Registration Statement No. _________
===============================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-8
Registration Statement Under the Securities Act of 1933
--------------------------
TransAct Technologies Incorporated
(Exact name of issuer as specified in its charter)
Delaware 06-1456680
(State or other jurisdic- (I.R.S. Employer
tion of incorporation) Identification No.)
7 Laser Lane
Wallingford, Connecticut 06492
(203) 269-1198
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
1996 Stock Plan
(Full title of the Plan)
Richard L. Cote, Executive Vice President, Chief Financial Officer,
Treasurer, and Director
TransAct Technologies Incorporated
7 Laser Lane
Wallingford, Connecticut 06492
(203) 269-1198
(Name, address, including zip code, and telephone
number, including area code, of agent for service
of process)
Copy to:
Michael S. McSherry, Esq.
Hinckley, Allen & Snyder
One Financial Center
Boston, Massachusetts 02111-2625
(617) 345-9000
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]
Exhibit Index on Page 8
<PAGE>
================================================================================
CALCULATION OF REGISTRATION FEE
================================================================================
Title of
Each Class of Proposed Proposed
Securities Amount Maximum Maximum Amount
to be to be Offering Price Aggregate Registration
Registered Registered Per Share(*) Offering Price Fee
- --------------------------------------------------------------------------------
Common Stock 600,000 $15.75 $9,450,000 $2,864.00
(par value
$.01)
- --------------------------------------------------------------------------------
(*) Computed pursuant to Rule 457(h) solely for the purpose of determining the
registration fee, based on the average of the high and low prices of the
Registrant's Common Stock as reported by NASDAQ on July 31, 1997.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference.
The following documents heretofore filed by TransAct Technologies
Incorporated (the "Registrant") with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are incorporated by reference in this Registration Statement:
(a) The Registrant's latest annual report on Form10-K, or, if the financial
statements therein are more current, the Registrant's latest prospectus, other
than the prospectus of which this document is a part, filed pursuant to Rule
424(b) under the Securities Act of 1933, as amended (the "Securities Act").
(b) All other reports filed by the Registrant pursuant to Sections13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the annual
report or the prospectus referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement filed under Section 12 of the Exchange Act,
including any amendment or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to
Sections13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
of the shares of Common Stock offered have been sold or which de-registers all
of such shares then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
<PAGE>
Item 6. Indemnification of Directors and Officers.
Article VII of the Registrant's by-laws (i) authorizes the indemnification
of directors and officers (the "Indemnified Persons") under specified
circumstances to the fullest extent authorized by the Delaware General
Corporation Law, (ii) provides for the advancement of expenses to the
Indemnified Persons for defending any proceedings related to the specified
circumstances, and (iii) gives the Indemnified Persons the right to bring suit
against the Registrant to enforce the foregoing rights to indemnification and
advancement of expenses. The Registrant currently maintains one or more policies
of insurance under which the directors and officers of Registrant are insured,
within the limits and subject to the limitations of the policies, against
certain expenses in connection with the defense of actions, suits, or
proceedings, and certain liabilities which might be imposed as a result of such
actions, suits or proceedings, to which they are parties by reason of being or
having been such directors or officers.
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.
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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this Registration Statement (or the most recent post-effective
amendment thereof);
(iii) To include any material information with respect to the plan of
distribution not previously disclosed or any material change to such
information;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(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 Registrant 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, 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(d) Insofar as indemnification for liabilities arising under the Securities Act
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 of whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 of the undersigned, thereunto duly
authorized, in the City of Wallingford, State of Connecticut, on the 29th day of
July, 1997.
