of all classes of securities of
the Company or of any Subsidiary, the price per share shall not
be less than 110% of the market value per share of Stock on the
date of grant.
(2) The option may be exercised to purchase shares of Stock
covered by the option not sooner than six months following the
date of grant. The option shall terminate and no shares of Stock
may be purchased thereunder more than ten years after the date of
grant, provided that if the option is intended to be an incentive
stock option pursuant to Section 6 and the Optionee owns on the
date of grant stock possessing more than 10% of the total
combined voting power of all classes of securities of the Company
or of any Subsidiary, the option shall terminate and no shares of
Stock may be purchased thereunder more than five years after the
date of grant.
6
(3) The maximum number of shares of Stock which may be
subject to options granted to all directors pursuant to this
Section 5(j) shall be 375,000 shares in the aggregate. The
maximum number of shares of Stock which may be subject to options
granted to any director who is an officer or employee of the
Company is 300,000. The maximum number of shares of Stock which
may be subject to options granted to any director who is not an
officer or employee of the Company shall be 15,000 shares.
6. Additional Provisions Applicable to Incentive Stock
Options. The Committee may, in its discretion, grant options
under the Plan to eligible employees which constitute "incentive
stock options" within the meaning of Section 422 of the Code,
provided, however, that (a) the aggregate market value of the
Stock with respect to which incentive stock options are
exercisable for the first time by the Optionee during any
calendar year shall not exceed the limitation set forth in
Section 422(d) of the Code, (b) if the Optionee owns on the date
of grant securities possessing more than 10% of the total
combined voting power of all classes of securities of the Company
or of any Subsidiary, the price per share shall not be less than
110% of the market value per share on the date of grant and (c)
Section 5(d)(ii) hereof shall not apply to any incentive stock
option.
7. Amendment and Termination. Unless the Plan shall
theretofore have been terminated as hereinafter provided, the
Plan shall terminate on, and no option shall be granted hereunder
after, January 25, 2001; provided, however, that the Board of
Directors may at any time prior to that date terminate the Plan.
The Board of Directors may at any time amend the Plan or the
terms of any option outstanding under the Plan; provided,
however, that, except as contemplated in Section 5(f), the Board
of Directors shall not, without approval by a majority of the
votes cast by the stockholders of the Company at a meeting of
stockholders at which a proposal to amend the Plan is voted upon,
(i) increase the maximum number of shares of Stock for which
options may be granted under the Plan, (ii) amend the Plan to
change the minimum option price, (iii) amend the Plan to extend
the period during which options may be granted or exercised, or
(iv) except as otherwise provided in the Plan, amend the
requirements as to the class of employees eligible to receive
options. No termination or amendment of the Plan or any option
outstanding under the Plan may, without the consent of an
Optionee, adversely affect the rights of such Optionee under any
option held by such Optionee.
8. Stockholder Approval. The Plan, as hereby amended and
restated, is subject to approval by a majority of the votes cast
thereon by the stockholders of the Company at a meeting of
stockholders duly called and held for such purpose or by
unanimous written consent of such stockholders. If such approval
is not obtained, the Plan as in effect prior to its amendment and
restatement as herein set forth shall continue in full force and
effect.
9. Withholding. It shall be a condition to the obligation
of the Company to issue shares of Stock upon exercise of an
option, that the Optionee (or any beneficiary or person entitled
to act under Section 5(d) hereof) pay to the Company, upon its
demand, such amount as may be requested by the Company for the
purpose of satisfying any liability to withhold federal, state or
local income or other taxes. If the amount requested is not
paid, the Company may refuse to issue such shares of Stock.
10. Other Actions. Nothing contained in the Plan shall be
construed to limit the authority of the Company to exercise its
corporate rights and powers, including but not by way of
limitation, the right of the Company to grant or assume options
for proper corporate purposes other than under the Plan with
respect to any employee or other person, firm, corporation or
association.
Exhibit 4(ii)
E&B MARINE INC.
