Registration Statement No. - 333 -_________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
Registration Statement Under the Securities Act of 1933
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EXIGENT INTERNATIONAL, INC.
(Exact name of issuer as specified in its articles)
Delaware 59-3379927
(State or other jurisdic- (I.R.S. Employer
tion of incorporation) Identification No.)
1225 Evans Road
Melbourne, Florida 32904-2314
(407) 952-7550
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive office)
Exigent International, Inc.
Omnibus Stock Option and Incentive Plan
(Full title of the plan)
Stuart P. Dawley
Executive Vice President - General Counsel
Exigent International, Inc.
1225 Evans Road
Melbourne, Florida 32904-2314
(407) 952-7550
(Name, address, including zip code, and telephone number,
including area code, of agent for service of process)
Copies of all communications, including all communications sent to the
agent for service, should be sent to:
John G. Igoe, Esq.
Edwards & Angell
250 Royal Palm Way
Palm Beach, Florida 33480
(561) 833-7700
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
Approximate Date of Commencement of Proposed Sale to Public: From time to time
after the effective date of this Registration Statement.
Exhibit Index on Page 8
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of Securities Proposed maximum Proposed maximum Amount of
to be registered Amount to be registered offering price per unit (1) aggregate offering price (1) registration fee
================ ======================= =========================== ============================ ==================
Common Stock, $.01 par
<S> <C> <C> <C> <C>
value per share 2,500,000 shares $4.0625 $10,156,250 $2,823.44
================= ======== ============ =========
(1) The price is estimated in accordance with Rule 457(h)(1) under the
Securities Act of 1933, as amended, solely for the purpose of
calculating the registration fee, based on the average of the high and
low prices of the Common Stock as reported on the Nasdaq SmallCap
Market on March 25, 1999.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Exigent International, Inc. (the
"Company") are incorporated herein by reference, except as superseded or
modified herein as described below:
(a) The Company's latest Annual Report filed on Form 10-K for the
fiscal year ended December 31, 1998.
(b) The description of the Company's Common Stock contained in Item 1
of the Company's Registration Statement on Form 8-A dated October 16, 1997.
In addition to the foregoing, all documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment to this Registration
Statement indicating that all of the securities offered hereunder have been sold
or deregistering all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference in this Registration
Statement shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
subsequently filed document that is or is deemed to be also incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities
See Item 3(b) above.
Item 5. Interests of Named Experts and Counsel
Not Applicable
<PAGE>
Item 6. Indemnification of Directors and Officers
Officers and directors of the Company are covered by certain provisions of the
Delaware General Corporation Law and the Certificate of Incorporation and Bylaws
of the Company, which serve to limit, and, in certain instances, to indemnify
them against, liabilities which they may incur in such capacities.
The Company's Certificate of Incorporation limits the liability of its directors
to the Company or its shareholders (in their capacity as directors, but not in
their capacity as officers) to the fullest extent permitted by Delaware law.
Specifically, the directors of the Company will not be personally liable for
monetary damages for breach of a director's fiduciary duty as a director, except
for liability (i) for any breach of the director's duty of loyalty to the
Company or its shareholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
unlawful payments of dividends or unlawful stock repurchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal
benefit.
The Company's Certificate of Incorporation provides that the Company indemnify
its directors or officers, former directors or officers, and any person who may
have served at its request as a director or officer of another corporation in
which it owns shares of capital stock or of which it is a creditor against
expenses incurred by them in connection with the defense of any action in which
they are parties by reason of being or having been directors or officers of the
Company, or of such other corporation, except in relation to matters as to which
any such person is liable for negligence or misconduct in the performance of
duty.
Except in an action by or in the right of the Company, the Company's Bylaws
provide that the Company indemnify directors and officers (as well as certain
other persons) if such person acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
the conduct was unlawful. No indemnification may be made in respect of any
matter as to which such person shall have been adjudged to be liable to the
Company unless and only to the extent that the court in which such action was
brought determines upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the court deems proper.
The Company's Bylaws also provide that any indemnification (unless ordered by a
court) may be made by the Company only as authorized in the specific case upon a
determination that indemnification is proper in the circumstances because such
person has met the applicable standard of conduct. Such determination must be
made (i) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, (ii) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
shareholders of the Company. To the extent, however, that an indemnified person
has been successful on the merits or otherwise in defense of any action
described above, or in the defense of any matter therein, such person shall be
indemnified against expenses (including attorneys' fees) incurred in connection
therewith, without the necessity of authorization in the specific case. Expenses
incurred in defending or investigating a threatened or pending action may be
paid by the Company in advance of the final disposition of such action upon
receipt of an undertaking by such person to repay such amount if it is
ultimately determined that indemnification is not proper. The indemnification
and advancement of expenses provided by or granted pursuant to the Company's
Bylaws are not exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, contract, vote of shareholders or disinterested directors or
otherwise, it being the Company's policy that indemnification of the persons
specified in the Bylaws shall be made to the fullest extent permitted by law.
The indemnification and advancement of expenses provided by the Company's
Bylaws, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director or officer and inure to the benefit of
the heirs, executors and administrators of such person.
The Company carries directors' and officers' liability insurance.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
A list of the exhibits included as part of this Registration Statement
is set forth in the Exhibit Index which immediately precedes such exhibits and
is hereby incorporated by reference herein.
<PAGE>
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement (or the most recent post-effective
amendment thereto); and
(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 (i) and (ii) shall 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 this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities
being registered which remain unsold at the
termination of the offering.
