As filed with the Securities and Exchange Commission on September 10, 1996
Registration No.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
SAWTEK INC.
(Exact name of registrant as specified in its charter)
Florida 59-1864440
(State of incorporation) (I.R.S. Employer
Identification No.)
1818 South Highway 441
Apopka, Florida 32703
(Address of Principal Executive offices)
SAWTEK INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Steven P. Miller
SAWTEK INC.
1818 South Highway 441
Apopka, Florida 32703
(Name and address of agent for service)
(407) 886-8860
(Telephone number, including area code, of agent for service)
---------------------------------
Copies to:
William A. Grimm, Esq.
Akerman, Senterfitt & Eidson, P.A.
255 S. Orange Avenue, P.O. Box 231
Orlando, Florida 32802-0231
(407) 843-7860
---------------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum Amount of
Securities to Amount to be Offering Price Aggregate Offering Registration
be Registered Registered Per Share Price Fee
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Common Stock,
$0.0005 par 500,000 shares (1)$25.75 (1)$12,875,000 $4,439.66
value
- -------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as
amended, upon the basis of the average of the bid and asked prices of the
Company's Common Stock as reported on the NASDAQ National Market System on
September 3, 1996.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Sawtek Inc. Employee Stock Purchase Plan (the
"Plan") pursuant to Rule 428(b)(1) under the Securities Act of 1933, as amended
(the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
SAWTEK INC. (the "Company") is subject to the informational and
reporting requirements of Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The following documents,
which are filed with the Commission, are incorporated in this Registration
Statement by reference:
(1) The Company's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act, or the latest prospectus filed pursuant to Rule
424(b) under the Securities Act that contains audited financial statements for
the Company's latest fiscal year for which such statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year
covered by the document referred to in (1) above.
(3) The description of the Common Stock, par value $0.0005 per share
("Common Stock"), contained in a registration statement filed on Form 8-A under
the Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the shares of Common Stock offered
hereby and certain other legal matters will be passed upon for the Company by
Akerman, Senterfitt & Eidson, P.A., Orlando, Florida. William A. Grimm, a
shareholder in Akerman, Senterfitt & Eidson, P.A. and Secretary of the Company,
is the beneficial owner of 12,040 shares of Common Stock.
<PAGE>
Item 6. Indemnification of Directors and Officers.
The Company, a Florida corporation, is empowered by Section 607.0850 of
the Florida Business Corporation Act, subject to the procedures and limitations
stated therein, to indemnify any person who was or is a party to any proceeding
other than any action by, or in the right of, the corporation, 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, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise against liability incurred in connection with
such proceeding, including any appeal thereof, 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.
Section 607.0850 also empowers a Florida corporation to indemnify any
person who was or is a party to any proceeding by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, or other
enterprise, against expenses and amounts paid in settlement not exceeding, in
the judgment of the board of directors, the estimated expense of litigating the
proceeding to conclusion, actually and reasonably incurred in connection with
the defense or settlement of such proceeding, including any appeal thereof, if
he acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable unless, and only to the extent
that, the court in which such proceeding was brought, or any other court of
competent jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper. To the extent that a director, officer, employee
or agent of a corporation has been successful on the merits or otherwise in
defense of any proceeding referred to above, or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses actually and
reasonably incurred by him in connection therewith.
The Company's Articles of Incorporation (the "Articles") contain a
provision entitling Directors and executive officers to be indemnified by the
Company against claims which may arise out of their actions in such capacities
to the fullest extent permitted by law. The Company has also secured insurance
on behalf of its executive officers and Directors for certain liabilities which
may arise out of their actions in such capacities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits filed as part of this Registration Statement are as
follows:
EXHIBIT
NUMBER DESCRIPTION
4.1 --Amended and Restated Articles of Incorporation of Sawtek
Inc. (incorporated by reference to Registration Statement on
Form S-8, File No. 333-10579)
4.2 --1996 Bylaws of Sawtek Inc. (incorporated by reference to
Registration Statement on Form S-8, File No. 333-11523)
5.1 --Opinion of Akerman, Senterfitt & Eidson, P.A.
