-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, TZ2TN8BP8QkfRYnMgLx1S9v8BwiYgVdmonlDJFxKTDSp7zzXkbVQmTldv7nePzIG hQ0hdHtofHVR+mWMqJ0aEw== 0000950123-94-001296.txt : 19940811 0000950123-94-001296.hdr.sgml : 19940811 ACCESSION NUMBER: 0000950123-94-001296 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19940810 EFFECTIVENESS DATE: 19940829 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PRIME HOSPITALITY CORP CENTRAL INDEX KEY: 0000080293 STANDARD INDUSTRIAL CLASSIFICATION: 7011 IRS NUMBER: 221890234 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-54995 FILM NUMBER: 94542761 BUSINESS ADDRESS: STREET 1: 700 RTE 46 EAST CITY: FAIRFIELD STATE: NJ ZIP: 07004 BUSINESS PHONE: 2018821010 MAIL ADDRESS: STREET 1: 700 RTE 46 EAST CITY: FAIRFIELD STATE: NJ ZIP: 07004 FORMER COMPANY: FORMER CONFORMED NAME: PRIME MOTOR INNS INC DATE OF NAME CHANGE: 19920609 FORMER COMPANY: FORMER CONFORMED NAME: PRIME EQUITIES INC DATE OF NAME CHANGE: 19731120 S-8 1 PRIME HOSPITALITY CORP. 1 Registration No. 33- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 PRIME HOSPITALITY CORP. ---------------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware 22-2640625 - ------------------------------------------- ------------------------ (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 700 Route 46 East Fairfield, New Jersey 07004 - ---------------------------------------- ------------- (Address of principal executive offices) (Zip Code) Prime Hospitality Corp. 1992 Performance Incentive Plan ------------------------------- (Full Title of Plan) Joseph Bernadino Secretary Prime Hospitality Corp. 700 Route 46 East Fairfield, New Jersey 07004 (201) 882-1010 -------------------------------------------------------------- (Name and address, including zip code, of agent for service) (Telephone number, including area code, of agent for service) --------------------- COPY TO: William N. Dye, Esq. Willkie Farr & Gallagher One Citicorp Center 153 East 53rd Street New York, New York 10022 (212) 935-8000 The Exhibit Index is located on page 12. Page 1 of 28 Pages 2 CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------------- Proposed Proposed Title of Amount maximum maximum Amount Securities to be offering aggregate of reg- to be regis- price offering istration registered tered (1) per share (2) price (2) fee - ---------------------------------------------------------------------------------------------------------------------------------- Common Stock 330,000 $7.5625 $2,495,625 $860.56 par value $0.01 per share - --------------------------
(1) This Registration Statement covers the 330,000 shares authorized to be issued under the 1992 Performance Incentive Plan. (2) Estimated solely for calculating the amount of the registration fee, pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the "Securities Act"). Page 2 of 28 Pages 3 PART I INFORMATION NOT REQUIRED IN THE REGISTRATION STATEMENT PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents, filed with the Securities and Exchange Commission (the "Commission") by Prime Hospitality Corp., a Delaware corporation (the "Company"), are incorporated herein by reference: (a) The Company's latest Annual Report on Form 10-K for the period ended December 31, 1993, filed pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (b) The Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1994, filed pursuant to the Exchange Act. (c) The description of the Company's Common Stock par value $0.01 per share (the "Common Stock") included in the Company's Application for Registration on Form 8-A, dated June 5, 1992, as amended in the Company's Amendments to Application or Report on Form 8, filed pursuant to the Exchange Act on July 9, 1992 and December 23, 1992. In addition, all documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all the securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated herein by reference and to be a part hereof from the date of the filing of such documents with the Commission. Item 4. DESCRIPTION OF SECURITIES Inapplicable. Page 3 of 28 Pages 4 Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL The validity of the shares of Common Stock offered hereby is being passed upon for the Company by Willkie Farr & Gallagher. As of the date of this Registration Statement, Jack H. Nusbaum, a partner of Willkie Farr & Gallagher, is a director of the company. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS A. The Company is incorporated under the laws of Delaware. The general effect of Section 145 of the Delaware General Corporation Law is to empower a corporation organized thereunder to indemnify its officers and directors against expenses (including attorneys' fees), and in non-derivative suits against judgments, fines and amounts paid in settlement resulting from actions, suits or proceedings arising by reason of the fact of such officership or directorship and to require indemnification for expenses (including attorneys' fees) where such officer or director has been successful on the merits in the defense of such action. Among the limitations imposed by this statute are that the party to be indemnified has acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and that absent a court determination of fair and reasonable entitlement, no indemnification may be made to him in respect of any claim by or in the right of the Company itself if he is adjudged liable for negligence or misconduct. The indemnification provided for by the statute is not exclusive of any other rights to which those seeking indemnification may be entitled under any by-laws, agreement, vote of stockholders or disinterested