AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 16, 1999,
REGISTRATION NO. 333-_________
-------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
AMPLIDYNE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 22-3440510
------------------------ -------------------
(STATE OR OTHER JURIS- (I.R.S. EMPLOYER
DICTION OF ORGANIZATION) IDENTIFICATION NO.)
59 LAGRANGE STREET, RARITAN, NJ 08869
---------------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
1996 INCENTIVE STOCK PLAN
(FULL TITLE OF THE PLAN)
DEVENDAR S. BAINS
PRESIDENT
AMPLIDYNE, INC.
59 LAGRANGE STREET
RARITAN, NJ 08869
---------------------------------------
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(908) 253-6870
---------------------------------------
(TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
CONTINUED OVERLEAF
<PAGE>
CALCULATION OF REGISTRATION FEE
================================================================================
PROPOSED
PROPOSED MAXIMUM
TITLE OF AMOUNT MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE PRICE FEE
- ---------------- ------------- -------------- ----------- ------------
Common Stock 1,500,000(2) $8.3125(3) $12,468,750 $3,466.31
Total $3,466.31
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended ("Securities Act"), this registration statement also covers an
indeterminate number of shares as may be required by reason of any stock
dividend, recapitalization, stock split, reorganization, merger, consolidation,
combination or exchange of shares or other similar change affecting the stock.
(2) Includes 1,500,000 shares of Common Stock reserved under the 1996 Incentive
Stock Plan.
(3) Estimated solely for the purpose of calculating the registration fee based
upon the closing price of the shares of Common Stock on December 9, 1999 of
$8-5/16 reported on The Nasdaq SmallCap Market.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. Plan Information
ITEM 2. Registrant Information and Employee Plan Annual Information
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents By Reference
The following documents, as filed with the Securities and Exchange
Commission by Amplidyne, Inc., a Delaware corporation (the "Corporation"), are
incorporated herein by reference:
(1) Annual Report on Form 10-KSB for the period ended December 31, 1998.
(2) Quarterly Report on Form 10-QSB for the quarter ended March 31, 1999.
(3) Quarterly Report on Form 10-QSB/A for the quarter ended June 30, 1999.
(4) Current Report on Form 8-K filed August 3, 1999.
(5) Quarterly Report on Form 10-QSB for the quarter ended September 30,
1999.
(6) Proxy Statement on Schedule 14A dated November 26, 1999.
(7) The description of the Common Stock, par value $.0001 per share
("Common Stock"), of the Corporation contained in the Corporation's registration
statement filed under Section 12 of the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended ("Exchange Act"),
subsequent to the effective date of this Registration Statement and prior to the
filing of a post-effective amendment which indicate that all securities offered
have been sold or which registers all securities then remaining unsold, shall be
deemed to be incorporated by reference in the Registration Statement and to be
part thereof from the date of filing such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein 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 other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
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ITEM 4. Description of Securities.
Not Applicable.
ITEM 5. Interests of Named Experts and Counsel
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides that the Company
shall indemnify its officers and directors to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law ("DGCL").
Section 145 of the DGCL permits a corporation, under specified
circumstances, to indemnify its directors, officers, employees or agents against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlements actually and reasonably incurred by them in connection with any
action, suit or proceeding brought by third parties by reason of the fact that
they were or are directors, officers, employees or agents of the corporation, if
such directors, officers, employees or agents acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the corporation and, with respect to any criminal action or proceedings, had no
reason to believe their conduct was unlawful. In a derivative action, i.e., one
by or in the right of the corporation, indemnification may be made only for
expenses actually and reasonably incurred by directors, officers, employees or
agent in connection with the defense or settlement of an action or suit, and
only with respect to a matter as to which they shall have acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made if
such person shall have been adjudged liable to the corporation, unless and only
to the extent that the court in which the action or suit was brought shall
determine upon application that the defendant directors, officers, employees or
agents are fairly and reasonably entitled to indemnify for such expenses despite
such adjudication of liability.