15.1 --Letter of Consent from Ernst & Young LLP.
23.1 --Consent of Akerman, Senterfitt & Eidson, P.A. Reference is
made to Exhibit 5.1.
99.1 --Sawtek Inc. Employee Stock Purchase Plan.
Item 9. Undertakings.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement 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.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The 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 (and where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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 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, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy and as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
<PAGE>
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 City of Apopka, State of Florida on the 10th day of
September, 1996.
SAWTEK INC.
By:/s/Steven P. Miller
Steven P. Miller
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned, officers and directors of SAWTEK INC., hereby
severally constitute Steven P. Miller and Neal J. Tolar, and each of them
singly, our true and lawful attorneys with full power to any of them, and to
each of them singly, to sign for us and in our names in the capacities indicated
below the Registration Statement on Form S-8 filed herewith and any and all
amendments to said Registration Statement and generally to do all such things in
our name and behalf in our capacities as officers and directors to enable SAWTEK
INC. to comply with the provisions of the Securities Act and all requirements of
the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
<PAGE>
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in their capacities and on
the date indicated.
Signature Title Date
/s/Steven P. Miller Chairman, President and Chief
Steven P. Miller Executive Officer September 10, 1996
/s/Neal J. Tolar Senior Vice President, Chief
Neal J. Tolar Technical Officer and Director September 10, 1996
- ------------------
Thomas L. Shoquist Vice President, Quality
/s/Gary A. Monetti Vice President, Operations and
Gary A. Monetti Chief Operating Officer September 10, 1996
/s/Raymond A. Link Vice President, Finance and
Raymond A. Link Chief Financial Officer September 10, 1996
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Robert C. Strandberg Director
/s/Bruce S. White
Bruce S. White Director September 10, 1996
/s/Willis C. Young
Willis C. Young Director September 10, 1996
<PAGE>
INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 --Amended and Restated Articles of Incorporation of Sawtek Inc.
(incorporated by reference to Registration Statement on Form S-8,
File No. 333-10579).
4.2 --1996 Bylaws of Sawtek Inc. (incorporated by reference to Registration
Statement on Form S-8, File No. 333-11523).
5.1 --Opinion of Akerman, Senterfitt & Eidson, P.A.
15.1 --Letter of Consent from Ernst & Young LLP.
23.1 --Consent of Akerman, Senterfitt & Eidson, P.A. Reference is made to
Exhibit 5.1.
24.1 --Power of Attorney. Reference is made to the signature page hereto.
99.1 --Sawtek Inc. Employee Stock Purchase Plan.
<PAGE>
Exhibit 5.1
AKERMAN, SENTERFITT & EIDSON, P.A.
Attorneys at Law
Citrus Center
255 South Orange Avenue
Post Office Box 231
Orlando, Florida 32802-0231
(407) 843-7860
Telecopy (407) 843-6610
September 10, 1996
Sawtek Inc.
1818 South Highway 441
Apopka, Florida 32703
Re: SAWTEK INC. EMPLOYEE STOCK PURCHASE PLAN (the
"Plan") - Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 filed by you
with the Securities and Exchange Commission on September 10, 1996 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 500,000 shares of Common Stock of Sawtek
Inc. (the "Shares") to be distributed pursuant to the Plan. As your counsel in
connection with this registration process, we have examined the proceedings
proposed to be taken in connection with said sale and issuance of the Shares.
It is our opinion that, upon completion of the proceedings being taken
or contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares, and upon completion of the proceedings being taken in order to permit
such transactions to be carried out in accordance with the securities laws of
the various states, where required, the Shares when issued and sold in the
manner referred to in the Registration Statement will be legally issued, fully
paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement, including the prospectus constituting part thereof, and
any amendment thereto and any registration statement for the same offering
covered by the Registration Statement that is to be effective upon filing
pursuant to Rule 462(b) and all post-effective amendments thereto.