TRANSACT TECHNOLOGIES INCORPORATED
By: /s/ Richard L. Cote
Richard L. Cote, Executive Vice
President and Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned persons does
hereby constitute and appoint each of Bart C. Shuldman and Richard L. Cote with
full power of substitution his true and lawful attorneys-in-fact and agents for
him 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 other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary to be done in order to effectuate the
same as fully, to all intents and purposes, as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
/s/ Thomas R. Schwarz Chairman of the Board July 29, 1997
- -------------------------------
Thomas R. Schwarz
/s/ Bart C. Shuldman Chief Executive Officer, July 29, 1997
- ------------------------------- President and Director
Bart C. Shuldman
/s/ Richard L. Cote Executive Vice President, Chief July 29, 1997
- ------------------------------- Financial Officer, Treasurer,
Richard L. Cote and Director
/s/ Graham Y. Tanaka Director July 29, 1997
- -------------------------------
Graham Y. Tanaka
/s/ Charles A. Dill Director July 29, 1997
- -------------------------------
Charles A. Dill
<PAGE>
EXHIBIT INDEX
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
4.1 Articles of Incorporation of
the Registrant, as amended
(filed as Exhibit No. 3.1 to
the Registrant's registration
statement on Form S-1 dated
June 26, 1996, and by this
reference incorporated herein) N/A
4.2 By-laws of the Registrant, as
amended (filed as Exhibit 3.2
to the Registrant's registration
statement on Form S-1 dated
June 26, 1996, and by this
reference incorporated herein) N/A
4.3 1996 Stock Plan of Registrant 8
5 Opinion of Hinckley, Allen &
Snyder 28
23.1 Consent of Price Waterhouse 30
23.2 Consent of Hinckley, Allen &
Snyder (contained in their
opinion filed as Exhibit 5) N/A
Exhibit 4.3
TransAct Technologies Incorporated
1996 STOCK PLAN
Effective: July 30, 1996
<PAGE>
TransAct Technologies Incorporated
1996 STOCK PLAN
1. Purpose
TransAct Technologies Incorporated. (the "Company") desires to attract and
retain the best available talent and encourage the highest level of performance
by employees and other persons who perform services for the Company in order to
serve the best interests of the Company and stockholders. By affording eligible
persons the opportunity to acquire proprietary interests in the Company and by
providing them incentives to put forth maximum efforts for the success of the
Company's business, the TransAct Technologies Incorporated 1996 Stock Plan (the
"1996 Plan") is expected to contribute to the attainment of those objectives.
2. Scope and Duration
Awards under the 1996 Plan may be granted in the form of incentive stock
options ("incentive stock options") as provided in Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), in the form of non-qualified
stock options ("non-qualified options") (unless otherwise indicated, references
in the 1996 Plan to "options" include incentive stock options and non-qualified
options), in the form of shares of the common stock, par value $.01 per share,
of the Company (the "Common Stock") that are restricted as provided in paragraph
11 ("restricted shares"), in the form of units to acquire shares of Common Stock
that are restricted as provided in paragraph 11 ("restricted units") or in the
form of stock appreciation rights ("rights") or limited stock appreciation
rights ("limited rights"). The maximum aggregate number of shares of Common
Stock as to which awards may be granted from time to time under the 1996 Plan is
600,000 shares. The shares available may be in whole or in part, as the Board of
Directors of the Company (the "Board of Directors") shall from time to time
determine, authorized but unissued shares or issued shares reacquired by the
Company. Unless otherwise provided by the Compensation Committee, shares covered
by expired or terminated options and forfeited restricted shares or restricted
units will be available for subsequent awards under the 1996 Plan, except to the
extent prohibited by Rule 16b-3, as amended, or any successor provision thereto
("Rule 16b-3"), or other applicable rules under Section 16(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). Any shares issued by the
Company in respect of the assumption or substitution of outstanding awards from
a corporation or other business entity by the Company shall not reduce the
number of shares available for awards under the 1996 Plan. No incentive stock
option shall be granted more than 10 years after the Effective Date.