In addition, the Company's Certificate of Incorporation eliminates the
personal liability of directors to the fullest extent permitted by Section 102
of the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
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<PAGE>
ITEM 8. EXHIBITS
The following is a complete list of exhibits filed as a part of this
registration statement:
Exhibit No. Document
- ----------- --------
5.1 Opinion of Berlack, Israels & Liberman LLP.
10.1 1996 Incentive Stock Plan
23.1 Consent of Berlack, Israels & Liberman LLP (included in
Exhibit 5.1).
23.2 Consent of Grant Thornton LLP.
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;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; PROVIDED,
HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the information is
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference in the registration
statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time be deemed to be the initial BONA FIDE
offering thereof; and;
(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.
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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 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 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 herein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
C. 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 provisions described in item 6, 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 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding, is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirement of the Securities Act of 1933, as amended,
the Registrant, certifies that it has reasonable grounds to believe that it
meets all 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 Raritan, New Jersey, on the 13th day of December, 1999.
AMPLIDYNE, INC.
By: /s/ DEVENDAR S. BAINS
------------------------------------------
Devendar S. Bains
Chairman of the Board, President,
Chief Executive Officer, Treasurer and
Principal Accounting Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or Amendments thereto has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ DEVENDAR S. BAINS Chairman of the Board, December 13, 1999
- ---------------------- President, Chief Executive Officer,
Devendar S. Bains Treasurer and Principal
Accounting Officer
/s/ TARLOCHAN BAINS Vice President December 13, 1999
- ----------------------
Tarlochan Bains
/s/ NIRMAL BAINS Secretary December 13, 1999
- ----------------------
Nirmal Bains
/s/ CHARLES J. RITCHIE Director December 13, 1999
- ----------------------
Charles J. Ritchie
/s/ MANISH V. DETROJA Director December 13, 1999
- ----------------------
Manish V. Detroja
6
<PAGE>
AMPLIDYNE, INC.
EXHIBITS
TO
REGISTRATION STATEMENT ON FORM S-8
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Document
- ----------- --------
5.1 Opinion of Berlack, Israels & Liberman LLP.
10.1 1996 Incentive Stock Plan
23.1 Consent of Berlack, Israels & Liberman LLP (included in
Exhibit 5.1).
23.2 Consent of Grant Thornton LLP.
EXHIBIT 5.1
OPINION OF BERLACK, ISRAELS & LIBERMAN LLP
<PAGE>
[LETTERHEAD OF BERLACK, ISRAELS & LIBERMAN LLP]
December 13, 1999
Amplidyne, Inc.
59 LaGrange Street
Raritan, NJ 08869
Ladies and Gentlemen:
We have acted as counsel for Amplidyne, Inc., a Delaware corporation
(the "Company"), in connection with a Registration Statement on Form S-8
("Registration Statement") being filed contemporaneously herewith by the Company
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act"), covering an aggregate of 1,500,000 shares (the
"Shares") of the Company's Common Stock, $.0001 par value ("Common Stock"), all
of which are issuable under the Company's 1996 Incentive Stock Plan (the "Stock
Plan").
In that connection, we have examined the Certificate of Incorporation
and the By-Laws of the Company, the Registration Statement, the Stock Plan, and
such other instruments and documents as we have deemed relevant under the
circumstances.
In making the aforesaid examinations, we have assumed the genuineness
of all signatures and the conformity to original documents of all copies
furnished to us as original or photostatic copies. We have also assumed that the
corporate records of the Company include all corporate proceedings taken by the
Company to date.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly and validly authorized and, when issued and paid for as
described in the Stock Plan or stock option agreements issued pursuant to the
Stock Plan, as the case may be, will be duly and validly issued, fully paid and
nonassessable.
We hereby consent to the use of this opinion as herein set forth as an
exhibit to the Registration Statement.
Very truly yours,
/s/ Berlack, Israels & Liberman LLP
-----------------------------------
BERLACK, ISRAELS & LIBERMAN LLP
EXHIBIT 10.1
1996 INCENTIVE STOCK PLAN
<PAGE>
AMPLIDYNE, INC.
