<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 21, 1997
REGISTRATION NO. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------------------------------
ADVANCED LIGHTING TECHNOLOGIES, INC.
(Exact name of issuer as specified in its charter)
OHIO 34-1803229
- --------------------------------------------------------------------------------
(State of Incorporation) (I.R.S. Employer Identification No.)
2307 East Aurora Road, Suite One
Twinsburg, Ohio 44087
(Address of Principal Executive Offices)
ADVANCED LIGHTING TECHNOLOGIES, INC.
EMPLOYEE STOCK PURCHASE PLAN
----------------------------
(Full title of the Plan)
WAYNE R. HELLMAN
Advanced Lighting Technologies, Inc.
2307 East Aurora Road, Suite One
Twinsburg, Ohio 44087
(216) 963-6680
(Name, Address and Telephone Number,
including Area Code, of Agent for Service)
-------------------------------------------------
Copy to: GERALD W. COWDEN, ESQ.
Cowden, Humphrey & Sarlson
1414 Terminal Tower
Cleveland, Ohio 44113
(216) 241-2880
-------------------------------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=================================================================================================================
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED (1) PER SHARE (2) OFFERING PRICE (2) FEE
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 100,000 $23.25 $2,325,000.00 $704.54
=================================================================================================================
<FN>
(1) Pursuant to Rule 416, this Registration Statement also covers such
indeterminate number of additional shares as may hereinafter be offered
or issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions effected without receipt of
consideration as provided by the Plan.
(2) Maximum offering price is not determinable, since the price per share
will vary from time to time depending on the market value of the Common
Stock. Maximum offering price has been calculated in accordance with
Rule 457(h) and Rule 457(c), based upon the averages of the reported
high and low sales prices of the Common Stock quoted on the NASDAQ
Stock Market on February 14, 1997, of $23.25 per share.
</TABLE>
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Advanced Lighting Technologies, Inc.
(the "Company") with the Securities and Exchange Commission (the "Commission")
are incorporated into this Registration Statement and made a part hereof:
1. The Company's Annual Report on Form 10-K for the year ended
June 30, 1996, filed September 30, 1996.
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1996, filed November 14, 1996.
3. The Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1996, filed February 14, 1997.
4 The description of the Company's Common Stock set forth on
page 46 of the Company's Prospectus dated December 11, 1995,
filed with the Commission under Rule 424(b) of the Securities
Act of 1933, as amended, which constituted a part of the
Company's Registration Statement on Form S-1 (Registration
Statement No. 33-97902), and which was incorporated by
reference in the Company's Registration Statement on Form 8-A
as filed with the Commission under the Securities Exchange Act
of 1934, as amended.
All documents filed by the Company with the Commission subsequent to
the date of this Registration Statement under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934, as amended, prior to the filing of a
post-effective amendment which indicates that all Common Stock offered have been
sold or which deregisters all Common Stock then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement from the
date of filing of such documents with the Commission.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Common Stock issuable by the Company under the
Company's Employee Stock Purchase Plan will be passed upon for the Company by
Cowden, Humphrey & Sarlson, 1414 Terminal Tower, Cleveland, Ohio 44113.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 1701.59 of the Ohio Revised Code, which
eliminates the personal liability in damages of a director for violations of the
director's fiduciary duty, except if it is proved by clear and convincing
evidence that his action or failure to act involved acts or omissions undertaken
with deliberate intent to cause injury to the corporation or with reckless
disregard for the best interests of the corporation. This statute does not
affect the liability of directors pursuant to Section 1701.95 of the Ohio
Revised Code (providing for liability of directors for unlawful payment of
dividends or unlawful distribution of assets).
Reference is made to Section 1701.13 of the Ohio Revised Code, which
provides that a corporation may indemnify directors and officers as well as
other employees and individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative other than an action by or in the name of the corporation (a
"derivative action") if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe their conduct was unlawful. A similar standard is applicable in the case
of derivative actions, except that indemnification only extends to expenses
(including attorneys' fees) incurred in connection with
<PAGE> 3
defense or settlement of such action, and the statute requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statute provides that it is not
exclusive of other indemnification that may be granted by a corporation's
articles of incorporation, code of regulations, disinterested director vote,
shareholder vote, agreement or otherwise.