3. Administration
The 1996 Plan shall be administered by the Compensation Committee of the
Board of Directors, consisting of not less than two members who shall qualify to
administer the 1996 Plan as contemplated by Rule 16b-3 (unless Rule 16b-3 shall
permit fewer than two members to so qualify); provided, however, that, with
respect to individual participants who are not subject to Section 16(b) of the
Exchange Act, the Compensation Committee of the Board of Directors may delegate
authority to administer the 1996 Plan to another committee of directors which
committee may include directors who do not meet the standards set forth
immediately above. Unless the context otherwise requires, the term "Committee"
shall refer to both the Compensation Committee and any other committee of
directors to whom authority have been delegated.
The Committee shall have plenary authority in its discretion, subject to
and not inconsistent with the express provisions of the 1996 Plan to grant
options, to determine the purchase price of the shares of Common Stock covered
by each option, the term of each option, the persons to whom, and the time or
times at which options shall be granted, and the number of shares to be covered
by each option; to designate options as incentive stock options or non-qualified
options and to determine which options shall be accompanied by rights and
limited rights; to grant rights and to determine the terms and conditions
applicable to such rights; to grant restricted shares and restricted units and
to determine the term of the restricted period and other conditions applicable
to such shares or units, the persons to whom, and the time or times at which,
restricted shares or restricted units shall be granted and the number of shares
or units to be covered by each grant; to interpret the 1996 Plan; to prescribe,
amend and rescind rules and regulations relating to the 1996 Plan; to determine
the terms and provisions of the option and rights agreements (which need not be
identical) and the restricted share and restricted units agreements (which need
not be identical) entered into in connection with awards under the 1996 Plan;
and to make all other determinations deemed necessary or advisable for the
administration of the 1996 Plan. The Committee may delegate to one or more of
its members or to one or more agents such administrative duties as it may deem
advisable, and the Committee or any person to whom it has delegated duties as
aforesaid may employ one or more persons to render advice with respect to any
responsibility the Committee or such person may have under the 1996 Plan.
The Committee may employ attorneys, consultants, accountants or other
persons and the Committee, the Company and its officers and directors shall be
entitled to rely upon the advice, opinions or valuations of any such persons.
All actions taken and all interpretations and determinations made by the
Committee in good faith shall be final and binding upon all persons who have
received awards, the Company and all other interested persons. No member or
agent of the Committee shall be personally liable for any action, determination
or interpretation taken or made in good faith with respect to the 1996 Plan or
awards made thereunder, and all members and agents of the Committee shall be
fully indemnified and protected by the Company in respect of any such action,
determination or interpretation.
4. Eligibility; Factors to be Considered in Granting Awards
Awards will be limited to officers and other key employees of the Company
and its subsidiaries, and except in the case of incentive stock options, any
other non-employees who may provide services to the Company or its subsidiaries
(all such persons being hereinafter referred to as "employees"). In determining
the employees to whom awards shall be granted and the number of shares or units
to be covered by each award, the Committee shall take into account the nature of
the employees' duties, their present and potential contributions to the success
of the Company and such other factors as it shall deem relevant in connection
with accomplishing the purposes of the 1996 Plan. A director of the Company or
of a subsidiary who is not also an employee of the Company (or deemed to be an
employee of the Company as provided above) will not be eligible to receive an
award.
Awards may be granted singly, in combination or in tandem and may be made
in combination or in tandem with, in replacement of, or as alternatives to,
awards or grants under any other employee plan maintained by the Company, its
present and future subsidiaries. An employee who has been granted an award or
awards under the 1996 Plan may be granted an additional award or awards, subject
to such limitations as may be imposed by the Code on the grant of incentive
stock options. No award of incentive stock options shall result in the aggregate
fair market value of Common Stock with respect to which incentive stock options
are exercisable for the first time by any employee during any calendar year
(determined at the time the incentive stock option is granted) exceeding
$100,000. The Committee, in its sole discretion, may grant to an employee who
has been granted an award under the 1996 Plan or any other employee plan
maintained by the Company or its subsidiaries, or any predecessors or successors
thereto, in exchange for the surrender and cancellation of such award, a new
award in the same or a different form and containing such terms, including
without limitation a price which is different (either higher or lower) than any
price provided in the award so surrendered and cancelled, as the Committee may
deem appropriate.