directors or otherwise. B. Article Eighth of the Company's Restated Certificate of Incorporation reads as follows: (a) The Corporation shall indemnify to the fullest extent permitted under and in accordance with the laws of the State of Delaware 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 by reason of the fact that he 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, trustee, employee or agent of or in any other capacity with Page 4 of 28 Pages 5 another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amount paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding 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. (b) Expenses incurred in defending a civil or criminal action, suit or proceeding shall (in the case of any action, suit or proceeding against a director of the Corporation) or may (in the case of any action, suit or proceeding against an officer, trustee, employee or agent) be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board upon receipt of an undertaking by or on behalf of the indemnified person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article Eighth. (c) The indemnification and other rights set forth in this Article Eighth shall not be exclusive of any provisions with respect thereto in the Bylaws or any other contract or agreement between the Corporation and any officer, director, employee or agent of the Corporation. (d) Neither the amendment nor repeal of subparagraphs (a), (b) or (c) of this Article Eighth, nor the adoption of any provision of this Restated Certificate of Incorporation inconsistent with subparagraphs (a), (b) or (c) of this Article Eighth, shall eliminate or reduce the effect of subparagraphs (a), (b) and (c) of this Article Eighth in respect of any matter occurring before such amendment, repeal or adoption of an inconsistent provision or Page 5 of 28 Pages 6 in respect of any cause of action, suit or claim relating to any such matter which would have given rise to a right of indemnification or right to receive expenses pursuant to subparagraph (a), (b) or (c) of this Article Eighth, if such provision had not been so amended or repealed or if a provision inconsistent therewith had not been so adopted. (e) No director shall be personally liable to the Corporation or to any stockholder for monetary damages for breach of fiduciary duty as a director, except for any matter in respect of which such director (a) shall be liable under Section 174 of the DGCL or any amendment thereto or successor provision thereto, or (b) shall be liable by reason that, in addition to any and all other requirements for liability, he: (i) shall have breached his duty of loyalty to the Corporation or its stockholders; (ii) shall not have acted in good faith or, in failing to act, shall not have acted in good faith; (iii) shall have acted in a manner involving intentional misconduct or a knowing violation of law or, in failing to act, shall have acted in a manner involving intentional misconduct or a knowing violation of law; or (iv) shall have derived an improper personal benefit. If the DGCL is amended after the date of incorporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. C. Section 8 of Article VIII of the Company's Bylaws reads as follows: Indemnification of Officers and Directors. The Corporation will indemnify any and all of its Directors or officers, including former Directors or officers, and any employee, who shall serve as an officer or director of any corporation at the request of the Corporation, to Page 6 of 28 Pages 7 the fullest extent permitted under and in accordance with the laws of the State of Delaware. Item 7. EXEMPTION FROM REGISTRATION CLAIMED Inapplicable. Item 8. EXHIBITS Exhibit No. 4.1 Specimen certificate for shares of the Common Stock (incorporated by reference to the Company's Exchange Act Registration Statement on Form 8-A, Registration Number 1-6869, dated June 5, 1992, Exhibit 1(a)) 4.2 Copy of the Company's Restated Certificate of Incorporation (incorporated by reference to the Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1992, Exhibit (3)(e)) 4.3 Copy of the Company's Restated Bylaws (incorporated by reference to the Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1992, Exhibit (3)(f) 5.1 Opinion of Willkie Farr & Gallagher, counsel to the Company, as to the legality of the shares being registered 23.1 Consent of Arthur Andersen & Co., Inc. 23.2 Consent of J. H. Cohn & Company 23.3 Consent of Willkie Farr & Gallagher (contained in Exhibit 5) 99.1 Copy of Prime Hospitality Corp. 1992 Performance Incentive Plan Item 9. UNDERTAKINGS 1. The Company hereby undertakes: (a) 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; (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 Page 7 of 28 Pages 8 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 (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) 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. 2. The Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, Page 8 of 28 Pages 9 submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. Page 9 of 28 Pages 10 SIGNATURES Pursuant to the requirements of the Securities Act, the Company 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 Township of Fairfield, State of New Jersey, on the 5th day of August, 1994. PRIME HOSPITALITY CORP. By:/s/ David A. Simon --------------------------------------------- David A. Simon, Chairman of the Board of Directors Page 10 of 28 Pages 11 SIGNATURES Pursuant to the requirements of the Securities Act this Registration Statement has been signed below by the following persons in the capacities indicated on August 5, 1994.