Reference is made to Article Seven of the Code of Regulations of the
Company which provides for the indemnification of directors and officers to the
fullest extent permitted by Ohio law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibit numbers on the following list correspond to the numbers in
the exhibit table required pursuant to Item 601 of Regulation S-K:
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
4.1 Second Amended and Restated Articles of Incorporation
[as amended to February 12, 1997]; Second Amendment
to Second Amended and Restated Articles of
Incorporation; Incorporated by reference to the
Company's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1996, Commission File
Number 0-27202, filed February 14, 1997.
4.2 Code of Regulations. Incorporated by reference to the
Company's Registration Statement on Form S-1,
Registration No. 33-97902, effective December 11,
1995.
5 Opinion of Cowden, Humphrey & Sarlson
23.1 Consent of Cowden, Humphrey & Sarlson (contained in
Exhibit 5)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney
99 Advanced Lighting Technologies, Inc. Employee Stock
Purchase Plan.
</TABLE>
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers of sales are being
made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
<PAGE> 4
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. UNDERTAKING REGARDING DOCUMENTS SUBSEQUENTLY FILED UNDER THE
EXCHANGE ACT.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. UNDERTAKING REGARDING INDEMNIFICATION.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
<PAGE> 5
SIGNATURES
The Registrant. 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 Twinsburg, State of Ohio, on February 21, 1997.
ADVANCED LIGHTING TECHNOLOGIES, INC.
By: /s/ LOUIS S. FISI
Louis S. Fisi
Executive Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ WAYNE R. HELLMAN Chief Executive Officer, February 21, 1997
Wayne R. Hellman Chairman and Director
/s/ LOUIS S. FISI Executive Vice President, February 21, 1997
Louis S. Fisi Secretary and Director
/s/ NICHOLAS R. SUCIC Chief Financial Officer, February 21, 1997
Nicholas R. Sucic Treasurer
/s/ THEODORE A. FILSON Director February 21, 1997
Theodore A. Filson
/s/ FRANCIS H. BEAM Director February 21, 1997
Francis H. Beam
/s/ SUSUMU HARADA Director February 21, 1997
Susumu Harada
/s/ A GORDON TUNSTALL Director February 21, 1997
A Gordon Tunstall
</TABLE>
*The undersigned, by signing his name hereto, does hereby execute this
Registration Statement on behalf of the above-indicated officers and directors
of Advanced Lighting Technologies, Inc. pursuant to Powers of Attorney executed
by each such officer and director appointing the undersigned as attorney-in-fact
and filed with the Securities and Exchange Commission.
By: /s/ LOUIS S. FISI
Louis S. Fisi
Attorney-in-Fact
Date: February 21, 1997
<PAGE> 6
<TABLE>
<CAPTION>
Exhibit No. Description Page
----------- ----------- ----
<S> <C> <C>
4.1 Second Amended and Restated Articles of Incorporation
[as amended on February 12, 1997]; Second Amendment
to Second Amended and Restated Articles of
Incorporation; Incorporated by reference to the
Company's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1996, Commission File
Number 0-27202, filed February 14, 1997.
4.2 Code of Regulations. Incorporated by reference to the
Company's Registration Statement on Form S-1,
Registration No. 33-97902, effective December 11,
1995.
5 Opinion of Cowden, Humphrey & Sarlson
23.1 Consent of Cowden, Humphrey & Sarlson (contained in
Exhibit 5)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney
99 Advanced Lighting Technologies, Inc. Employee Stock
Purchase Plan.
</TABLE>
<PAGE> 1
Exhibit 5
February 18, 1997
Advanced Lighting Technologies, Inc.
2307 East Aurora Road, Suite 1
Twinsburg, Ohio 44087
RE: Form S-8 Registration Statement
Gentlemen:
We are acting as counsel for Advanced Lighting Technologies,
Inc., an Ohio corporation (the "Company") in connection with the proposed offer
by the Company of up to 100,000 shares of the Company's Common Stock (the
"Shares") pursuant to the Advanced Lighting Technologies, Inc. Employee Stock
Purchase Plan (the "Plan"). Such offering of Shares is covered by a prospectus
forming a part of the Company's Registration Statement on Form S-8 being filed
with the Securities and Exchange Commission. We are rendering this opinion as of
the date hereof.