5. Option Price
The purchase price of the Common Stock covered by each option shall be
determined by the Committee, but in the case of an incentive stock option shall
not be less than 100% of the fair market value (110% in the case of a 10%
shareholder of the Company) of the Common Stock on the date the option is
granted, which shall be deemed to equal the closing price of the Common Stock as
quoted by NASDAQ (the "Market Value") for the date on which the option is
granted, or if there are no sales on such date, on the next preceding day on
which there were sales. The Committee shall determine the date on which an
option is granted, provided that such date is consistent with the Code and any
applicable rules or regulations thereunder. In the absence of such
determination, the date on which the Committee adopts a resolution granting an
option shall be considered the date on which such option is granted, provided
the employee to whom the option is granted is promptly notified of the grant and
an option agreement is duly executed as of the date of the resolution. The
purchase price of the Common Stock covered by each option shall also be
applicable in connection with the exercise of any related right or limited
right. The purchase price shall be subject to adjustment as provided in
paragraph 14.
6. Terms of Options
The term of each incentive stock option granted under the 1996 Plan shall
not be more than 10 years (5 years in the case of a 10% shareholder of the
Company) from the date of grant, as the Committee shall determine, subject to
earlier termination as provided in paragraphs 12 and 13. The term of each
non-qualified stock option granted under the 1996 Plan shall be such period of
time as the Committee shall determine, subject to earlier termination as
provided in paragraphs 12 and 13.
7. Exercise of Options; Loans
(a) Subject to the provisions of the 1996 Plan, an option granted under the
1996 Plan shall become vested as determined by the Committee. The Committee may,
in its discretion, determine as a condition of any option, that all or a stated
percentage of the options shall become exercisable, in installments or
otherwise, only after completion of a specified service requirement. The
Committee may also, in its discretion, accelerate the exercisability of any
option at any time and provide, in any option agreement, that the option shall
become immediately exercisable as to all shares of Common Stock remaining
subject to the option on or following either (i) the first purchase of shares of
Common Stock pursuant to a tender offer or exchange offer (other than an offer
by the Company or any of its subsidiaries) for all, or any part of, the Common
Stock ("Offer"), (ii) a change in control of the Company (as defined in this
paragraph), (iii) approval by the Company's stockholders of a merger in which
the Company does not survive as an independent, publicly owned corporation, a
consolidation, or a sale, exchange or other disposition of all or substantially
all the Company's assets, or (iv) a change in the composition of the Board of
Directors during any period of two consecutive years such that individuals who
at the beginning of such period were members of the Board of Directors cease for
any reason to constitute at least a majority thereof, unless the election, or
the nomination for election by the Company's stockholders, of each new director
was approved by a vote of at least two-thirds of the directors then still in
office who were directors at the beginning of the period (the date upon which an
event described in clause (i), (ii), (iii) or (iv) of this paragraph 7(a) occurs
shall be referred to herein as an "acceleration date"). A "change in control" is
deemed to occur at the time of any acquisition of voting securities of the
Company by any person or group (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act), but excluding (i) the Company or any of its subsidiaries,
(ii) any person who was an officer or director of the Company on the day
immediately prior to the Effective Date hereof, or (iii) any savings, pension or
other benefits plan for the benefit of employees of the Company or any of its
subsidiaries, which theretofore did not beneficially own voting securities
representing more than 30% of the voting power of all outstanding voting
securities of the Company, if such acquisition results in such entity, person or
group owning beneficially securities representing more than 30% of the voting
power of all outstanding voting securities of the Company. As used herein,
"voting power" means ordinary voting power for the election of directors of the
Company.