Very truly yours,
AKERMAN, SENTERFITT & EIDSON, P.A.
By: /s/William A. Grimm
William A. Grimm
<PAGE>
Exhibit 15.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement (Form S-8 No 33-00000) pertaining to the Sawtek Inc. Employee Stock
Purchase Plan of our report dated October 30, 1995 (except for Note 13, as to
which the date is February 29, 1996, and Note 14, as to which the date is April
27, 1996) with respect to the consolidated financial statements of Sawtek Inc.
for the year ended September 30, 1995 included in its Registration Statement on
Form S-1 (File No. 333-1860) filed with the Securities and Exchange Commission.
/s/Ernst & Young LLP
Ernst & Young LLP
Orlando, Florida
September 6, 1996
<PAGE>
Exhibit 99.1
SAWTEK INC.
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I - PURPOSE
1.01. Purpose.
The Sawtek Inc. Employee Stock Purchase Plan (the "Plan") is intended to provide
a method whereby Employees of Sawtek Inc. (hereinafter referred to, unless the
context otherwise requires, as the "Company") and its Subsidiary Corporations
will have an opportunity to acquire a proprietary interest in the Company
through the purchase of shares of the Common Stock of the Company. It is the
intention of the Company to have the Plan qualify as an "Employee stock purchase
plan" under ss.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.
ARTICLE II - DEFINITIONS
2.01. Base Pay.
"Base Pay" shall mean regular straight-time earnings excluding payments for
overtime, shift premium, bonuses and other special payments.
2.02. Committee.
"Committee" shall mean the individuals described in Article XI.
2.03. Employee.
"Employee" means any person who is employed on a full-time or part-time basis by
the Company or any Subsidiary Corporation and is regularly scheduled to work
more than 20 hours per week and more than five months in any calendar year.
2.04. Subsidiary Corporation.
"Subsidiary Corporation" shall mean any future corporation which (i) would be a
"subsidiary corporation" of Sawtek Inc. as that term is defined in ss.424 of the
Code and (ii) is designated as a participant in the Plan by the Committee.
ARTICLE III - ELIGIBILITY AND PARTICIPATION
3.01. Initial Eligibility.
Any Employee, who shall have completed ninety (90) days employment and shall be
employed by the Company on the date the Employee's participation in the Plan is
to become effective, shall be eligible to participate in offerings under the
Plan which commence on or after such ninety (90) day period has concluded.
Participation in the Plan and options granted pursuant to the Plan are strictly
limited to Employees.
3.02. Leave of Absence.
For purposes of determining initial eligibility for participation in the Plan,
an Employee on leave of absence shall be deemed to continue to be an Employee
under the Plan for the first (1st) ninety (90) days of such leave of absence.
Such person's initial eligibility to participate in the Plan shall terminate at
the close of business on the ninetieth (90th) day of such leave of absence
unless such person 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
(90th) day. Termination by the Company 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 eligibility to participate in the Plan
for all purposes of the Plan and shall terminate such Employee's participation
in the Plan, and/or right to exercise any option under the Plan. Any such
Employee may re-establish eligibility only by meeting the requirements of
ss.3.01 and/or 3.02.
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 or any Offering under the Plan:
(a) if, immediately after the grant, such Employee would own
stock or be deemed to own stock, and/or hold outstanding
options to purchase stock, possessing five percent (5%) or
more of the total combined voting power or value of all
classes of stock of the Company or any parent or subsidiary
company. (For purposes of this paragraph, the rules of
ss.424(d) of the Code shall apply in determining stock
ownership of any Employee.); or
(b) which permits such 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.