Based upon the foregoing, it is our opinion that the Shares,
when issued or transferred to participants in accordance with the Plan, will be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5
to Registration Statement on Form S-8 filed by the Company to effect
registration of the Shares issued and sold pursuant to the Plan under the
Securities Act of 1933 and to the reference to use under the caption "Item 5.
Interests of Named Experts and Counsel" in such Registration Statement.
Very truly yours,
COWDEN, HUMPHREY & SARLSON CO., L.P. A.
<PAGE> 1
ERNST & YOUNG LLP 1300 HUNTINGTON BUILDING PHONE: 216/861-5000
925 EUCLID AVENUE
CLEVELAND, OHIO 44115-1405
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Advanced Lighting Technologies, Inc. Employee Stock
Purchase Plan of our report dated September 26, 1996, with respect to the
consolidated financial statements of Advanced Lighting Technologies, Inc.,
included in its Annual Report (Form 10-K) for the year ended June 30, 1996,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Cleveland, Ohio
February 17, 1997
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Louis S. Fisi
his attorney-in-fact, with the power of substitution, for him in any and all
capacities, to sign the Form S-8 Registration Statement, any amendments thereto
and to file the same with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitute or substitutes may
do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ WAYNE R. HELLMAN Chief Executive Officer, February 18, 1997
Wayne R. Hellman Chairman and Director
/s/ LOUIS S. FISI Executive Vice President, February 18, 1997
Louis S. Fisi Secretary and Director
/s/ NICHOLAS R. SUCIC Chief Financial Officer, February 18, 1997
Nicholas R. Sucic Treasurer
/s/ THEODORE A. FILSON Director February 18, 1997
Theodore A. Filson
/s/ FRANCIS H. BEAM Director February 19, 1997
Francis H. Beam
/s/ SUSUMU HARADA Director February 18, 1997
Susumu Harada
/s/ A GORDON TUNSTALL Director February 19, 1997
A Gordon Tunstall
</TABLE>
<PAGE> 1
EXHIBIT 99
ADVANCED LIGHTING TECHNOLOGIES, INC.
1997 EMPLOYEE STOCK PURCHASE PLAN
SECTION 1. PURPOSE.
The purpose of the Advanced Lighting Technologies, Inc. 1997
Employee Stock Purchase Plan (the "Plan") is to provide a method whereby
employees of Advanced Lighting Technologies, Inc., (together with any successor
thereto, the "Company") and its Subsidiaries (as defined below) will have an
opportunity to acquire a proprietary interest in the growth and performance of
the Company through the purchase of shares of Common Stock of the Company
("Stock"). It is the intention of the Company to have the Plan qualify as an
"employee stock purchase plan" under Section 423 of the Internal Revenue Code of
1986, as amended (the "Code"). The provisions of the Plan shall be construed so
as to extend and limit participation in a manner consistent with the
requirements of that section of the Code.
SECTION 2. DEFINITIONS.
2.01. Committee.
"Committee" shall mean the Incentive Award Committee of the
Company's Board of Directors.
2.02. Compensation.
"Compensation" shall mean all wages and earnings included
within the definition of wages in Section 3401(a) of the Code.
2.03. Employee.
"Employee" means any person who is customarily employed on a
full-time or part-time basis by the Company or any Subsidiary and is regularly
scheduled to work more than twenty (20) hours per week.
2.04. Participant.
"Participant" means any Employee who has satisfied the
eligibility requirements and completed the authorization form in the manner
provided in Section 3.04 of this Plan.
2.05. Purchase Date.
"Purchase Date" means the last business day of each calendar
month.
<PAGE> 2
2.06. Subsidiary.
"Subsidiary" means (i) any corporation in an unbroken chain of
corporations, starting with the Company, where, at each link of the chain, the
corporation in the link above owns at least Fifty Percent (50%) of the combined
voting power of all the classes of stock in the corporation below, and (ii) is
designated as a participant in the Plan by the Committee.