(b) 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) The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, a copy of the registrant's annual report
to stockholders for its last fiscal year, unless such person
otherwise has received a copy of such report, in which case the
registrant shall state in the prospectus that it will promptly
furnish, without charge, a copy of such report upon written request
from the person.
<PAGE>
(d) 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
Securities Act of 1933 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 of the registrant 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 Securities Act of 1933 and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Melbourne, State of Florida on March 24, 1999.
EXIGENT INTERNATIONAL, INC.
By: /s/ Bernard R. Smedley
-------------------------
Bernard R. Smedley
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears
below constitutes and appoints the Chairman and Chief Executive Officer, the
Chief Financial Officer, or the Secretary, or any of them, acting alone, as his
true and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange
Commission, granting said attorney-in-fact and agent, and each of them, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or any of them, or their or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
/s/ Bernard R. Smedley March 24, 1999
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Bernard R. Smedley Chief Executive Officer
and Chairman of the Board
of Directors
/s/ Jeffrey Weinress March 24, 1999
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Jeffery Weinress Chief Financial Officer
and Principal Accounting Officer
/s/ Don F. Riordan March 24, 1999
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Don F. Riordan, Jr. Director
/s/ Daniel J. Stark March 24, 1999
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Daniel J. Stark Director
/s/ William K. Presley March 24, 1999
- -------------------------
William K. Presley Director
/s/ Robert M. Janowiak March 24, 1999
- -------------------------
Robert M. Janowiak Director
/s/ Arthur H. Collier March 24, 1999
- -------------------------
Arthur H. Collier Director
/s/ Scott B. Helm March 24, 1999
- -------------------------
Scott B. Helm Director
<PAGE>
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER EXHIBIT NUMBER
4.1 Exigent International, Inc. Omnibus Stock
Option and Incentive Plan 9
5 Opinion of Edwards & Angell, LLP 25
23.1 Consent of Ernst & Young LLP 27
23.2 Consent of Hoyman, Dobson & Company, P.A. 28
23.3 Consent of Edwards & Angell, LLP (included in Exhibit 5). N/A
24 Power of Attorney (included in signature page) N/A
Exhibit 4.1
EXIGENT INTERNATIONAL, INC.
OMNIBUS STOCK OPTION AND INCENTIVE PLAN
1. PURPOSE OF PLAN
The purpose of this Omnibus Stock Option and Incentive Plan (the
"Plan") is to advance the interests of Exigent International, Inc. ("Exigent" or
"Company") and its stockholders by enabling Exigent and Participating Companies
(as defined below) to attract and retain highly talented employees, directors,
consultants and advisers who are in a position to make significant contributions
to the success of Exigent, to reward them for their contributions to the success
of Exigent, and to encourage them, through stock ownership, to increase their
proprietary interest in Exigent and their personal interest in its continued
success and progress.
The Plan provides for the award of Exigent stock options and Exigent
common stock. Options granted pursuant to the Plan may be incentive or
nonstatutory stock options. Options granted pursuant to the Plan shall be
presumed to be nonstatutory options unless expressly designated as incentive
options at the time of grant.
2. DEFINITIONS
For the purposes of this Plan and related documents, the following
definitions apply:
"Award Agreement" means the stock option agreement, restricted stock
agreement, stock appreciation right agreement, performance award agreement or
other written agreement between Exigent and a Grantee that evidences and sets
out the terms and conditions of a Grant.
"Board" means the Board of Directors of the Company.
"Breach of Conduct" shall mean activities which constitute a serious
breach of conduct as determined by the Committee in its sole discretion,
including, but not limited to: (i) the disclosure or misuse of confidential
information or trade secrets; (ii) activities in violation of the policies of
any Participating Company, including without limitation, the Company's insider
trading policy; (iii) the violation or breach of any material provision in any
applicable employment contract or agreement; (iv) engaging in conduct relating
to the Grantee's employment for which either criminal or civil penalties may be
sought; (v) engaging in activities which adversely affect or which are contrary
or harmful to the interests of a Participating Company, or (vi) engaging in
competition with a Participating Company during employment or within one (1)
year following termination of employment with a Participating Company. The
determination of Breach of Conduct shall be determined by the Committee in good
faith and in its sole discretion.
"Committee" means a committee of the Board designated from time to time
by resolution of the Board. Commencing on the Effective Date, and until such
time as the Board shall determine otherwise, the Committee shall be the
Compensation Committee with respect to all Grants made to the Chief Executive
Officer and President of the Company and Outside Directors and all other
officers participating in executive management incentive compensation programs;
and Bernard R. Smedley, a Board member and current Chief Executive Officer of
the Company, for Grants to all other Grantees.
"Company" or "Exigent" means Exigent International, Inc., a Delaware
corporation, or any successor thereof.
"Effective Date" means December 17, 1998.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means the closing sale price of Stock on the
national securities exchange on which the Stock is then principally traded or,
if that measure of price is not available, on a composite index of such
exchanges or, if that measure of price is not available, in a national market
system for securities on the date of the option grant (or such other date as is
specified herein). In the event that there are no sales of Stock on any such
exchange or market on date of the option grant (or such other date as is
specified herein), the Fair Market Value of Stock on the date of the grant (or
such other date as is specified herein) shall be deemed to be the closing sales
price on the next preceding day on which Stock was sold on any such exchange or
market. In the event that the Stock is not listed on any such market or exchange
on the applicable date, a reasonable valuation of the Fair Market Value of the
Stock on such date shall be made by the Board.