Stock Option Certificate
Under the Amended and Restated
1983 Stock Option Plan
------------------------------
Date of Grant:
Name of Optionee:
Number of Shares:
Price Per Share:
This is to certify that, effective on the date of grant
specified above (which shall in no event be later than January 25, 2001),
the Compensation and Stock Option Committee (the "Committee") of the Board
of Directors of E&B Marine Inc. (the "Company") has granted to the
above-named optionee (the "Optionee") an option to purchase from the
Company, for the price per share set forth above, the number of shares of
Common Stock, $.001 par value (the "Stock"), of the Company set forth above
pursuant to the E&B Marine Inc. Amended and Restated 1983 Stock Option Plan
(the "Plan"). This option is not intended to be treated as an "incentive
stock option" within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code").
The terms and conditions of the option granted hereby, in
addition to the terms and conditions contained in the Plan, are as follows:
2
1. The price at which each share of Stock subject to this
option may be purchased shall be the price set forth above, subject to any
adjustments which may be made pursuant to Section 9 hereof.
2. Subject to the terms and conditions set forth herein,
this option may be exercised to purchase shares of Stock covered by this
option only in accordance with the following schedule:
Cumulative Percentage
of Aggregate Number of
Shares of Stock Covered
by Option which May be
Exercise Period Purchased
- --------------- ------------------------
less, in the case of each exercise period, the number of shares of Stock,
if any, previously purchased hereunder. This option shall terminate and
no shares of Stock may be purchased hereunder more than ten years after the
date of grant.
3. Except as provided in Section 7 hereof, this option may
not be exercised unless the Optionee is in the employ of the Company or one
of its subsidiary corporations (within the meaning of Section 424(f) of the
3
Code, and referred to herein as "Subsidiary") at the time of such exercise
and shall have been such employee continuously since the date of the grant
of this option. For purposes hereof, service as a director, officer or
consultant of or to the Company or any Subsidiary shall be considered
employment (and the period of such service shall be considered the period
of employment for purposes of this Section 3 and Section 7 hereof.)
4. Subject to the terms and conditions set forth herein, the
Optionee may exercise this option at any time as to all or any of the
shares of Stock then purchasable in accordance with Section 2 hereof by
delivering to the Company written notice specifying:
(i) the number of whole shares of Stock to be purchased
together with payment in full of the aggregate option price of
such shares, provided that this option may not be exercised
for less than ten (10) shares of Stock or the number of shares
of Stock remaining subject to option, whichever is smaller;
(ii) the name or names in which the stock certificate or
certificates are to be registered;
(iii) the address to which dividends, notices, reports, etc.
are to be sent; and
(iv) the Optionee's social security number.
Only one Stock certificate will be issued unless the Optionee otherwise
requests in writing. Payment shall be in cash, or by certified or bank
cashier's check payable to the order of the Company, free from all
collection charges; provided, however, that payment may be made in shares
4
of Stock owned by the Optionee for a period of at least six months having
a market value on the date of exercise equal to the aggregate purchase
price, by surrender of options which are then exercisable, or in a
combination of cash and Stock and surrender of options. Upon surrender of
options in payment of the purchase price the optionee shall be entitled to
receive that number of shares of Stock determined by dividing (x) the
difference between the aggregate market value on the date of exercise of
the shares of Stock issuable in respect of the options so surrendered and
the aggregate exercise price of the options so surrendered by (y) the
market value per share of Stock on the date of exercise. For purposes of
this option and the Plan, the market value per share of Stock shall be the
last sale price regular way on the date of reference, or, in case no sale
takes place on such date, the average of the high bid and low bid prices,
in either case on the principal national securities exchange on which the
Stock is listed or admitted to trading, or if the Stock is not listed or
admitted to trading on any national securities exchange, the last sale
price reported on the National Market System of the National Association
of Securities Dealers Automated Quotation System ("NASDAQ") on such date,
or the average of the closing high bid and low asked prices of the Stock
in the over-the-counter market reported on NASDAQ on such date, whichever
is applicable, or if there are no such prices reported on NASDAQ on such
date, as furnished to the Committee by any New York Stock Exchange member
5
selected from time to time by the Committee for such purpose. If there is
no bid or asked price reported on any such date, the market value shall be
determined by the Committee in accordance with the regulations promulgated
under Section 2031 of the Code, or by any other appropriate method selected
by the Committee. If the Optionee so requests, shares of Stock purchased
upon exercise of an option may be issued in the name of the Optionee or
another person. No Optionee shall be entitled to any rights as a
stockholder of the Company in respect of any shares of Stock covered by
this option until such shares of Stock shall have been paid for in full and
issued to the Optionee.