SECTION 3. ELIGIBILITY AND PARTICIPATION.
3.01. Initial Eligibility.
Any Employee who shall have completed six (6) months
employment and shall be employed by the Company or any Subsidiary on the date
such Employee's participation for any Offering Period in the Plan is to become
effective shall be eligible to participate in offerings under the Plan which
commences on or after such six (6) month period has concluded.
3.02. Leave of Absence.
For purposes of participation in the Plan, a person on leave
of absence shall be deemed to be an Employee for the first ninety (90) days of
such leave of absence and such Employee's employment shall be deemed to have
terminated at the close of business on the ninetieth day of such leave of
absence unless such Employee shall have returned to regular full-time or
part-time employment (as the case may be) prior to the close of business on such
ninetieth day. Termination by the Company or any Subsidiary of any Employee's
leave of absence, other than termination of such leave of absence on return to
full time or part time employment, shall terminate an Employee's employment for
all purposes of the Plan and shall terminate such Employee's participation in
the Plan and right to exercise any option.
3.03. Restrictions on Participation.
Notwithstanding any provisions of the Plan to the contrary, no
Employee shall be granted an option to participate in the Plan:
(a) if, immediately after the grant, such Employee would own
Stock, and/or hold outstanding options to purchase Stock, possessing 5% or more
of the total combined voting power or value of all classes of Stock of the
Company (for purposes of this paragraph, the rules of Section 424(d) of the Code
shall apply in determining Stock ownership of any Employee); or
(b) which permits the Employee's rights to purchase Stock
under all employee stock purchase plans of the Company to accrue at a rate which
exceeds $25,000 in fair market value of the Stock (determined at the time such
option is granted) for each calendar year in which such option is outstanding.
2
<PAGE> 3
3.04. Commencement of Participation.
An eligible Employee may become a Participant by completing an
authorization for a payroll deduction on the form provided by the Company and
filing it with the office of the Treasurer of the Company prior to the
Commencement Date of the next succeeding Offering Period. Payroll deductions for
a Participant shall thereafter commence on the next succeeding Commencement Date
and shall end on the Termination Date of the Offering to which such
authorization is applicable unless sooner terminated by the Participant as
provided in Section 8.
SECTION 4. OFFERING.
4.01. Offering.
The Plan will be implemented by an offering of 100,000 shares
of Stock (the "Offering") beginning on April 1, 1997 and continuing thereafter
until all the shares of Stock have been purchased, but terminating, in any
event, on December 31, 2001. The Company may increase the Offering from time to
time in accordance with the procedures set forth in Section 424 of the Code. As
used in this Plan "Commencement Date" means the first business day of each
January and July until termination of the Plan (except that the Commencement
Date of the first Offering Period is April 1, 1997) and "Termination Date" means
the last business day of each December and June until termination of the Plan.
Each period between a Commencement Date and a Termination Date shall constitute
a separate "Offering Period."
SECTION 5. PAYROLL DEDUCTIONS.
5.01. Amount of Deduction.
At the time an Employee files an authorization for payroll
deduction, the Employee shall elect to have deductions made from the Employee's
pay on each payday during the time the Employee is a Participant at a rate not
to exceed ten percent (10%) of the Employee's compensation (the "Payroll
Deduction").
5.02. Participant's Account.
All Payroll Deductions made for a Participant shall be
credited to the Participant's account under the Plan. A Participant may not make
any separate cash payment into such account except when on leave of absence and
then only as provided in Section 5.04 of this Plan.
5.03. Changes in Payroll Deductions.
A Participant may discontinue his participation in the Plan as
provided in Section 8, but no other change can be made during an Offering Period
and, specifically, a Participant may not alter the amount of the Participant's
Payroll Deductions during an Offering Period.