"Grant" means an award of an option, Restricted Stock, Stock
Appreciation Right or Performance Award under the Plan.
"Grantee" means a person who receives or holds an option, Restricted
Stock, Stock Appreciation Right or Performance Award under the Plan.
"I.R.C." means the Internal Revenue Code of 1986, as it may be amended
from time to time.
"Incentive Option" means any option granted under the Plan intended to
satisfy the requirements under I.R.C. Section 422(b) as an incentive stock
option.
"Nonstatutory Option" means any option granted under the Plan that does
not qualify as an Incentive Option.
"Option Termination Date" is defined in Section 13(b) below.
"Outside Director" means a member of the Board who is not an officer,
more than 10% owner, or employee of the Company.
"Parent" means a parent corporation as defined in I.R.C. Section 424(e).
"Participating Company" means the Company, any Parent of the Company,
and any subsidiary (as defined in Rule 405 under the Securities Act of 1933, as
amended) of the Company or its Parent.
"Performance Award" shall mean any right granted under Section 16 of
the Plan.
"Plan" means this Omnibus Stock Option and Incentive Plan.
"Restricted Stock" means shares of Stock awarded to a Grantee pursuant
to Section 15 hereof.
"Stock" means shares of the Company's authorized Common Stock, $.01 par
value per share.
"Subsidiary" means a subsidiary corporation as defined in I.R.C.
Section 424(f).
"Stock Appreciation Rights" means the right to recover appreciation of
the optioned stock in the form of a taxable payment of cash and/or other
property, including stock of the Company, in exchange for the cancellation or
surrender of the optioned stock on which the appreciation is measured
("underlying stock option"). The appreciation of the optioned stock shall be
measured by the difference between the Fair Market Value of the optioned stock
on the date of exercise and the option price.
"Terminating Transaction" means any of the following events: (a) the
dissolution or liquidation of the Company; (b) a reorganization, merger or
consolidation of the Company with one or more other persons in which the Company
is not the surviving corporation or becomes a subsidiary of another corporation
other than a corporation that was a Participating Company immediately prior to
such event; (c) a sale of substantially all the Company's assets to a person or
entity other than a corporation that was a Participating Company immediately
prior to such event; or (d) the acquisition by a person or persons acting as a
group or otherwise in concert (other than a Company stockholder or employee of a
Participating Company as of the Effective Date, or an employee benefit plan of a
Participating Company) of equity securities of the Company that represent a
majority or more of the aggregate voting power of all outstanding equity
securities of the Company. As used herein or elsewhere in this Plan, the word
"person" shall mean an individual, corporation, partnership, association or
other person or entity, or any group of two or more of the foregoing that have
agreed to act together.
"Total Disability" means a "total and permanent disability" as
defined in I.R.C. Section 22(e)(3).
3. ADMINISTRATION OF PLAN
(a) Administration by Committee. The Plan shall be administered by the
Committee. The Committee shall have authority, not inconsistent with the express
provisions of the Plan and subject to the recommendations of the Chief Executive
Officer of the Company, to:
(i) award Grants consisting of options, Restricted Stock, Stock
Appreciation Rights or Performance Awards or all of such awards, to such
eligible persons as the Committee may select;
(ii) determine the timing of Grants and the number of shares of
Stock subject to each Grant;
(iii) determine the terms and conditions of each Grant, including
whether an option is an Incentive Option or a Nonstatutory Option (consistent
with the requirements of the I.R.C.) and the nature and duration of any
restriction or condition (or provision for lapse thereof) relating to the
vesting or forfeiture of a Grant;
(iv) adopt such rules and regulations as the Committee may deem
necessary or appropriate to carry out the purposes of the Plan; and
(v) interpret the provisions of the Plan and of any Grants made
hereunder and decide any questions and settle all controversies and disputes
that may arise in connection with the Plan.
All decisions, determinations, interpretations or other actions by the Committee
with respect to the Plan shall be final, conclusive and binding on all persons,
including the Company, Participating Companies and Grantees and their respective
legal representatives, their successors in interest and permitted assigns and
upon all other persons claiming by, through, under or against any of them.
(b) Grants to Officers and Directors. Notwithstanding the foregoing,
(i) Grants issued to Company directors, officers or other persons subject to
Section 16 of the Exchange Act which are intended to comply with the exemption
provided by Exchange Act Rule 16b-3(d)(1) shall be approved by the Board or a
committee of the Board that meets the requirements described Exchange Act Rules
16b-3(d)(1) and 16b-3(b)(3), and (ii) Grants to the CEO and other officers
considered "covered employees" under I.R.C. Section 162(m)(3) which are intended
to comply with the exemption provided by I.R.C. 162(m)(4)(c) shall be approved
by the Board or a committee of the Board that meets the requirements contained
in I.R.C. Regulation Section 1.162-27(e)(3); provided, however, that nothing
contained in this subparagraph (b) shall be construed as requiring any Grant to
meet the requirements of any law, rule or regulation described above.
4. SHARES SUBJECT TO THE PLAN
(a) Availability. Subject to adjustment as provided in Section 4(c)
below, the maximum aggregate number of shares of Stock available for issuance
under the Plan shall be 2,500,000.