5. As soon as practicable after the Company receives payment
for shares of Stock covered by this option, it shall deliver a certificate
or certificates representing the shares of Stock so purchased to the
Optionee. Such certificate shall be registered in the name of the
Optionee, or in such other name or names as the Optionee shall request.
6. This option is personal to the Optionee and during the
Optionee's lifetime may be exercised only by the Optionee. This option
shall not be transferable other than by will or the laws of descent and
distribution.
7. In the event that the Optionee's employment as an
employee of the Company or any Subsidiary (hereinafter the "Optionee's
employment") is terminated prior to the time that this option has been
6
fully exercised, this option shall be exercisable, as to any remaining
shares of Stock subject hereto, only in the following circumstances:
(i) If the Optionee's employment is terminated by action of
his employer, or by reason of disability or retirement under
any retirement plan maintained by the Company or any
Subsidiary, this option may be exercised by the Optionee
within three months after such termination, but only as to any
shares exercisable on the date the Optionee's employment so
terminates;
(ii) In the event of the death of the Optionee during the
three month period after termination of the Optionee's
employment covered by (i) above, the person or persons to whom
his rights are transferred by will or the laws of descent and
distribution shall have a period of one year from the date of
his death to exercise any options which were exercisable by
the Optionee at the time of his death; and
(iii) In the event of the death of the Optionee during the
period of the Optionee's employment, this option shall
thereupon become exercisable in full, and the person or
persons to whom the Optionee's rights are transferred by will
or the laws of descent and distribution shall have a period of
one year from the date of the Optionee's death to exercise
such option.
Notwithstanding the foregoing, this option shall in no event be exercisable
after the date of termination of such option specified in Section 2 hereof.
8. This option does not confer on the Optionee any right to
continue in the employ of the Company or any Subsidiary or interfere in any
way with the right of the Company to determine the terms of the Optionee's
employment.
9. In the event of a reorganization, recapitalization, stock
split, stock dividend, combination of shares, merger, consolidation, rights
7
offering, extraordinary dividend or divestiture (including a spin-off), or
any other change in the corporate structure or shares of the Company, the
Committee shall make such adjustments, if any, as it deems appropriate in
the number and kind of shares covered by this option, or in the option
price per share hereunder, or both.
10. In connection with any merger or consolidation in which
the Company is not the surviving corporation and which results in the
holders of the outstanding voting securities of the Company (determined
immediately prior to such merger or consolidation) owning less than a
majority of the outstanding voting securities of the surviving corporation
(determined immediately following such merger or consolidation), or any
sale or transfer by the Company of all or substantially all of its assets
or any tender offer or exchange offer for or the acquisition, directly or
indirectly, by any person or group of all or a majority of the then
outstanding voting securities of the Company, this option shall become
exercisable in full on and after (i) the fifteenth day prior to the
effective date of such merger, consolidation, sale, transfer or acquisition
or (ii) the date of commencement of such tender offer or exchange offer,
as the case may be. Notwithstanding the foregoing, in no event shall this
option be exercisable after the date of termination of the exercise period
of this option specified in Sections 2 and 7 hereof.
8
11. This option shall be subject to the requirement that if
at any time the Board of Directors shall determine that the registration,
listing or qualification of the shares of Stock covered hereby upon any
securities exchange or under any federal or state law, or the consent or
approval of any governmental regulatory body is necessary or desirable as
a condition of, or in connection with, the granting of this option or the
purchase of shares of Stock hereunder, this option may not be exercised
unless and until such registration, listing, qualification, consent or
approval shall have been effected or obtained free of any conditions not
acceptable to the Board of Directors. The Committee may require that the
person exercising this option shall make such representations and
agreements and furnish such information as it deems appropriate to assure
compliance with the foregoing or any other applicable legal requirement.
12. This option and the terms and conditions herein set
forth are subject in all respects to the terms and conditions of the Plan,
which shall be controlling. All interpretations or determinations of the
Committee shall be binding and conclusive upon the Optionee and his legal
representatives on any question arising hereunder or under the Plan.