3.04. Commencement of Participation.
An eligible Employee may become a participant by completing an authorization of
a payroll deduction on the form provided by the Company and filing it with the
Treasurer of the Company on or before the date set therefor by the Committee,
which date shall be prior to the Offering Commencement Date for the Offering (as
such terms are defined below). Payroll deductions for a participant shall
commence on the applicable Offering Commencement Date when his authorization for
a payroll deduction becomes effective and shall end on the Offering Termination
Date of the Offering to which such authorization is applicable unless sooner
terminated by the participant as provided in Article VIII.
ARTICLE IV - OFFERINGS
4.01 Annual Offerings.
The Plan will be implemented by four (4) annual offerings of the Company's
Common Stock (the "Offerings"). The first Offering shall begin on the date on
which the Company's Common Stock is first offered for sale to the public
pursuant to a Registration Statement filed with the Securities and Exchange
Commission (the "IPO Date") and shall terminate on December 31, 1996. Subsequent
Offerings shall begin on the first (1st) day of January in each of the years
1997, 1998 and 1999, and shall terminate on December 31 of the same year. In the
discretion of the Committee, exercised prior to the commencement thereof, each
annual Offering may be divided into two (2) six-month Offerings commencing and
terminating, respectively as follows: (i) with respect to the first annual
Offering, commencing on the IPO Date and July 1, 1996 and terminating on June
30, 1996 and December 31, 1996; and, (ii) with respect to subsequent annual
Offerings, commencing on January 1 and July 1 of such year and terminating on
June 30 and December 31 of such year. The maximum number of shares issued in the
respective years shall be:
o From the IPO Date to December 31, 1996: 125,000 shares.
o From January 1, 1997 to December 31, 1997: 125,000 shares plus
reissued shares from the prior Offerings, whether offered or not.
o From January 1, 1998 to December 31, 1998: 125,000 shares plus
unissued shares from the prior Offerings, whether offered or not.
o From January 1, 1999 to December 31, 1999: 125,000 shares plus
unissued shares from the prior Offerings, whether offered or not.
If a six-month Offering is made, the maximum number of shares which may be
issued shall be one-half (1/2) of the number of shares set forth for the annual
period in which the six-month offering falls, plus, if the Offering is a July 1
to December 31 offering, unissued shares, whether offered or not, from the
immediately preceding six-month Offering. As used in the Plan, "Offering
Commencement Date" means the IPO Date, January 1 or July 1, as the case may be,
on which the particular Offering begins, and "Offering Termination Date" means
the June 30 or December 31, as the case may be, on which the particular Offering
terminates.
ARTICLE V - PAYROLL DEDUCTIONS
5.01 Amount of Deduction.
At the time a participant files his authorization for payroll deduction, he
shall elect to have deductions made from his pay on each payday during the time
he is a participant in an Offering at the rate of one, two, three, four, five,
six, seven, eight, nine or ten percent (1, 2, 3, 4, 5, 6, 7, 8, 9, or 10%) of
his base pay in effect at the Offering Commencement Date of such Offering. In
the case of a part-time hourly Employee, such Employee's base pay during an
Offering shall be determined by multiplying such Employee's hourly rate of pay
in effect on the Offering Commencement Date by the number of regularly scheduled
hours of work for such Employee during such Offering.
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 ss.5.04.
5.03. Changes in Payroll Deductions.
A participant may discontinue his participation in the Plan as provided in
article VIII, but no other change can be made during an Offering and,
specifically, a participant may not alter the amount of the participant's
payroll deductions for that Offering.
5.04. Lease of Absence.
If a participant goes on a leave of absence, such participant shall elect:
(a) to withdraw the balance in the participant's account pursuant to
ss.7.02.
(b) to delay commencement of, or, if applicable, to discontinue,
contributions to the Plan but remain a participant in the Plan; or
(c) if payments will be made to the participant by the Company during
such leave of absence, remain a participant in the Plan during
such leave of absence, authorizing deductions to be made from such
payments by the Company 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 to such participant are in-
sufficient to meet participant's authorized Plan deductions.