(b) Reavailability of Options; Stock to be Delivered. If any Stock
covered by a Grant is not purchased or is forfeited, or if a Grant otherwise
terminates without delivery of any Stock subject thereto, then the number of
shares of Stock so terminated or forfeited shall again be available for making
Grants under the Plan. In the event that Stock that was previously issued by the
Company is reacquired by the Company as part of the consideration received (in
accordance with Section 14(b) below) upon the subsequent exercise of an option,
such reacquired Shares shall again be available for the granting of options
hereunder. Stock delivered under the Plan shall be authorized but unissued
shares or, at the Board's discretion, previously issued Stock acquired by the
Company and held in its treasury. No fractional shares of Stock shall be
delivered under the Plan.
(c) Changes in Stock. In the event of a stock dividend, stock split or
combination of shares, exchange of shares, distribution payable in capital
stock, recapitalization or other change in Exigent's capital stock, the number
and kind of shares of Stock subject to Grants then outstanding or subsequently
awarded under the Plan, the exercise price of any outstanding option, the
maximum number of shares of Stock that may be delivered under the Plan, and
other relevant provisions shall be appropriately adjusted by the Board, so that
the proportionate interest of the Grantee immediately following such event
shall, to the extent practicable, be the same as immediately before such event.
5. EFFECTIVE DATE
The Plan shall be effective as of the Effective Date, subject to
approval of the Plan within one year of the Effective Date by Exigent's
shareholders. Upon approval of the Plan by the stockholders of Exigent as set
forth above, all Grants made under the Plan on or after the Effective Date shall
be fully effective as if Exigent's stockholders had approved the Plan on the
Effective Date. If the stockholders fail to approve the Plan within one year of
the Effective Date, any Grants made hereunder shall be null and void and of no
effect.
6. AWARD AGREEMENT
Each Grant pursuant to the Plan shall be evidenced by an Award
Agreement, to be executed by Exigent and by the Grantee, in such form or forms
as the Committee shall from time to time approve. Each Award Agreement
evidencing a Grant of options shall specify whether such options are intended to
be Nonstatutory Options or Incentive Options.
7. OPTION EXERCISE PRICE
The option exercise price for shares of Stock to be issued under the
Plan shall be the Fair Market Value of the Stock on the Grant date (or 110% of
the Fair Market Value in the case of an Incentive Option granted to a
ten-percent shareholder).
8. DISCRETIONARY OPTION GRANTS
Grants may be made under the Plan to any employee or director of any
Participating Company as the Committee shall determine and designate from time
to time, provided, however, that Outside Directors may not receive Grants in
addition to the Grants provided for in Section 9 hereof unless such Grants are
approved by the Board. Grants of options may be made under the Plan to any
consultant or adviser to any Participating Company whose participation in the
Plan is determined by the Committee to be in the best interests of the Company
and is so designated by the Committee. Notwithstanding the foregoing, grants to
persons who are not employees of the Company or any Parent or Subsidiary of the
Company shall not be Incentive Options.
9. OUTSIDE DIRECTOR OPTION GRANTS
(a) Automatic Grants. Except for those Outside Directors who have
non-vested stock option grants under Plan 5NQ, on January 1st of each year, or
if such day shall not be a trading day on the principal stock exchange on which
the Stock shall be listed for trading at the time, on the next such trading day,
an option for the purchase of Ten Thousand (10,000) shares of Common Stock
shall, without further action of the Board or the Committee, be granted
automatically to each Outside Director. Each such automatic stock option grant
shall vest and become exercisable by the Outside Director on a quarterly basis
following grant of the options at the rate of 2,500 shares per quarter per
annum, with the initial 2,500 shares vesting on the last day of the calendar
quarter in which the initial grant occurs, and an additional 2,500 shares
vesting on the last day of each subsequent calendar quarter, provided at each
quarterly vesting date the Outside Director continues to serve on the Board.
Each option shall expire on the tenth anniversary of the Grant date, unless
sooner terminated as provided in Section 13 hereof in the event of death, Total
Disability or a termination of directorship.
(b) Grants in Lieu of Fee. Each Outside Director shall be entitled to
receive a Nonstatutory Option to purchase a specified number of shares of Stock
in lieu of his or her Board retainer fees. Such specified number (i) shall be
calculated by the Chief Financial Officer of the Company, using a Black-Scholes
(or other generally accepted) valuation method based on the Fair Market Value of
the Stock on January 15 of the applicable year (or the next business day, if
January 15 falls on a weekend), assuming a ten-year option term and (ii) shall
be adjusted upward by 10% to take into account the one-year vesting term. The
exercise price of such option shall be equal to the Fair Market Value of Shares
on January 15 (or the next business day, if January 15 falls on a weekend),
which shall also be the Grant date. Any Outside Director desiring to receive an
option in lieu of cash shall notify the Company of this election, which shall be
irrevocable, by submitting a written notice to the Corporate Secretary in
accordance to procedures as determined by the Committee. Such non-qualified
option shall be fully vested and exercisable on the Grant date, and shall expire
on the tenth anniversary of the Grant date, unless sooner terminated as provided
in Section 13 hereof in the event of death, Total Disability or a termination of
directorship.
10. LIMITATIONS ON GRANTS
(a) Limitation on Shares of Stock Subject to Grants. The maximum number
of shares of Stock subject to options that can be awarded under the Plan to any
person eligible for a Grant under Section 8 hereof is 3,000,000 shares of Stock
during the first five (5) calendar years of the Plan, and 1,000,000 per year
thereafter. The "per individual" limitations described in this paragraph shall
be construed and applied consistent with the rules and regulations under I.R.C.
Section 162(m).