Signature Title - --------- ----- /s/David A. Simon Chairman of the Board of Directors, - ---------------------------------------------------------------- President, Chief Executive Officer and David A. Simon Director (Principal Executive Officer) /s/John Elwood Director, Executive Vice President, Chief - ---------------------------------------------------------------- Financial Officer (Principal Financial and John Elwood Accounting Officer) Director - ---------------------------------------------------------------- Allen J. Ostroff /s/Herbert Lust, II Director - ---------------------------------------------------------------- Herbert Lust, II /s/A. F. Petrocelli Director - ---------------------------------------------------------------- A.F. Petrocelli /s/Jack H. Nusbaum Director - -------------------------------------------------------------- Jack H. Nusbaum /s/Howard M. Lorber Director - ------------------------------------------------------------- Howard M. Lorber
Page 11 of 28 Pages 12 INDEX TO EXHIBITS
EXHIBIT NO. PAGE - ----------- ---- 5.1 Opinion of Willkie Farr & Gallagher counsel to the Company 14 23.1 Consent of Arthur Andersen & Co., Inc. 16 23.2 Consent of J. H. Cohn & Co., Inc. 18 23.3 Consent of Willkie Farr & Gallagher 20 (contained in Exhibit 5.1) 99.1 Copy of Prime Hospitality Corp. 1992 22 Performance Incentive Plan
Page 12 of 28 Pages EX-5.1 2 OPINION OF WILLKIE FARR & GALLAGHER 1 Exhibit 5.1 Page 13 of 28 Pages 2 August 5, 1994 Prime Hospitality Corp. 700 Route 46 East Fairfield, New Jersey 07004 Ladies and Gentlemen: We have acted as counsel to Prime Hospitality Corp., a Delaware corporation (the "Company"), with respect to the Company's Registration Statement on Form S-8 (the "Registration Statement") to be filed by the Company with the Securities and Exchange Commission on or about August 5, 1994 in connection with the registration under the Securities Act of 1933, as amended (the "Act"), by the Company of an aggregate of 330,000 shares (the "Shares") of the Company's Common Stock, par value $0.01 per share (the "Common Stock"), issuable upon exercise of stock options granted or to be granted under the Prime Hospitality Corp. 1992 Performance Incentive Plan (the "Plan"). As counsel for the Company, we have examined, among other things, such federal and state laws and originals and/or copies (certified or otherwise identified to our satisfaction) of such documents, certificates and records as we deemed necessary and appropriate for the purpose of preparing this opinion. Based on the foregoing, we are of the opinion that the shares have been duly and validly authorized for issuance and, when issued in accordance with the terms of the Plan for consideration in excess of $0.01 per share, will be validly issued, fully paid, and nonassessable. We hereby consent to the inclusion of this opinion as part of the Registration Statement. We are members of the Bar of the State of New York and do not purport to be experts in the laws of jurisdictions other than the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States of America. Very truly yours, s/Willkie Farr & Gallagher Page 14 of 28 Pages EX-23.1 3 CONSENT OF ARTHUR ANDERSEN & CO., INC. 1 Exhibit 23.1 Page 15 of 28 Pages 2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our reports dated March 17, 1994 included in Prime Hospitality Corp.'s Form 10-K for the year ended December 31, 1993 and to all references to our Firm included in this registration statement. /s/ARTHUR ANDERSEN & CO. Roseland, New Jersey August 5, 1994 Page 16 of 28 Pages EX-23.2 4 CONSENT OF J. H. COHN & CO., INC. 1 Exhibit 23.2 Page 17 of 28 Pages 2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS We consent to the incorporation by reference in this Registration Statement on Form S-8 being filed by Prime Hospitality Corp. (formerly Prime Motor Inns, Inc.) of our report dated September 24, 1992 (appearing in the Annual Report on Form 10-K for the fiscal year ended December 31, 1993 of Prime Hospitality Corp.) on the consolidated financial statements and financial statement schedules (also appearing in the aforementioned Annual Report) of Prime Motor Inns, Inc. and Subsidiaries (Debtors-in-Possession). /s/J.H. Cohn & Company Roseland, New Jersey August 5, 1994 Page 18 of 28 Pages EX-23.3 5 CONSENT OF WILLKIE FARR & GALLAGHER 1 Exhibit 23.3 Page 19 of 28 Pages 2 Consent of Willkie Farr & Gallagher (Contained in Exhibit 5.1) Page 20 of 28 Pages EX-99.1 6 1992 PERFORMANCE INCENTIVE PLAN 1 Exhibit 99.1 Page 21 of 28 Pages 2 PRIME HOSPITALITY CORP. 1992 PERFORMANCE INCENTIVE PLAN 1. Purposes. The 1992 Performance Incentive Plan (the "Plan") is intended to attract and retain the best available personnel for positions for substantial responsibilities with Prime Hospitality Corp. (the "Company") or any of its subsidiary corporations, and to provide additional incentive to such employees to exert their maximum efforts toward the success of the Company and its subsidiary corporations. The above aims will be effectuated through the granting of certain stock options. Under the Plan, options may be granted which are not intended to qualify as Incentive Stock Options (such options hereinafter referred to as "Options"). 