ARTICLE VI - GRANTING OF OPTIONS
6.01. Number of Option Shares.
On the Commencement date of each Offering, a participating Employee shall be
deemed to have been granted an option to purchase a maximum number of shares of
the stock of the Company equal to an amount determined as follows:
(i) that percentage of the Employee's Base Pay which the
Employee has elected to have withheld (but in no event more
than 10%);
(ii) multiplied by the Employee's Base Pay during the period of
the Offering;
(iii) divided by eighty-five percent (85%) of the market value
of the stock of the Company on the applicable Offering
Commencement Date.
The market value of the Company's stock shall be determined as provided in
paragraphs (a) and (b) of ss.6.02 below. An Employee's base pay during the
period of an Offering shall be determined by multiplying such Employee's hourly
rate (as in effect on the last day prior to the Commencement Date of the
particular Offering) by two thousand eighty (2,080) or, in the case of a
six-month Offering, by one thousand forty (1,040), as the case may be, plus any
commission paid by the Company to such Employee during the period of the
Offering, provided that any commission paid may be applied to only one Offering,
and provided further that, in the case of a part-time, hourly Employee, the
Employee's base pay during the period of an offering shall be determined by
multiplying such Employee's hourly rate by the number of regularly scheduled
hours of work for such Employee during such Offering.
6.02. Option Price.
The option price of stock purchased with payroll deductions made during such
annual offering for a participant therein shall be the lower of:
(a) eighty-five percent (85%) of the closing price of the stock on the
Offering Commencement Date or the nearest prior business day on which trading
occurred on the NASDAQ National Market Systems; or
(b) eighty-five percent (85%) of the closing price of the stock on the
Offering Termination Date or the nearest prior business day on which trading
occurred on the NASDAQ National Market System. If the Common Stock of the
Company is not admitted to trading on any of the aforesaid dates for which
closing prices of the stock are to be determined, then reference shall be made
to the fair market value of the stock on that date, as determined on such basis
as shall be established or specified for the purpose of the Committee.
ARTICLE VII - EXERCISE OF OPTION
7.01. Automatic Exercise.
Unless a participant gives written notice to the Company as hereinafter
provided, the participant's option for the purchase of stock with payroll
deductions made during any Offering will be deemed to have been exercised
automatically on the Offering Termination Date applicable to such Offering, for
the purchase of the number of full shares of stock which the accumulated payroll
deductions in the participant's account at that time will purchase at the
applicable option price (but not in excess of the number of shares for which
options have been granted to the Employee pursuant to ss.6.01), and any excess
in the participant's account at that time will be returned to the participant.
If the aggregate number of options to be exercised exceeds the number of shares
authorized for the Offering, each participant shall receive a pro rata number of
shares based on the participant's relative account balances and each
participant's excess account balance shall be refunded to the participant. In no
event shall any amount in a participant's account carry forward to any
subsequent Offering.
7.02. Withdrawal of Account.
By written notice to the Treasurer of the Company, at any time prior to the
Offering Termination Date applicable to any Offering, a participant may elect to
withdraw all of the accumulated payroll deductions in his or her account at such
time. In such event, the Employee will not be entitled to participate in such
Offering.
7.03. Fractional Shares.
Fractional shares will not be issued under the Plan, and any accumulated payroll
deductions which would have been used to purchase fractional shares will be
returned to any Employee promptly following the termination of an Offering,
without interest.
7.04. Transferability of Option.
During a participant's lifetime, options held by such participant shall be
exercisable only by that participant.
7.05. Delivery of Stock.
As promptly as practical, after the Offering Termination Date of such Offering,
the Company will deliver to each participant, as appropriate, the stock
purchased upon exercise of the participant's option.
ARTICLE VIII - WITHDRAWAL
8.01. In General.
As indicated in ss.7.02., a participant may withdraw payroll deductions credited
to the participant's account under the Plan at any time prior to the Offering
Termination Date by giving written notice to the Treasurer of the Company. All
of the participant's payroll deductions credited to his/her account will be paid
to the participant promptly after receipt of participant's notice of withdrawal,
and no further payroll deductions will be made from the participant's pay during
such Offering.