(b) Limitations on Incentive Options. Incentive Options may only be
granted to employees of the Company or any Parent or Subsidiary of the Company.
11. STOCK APPRECIATION RIGHTS. The Committee, in its discretion, may grant any
optionee with a stock option under this Plan, the right to recover appreciation
of the optioned stock in the form of a taxable payment of cash and/or other
property, including Stock of the Company, in exchange for the cancellation or
surrender of the optioned stock on which the appreciation is measured
("underlying stock option"). The appreciation of the optioned stock shall be
measured by the difference between the Fair Market Value of the optioned stock
on the date of exercise and the option price. The rights described in this
paragraph shall be referred to hereafter as "stock appreciation rights."
12. RESTRICTIONS ON EXERCISE OF STOCK APPRECIATION RIGHTS. If granted by the CEO
and evidenced in a stock option agreement, an optionee may choose to exercise
stock appreciation rights in lieu of receipt of the optioned stock as set forth
above, but only under the following terms and conditions:
(a) the stock appreciation rights shall expire no later than
the expiration date of the stock option as set forth in paragraph 13(b) and the
optionee's stock option agreement;
(b) the amount of cash or the Fair Market Value of property
received through stock appreciation rights shall not exceed the difference
between the Fair Market Value of the Stock on the date of exercise and the
option price (hereinafter referred to as "appreciation");
(c) the stock appreciation rights shall be transferable only
when the underlying stock option is transferable, and only under the same
conditions, as set forth in paragraph 14(c) and the optionee's stock option
agreement;
(d) the stock appreciation rights shall be exercised only when
the underlying stock option is eligible to be exercised as set forth in the Plan
and the optionee's stock option agreement;
(e) the stock appreciation rights shall be exercised only when
there is a positive appreciation, i.e. when the market price of the underlying
stock exceeds the exercise price of the option;
(f) the exercise of the right has the same tax consequences as
the exercise of the option followed by the immediate sale of the stock;
(g) the optionee shall notify the Committee thirty (30) days
prior to exercise of stock appreciation rights of the optionee's intent to elect
to exercise such rights;
(h) the form of payment and the Fair Market Value of any
property paid upon exercise of stock appreciation rights shall be within the
sole and reasonable discretion of the Committee and such determination shall be
final, binding, and conclusive; and
(i) upon exercise of an optionee's right to receive the stock
appreciation value in cash and/or property, the underlying options shall be
canceled.
13. VESTING AND TERMINATION OF OPTIONS
(a) Vesting of Discretionary Options. Subject to the other provisions
of this Section 13, options granted pursuant to Section 8 shall vest and become
exercisable at such time and in such installments as the Committee shall provide
in each individual Award Agreement. Notwithstanding the foregoing, the Committee
may, in its sole discretion, accelerate the time at which all or any part of an
option may be exercised.
(b) Termination of Options. All options shall expire and terminate on
such date as the Committee shall determine ("Option Termination Date"), which in
no event shall be later than ten (10) years from the date such option was
granted. In the case of an Incentive Option granted to a ten-percent
stockholder, the option shall not be exercisable after the expiration of five
(5) years from the date such option was granted. Upon termination of an option
or portion thereof, the Grantee shall have no further right to purchase Stock
pursuant to such option.
(c) Termination of Employment or Service.
(i) Termination of Employment or Directorship. Upon the termination
of the employment or directorship of a Grantee with a Participating Company for
any reason other than for Breach of Conduct (pursuant to Section 17 below) or by
reason of death or Total Disability, all options that are not exercisable shall
terminate on the employment/ directorship termination date. Options that are
exercisable on the employment/ directorship termination date shall continue to
be exercisable for (A) six (6) months following the employment/directorship
termination date (in the case of Nonstatutory Options), (B) three (3) months
following the employment termination date (in the case of Incentive Options), or
(C) the Option Termination Date, whichever occurs first. A Grantee who is an
employee or director of a Participating Company shall be deemed to have incurred
a termination for purposes of this Section 13(c)(i) if such Participating
Company ceases to be a Participating Company, unless such Grantee is an
employee, director, consultant or adviser of any other Participating Company.
(ii) Service Termination. In the case of an optionee who is not an
employee or director of any Participating Company, provisions relating to the
exercisability of options following termination of service shall be specified in
the award. If not so specified, all options held by such optionee that are not
then exercisable shall terminate upon termination of service for any reason.
Unless such termination was for Breach of Conduct (pursuant to Section 17
below), options that are exercisable on the date the optionee's service as a
consultant or adviser terminates shall continue to be exercisable for a period
of six (6) months following the service termination date (as defined in a
consulting or similar agreement or as determined by the Committee) or the Option
Termination Date, whichever occurs first.
(d) Rights in the Event of Death. In the event that the employment
and/or directorship of an optionee with a Participating Company is terminated by
reason of death, all options that are not exercisable shall terminate on the
date of death. Options that were exercisable on the date prior to the optionee's
death may be exercised by the optionee's executor or administrator or by the
person or persons to whom the option is transferred by will or the applicable
laws of descent and distribution, at any time within the one-year period (or
such longer period as the Board may determine prior to the expiration of such
one-year period) beginning with the date of the optionee's death, but in no
event beyond the Option Termination Date.
(e) Rights in the Event of Total Disability. In the event that the
employment and/or directorship of an optionee with a Participating Company is
terminated by reason of Total Disability, all options that are not exercisable
shall terminate on the employment/directorship termination date. Options that
were exercisable on the employment/directorship termination date may be
exercised at any time within the one-year period (or such longer period as the
Committee may determine prior to the expiration of such one-year period, subject
to the requirements of I.R.C. Section 422(c)(6)) beginning with the commencement
of the optionee's Total Disability (as determined by the Committee) but in no
event beyond the Option Termination Date.