(b) An option may be exercised at any time or from time to time (subject,
in the case of an incentive stock option, to such restrictions as may be imposed
by the Code), as to any or all full shares as to which the option has become
exercisable. Notwithstanding the foregoing provision, no option may be exercised
without the prior consent of the Committee by an employee who is subject to
Section 16(b) of the Exchange Act until the expiration of six months from the
date of the grant of the option.
(c) The purchase price of the shares as to which an option is exercised
shall be paid in full at the time of exercise; payment may be made in cash,
which may be paid by check, or other instrument acceptable to the Company, or,
with the consent of the Committee, in shares of the Common Stock, valued at the
Market Value on the date of exercise, or if there were no sales on such date, on
the next preceding day on which there were sales or (if permitted by the
Committee and subject to such terms and conditions as it may determine) by
surrender of outstanding awards under the 1996 Plan. In addition, any amount
necessary to satisfy applicable federal, state or local tax requirements shall
be paid promptly upon notification of the amount due. The Committee may permit
such amount to be paid in shares of Common Stock previously owned by the
employee, or a portion of the shares of Common Stock that otherwise would be
distributed to such employee upon exercise of the option, or a combination of
cash and shares of such Common Stock.
(d) Except as provided in paragraphs 12 and 13, no option may be exercised
at any time unless the holder thereof is then an employee of or performing
services for the Company or one of its subsidiaries. For this purpose,
"subsidiary" shall include, as under Treasury Regulations Section 1.421-7(h)(3)
and (4), Example (3), any corporation that is a subsidiary of the Company during
the entire portion of the requisite period of employment during which it is the
employer of the holder.
(e) The Committee, in its sole discretion, may elect, in lieu of delivering
all or a portion of the shares of Common Stock as to which an option has been
exercised, if the fair market value of the Common Stock exceeds the exercise
price of the option (i) to pay the employee in cash or in shares of Common
Stock, or a combination of cash and Common Stock, an amount equal to the excess
of (A) the Market Value on the exercise date of the shares of Common Stock as to
which such option has been exercised, or if there were no sales on such date, on
the next preceding day on which there were sales over (B) the option price, or
(ii) in the case of an option which is a non-qualified option, to defer payment
and to credit the amount of such excess on the Company's books for the account
of the optionee and either (a) to treat the amount in such account as if it had
been invested in the manner from time to time determined by the Committee, with
dividends or other income therein being deemed to have been so reinvested or (b)
for the Company's convenience, to contribute the amount credited to such account
to a trust, which may be revocable by the Company, for investment in the manner
from time to time determined by the Committee and set forth in the instrument
creating such trust; provided, however, that, to the extent required by Rule
16b-3 or other applicable rules under Section 16(b) of the Exchange Act, in
order to perfect the exemption provided thereunder for cash settlements of stock
appreciation rights, the Committee shall not exercise its discretion to grant
cash to any employee who is subject to the provisions of Section 16(b) of the
Exchange Act unless the exercise occurs during any period commencing on the
third business day following the date of release for publication of any annual
or quarterly summary statements of the Company's sales and earnings and ending
on the twelfth business day following such date (a "Window Period"). The
Committee's election pursuant to this subparagraph shall be made by giving
written notice of such election to the employee (or other person exercising the
option). Shares of Common Stock paid pursuant to this subparagraph will be
valued at the Market Value on the exercise date, or if there were no sales on
such date, on the next preceding day on which there were sales.
(f) Subject to any terms and conditions that the Committee may determine in
respect of the exercise of options involving the surrender of outstanding
awards, upon, but not until, the exercise of an option or portion thereof in
accordance with the 1996 Plan, the option agreement and such rules and
regulations as may be established by the Committee, the holder thereof shall
have the rights of a stockholder with respect to the shares issued as a result
of such exercise.