3
<PAGE> 4
5.04. Leave of Absence.
If a Participant goes on a leave of absence, such Participant
shall have the right to elect: (a) to withdraw the balance in the Participant's
account pursuant to Section 7.02, (b) to discontinue contributions to the Plan
but remain a Participant in the Plan, or (c) remain a Participant in the Plan
during such leave of absence, authorizing deductions to be made from payments by
the Company or any Subsidiary to the Participant during such leave of absence
and undertaking to make cash payments to the Plan at the end of each payroll
period to the extent that amounts payable by the Company or any Subsidiary to
such Participant are insufficient to meet such Participant's authorized Payroll
Deduction.
SECTION 6. GRANTING OF OPTION.
6.01. Number of Option Shares.
For each Offering Period, a Participant shall be deemed to
have been granted an option to purchase the maximum whole number of shares of
Stock which may be purchased with each Participant's Payroll Deduction on each
Purchase Date during such Offering Period, at a price equal to Eighty-Five
Percent (85%) of the market value of the Stock on such Purchase Date (the
"Option Price").
6.02. Determination of Option Price.
The Option Price as of each Purchase Date shall be based upon
the closing price of the Stock on each Purchase Date, or the nearest prior
business day on which trading occurred on the NASDAQ National Market System.
SECTION 7. EXERCISE OF OPTION.
7.01. Automatic Exercise.
Unless a Participant gives written notice to the Company as
hereinafter provided, a Participant's option for the purchase of Stock with
Payroll Deductions made during any Offering Period will be deemed to have been
exercised on each applicable Purchase Date for the purchase of the number of
shares of Stock which the accumulated Payroll Deductions in the Participant's
account at that time will purchase at the applicable Option Price.
7.02. Withdrawal of Account.
By written notice to the Treasurer of the Company not less
than five (5) days prior to any Purchase Date, a Participant may elect to
withdraw all the Payroll Deductions in the Participant's account at such time
and terminate the Participant's participation in the then current Offering
Period.
4
<PAGE> 5
7.03. Transferability of Option.
During a Participant's lifetime, options held by a Participant
shall be exercisable only by that Participant.
7.04. Delivery of Stock.
As promptly as practicable after each Purchase Date, the
Company will deliver to each Participant (or hold in an account for the
Participant's benefit), as appropriate, the Stock purchased upon exercise of the
Participant's option. Promptly following written notice to the Treasurer of the
Company at any time, the Company will deliver to any Participant the Stock held
in an account for such Participant's benefit.
SECTION 8. WITHDRAWAL.
8.01. In General.
As indicated in Section 7.02, a Participant may withdraw
Payroll Deductions credited to a Participant's account under the Plan at any
time by giving written notice to the Treasurer of the Company. All of the
Participant's Payroll Deductions credited to the Participant's account will be
paid to him promptly after receipt of the Participant's notice of withdrawal,
and (a) no further Payroll Deductions will be made during such Offering Period
and (b) no further Stock shall be purchased during such Offering Period.
8.02. Effect on Subsequent Participation.
A Participant's withdrawal from any Offering Period will not
have any effect upon the Participant's eligibility to participate in any
succeeding Offering Period or in any similar plan which may hereafter be adopted
by the Company.
8.03. Termination of Employment.
Upon termination of the Participant's employment for any
reason, including retirement (but excluding death while in the employ of the
Company or continuation of a leave of absence for a period beyond ninety days),
the Participant's Payroll Deductions will be returned, and any Stock held in an
account for the Participant's benefit will be delivered to the Participant or,
in the case of death subsequent to the termination of employment, to the person
or persons entitled thereto under Section 12.01.
8.04. Termination of Employment Due to Death.
Upon termination of the Participant's employment because of
the Participant's death, the beneficiary (as defined in Section 12.01) shall
have the right to elect, by written notice given to the Treasurer of the Company
prior to the earlier of the Termination Date or the expiration of a period of
sixty (60) days commencing with the date of the death of the Participant,
either:
5
<PAGE> 6
(a) to withdraw all of the Payroll Deductions credited to the
Participant's account under the Plan, or
(b) to exercise the Participant's option for the purchase of
Stock on the Termination Date next following the date of the Participant's death
for the purchase of the number of shares of Stock which the Payroll Deductions
in the Participant's account at the date of the Participant's death will
purchase at the applicable Option Price, and any excess in such account will be
returned to said beneficiary, without interest.