13. It shall be a condition to the obligation of the Company
to issue shares of Stock upon exercise of this option, that the Optionee
9
(or any beneficiary or person entitled to act under Section 7 hereof) pay
to the Company, upon its demand, such amount as may be requested by the
Company for the purpose of satisfying any liability to withhold federal,
state or local income or other taxes.
14. All notices hereunder to the Company shall be delivered
or mailed to the following address:
E&B Marine Inc.
201 Meadow Road
Edison, New Jersey 08818
Attention: Secretary, Stock Option Committee
Such address for the service of notices may be changed at any time provided
notice of such change is furnished in advance to the Optionee.
E&B MARINE INC.
By_______________________
Exhibit 4(iii)
E&B MARINE INC.
Incentive Stock Option Certificate
Under the Amended and Restated
1983 Stock Option Plan
----------------------
Date of Grant:
Name of Optionee:
Number of Shares:
Price Per Share:
This is to certify that, effective on the date of grant
specified above (which shall in no event be after January 25, 2001), the
Compensation and Stock Option Committee (the "Committee") of the Board of
Directors of E&B Marine Inc. (the "Company") has granted to the above-named
optionee (the "Optionee") an option to purchase from the Company, for the
price per share set forth above, the number of shares of Common Stock,
$.001 par value (the "Stock"), of the Company set forth above pursuant to
the E&B Marine Inc. Amended and Restated 1983 Stock Option Plan (the
"Plan"). This option is granted pursuant to Section 6 of the Plan and
shall be treated as an "incentive stock option" within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
The terms and conditions of the option granted
hereby, in addition to the terms and conditions contained in the Plan, are
as follows:
2
1. The price at which each share of Stock subject to this
option may be purchased shall be the price set forth above, subject to any
adjustments which may be made pursuant to Section 9 hereof, provided that
it shall in no event be less than the market value (as determined pursuant
to Section 4 hereof) per share of Stock on the date of grant, and provided
further that in the event the Optionee owns on the date of grant Stock
possessing more than 10% of the total combined voting power of all classes
of stock of the Company or of any Subsidiary corporations (within the
meaning of Section 424(f) of the Code and referred to herein as
"Subsidiary"), the price per share shall not be less than 110% of the
market value per share of Stock on the date of grant.
2. Subject to the terms and conditions set forth herein,
this option may be exercised to purchase shares of Stock covered by this
option only in accordance with the following schedule:
Cumulative Percentage
of Aggregate Number of
Shares of Stock Covered
by Option Which May be
Exercise Period Purchased
--------------- ------------------------
less, in the case of each exercise period, the number of shares of Stock,
if any, previously purchased hereunder. This option shall terminate and
3
no shares of Stock may be purchased hereunder more than ten years after the
date of grant, provided that if the Optionee owns on the date of grant
stock possessing more than 10% of the total combined voting power of all
classes of stock of the Company or of any Subsidiary, this Option shall
terminate and no shares of Stock may be purchased hereunder more than five
years after the date of grant.
3. Except as provided in Section 7 hereof, this option may
not be exercised unless the Optionee is in the employ of the Company or any
of its Parent or Subsidiary corporations at the time of such exercise and
shall have been such employee continuously since the date of the grant of
this option.
4. Subject to the terms and conditions set forth herein, the
Optionee may exercise this option at any time as to all or any of the
shares of Stock then purchasable in accordance with Section 2 hereof by
delivering to the Company written notice specifying:
(i) the number of whole shares of Stock to be purchased
together with payment in full of the aggregate option price of
such shares, provided that this option may not be exercised
for less than ten (10) shares of Stock or the number of shares
of Stock remaining subject to option, whichever is smaller;
(ii) the name or names in which the stock certificate or
certificates are to be registered;
(iii) the address to which dividends, notices, reports, etc.
are to be sent; and
4
(iv) the Optionee's social security number.