(f) Leave of Absence. An approved leave of absence shall not constitute
a termination of employment under the Plan. An approved leave of absence shall
mean an absence approved pursuant to the policy of a Participating Company for
military leave, sick leave, or other bona fide leave, not to exceed ninety (90)
days or, if longer, as long as the employee's right to re-employment is
guaranteed by contract, statute or the policy of a Participating Company.
Notwithstanding the foregoing, in no event shall an approved leave of absence
extend an option beyond the Option Termination Date.
14. EXERCISE OF OPTIONS; NON-TRANSFERABILITY
(a) Exercise of Options. Vested options may be exercised, in whole or
in part, by giving written notice of exercise to the Company, which notice shall
specify the number of shares of Stock to be purchased and shall be accompanied
by payment in full of the purchase price in accordance with Section 14(b) below
and the full amount of any federal and state withholding and other employment
taxes applicable to such person as a result of such exercise. No shares of Stock
shall be issued until full payment of the purchase price and applicable
withholding tax has been made. Until the issuance of stock certificates, no
right to vote or receive dividends or any other rights as a stockholder shall
exist with respect to optioned shares notwithstanding the exercise of the
option.
(b) Payment. Full payment of the purchase price for the Stock as to
which an option is being exercised shall be made at the time of exercise (i) in
United States dollars in cash or by check in a form satisfactory to the Company,
(ii) at the Grantee's election, and subject to discretion of the Board, through
delivery of Shares having a Fair Market Value on the day immediately preceding
the day notice of exercise is received by the Company equal to the cash exercise
price of the option, (iii) in accordance with a so-called cashless exercise plan
established with a securities brokerage firm, or (iv) by any combination of the
permissible forms of payment.
(c) Non-Transferability of Options. Except as the Committee may
otherwise determine, no option may be transferred other than by will or by the
laws of descent and distribution, and during an optionee's lifetime an option
may be exercised only by the Grantee.
15. RESTRICTED STOCK
(a) Grant of Restricted Stock. The Committee may from time to time
grant Restricted Stock to certain employees and directors of a Participating
Company, subject to such restrictions, conditions and other terms, if any, as
the Committee may determine.
(b) Restrictions. At the time a Grant of Restricted Stock is made, the
Committee may establish a period of time (the "Restricted Period") during which
a Grantee's right to all or a portion of such Restricted Stock shall vest over
time, subject to certain terms and conditions. Each Grant of Restricted Stock
may be subject to a different Restricted Period. The Committee may, in its sole
discretion, at the time a Grant of Restricted Stock is made, prescribe
forfeiture or vesting conditions in addition to or other than the expiration of
the Restricted Period. The Committee also may, in its sole discretion, shorten
or terminate the Restricted Period or waive any other restrictions applicable to
all or a portion of the Restricted Stock. Restricted Stock may not be sold,
transferred, assigned, pledged or otherwise encumbered or disposed of during the
Restricted Period or prior to the satisfaction of any other restrictions
prescribed by the Committee with respect to such Restricted Stock.
(c) Restricted Stock Certificates. Exigent shall issue, in the name of
each Grantee to whom Restricted Stock has been granted, stock certificates
representing the total number of shares of Restricted Stock granted to the
Grantee. The Secretary of Exigent shall hold such certificates for the Grantee's
benefit until such time as the restrictions lapse or the Restricted Stock is
forfeited to Exigent.
(d) Rights of Holders of Restricted Stock. Unless the Committee
otherwise provides in an Award Agreement, holders of Restricted Stock shall have
the right to vote such Stock and the right to receive any dividends declared or
paid with respect to such Stock. The Committee may provide that any dividends
paid on Restricted Stock must be reinvested in Stock, which may or may not be
subject to the same vesting conditions and restrictions applicable to such
Restricted Stock. All distributions, if any, received by a Grantee with respect
to Restricted Stock as a result of any stock split, stock dividend, combination
of shares, or other similar transaction shall be subject to the restrictions
applicable to the original Grant.
(e) Termination of Employment. Upon termination of the
employment/directorship of a Grantee with Exigent, other than by reason of death
or Total Disability, any Restricted Stock held by such Grantee that has not
vested, or with respect to which all applicable restrictions and conditions have
not lapsed, shall immediately be deemed forfeited, unless the Committee, in its
discretion, determines otherwise. Upon forfeiture of Restricted Stock, the
Grantee shall have no further rights with respect to such Grant, including but
not limited to any right to vote Restricted Stock or any right to receive
dividends with respect to shares of Restricted Stock.
(f) Rights in the Event of Total Disability or Death. The rights of a
Grantee with respect to Restricted Stock in the event such Grantee terminates
employment/ directorship with Exigent by reason of Total Disability or death
shall be determined by the Committee at the time of Grant.
(g) Delivery of Stock and Payment Therefor. Upon the expiration or
termination of the Restricted Period and the satisfaction of any other
conditions prescribed by the Committee, the restrictions applicable to shares of
Restricted Stock shall lapse, and, upon payment by the Grantee to Exigent, in
cash or by check, of the aggregate par value of the shares of Stock represented
by such Restricted Stock, a stock certificate for such shares shall be
delivered, free of all such restrictions, to the Grantee or the Grantee's
beneficiary or estate, as the case may be.