In the event that no such written notice of election shall be
duly received by the office of the Treasurer of the Company, the beneficiary
shall automatically be deemed to have elected, pursuant to paragraph (b), to
exercise the Participant's option.
Following the expiration of such 60-day period, any Stock held
in an account for Participant's benefit will be delivered to said beneficiary.
8.05. Leave of Absence.
A Participant on leave of absence shall, subject to the
election made by such Participant pursuant to Section 5.04, continue to be a
Participant in the Plan so long as such Participant is on continuous leave of
absence. A Participant who has been on leave of absence for more than ninety
days and who therefore is not an Employee for the purpose of the Plan shall not
be entitled to purchase Stock on any Purchase Date following such ninetieth day.
Notwithstanding any other provisions of the Plan, unless a Participant on leave
of absence returns to regular full-time or part-time employment with the Company
or any Subsidiary at the earlier of: (a) the termination of such leave of
absence or (b) three months from the ninetieth day of such leave of absence,
then such Participant's participation in the Plan shall terminate on whichever
of such dates first occurs.
SECTION 9. INTEREST.
9.01. Payment of Interest.
No interest will be paid or allowed on any money paid into the
Plan or credited to the account of any Participant.
SECTION 10. STOCK.
10.01. Maximum Shares of Stock.
The maximum number of shares of Stock which shall be issued
under the Plan, subject to adjustment upon changes in capitalization of the
Company as provided in Section 12.04, shall be 100,000 shares of Stock. If the
total number of shares of Stock for which options are exercised on any
Termination Date in accordance with Section VI exceeds the maximum number of
shares of Stock for the applicable offering, the Company shall make a pro rata
allocation of the shares available for delivery and distribution in an nearly a
uniform manner as shall be practicable and as it shall determine to be
equitable, and the balance of Payroll
6
<PAGE> 7
Deductions credited to the account of each Participant under the Plan shall be
returned to the Participant as promptly as possible.
10.02. Participant's Interest in Option Stock.
The Participant will have no interest in Stock covered by an
option until such option has been exercised.
10.03. Registration of Stock.
Stock to be delivered to a Participant under the Plan will be
held by the Company in an account for the benefit of the Participant, or, if the
Participant so directs by written notice to the Treasurer of the Company prior
to the Termination Date applicable thereto, in the name of the Participant
and/or one such other person as may be designated by the Participant, as joint
tenants with rights of survivorship, to the extent permitted by applicable law.
10.04. Restrictions on Exercise.
The Board of Directors may, in its discretion, require as
conditions to the exercise of any option that the shares of Stock reserved for
issuance upon the exercise of the option shall have been duly listed, upon
official notice of issuance, upon a stock exchange, and that either:
(a) a Registration Statement under the Securities Act of 1933, as
amended, with respect to the Stock shall be effective, or
(b) the Participant shall have represented at the time of purchase,
in form and substance satisfactory to he Company, that it is the Participant's
intention to purchase the Stock for investment and not for resale or
distribution.
SECTION 11. ADMINISTRATION.
11.01. Appointment of Committee.
The Plan shall be administered by the Committee. No member of
the Committee shall be eligible to purchase Stock under the Plan.
11.02. Authority of Committee.
Subject to the express provisions of the Plan and applicable
law, the Committee shall have full power and authority in its discretion to
interpret and construe any and all provisions of the Plan, to adopt rules and
regulations for administering the Plan, and to make all other determinations
deemed necessary or advisable for administering the Plan. The Committee's
determination on the foregoing matters shall be conclusive.
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SECTION 12. MISCELLANEOUS.
12.01. Designation of Beneficiary.
A Participant may file a written designation of a beneficiary
who is to receive any Stock and/or cash. Such designation of beneficiary may be
changed by the Participant any time by written notice to the Treasurer of the
Company. Upon the death of a Participant and upon receipt by the Company of
proof of identity and existence at the Participant's death of a beneficiary
validly designated by the Participant under the Plan, the Company shall deliver
such Stock and/or cash to such beneficiary. In the event of the death of a
Participant and in the absence of a beneficiary validly designated under the
Plan who is living at the time of such Participant's death, the company shall
deliver such Stock and/or cash to the executor or administrator of the estate of
the Participant, or if no such executor or administrator has been appointed (to
the knowledge of the Company), the Company, in its discretion, may deliver such
Stock and/or cash to the spouse or to any one or more dependents of the
Participant as the Company may designate. No beneficiary shall, prior to the
death of the Participant by whom the beneficiary has been designated, acquire
any interest in the Stock or cash credited to the Participant under the Plan.