1996 INCENTIVE STOCK OPTION PLAN
(Adopted by the Board of Directors as of
May 1, 1996 and by the Stockholders
of the Company as of May 1, 1996)
1. PURPOSE. The purpose of the 1996 Incentive Stock Option Plan (the
"Plan") is to enable Amplidyne, Inc. (the "Company") to encourage key employees
and Directors to contribute to the success of the Company by granting such
individuals qualified options. In addition, non-employee directors may
participate in the Plan as provided herein. Options granted pursuant to the Plan
shall consist of qualified stock options.
2. ADMINISTRATION. The Plan shall be administered by the Board of
Directors of the Company or by a Stock Option and Compensation Committee (the
"Committee") appointed by the Board of Directors and consisting of not less than
three (3) members of the Board of Directors, each of whom shall be a
"disinterested person" within the meaning of Rule 16b-3 (or any successor rule
or regulation) promulgated under the Securities Exchange Act of 1934 (the
"Exchange Act"). 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, on the Committee. No member of the Board
of Directors who is at the time, or within the preceding year was, eligible to
participate in the Plan or in any similar plan of the Committee or any of its
affiliates shall be a member of the Committee.
The Board of Directors shall determine the purchase price of the stock
covered by each options, employees and directors to whom, and the time or times
at which, options shall be granted, the number of shares to be covered by each
option, and the term of each option. In addition, the Board of Directors shall
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have the power and authority to interpret the Plan, to prescribe, amend and
rescind rules and regulations relating to the Plan, to determine the terms and
provisions of the respective option agreements (which need not be identical),
and to make all other determinations deemed necessary or advisable for the
administration of the Plan. If the Committee is appointed, it shall exercise
such powers and duties, subject to the consent of the Board of Directors and the
provisions of the Plan.
If the Committee is appointed, the Board of Directors shall designate
one of the members of the Committee as chairman and the Committee shall hold
meetings at such times and places as it shall deem advisable. A majority of the
Committee members shall constitute a quorum. All determinations of the Committee
shall be made by a majority of its members. Any decision or determination
reduced to writing and signed by all the Committee members shall be fully as
effective as if it had been made by a vote at a meeting duly called and held.
The committee shall keep minutes of its meetings and shall make such rules and
regulations for the conduct of its business as it shall deem advisable.
3. GRANTEES. Subject to Section 2 hereof, options may be granted to
such key employees and directors (including non-employee directors) of the
Company and its subsidiaries as determined by the Board of Directors or the
Committee (each such employee a "Grantee").
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4. EFFECTIVENESS AND TERMINATION OF PLAN. The Plan shall terminate on
the earliest of:
(a) The tenth anniversary of the effective date as determined
under this Section 4;
(b) The date when all shares of the Company's Common Stock, par
value $.0001 per share (the "Shares"), reserved for issuance under the Plan
shall have been acquired through exercise of options granted under the Plan; or
(c) Such earlier date as the Board of Directors may determine.
The Plan shall become effective as of the date of adoption thereof by
the Board of Directors of the Company, or the date the Plan is approved by the
stockholders, whichever is earlier. Any option outstanding under the Plan at the
time of the Plan's termination shall remain in effect in accordance with its
terms and conditions and those of the Plan.
5. THE SHARES. Subject to the provisions of Section 7, the aggregate
number of Shares which may be issued under the Plan shall be 1,500,000. Such
number of Shares may be set aside out of the authorized but unissued Shares not
reserved for any other purpose or out of Shares held in or acquired for the
treasury of the Company. If all or part of an option is unexercised, the Shares
which were not exercised may again be available for grant under the Plan.
6. GRANT, TERMS AND CONDITIONS OF OPTION. Options may be granted by
the Board of Directors or the Committee at any time and from time to time prior
to the termination of the Plan. Except as hereinafter provided, options granted
pursuant to the Plan shall be subject to the following terms and conditions.