2. Administration of the Plan. The Plan shall be administered by a committee (the "Committee") consisting of David A. Simon, or such other person who is then serving as Chief Executive Officer of the Company. The Committee may exercise the power and authority vested in the Board of Directors under the Plan. Within the limits of the express provisions of the Plan, the Committee shall have the authority, in its discretion, to take the following actions under the Plan: (i) to determine the individuals to whom, and the time or times at which, Options to purchase the Company's shares of Common Stock, par value $.01 per share ("Common Shares"), shall be granted, and the number of Common Shares to be subject to each Option; (ii) to interpret the Plan; (iii) to prescribe, amend and rescind rules and regulations relating to the Plan; (iv) to determine the terms and provisions of the respective stock option agreements granting Options (which need not be identical and may, in the Committee's discretion, contain provisions more favorable to the Optionee (as hereinafter defined) relating to the matters covered under Paragraphs 5, 6, 8 or 9 hereof); and (v) to make all other determinations and take all other actions necessary or advisable for the administration of the Plan. In making such determinations, the Committee may take into account the nature of the services rendered by such individuals, their present and potential contributions to the Company's success, and such other factors Page 22 of 28 Pages 3 as the Committee, in its discretion, shall deem relevant. An individual to whom an option has been granted under the Plan is referred to herein as an "Optionee." The Committee's determinations on the matters referred to in this paragraph shall be conclusive. Any determination by a majority of the members of the Committee shall be deemed to have been made by the whole Committee. 3. Shares Subject to the Plan. The total number of Common Shares which shall be subject to Options granted under the Plan shall be 330,000 in the aggregate, subject to adjustment as provided in Paragraph 8 or in any related stock option agreement. The Company shall at all times while the Plan is in force reserve such number of Common Shares as will be sufficient to satisfy the requirements of outstanding Options. The Common Shares to be issued upon exercise of Options shall in whole or in part be authorized and unissued or reacquired Common Shares. The unexercised portion of any expired, terminated or cancelled Option shall again be available for the grant of Options under the Plan. 4. Eligibility. (a) Options may be granted only to key employees, officers or directors of the Company or of a subsidiary corporation, as determined by the Committee. (b) Nothing contained in the Plan shall be construed to limit the right of the Company to grant options otherwise than under the Plan for proper corporate purposes. (c) Nothing contained in the Plan shall be construed to limit the right of the Committee to grant additional Options from time to time to the Optionee holding such Options, and options may be granted from time to time to one or more employees who have not previously been granted Options. 5. Terms of Options. The terms of each Option granted under the Plan shall be determined by the Committee consistent with the provisions of the Plan, including the following: (a) The purchase price of the Common Shares subject to each Option shall be fixed by the Committee, in its discretion, at the time such Option is granted. (b) The dates on which each Option (or portion thereof) shall be exercisable shall be fixed by the Committee, in its discretion, at the time such Option is granted. (c) The expiration of each Option shall be fixed by the Committee, in its discretion, at the time such Option is granted. No Option shall be exercisable after the Page 23 of 28 Pages 4 expiration of six (6) years from the date of its grant and each Option shall be subject to earlier termination as expressly provided in Paragraph 6 hereof or as determined by the Committee, in its discretion, at the date such Option is granted. (d) Options shall be exercised by the delivery by the Optionee thereof to the Company at its principal office or at such other address as may be established by the Committee (Attention: Administrator, 1992 Stock Option Plan) of written notice of the