16. PERFORMANCE AWARDS
(a) Grant. Performance Awards may be granted to any employee or
director by the Committee in its sole discretion. A Performance Award shall
consist of a right that is (i) denominated in cash or Stock, (ii) valued, as
determined by the Committee, in accordance with the achievement of such
performance goals during such performance periods as the Committee shall
establish, and (iii) payable at such time and in such form as the Committee
shall determine.
(b) Terms and Conditions. Subject to the terms of the Plan and any
applicable Award Agreement, the Committee shall (i) determine the performance
goals to be achieved during any performance period, (ii) the length of any
performance period, (iii) the amount of any Performance Award, (iv) the amount
and kind of any payment or transfer to be made pursuant to any Performance
Award, and (v) all other terms and conditions of any Performance Award,
including the consequences of death, disability, termination of employment or
any Termination Transaction.
(c) Payment of Performance Awards. Performance Awards may be paid in a
lump sum or in installments following the close of the performance period or, in
accordance with procedures established by the Committee, on a current or
deferred basis.
17. BREACH OF CONDUCT
In the event of a Breach of Conduct by a Grantee, or a former Grantee
at any time while employed by a Participating Company or within two years of
termination of employment with any Participating Company, the Committee may, in
its sole discretion, (i) cancel any award, whether vested or not, in whole or in
part, as of the date specified by the Committee, which shall thereafter be
communicated in writing to such Grantee or former Grantee, and/or (ii) upon
written notice to such Grantee or former Grantee, demand that any or all stock
certificates for Stock or Restricted Stock acquired under this Plan, or any
profit realized in connection with the sale or transfer of such Stock or
Restricted Stock, or any proceeds received upon the exercise or settlement of a
Stock Appreciation Right or Performance Award, be returned to the Company within
five (5) days of receipt of such notice. If the Grantee or former Grantee shall
have paid any consideration for the acquisition of Common Shares or Restricted
Shares, or the settlement or any Award, the Company shall immediately thereafter
return such consideration to the Grantee or former Grantee, without interest.
The Company shall be entitled to reimbursement of reasonable attorneys fees and
expenses incurred in seeking to enforce its rights under this Section 17.
18. COMPLIANCE WITH SECURITIES LAWS
The delivery of Stock upon the exercise of an option or lapse of a
Restricted Period shall be subject to compliance with (i) applicable federal and
state laws and regulations, (ii) all applicable listing requirements of any
national securities exchange or national market system on which the Stock is
then listed or quoted, and (iii) Company counsel's approval of all other legal
matters in connection with the issuance and delivery of such Stock. If the sale
of Stock has not been registered under the Securities Act of 1933, as amended,
the Company may require, as a condition to exercise of the option or receipt of
Restricted Stock, such representations or agreements as counsel for the Company
may consider appropriate to avoid violation of such Act and may require that the
certificates evidencing such Stock bear an appropriate legend restricting
transfer.
19. MERGERS, ETC.
(a) Effect on Options and Plan. Unless the Board determines
otherwise, and except as otherwise provided herein, all options outstanding
under the Plan shall accelerate and become immediately exercisable for a period
of fifteen days, or such longer or shorter period as the Board may prescribe,
(the "notice period") immediately prior to the scheduled consummation of a
Terminating Transaction, provided, however, that any such acceleration and any
exercise of options during the notice period shall be (i) conditioned upon the
consummation of the Terminating Transaction and (ii) effective only immediately
before the consummation of such Terminating Transaction.
Upon consummation of any such event, the Plan and all outstanding but
unexercised options shall terminate. Notwithstanding the foregoing, to the
extent provision is made in writing in connection with such Terminating
Transaction, for the continuation of the Plan and the assumption of options
under the Plan theretofore granted, or for the substitution for such options of
new options covering the stock of a successor company, or a parent or subsidiary
thereof, with appropriate adjustments as to the number and kinds of shares or
units and exercise prices, then the Plan and options theretofore granted shall
continue in the manner and under the terms so provided, and the acceleration and
termination provisions set forth in the first two sentences of this Section
19(a) shall be of no effect. The Company shall send written notice of a
Terminating Transaction to all individuals who hold options not later than the
time at which the Company gives notice thereof to its stockholders.
(b) Effect on Restricted Stock. All outstanding shares of
Restricted Stock shall be deemed to have vested, and all restrictions and
conditions applicable to such shares of Restricted Stock shall be deemed to have
lapsed immediately prior to the occurrence of a Terminating Transaction.
20. TAXES
The Company shall make such provisions and take such steps as it deems
necessary or appropriate for the withholding of any federal, state, local and
other tax required by law to be withheld with respect to the grant or exercise
of options, or the vesting of or other lapse of restrictions applicable to
Restricted Stock, or with respect to the disposition of Stock acquired pursuant
to the Plan, including, but without limitation, the deduction of the amount of
any such withholding tax from any compensation or other amounts payable to a
Grantee, or requiring a Grantee (or the optionee's beneficiary or legal
representative), as a condition of a Grant or exercise of an option or receipt
of Restricted Stock, to pay to the appropriate Participating Company any amount
required to be withheld, or to execute such other documents as the Committee
deems necessary or desirable in connection with the satisfaction of any
applicable withholding obligation.