(a) The purchase price of the Shares subject to an option shall
be determined by the Board of Directors or the Committee whose determination
shall be final; it being understood and agreed that the purchase price need not
be, nor may it be less than, the fair market value of the Common Stock on the
date that the option is granted.
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The exercise price shall be paid in full in United States dollars in
cash or by check at the time of exercise. At the discretion of the Board of
Directors or the Committee, the exercise price may be paid with (i) Shares
already owned by, and in the possession of, the Grantee or (ii) any combination
of United States dollars or Shares. Anything contained herein to the contrary
notwithstanding, any required withholding tax shall be paid by the Grantee in
full in United States dollars in cash or by check at the time of exercise of an
option. Shares used to satisfy the exercise price of an option shall be valued
at their fair market value as of the close of business on the day immediately
preceding the date of exercise. The exercise price shall be subject to
adjustment, but only as provided in Section 7 hereof. The Company may lend the
Grantee funds sufficient to pay the exercise price, subject to limitations that
may be established by the Board of Directors or the Committee.
(b) DURATION AND EXERCISE OF OPTIONS. An option may be granted
for a term not exceeding ten (10) years from the date of grant; provided,
however, that no grant for more than five (5) years can be made to a holder of
ten percent (10%) or more of the Company's outstanding Common Stock. Further,
options may not be granted to an individual to the extent that in the calendar
year in which such options first becomes exercisable, the Common Stock subject
to such options has a fair market value on the date of grant in excess of
$100,000. Options shall be exercisable at such time and in such amounts (up to
the full amount thereof) as may be determined by the Board of Directors or the
Committee at the time of grant. If an option is exercisable in installments, the
Board of Directors or the Committee shall determine what events, if any, will
accelerate the exercise of the option.
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The Plan shall be subject to approval by the Company's stockholders
within one (1) year from the date on which it was adopted. Prior to such
stockholder approval, options may be granted under the Plan, but any such option
shall not be exercisable prior to such stockholder approval. If the Plan is not
approved by the Company's stockholders, the Plan shall terminate and all options
theretofore granted under the Plan shall terminate and become null and void.
(c) TERMINATION OF EMPLOYMENT OR DIRECTORSHIP. Except as
otherwise provided by the Board of Directors or the Committee, upon termination
of the Grantee's employment or resignation or termination from the Board of
Directors, the Grantee's rights to exercise an option shall be as follows:
(i) If the Grantee's employment or directorship is
terminated on account of total and permanent disability, any option may be
exercised, to the extent exercisable on the date of the Grantee's termination of
employment or directorship, by the Grantee (or by the Grantee's estate if the
Grantee dies after termination of employment or directorship) at any time within
one (1) year after termination of employment or directorship but in no event
after the expiration of the term of the option or stock appreciation right. For
purposes of the Plan, total and permanent disability means a mental or physical
condition that prevents a Grantee from performing his customary duties for the
Company for nine consecutive months or an aggregate of nine months in any
12-month period.
(ii) In the case of a Grantee whose employment or
directorship is terminated by death, the Grantee's estate shall have the right
for a period of one (1) year following the date of such death to exercise the
option to the extent the right to exercise had accrued prior to the date of the
Grantee's death but in no event after the expiration of the term of the option.
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(iii) In the case of a Grantee whose employment or
directorship is terminated for any reason other than death or disability, the
Grantee (or the Grantee's estate in the event of the Grantee's death after such
termination) may, within the three-month period following such termination,
exercise an option to the extent the right to exercise had accrued prior to such
termination but in no event after the expiration of the term of the option.
Notwithstanding the foregoing, except as otherwise provided by the Board of
Directors or the Committee, if the Grantee's termination of employment or
directorship is on account of material misconduct or any act that is materially
adverse to the Company, the Grantee's option shall expire as of the date of
termination of employment.