(g) The Company may make loans to such option holders as the Committee, in
its discretion, may determine (including a holder who is a director or officer
of the Company) in connection with the exercise of options granted under the
1996 Plan; provided, however, that the Committee shall not authorize the making
of any loan where the possession of such discretion or the making of such loan
would result in a "modification" (as defined in Section 424 of the Code) of any
incentive stock option. Such loans shall be subject to the following terms and
conditions and such other terms and conditions as the Committee shall determine
not inconsistent with the 1996 Plan. Such loans shall bear interest at such
rates as the Committee shall determine from time to time, which rates may be
below then current market rates (except in the case of incentive stock options).
In no event may any such loan exceed the fair market value, at the date of
exercise, of the shares covered by the option, or portion thereof, exercised by
the holder. No loan shall have an initial term exceeding five years, but any
such loan may be renewable at the discretion of the Committee. When a loan shall
have been made, shares of Common Stock having a fair market value at least equal
to the principal amount of the loan shall be pledged by the holder to the
Company as security for payment of the unpaid balance of the loan. Every loan
shall comply with all applicable laws, regulations and rules of the Board of
Governors of the Federal Reserve System and any other governmental agency having
jurisdiction.
8. Award and Exercise of Rights
(a) A right may be awarded by the Committee in connection with any option
granted under the 1996 Plan (a "tandem right"), either at the time the option is
granted or thereafter at any time prior to the exercise, termination or
expiration of the option. A right may also be awarded separately (a "free-
standing right"). Each tandem right shall be subject to the same terms and
conditions as the related option and shall be exercisable only to the extent the
option is exercisable.
The term of each freestanding right granted under the 1996 Plan shall be
such period of time as the Committee shall determine. Subject to the provisions
of the 1996 Plan, such right shall become vested as determined by the Committee.
Prior to becoming 100% vested, each freestanding right shall become exercisable,
in installments or otherwise, as the Committee shall determine. The Committee
may also, in its discretion, accelerate the exercisability of any freestanding
right at any time and provide, in the agreement covering a freestanding right,
that the right shall become immediately exercisable on or following an
acceleration date (as defined in paragraph 7(a)).
No right shall be exercisable by an employee who is subject to the
provisions of Section 16(b) of the Exchange Act without the prior consent of the
Committee prior to the expiration of six months from the date the right is
awarded (and then, as to a tandem right, only to the extent the related option
is exercisable). Notwithstanding the foregoing, no right shall be exercisable by
an employee who is subject to the provisions of Section 16(b) of the Exchange
Act without the prior consent of the Committee prior to the expiration of one
year from the date of the initial sale of shares of Common Stock of the Company
to the public.
(b) A right shall entitle the employee upon exercise in accordance with its
terms (subject, in the case of a tandem right, to the surrender unexercised of
the related option or any portion or portions thereof which the employee from
time to time determines to surrender for this purpose) to receive, subject to
the provisions of the 1996 Plan and such rules and regulations as from time to
time may be established by the Committee, a payment having an aggregate value
equal to (A) the excess of (i) the fair market value on the exercise date of one
share over (ii) the option price per share, in the case of a tandem right, or
the price per share specified in the terms of the right, in the case of a
freestanding right, times (B) the number of shares with respect to which the
right shall have been exercised. The payment shall be made in the form of all
cash, all shares of Common Stock, or a combination thereof, as elected by the
employee, provided that, unless otherwise approved by the Committee, the
election by an employee who is subject to the provisions of Section 16(b) of the
Exchange Act to receive all or a part of a payment in cash, as well as the
exercise by the employee of the right for cash, shall be made only during a
Window Period (as defined in paragraph 7(e) hereof); and provided further, that
the Committee shall have sole discretion to consent to or disapprove the
election of an officer or director to receive all or part of a payment in cash
(which consent or disapproval may be given at any time after the election to
which it relates). The price per share specified in a freestanding right shall
be determined by the Committee but in no event shall be less than the average of
the daily closing prices for the Common Stock as reported by NASDAQ during a
period determined by the Committee in its sole discretion that shall consist of
any trading day or any number of consecutive trading days, not exceeding 30,
during the period of 30 trading days ending on the trading day immediately
preceding the date the right is granted, provided that, in the absence of a
different determination by the Committee, the price per share shall be
determined on the basis of a period consisting of 30 trading days. Such price
shall be subject to adjustment as provided in paragraph 14. The Committee shall
determine the date on which a freestanding right is granted. In the absence of
such determination, the date on which the Committee adopts a resolution granting
such right shall be considered the date of grant, provided the employee is
promptly notified of the grant and an agreement is duly executed as of the date
of the resolution.