number of shares with respect to which the Option is being exercised accompanied by payment in full of the purchase price of such shares. Payment for such shares may be made (as determined by the Committee) (i) in cash, (ii) by certified check or bank cashier's check payable to the order of the Company in the amount of such purchase price, (iii) by promissory note issued by the Optionee in favor of the Company in an amount equal to such purchase price and payable on terms prescribed by the Committee and which provides for the payment of interest at a fair market rate, as determined by the Committee, (iv) by delivery of capital stock to the Company having a fair market value equal to said purchase price, (v) by irrevocable instructions to a broker to deliver promptly to the Company the amount of sale or loan proceeds necessary to pay the aggregate purchase price of the Common Shares as to which such exercise relates and to sell the Common Shares to be issued upon exercise of the Option and deliver the cash proceeds less commissions and brokerage fees to the Optionee or to deliver the remaining Common Shares to the Optionee, or (vi) by any combination of the methods of payment described in (i) through (v) above. (f) An Optionee shall not have any of the rights of a shareholder with respect to the Common Shares subject to his Option until such shares are issued to him upon the exercise of his Option as provided herein. (g) No Option shall be transferable, except by will or the laws of descent and distribution, and any Option may be exercised during the lifetime of the Optionee only by him. No Option granted under the Plan shall be subject to execution, attachment or other process. 6. Death or Termination of Employment. (a) If the employment or other relationship of an Optionee with the Company or any of its subsidiary corporations shall be terminated voluntarily by the employee and without the consent of the Company or a subsidiary corporation, as the case may be, or for cause, Page 24 of 28 Pages 5 and immediately after such termination such Optionee shall not then be employed by the Company or any of its subsidiary corporations, as the case may be, any Option or Options granted to such Optionee to the extent not theretofore exercised shall expire forthwith. (b) If such employment or other relationship of an Optionee with the Company shall terminate other than (i) by reason of death, (ii) voluntarily by the employee and without the consent of the Company or any of its subsidiary corporations, as the case may be, or (iii) for cause, and immediately after such termination such Optionee shall not then be employed by the Company or any of its subsidiary corporations, as the case may be, any Option or Options granted to such Optionee may be exercised at any time within three months after such termination, subject to the provisions of subparagraph (d) of this Paragraph 6. For the purposes of the Plan, the retirement of an Optionee either pursuant to a pension or retirement plan adopted by the Company or a subsidiary corporation, as the case may be, on the normal retirement date prescribed from time to time by the Company or such subsidiary corporation, and the termination of employment as a result of a disability (as defined in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended) shall be deemed to be a termination of such Optionee's employment other than voluntarily by the Optionee or for cause. (c) If an Optionee dies (i) while employed by, or while engaged in another relationship with, the Company or a subsidiary corporation or (ii) within three months after the termination of his employment or other relationship other than voluntarily by the Optionee and without the consent of the Company or a subsidiary corporation or for cause, any Option or Options granted to such Optionee may be exercised at any time within six months after such Optionee's death, subject to the provisions of subparagraph (d) of this Paragraph 6. (d) An Option may not be exercised pursuant to this Paragraph 6 except to the extent that the Optionee was entitled to exercise the Option at the time of termination of employment or such other relationship, or death, and in any event may not be exercised after the expiration of six (6) years from the date the Option was granted. 7. Leave of Absence. For purposes of the Plan, an individual who is on military or sick leave or other bona fide leave of absence (such as temporary employment by the United States or any state government) shall be considered as remaining in the employ of the Company or of a Page 25 of 28 Pages 6 subsidiary corporation for 90 days or such longer period as shall be determined by the Committee. 