8.02. Effect on Subsequent Participation.
A participant's withdrawal from any Offering will not have any effect upon the
participant's eligibility to participate in any succeeding Offering 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 (90) days), the
payroll deductions credited to the participant's account will be returned to the
participant, or, in the case of the participant's death subsequent to the
termination of the participant's employment, to the person or persons entitled
thereto under ss.12.01.
8.04. Termination of Employment Due to Death.
Upon termination of the participant's employment because of the participant's
death, the participant's beneficiary (as defined in ss.12.01.) shall have the
right to elect, by written notice given to the Treasurer of the Company prior to
the earlier of the Offering Termination Date or the expiration of a period of
sixty (60) days commencing with the date of the death of the participant,
either:
(a) to withdraw all of the payroll deductions credited to the partici-
pant's account under the Plan, or
(b) to exercise the participant's option for the purchase of stock on
the Offering Termination Date next following the date of the participant's death
for the purchase of the number of full shares of stock which the accumulated
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 elections 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 8.04.(b), to exercise the
participant's option.
8.05. Lease of Absence.
A participant on leave of absence shall, subject to the election made by such
participant pursuant to ss.5.04., continue to be a participant in the Plan so
long as such participant is on continuous leave of absence, provided, however,
that a participant who has been on leave of absence for more than ninety (90)
days shall not be entitled to participate in any Offering commencing after the
ninetieth (90th) day of such leave of absence. Notwithstanding the above or 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 at the earlier of:
(a) the termination of such leave of absence or (b) three (3) months from the
ninetieth (90) day of such leave of absence, such participant's participation in
the Plan shall terminate on whichever of such dates first occurs.
ARTICLE IX - INTEREST
9.01. Payment of Interest.
The Company may, but is not required to, pay interest on any money paid into the
Plan or credited to the account of any participant Employee; provided, however,
that interest shall be paid on any and all money which is distributed to an
Employee or the Employee's beneficiary, pursuant to the provisions of ss.7.02.,
8.01., 8.03., 8.04(a)., and 10.01. Such distributions shall bear simple interest
during the period from the date of withholding to the date of return at the
regular passbook savings account rates per annum in effect at SunTrust Bank,
Central Florida, National Association, Orlando, Florida during the applicable
Offering period or, if such rates are not published or otherwise available for
such purpose, at the regular passbook savings account rates per annum in effect
during such period at another major commercial bank in Orlando, Florida selected
by the Committee. Where the amount returned represents an excess amount in an
Employee's account after such account has been applied to the purchase of stock,
the Employee's withholding account shall be deemed to have been applied first
toward the purchase of stock under the Plan, so that interest shall be paid on
the last withholdings during the period which results in the excess amount.
ARTICLE X - STOCK
10.01. Maximum Shares.
The maximum number of shares which shall be issued under the Plan, subject to
adjustment upon changes in capitalization of the Company as provided in
ss.12.04. shall be 125,000 shares in each annual Offering (62,500 shares in each
six-month Offering), plus, in each Offering all unissued shares from prior
Offerings, whether offered or not, not to exceed 500,000 shares for all
Offerings. If the total number of shares for which options are exercised on any
offering Termination Date in accordance with Article VI exceeds the maximum
number of shares for the applicable offering, the Company shall make a pro rate
allocation of the shares available for delivery and distribution in as nearly a
uniform manner as shall be practicable and as it shall determine to be
equitable, and the balance of payroll 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 the participant's
option until such option has been exercised.
10.03. Name in Which Option Stock is Registered.
Stock to be delivered to a participant under the Plan will be registered in the
name of the participant, or, if the participant so directs by written notice to
the Treasurer of the Company prior to the Offering Termination Date applicable
thereto, in the names of the participant and one (1) such other person as may be
designated by the participant, as joint tenants with rights of survivorship or
as tenants by the entireties, 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 Common 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 said shares shall be effective, or
(b) the participant shall have represented at the time of purchase, in
form and substance satisfactory to the Company, that it is the participant's
intention to purchase the shares for investment and not for resale or
distribution.