Only one Stock certificate will be issued unless the Optionee otherwise
requests in writing. Payment shall be in cash, or by certified or bank
cashier's check payable to the order of the Company, free from all
collection charges; provided, however, that payment may be made in shares
of Stock owned by the Optionee for a period of at least six months having
a market value on the date of exercise equal to the aggregate purchase
price, by surrender of options which are then exercisable, or in a
combination of cash and Stock and surrender of options. Upon surrender of
options in payment of the purchase price the optionee shall be entitled to
receive that number of shares of Stock determined by dividing (x) the
difference between the aggregate market value on the date of exercise of
the shares of Stock issuable in respect of the options so surrendered and
the aggregate exercise price of the options so surrendered by (y) the
market value per share of Stock on the date of exercise. For purposes of
the Plan, the market value per share of Stock shall be the last sale price
regular way on the date of reference, or, in case no sale takes place on
such date, the average of the high bid and low bid prices, in either case
on the principal national securities exchange on which the Stock is listed
or admitted to trading, or if the Stock is not listed or admitted to
trading on any national securities exchange, the last sale price reported
5
on the National Market System of the National Association of Securities
Dealers Automated Quotation System ("NASDAQ") on such date, or the average
of the closing high bid and low asked prices of the Stock in the
over-the-counter market reported on NASDAQ on such date, whichever is
applicable, or if there are no such prices reported on NASDAQ on such date,
as furnished to the Committee by any New York Stock Exchange member
selected from time to time by the Committee for such purpose. If there is
no bid or asked price reported on any such date, the market value shall be
determined by the Committee in accordance with the regulations promulgated
under Section 2031 of the Code, or by any other appropriate method selected
by the Committee. If the Optionee so requests, shares of Stock purchased
upon exercise of an option may be issued in the name of the Optionee or
another person. No Optionee shall be entitled to any rights as a
stockholder of the Company in respect of any shares of Stock covered by
this option until such shares of Stock shall have been paid for in full and
issued to the Optionee.
5. As soon as practicable after the Company receives payment
for shares of Stock covered by this option, it shall deliver a certificate
or certificates representing the shares of Stock so purchased to the
Optionee. Such certificate shall be registered in the name of the
Optionee, or in such other name or names as the Optionee shall request.
6
6. This option is personal to the Optionee and during the
Optionee's lifetime may be exercised only by the Optionee. This option
shall not be transferable other than by will or the laws of descent and
distribution.
7. In the event that the Optionee's employment as an
employee of the Company or any Subsidiary (hereinafter the "Optionee's
employment") is terminated prior to the time that this option has been
fully exercised, this option shall be exercisable, as to any remaining
shares of Stock subject hereto, only in the following circumstances:
(i) If the Optionee's employment is terminated by action of
his employer, or by reason of disability or retirement under
any retirement plan maintained by the Company or its
Subsidiaries, this option may be exercised by the Optionee
within three months after such termination, but only as to any
shares exercisable on the date the Optionee's employment so
terminates; and
(ii) In the event of the death of the Optionee during the
period of the Optionee's employment, this option shall
thereupon become exercisable in full, and the person or
persons to whom the Optionee's rights are transferred by will
or the laws of descent and distribution shall have a period of
one year from the date of the Optionee's death to exercise
such option. The provisions of the foregoing sentence shall
apply to this option to the extent permitted by Section 422(d)
of the Code and any part of this option in excess thereof
shall, immediately upon the occurrence of the event described
in the foregoing sentence, be treated for all purposes of the
Plan as non-statutory stock options and shall be immediately
exercisable as such as provided in the foregoing sentence.
7
Notwithstanding the foregoing, this option shall in no event be exercisable
after the date of termination of such option specified in Section 2 hereof.
8. This option does not confer on the Optionee any right to
continue in the employ of the Company or interfere in any way with the
right of the Company to determine the terms of the Optionee's employment.
9. In the event of a reorganization, recapitalization, stock
split, stock dividend, combination of shares, merger, consolidation, rights
offering, extraordinary dividend or divestiture (including a spin-off), or
any other change in the corporate structure or shares of the Company, the
Committee shall make such adjustments, if any, as it deems appropriate in
the number and kind of shares covered by this option, or in the option
price per share hereunder, or both.