8. Adjustment upon Changes in Capitalization. (a) In the event that the outstanding Common Shares are hereafter changed by reason of reorganization, merger, consolidation, recapitalization, reclassification, stock split-up, combination or exchange of shares and the like, or dividends payable in Common Shares, an appropriate adjustment shall be made by the Committee in the aggregate number of shares available under the Plan and in the number of shares and price per share subject to outstanding Options. If the Company shall be reorganized, consolidated, or merged with another corporation, or if all or substantially all of the assets of the Company shall be sold or exchanged, an Optionee shall at the time of issuance of the stock under such corporate event be entitled to receive upon the exercise of his Option the same number and kind of shares of stock or the same amount of property, cash or securities as he would have been entitled to receive upon the occurrence of any such corporate event as if he had been, immediately prior to such event, the holder of the number of shares covered by his Option. (b) Any adjustment under this Paragraph 8 in the number of Common Shares subject to Options shall apply proportionately to only the unexercised portion of any Option granted hereunder. If fractions of a share would result from any such adjustment, the adjustment shall be revised to the next lower whole number of shares. 9. Further Conditions of Exercise. (a) Unless prior to the exercise of an Option the Common Shares issuable upon such exercise are the subject of a registration statement filed with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the "Securities Act"), and there is then in effect a prospectus filed as part of such registration statement meeting the requirements of Section 10(a)(3) of the Securities Act, the notice of exercise with respect to such Option shall be accompanied by a representation or agreement of the Optionee to the Company to the effect that such shares are being acquired for investment only and not with a view to the resale or distribution thereof, or such other documentation as may be required by the Company, unless, in the opinion of counsel to the Company, such representation, agreement or documentation is not necessary to comply with the Securities Act. Page 26 of 28 Pages 7 (b) Anything in subparagraph (a) of this Paragraph 9 to the contrary notwithstanding, the Company shall not be obligated to issue or sell any Common Shares until they have been listed on each securities exchange on which the Common Shares may then be listed and until and unless, in the opinion of counsel to the Company, the Company may issue such shares pursuant to a qualification or an effective registration statement, or an exemption from registration, under such state and federal laws, rules or regulations as such counsel may deem applicable. The Company shall use reasonable efforts to effect such listing, qualification and registration, as the case may be. 10. Termination, Modification and Amendment. (a) The Plan (but not Options previously granted under the Plan) shall terminate ten (10) years from the date of its adoption by the Board of Directors, and no Option shall be granted after termination of the Plan. (b) The Plan may from time to time be terminated, modified or amended by the affirmative vote of the holders of a majority of the outstanding shares of the capital stock of the Company entitled to vote thereon. (c) The Board of Directors of the Company may at any time terminate the Plan or from time to time make such modifications or amendments of the Plan as it may deem advisable; provided, however, that the Board of Directors shall not, without approval by the affirmative vote of the holders of a majority of the outstanding shares of the capital stock of the Company be entitled to vote thereon, increase (except as provided by Paragraph 8) the maximum number of Common Shares as to which Options may be granted under the Plan or change the class of persons eligible to receive Options under the Plan. (d) No termination, modification or amendment of the Plan may adversely affect the rights conferred by any Options without the consent of the Optionee thereof. 11. Effectiveness of the Plan. The Plan is adopted pursuant to authorization of the U.S. Bankruptcy Court for the Southern District of Florida, after disclosure and approval of the Second Amended Joint Plan of Reorganization by Creditors and Shareholders. Accordingly, the Plan shall become effective upon adoption by the Board of Directors of the Company. 12. Not a Contract of Employment. Nothing contained in the Plan or in any stock option agreement executed pursuant hereto shall be deemed to confer upon Optionee any right to remain in the employ of the Page 27 of 28 Pages 8 Company or subsidiary corporation. Page 28 of 28 Pages -----END PRIVACY-ENHANCED MESSAGE-----