ARTICLE XI - ADMINISTRATION
11.01. Appointment of Committee.
The Board of Directors may appoint a committee (the "Committee") to administer
the Plan, which shall consist of no fewer than three (3) members of the Board of
Directors. 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, the Committee shall have plenary
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.
11.03. Rules Governing the Administration of the Committee.
The Board of Directors may from time to time appoint members of the Committee in
substitution for or in addition to members previously appointed and may fill
vacancies, however caused, in the Committee. The Committee may select one (1) of
its members as its Chairman and shall hold its meetings at such times and places
as it shall deem advisable and may hold telephonic meetings. A majority of its
members shall constitute a quorum. All determinations of the Committee shall be
made by a majority of its members. The Committee may correct any defect or
omission or reconcile any inconsistency in the Plan, in the manner and to the
extent it shall deem desirable. Any decision or determination reduced to writing
and signed by a majority of the members of the Committee shall be fully
effective as if it had been made by a majority vote at a meeting duly called and
held. The Committee may appoint a Secretary and shall make such rules and
regulations for the conduct of its business as it shall deem advisable.
ARTICLE XII - 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 at 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 credited to a participant's account 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 the
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 ss.7.02.
12.03. Use of Funds.
All payroll deductions received or held by the Company under this Plan may be
used by the Company for any corporate purpose, and the Company shall not be
obligated to segregate such payroll deductions.
12.04 Adjustment Upon Changes in Capitalization.
(a) If, while any options are outstanding, the outstanding shares of
Common Stock of the Company have increased, decreased, changed into or been
exchanged for a different number or kind of shares or securities of the Company
through reorganization, merger, recapitalization, reclassification, stock split,
reverse stock split or similar transaction, appropriate and proportionate
adjustments may be made by the Committee in the number and/or kind of shares
which are subject to purchase under outstanding options and in the option
exercise price or prices applicable to such outstanding options. In addition, in
any such event, the number and/or kind or shares which may be offered in the
Offerings described in Article IV hereof shall also be proportionately adjusted.
No adjustments shall be made for stock dividends. For the purposes of this
Paragraph, any distribution of shares to shareholders in an amount aggregating
twenty percent (20%) or more of the outstanding shares shall be deemed a stock
split, and any distributions of shares aggregating less than twenty percent
(20%) of the outstanding shares shall be deemed a stock dividend.
(b) Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company with one (1) 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 Offering Termination Date
upon the exercise of such option for each share as to which such option shall be
exercised, as nearly as reasonably maybe determined, the cash, securities and/or
property which a holder of one (1) 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 ss.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 stockholders of the Company:
(i) increase the maximum number of shares which may be issued
under any Offering (except pursuant to ss.12.04.); or
(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, and no amendment shall be
made which results in the "modification" of any Option within the meaning of
Section 424(h) of the Code.
12.06. 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 under the Plan, or
create in any Employee or class of Employees any right with respect to
continuation of employment by the Company, and it shall not be deemed to
interfere in any way with the Company's right to terminate, or otherwise modify,
an Employee's employment at any time.
12.07. 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 the Employee.
12.08. Governing Law.
The law of the State of Florida will govern all matters relating to this Plan
except to the extent it is superseded by the laws of the United States.
12.09. Effective Date.
The Plan shall take effect upon approval by the holders of a majority of the
stock of the Company entitled to vote either present or represented at a special
or annual meeting of the shareholders, or by written consent or consents in
writing signed by such holders setting forth the action so taken, subject to the
condition that if the Company's Common Stock is not offered for sale to the
public pursuant to a Registration Statement filed with the Securities and
Exchange Commission then the Plan shall terminate without the need for further
actions by any party. If the Plan is not so approved, the Plan shall not become
effective.