If upon exercise of a right the employee is to receive a portion of the
payment in shares of Common Stock, the number of shares received shall be
determined by dividing such portion by the fair market value of a share on the
exercise date. The number of shares received may not exceed the number of shares
covered by any option or portion thereof surrendered. Cash will be paid in lieu
of any fractional share.
No payment will be required from the employee upon exercise of a right,
except that any amount necessary to satisfy applicable federal, state or local
tax requirements shall be withheld or paid promptly upon notification of the
amount due and prior to or concurrently with delivery of cash or a certificate
representing shares. The Committee may permit such amount to be paid in shares
of Common Stock previously owned by the employee, or a portion of the shares of
Common Stock that otherwise would be distributed to such employee upon exercise
of the right, or a combination of cash and shares of such Common Stock.
(c) For purposes of this paragraph 8, the fair market value of a share on
any particular date shall mean the Market Value of such share on such date, or
if there are no sales on such date, on the next preceding day on which there
were sales; provided, however, that with respect to exercises of rights by an
employee who is subject to the provisions of Section 16(b) of the Exchange Act
during any Window Period, the Committee may prescribe, by rule of general
application, such other measure of fair market value per share as the Committee
may, in its discretion, determine but not in excess of the highest sale price of
the Common Stock during such Window Period and, in the case of rights that
relate to an incentive stock option, not in excess of the maximum amount that
would be permissible under Section 422 of the Code and the Treasury Regulations
thereunder without disqualifying such option as an incentive stock option under
Section 422.
(d) Upon exercise of a tandem right, the number of shares subject to
exercise under the related option shall automatically be reduced by the number
of shares represented by the option or portion thereof surrendered.
(e) A right related to an incentive stock option may only be exercised if
the fair market value of a share of Common Stock on the exercise date exceeds
the option price.
(f) Whether payments to employees upon exercise of tandem rights related to
non-qualified options or of freestanding rights are made in cash, shares of
Common Stock or a combination thereof, the Committee shall have sole discretion
as to timing of the payments, whether in one lump sum or in annual installments
or otherwise deferred, which deferred payments may in the Committee's sole
discretion (i) bear amounts equivalent to interest or cash dividends, (ii) be
treated as invested in the manner from time to time determined by the Committee,
with dividends or other income thereon being deemed to have been so reinvested,
or (iii) for the convenience of the Company, contributed to a trust, which may
be revocable by the Company or subject to the claims of its creditors, for
investment in the manner from time to time determined by the Committee and set
forth in the instrument creating such trust, all as the Committee shall
determine.
(g) If a freestanding right is not exercised, or neither a tandem right nor
the related option is exercised, before the end of the day on which the right
ceases to be exercisable and the fair market value of a share on such date
exceeds (i) the option price per share in the case of a tandem right or (ii) the
price per share specified in the terms of the right in the case of a
freestanding right, such right shall be deemed exercised and a payment in the
amount prescribed by subparagraph 8(b), less any applicable taxes, shall be paid
to the employee in cash.