12.02. Transferability.
Neither Payroll Deductions nor any rights with regard to the
exercise of an option or to receive Stock under the Plan may be assigned,
transferred, pledged, or otherwise disposed of in any way by a Participant other
than by will or the laws of descent and distribution. Any such attempted
assignment, transfer, pledge or other disposition shall be without effect,
except that the Company may treat such act as an election to withdraw funds in
accordance with Section 7.02.
12.03. Use of Funds.
All Payroll Deductions received or held by the Company under
this Plan shall be segregated in a separate account maintained by the Company.
12.04. Adjustment Upon Changes in Capitalization.
(a) In the event that the Committee shall determine that any
dividend or other distribution (whether in the form of cash, Stock, other
securities, or other property) recapitalization, Stock split, reverse Stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of Stock or other securities of the Company, issuance of
warrants or other rights to purchase Stock or other securities of the Company,
or other similar corporate transaction or event affects the Stock such that an
adjustment is determined by the Committee to be appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan, the Committee may make appropriate and
proportionate adjustments in the number and/or kind of shares which are subject
to purchase under outstanding options and on the option exercise price or prices
applicable to such outstanding options. In addition, in any such event, the
number and/or kind of shares which may be offered in the Offering may also be
proportionately adjusted.
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(b) Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
or upon a sale of substantially all of the property or Stock of the Company to
another corporation, the holder of each option then outstanding under the Plan
will thereafter be entitled to receive at the next Termination Date upon the
exercise of such option for each share of Stock as to which such option shall be
exercised, as nearly as reasonably may be determined, the cash, securities
and/or property which a holder of one share of the Common Stock was entitled to
receive upon and at the time of such transaction. The Board of Directors shall
take such steps in connection with such transactions as the Board shall deem
necessary to assure that the provisions of this Section 12.04 shall thereafter
be applicable, as nearly as reasonably may be determined, in relation to the
said cash, securities and/or property as to which such holder of such option
might thereafter be entitled to receive.
12.05. Amendment and Termination.
The Board of Directors shall have complete power and authority
to terminate or amend the Plan; provided, however, that the Board of Directors
shall not, without the approval of the shareholders of the Company (i) increase
the maximum number of shares of Stock which may be issued; (ii) amend the
requirements as to the class of Employees eligible to purchase Stock under the
Plan or permit the members of the Committee to purchase Stock under the Plan. No
termination, modification, or amendment of the Plan may, without the consent of
an Employee then having an option under the Plan to purchase Stock, adversely
affect the rights of such Employee under such option.
12.06. Effective Date.
The Plan shall become effective as of February 1, 1997,
subject to approval by the holders of the majority of the Stock present and
represented at a special or annual meeting of the shareholders held on or before
December 31, 1997.
12.07. No Employment Rights.
The Plan does not, directly or indirectly, create any right
for the benefit of any Employee or class of Employees to purchase any shares of
Stock under the Plan, or create in any Employee or class of Employees any right
with respect to continuation of employment by the Company or any Subsidiary, and
it shall not be deemed to interfere in any way with the Company's or any
Subsidiary's right to terminate, or otherwise modify, an Employee's employment
at any time.
12.08. Effect of Plan.
The provisions of the Plan shall, in accordance with its
terms, be binding upon, and inure to the benefit of, all successors of each
Employee participating in the Plan, including, without limitation, such
Employee's estate and the executors, administrators or trustees thereof, heirs
and legatees, and any receiver, trustee in bankruptcy or representative of
creditors of such Employee.
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12.09. Governing Law.
The law of the State of Ohio will govern all matters relating
to this Plan except to the extent it is superseded by the laws of the United
States.
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