10. In connection with any merger or consolidation in which
the Company is not the surviving corporation and which results in the
holders of the outstanding voting securities of the Company (determined
immediately prior to such merger or consolidation) owning less than a
majority of the outstanding voting securities of the surviving corporation
(determined immediately following such merger or consolidation), or any
sale or transfer by the Company of all or substantially all its assets or
any tender offer or exchange offer for or the acquisition, directly or
indirectly, by any person or group of all or a majority of the then
8
outstanding voting securities of the Company, this option shall become
exercisable in full on and after (i) the fifteenth day prior to the
effective date of such merger, consolidation, sale, transfer or acquisition
or (ii) the date of commencement of such tender offer or exchange offer,
as the case may be. The provisions of the foregoing sentence shall apply
to this option to the extent permitted by Section 422(d) of the Code and
any part of this option in excess thereof shall, immediately upon the
occurrence of the event described in clause (i) or (ii) of the foregoing
sentence, be treated for all purposes as a nonstatutory stock option and
shall be immediately exercisable as such as provided in the foregoing
sentence. Notwithstanding the foregoing, in no event shall this option be
exercisable after the date of termination of the exercise period of this
option specified in Sections 2 and 7 hereof.
11. This option shall be subject to the requirement that if
at any time the Board of Directors shall determine that the registration,
listing or qualification of the shares of Stock covered hereby upon any
securities exchange or under any federal or state law, or the consent or
approval of any governmental regulatory body is necessary or desirable as
a condition of, or in connection with, the granting of this option or the
purchase of shares of Stock hereunder, this option may not be exercised
unless and until such registration, listing, qualification, consent or
9
approval shall have been effected or obtained free of any conditions not
acceptable to the Board of Directors. The Committee may require that the
person exercising this option shall make such representations and
agreements and furnish such information as it deems appropriate to assure
compliance with the foregoing or any other applicable legal requirements.
12. This option and the terms and conditions herein set
forth are subject in all respects to the terms and conditions of the Plan,
which shall be controlling. All interpretations or determinations of the
Committee shall be binding and conclusive upon the Optionee and his legal
representatives on any question arising hereunder or under the Plan.
13. By acceptance of this option, the Optionee agrees that
in the event the Optionee sells or otherwise disposes of any shares of
Stock subject to this option on or prior to (i) the date two years from the
date of the grant of this option, or (ii) the date one year from the date
of the transfer of any of such shares to him pursuant to the exercise of
this option or any portion thereof, the Optionee shall promptly upon the
occurrence of any such event (x) give notice to the Company of the
occurrence thereof, which notice shall specify the manner in which such
shares of Stock were sold or disposed of and the consideration received
therefor, and (y) furnish to the Company such other information as may
reasonably be requested by the Company.
10
14. It shall be a condition to the obligation of the Company
to issue shares of Stock upon exercise of this option, that the Optionee
(or any beneficiary or person entitled to act under Section 7 hereof) pay
to the Company, upon its demand, such amount as may be requested by the
Company for the purpose of satisfying any liability to withhold federal,
state or local income or other taxes.
15. All notices hereunder to the Company shall be delivered
or mailed to the following address:
E&B Marine Inc.
201 Meadow Road
Edison, New Jersey 08818
Attention: Secretary, Stock Option Committee
Such address for the service of notices may be changed at any time provided
notice of such change is furnished in advance to the Optionee.
E&B MARINE INC.
By_____________________________
Exhibit 5
July 17, 1995
E&B Marine Inc.
201 Meadow Road
Edison, New Jersey 08818
Dear Sirs:
We have acted as counsel for E&B Marine Inc., a Delaware
corporation (the "Company"), in connection with the registration statement
on Form S-8 being filed by the Company under the Securities Act of 1933,
as amended, with respect to 150,000 shares (the "Shares") of the Company's
common stock, $.001 par value, which have been or are to be offered by the
Company to employees, directors, consultants and other individuals
providing services to the Company or any of its subsidiary corporations
pursuant to the Company's Amended and Restated 1983 Stock Option Plan (the
"Plan").
In connection with such registration statement, we have
examined such records and documents and such questions of law as we have
deemed appropriate for purposes of this opinion. On the basis of such
examination, we advise you that, in our opinion, the Shares have been duly
and validly authorized and, when issued and paid for in accordance with the
terms of the Plan and stock options duly granted thereunder, will be
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit
to the aforesaid registration statement.
Very truly yours,
HAYTHE & CURLEY