21. EMPLOYMENT RIGHTS
Neither the adoption of the Plan nor the making of any Grants shall
confer upon any Grantee any right to continue as an employee or director of, or
consultant or adviser to, any Participating Company or affect in any way the
right of any Participating Company to terminate them at any time. Except as
specifically provided by the Committee in any particular case, the loss of
existing or potential profit in Grants under this Plan shall not constitute an
element of damages in the event of termination of the relationship of a Grantee
even if the termination is in violation of an obligation of the Company to the
Grantee by contract or otherwise.
22. AMENDMENT OR TERMINATION OF PLAN
(a) Neither adoption of the Plan nor the making of any Grants shall
affect the Company's right to make awards to any person that is not subject to
the Plan, to issue to such persons Stock as a bonus or otherwise, or to adopt
other plans or arrangements under which Stock may be issued.
(b) The Committee may at any time discontinue granting awards under the
Plan, (except to Outside Directors as provided in Section 9 hereof). With the
consent of the Grantee, the Committee may at any time cancel an existing Grant
in whole or in part and make any other Grant for such number of shares as the
Committee specifies. The Board may at any time, prospectively or retroactively,
amend the Plan (including the provisions of Section 9 with respect to Grants to
Outside Directors) or any outstanding Grant for the purpose of satisfying the
requirements of I.R.C. Section 422 or of any changes in applicable laws or
regulations or for any other purpose that may at the time be permitted by law,
or may at any time terminate the Plan as to further grants of awards (including
the provisions of Section 9 with respect to Grants to Outside Directors), but no
such amendment or termination shall materially adversely affect the rights of
any Grantee (without the Grantee's consent) under any outstanding Grant.
(c) In the Committee's discretion, the Committee may, with an
optionee's consent, substitute Nonstatutory Options for outstanding Incentive
Options, and any such substitution shall not constitute a new option grant for
the purposes of the Plan, and shall not require a revaluation of the option
exercise price for the substituted option. Any such substitution may be
implemented by an amendment to the applicable option agreement or in such other
manner as the Committee in its discretion may determine.
23. GENERAL PROVISIONS
(a) Titles and Headings. Titles and headings of sections of the Plan
are for convenience of reference only and shall not affect the construction of
any provision of the Plan.
(b) Governing Law. The Plan shall be governed by, interpreted under and
construed and enforced in accordance with the internal laws, and not the laws
pertaining to conflicts or choice of laws, of the State of Delaware, applicable
to agreements made and to be performed wholly within the State of Delaware.
(c) Severability. If any provision of the Plan or any Award Agreement
shall be determined to be illegal or unenforceable by any court of law in any
jurisdiction, the remaining provisions hereof and thereof shall be severable and
enforceable in accordance with their terms, and all provisions shall remain
enforceable in any other jurisdiction.
* * *
The Plan was duly adopted by the Board of Directors of the Company as of
December 17, 1998.
--------------------------------------
The Plan was duly approved by the stockholders of the Company on _________.
March 30, 1999
Exigent International, Inc.
1225 Evans Road
Melbourne, FL 32904-2314
Ladies and Gentlemen:
We have acted as counsel for Exigent International, Inc., a Delaware corporation
(the "Company"), in connection with the registration of 2,500,000 shares (the
"Shares") of Common Stock, $.01 par value (the "Common Stock"), issuable upon
the exercise of outstanding stock options under the Company's Omnibus Stock
Option and Incentive Plan (the "Plan").
In connection with this opinion, we have examined the Registration Statement on
Form S-8 filed with the Securities and Exchange Commission ("SEC") pursuant to
the rules and regulations promulgated under the Securities Act of 1933, as
amended, on the date hereof (the "Registration Statement"), relating to the
above-mentioned registration. In addition, we have examined such corporate
records, certificates and other documents, and reviewed such questions of law,
as we have deemed necessary or advisable in order to enable us to render the
opinion contained herein.
In our examination of the foregoing documents, we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals, the conformity to unsigned documents of all documents submitted to as
certified or photostatic copies, and the authenticity of the originals of such
latter documents.
We assume that the appropriate action will be taken, prior to the offer and sale
of the Shares, to register and qualify the Shares for sale under all appropriate
State "Blue Sky" and securities laws.
Based upon the foregoing, we are of the opinion that the Shares of Common Stock
being registered under the Registration Statement, when issued and paid for as
contemplated by the Plan, assuming due execution of the certificates therefor,
will be legally issued, fully paid and non-assessable.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement and to the use of our name under the caption "Legal Matters" in the
Prospectus constituting a part of the Registration Statement. In giving such
consent, we do not admit that we come within the category of persons whose
consent is required by Section 7 of the Act or the rules and regulations
promulgated thereunder.
Very truly yours,
EDWARDS & ANGELL, LLP
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Exigent International, Inc. Omnibus Stock Option and
Incentive Plan of our report dated March 12, 1999, with respect to the
consolidated financial statements of Exigent International, Inc. included in its
Annual Report (Form 10-K) for the eleven months ended December 31, 1998, filed
with the Securities and Exchange Commission on March 30, 1999.
Ernst & Young LLP
Orlando, Florida
March 30, 1999
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Exigent International, Inc. Omnibus Stock Option and
Incentive Plan of our report dated April 4, 1998, with respect to the
consolidated financial statements of Exigent International, Inc. included in its
Annual Report (Form 10-K) for each of the years ended January 31, 1997 and 1998,
filed with the Securities and Exchange Commission on March 30, 1999.
/s/ Hoyman, Dobson & Company, P.A.
----------------------------------------
Hoyman, Dobson & Company, P.A.
Melbourne, Florida
March 29, 1999