(iv) A Grantee's "estate" shall mean the Grantee's legal
representative of any person who acquires the right to exercise an option by
reason of the Grantee's death. The Board of Directors or the Committee may in
its discretion require the transferee of a Grantee to supply it with written
notice of the Grantee's death or disability and to supply it with a copy of the
will (in the case of the Grantee's death) or such other evidence as the Board of
Directors or the Committee deems necessary to establish the validity of the
transfer of an option. The Board of Directors or the Committee may also require
the agreement of the transferee to be bound by all of the terms and conditions
of the Plan.
(d) TRANSFERABILITY OF OPTIONS. Options shall be transferable
only by will or the laws of descent and distribution and shall be exercisable
during the Grantee's lifetime only by the Grantee.
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(e) MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. Subject to
the terms and conditions and within the limitations of the Plan, the Board of
Directors or the Committee may modify, extend or renew outstanding options
granted under the Plan, or accept the surrender of outstanding options (up to
the extent not theretofore exercised) and authorize the granting of new options
in substitution therefor (to the extent no theretofore exercised).
Notwithstanding the foregoing, however, no modification of an option shall,
without the consent of the Grantee, alter or impair any rights or obligations
under any option theretofore granted under the Plan.
(f) OTHER TERMS AND CONDITIONS. Options may contain such other
provisions, which shall not be inconsistent with any of the foregoing terms of
the Plan, as the Board of Directors or the Committee shall deem appropriate.
7. ADJUSTMENTS IN THE SHARES.
(a) In the event the Shares, as presently constituted, shall be
changed into or exchanged for a different number or kind of stock or other
securities of the Company or of another corporation (whether by reason of
merger, consolidation, recapitalization, reclassification, split, reverse split,
combination of shares, or otherwise) or if the number of such Shares shall be
increased through the payment of a stock dividend, there shall be substituted
for or added to each Share theretofore appropriated or thereafter subject or
which may become subject to an option under the Plan, the number of kind of
shares of stock or other securities into which each outstanding Share shall be
so changed, or for which each such Share shall be exchanged, or to which each
such Share shall be entitled, as the case may be. Outstanding options shall also
be appropriately amended as to price and other terms as may be necessary to
reflect the foregoing events. In the event there shall be any other change in
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the number or kind of the outstanding Shares, or of any stock or other
securities into which such Shares shall have been changed, or for which such
Shares shall have been exchanged, then, if the Board of Directors shall, in its
sole discretion, determine that such change equitably requires an adjustment in
any option theretofore granted or which may be granted under the Plan, such
adjustments shall be made in accordance with such determination.
(b) Fractional Shares resulting from any adjustment in options
pursuant to this Section 7 may be settled in cash or otherwise as the Board of
Directors or the Committee may determine. Notice of any adjustment shall be
given by the Board of Directors or the Committee to each Grantee whose option
has been adjusted and such adjustment (whether or not such notice is given)
shall be effective and binding for all purposes of the Plan.
(c) The Committee or the Board of Directors shall have the
power, in the event of the disposition of all or substantially all of the assets
of the Company, or the dissolution of the Company, or the merger or
consolidation of the Company with or into any other corporation, or the merger
or consolidation of any other corporation into the Company, or the making of a
tender offer to purchase all or a substantial portion of the Shares of the
Company, to amend all outstanding options (upon such conditions as it shall deem
fit) in order to permit the exercise of all such options prior to the effective
date of any such transaction and to terminate such options as of such effective
date. If the Board of Directors or the Committee shall exercise such power, all
options then outstanding and subject to such requirement shall be deemed to have
been amended to permit the exercise thereof in whole or in part by the Grantee
at any time or from time to time as determined by the Board of Directors or the
Committee prior to the effective date of such transaction and such options shall
be deemed to terminate upon such effective date.
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8. SECURITIES LAW REQUIREMENTS. No option granted pursuant to the
Plan shall be exercisable in whole or in part, nor shall the Company be
obligated to sell any Shares subject to any such option or stock appreciation
right, if such exercise, sale or settlement would, in the opinion of counsel for
the Company, violate the Securities Act of 1933 (or other Federal or State
statutes having similar requirements), as it may be in effect at that time. Each
option shall be subject to the further requirement that, if at any time the
Board of Directors shall determine in its discretion that the listing,
registration or qualification of the Shares subject to such option under any
securities exchange requirements or under any applicable law, or the consent or
approval of any governmental regulatory body, is necessary as a condition of, or
in connection with, the granting of such option or the issuance of Shares
thereunder, such option may not be exercised in whole or in part unless such
listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Board of
Directors.
9. AMENDMENT OF THE PLAN.
(a) Options shall be evidenced by such form of agreement as is
approved by the Board of Directors or the Committee. The Board of Directors may
amend the Plan, may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any option in the manner and to the extent it
shall deem desirable; provided, however, except as provided in Section 7 and
this Section 9, unless the stockholders of the Company shall have first approved
thereof: (i) no option shall be exercisable more than ten years after the date
it is granted; (ii) the expiration date of the Plan shall not be extended; and
(iii) no amendment shall be of any force and effect if such amendment increases
the number of Shares available for the granting of options may be granted,
materially increases the benefits accruing the Grantees or materially modifies
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the requirements as to eligibility or participation in the Plan. In addition, no
amendment of the Plan shall, without the consent of a Grantee, adversely affect
the Grantee's rights under any option.
(b) The Board of Directors also shall have the power to amend or
terminate the Plan in such respect as the Board of Directors shall deem
advisable in order to ensure favorable Federal income tax treatment for the
Company.
10. APPLICATION OF FUNDS. The proceeds received by the Company from
the sale of Shares will be used for general corporate purposes.
11. NO OBLIGATION TO EXERCISE OPTION. The granting of an option shall
impose no obligation upon the Grantee (or upon a transferee of a Grantee) to
exercise such option.
12. PLAN NOT A CONTRACT OF EMPLOYMENT. The Plan is not a contract of
employment, and the terms of employment of any Grantee shall not be affected in
any way by the Plan or related instruments except as specifically provided
therein. The establishment of the Plan shall not be construed as conferring any
legal rights upon any Grantee for a continuation of employment, nor shall it
interfere with the right of the company or any subsidiary to discharge any
Grantee and to treat him without regard to the effect which such treatment might
have upon him as a Grantee.
13. EXPENSES OF THE PLAN. All of the expenses of the Plan shall be
paid by the Company.
14. COMPLIANCE WITH APPLICABLE LAW. Notwithstanding anything herein to
the contrary, the Company shall not be obligated to cause to be issued or
delivered any certificates for Shares pursuant to the exercise of an option,
unless and until the Company is advised by its counsel that the issuance and
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delivery of such certificates is in compliance with all applicable laws,
regulations or governmental authority and the requirements of any exchange upon
which Shares are traded. The Company shall in no event be obligated to register
any securities pursuant to the Securities Act of 1933 (as now in effect or as
hereafter amended) or to take any other action in order to cause the issuance
and delivery of such certificates to comply with any such law, regulation or
requirement. The Board of Directors or Committee may require, as a condition of
the issuance and delivery of such certificates and in order to ensure compliance
with such laws, regulations and requirements, that the Grantee make such
covenants, agreements and representations as the Board of Directors or
Committee, in its sole discretion, deems necessary or desirable.
15. GOVERNING LAW. Except the extent preempted by Federal law, the
Plan shall be construed and enforced in accordance with, and governed by, the
laws of the State of Delaware.
11
EXHIBIT 23.2
CONSENT OF GRANT THORNTON LLP
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We have issued our report dated March 31, 1999 accompanying the
financial statements of Amplidyne, Inc. appearing in the Annual Report on Form
10-KSB for the year ended December 31, 1998 which is incorporated by reference
in this Registration Statement on Form S-8. We consent to the incorporation by
reference in the Registration Statement on Form S-8 of the aforementioned
report.
Grant Thornton LLP
Edison, New Jersey
December 13, 1999