9. Award and Exercise of Limited Rights
(a) A limited right may be awarded by the Committee in connection with any
option granted under the 1996 Plan with respect to all or some of the shares of
Common Stock covered by such related option. A limited right may be granted
either at the time the option is granted or thereafter at any time prior to the
exercise, termination or expiration of the option. A limited right may be
granted to an employee irrespective of whether such employee is being granted or
has been granted a right under paragraph 8 hereof. A limited right may be
exercised only during the ninety-day period beginning on an acceleration date
(as defined in paragraph 7(a)). In addition, each limited right shall be
exercisable only if, and to the extent that, the related option is exercisable
and, in the case of a limited right granted in respect of an incentive stock
option, only when the fair market value per share of the Common Stock exceeds
the option price per share. Upon exercise of a limited right, such related
option shall cease to be exercisable to the extent of the shares of Common Stock
with respect to which such limited right is exercised. Upon the exercise or
termination of a related option, the limited right with respect to such related
option shall terminate to the extent of the shares of Common Stock with respect
to which the related option was exercised or terminated.
(b) Upon the exercise of limited rights, the holder thereof shall receive
in cash whichever of the following amounts is applicable:
(i) in the case of an exercise of limited rights by reason of the
occurrence of an Offer (as defined in paragraph 7(a)(i)), an amount equal to the
Offer Spread (as defined in paragraph 9(d));
(ii) in the case of an exercise of limited rights by reason of an
acquisition of Common Stock described in paragraph 7(a)(ii), an amount equal to
the Acquisition Spread (as defined in paragraph 9(h) hereof);
(iii) in the case of an exercise of limited rights by reason of an event
described in paragraph 7(a)(iii), an amount equal to the Merger Spread (as
defined in paragraph 9(f) hereof); or
(iv) in the case of an exercise of limited rights by reason of a change in
the composition of the Board of Directors as described in paragraph 7(a)(iv), an
amount equal to the Spread (as defined in paragraph 9(i) hereof).
Notwithstanding the foregoing, in the case of a limited right granted in
respect of an incentive stock option, the holder may not receive an amount in
excess of such amount as will enable such option to qualify as an incentive
stock option.
(c) The term "Offer Price per Share" as used in this paragraph 9 shall
mean, with respect to the exercise of any limited right by reason of the
occurrence of an Offer, the greater of (i) the highest price per share of Common
Stock paid in any Offer, which Offer is in effect at any time during the
ninety-day period ending on the date on which such limited right is exercised,
or (ii) the highest fair market value per share of Common Stock during such
ninety-day period. Any securities or property which are part or all of the
consideration paid for shares of Common Stock in the Offer shall be valued in
determining the Offer Price per Share at the higher of (A) the valuation placed
on such securities or property by the corporation, person or other entity making
such Offer or (B) the valuation placed on such securities or property by the
Committee.
(d) The term "Offer Spread" as used in this paragraph 9 shall mean an
amount equal to the product computed by multiplying (i) the excess of (A) the
Offer Price per Share over (B) the option price per share of Common Stock at
which the related option is exercisable, by (ii) the number of shares of Common
Stock with respect to which such limited right is being exercised.
(e) The term "Merger Price per Share" as used in this paragraph 9 shall
mean, with respect to the exercise of any limited right by reason of an event
described in paragraph 7(a) (iii), the greater of (i) the fixed or formula price
for the acquisition of shares of Common Stock occurring pursuant to such event
if such fixed or formula price is determinable on the date on which such limited
right is exercised, and (ii) the highest fair market value per share of Common
Stock during the ninety-day period ending on the date on which such limited
right is exercised. Any securities or property which are part or all of the
consideration paid for shares of Common Stock pursuant to such event shall be
valued in determining the Merger Price per Share at the higher of (A) the
valuation placed on such securities or property by the corporation, person or
other entity which is a party with the Company to such event or (B) the
valuation placed on such securities or property by the Committee.
(f) The term "Merger Spread" as used in this paragraph 9 shall mean an
amount equal to the product computed by multiplying (i) the excess of (A) the
Merger Price per Share over (B) the option price per share of Common Stock at
which the related option is exercisable, by (ii) the number of shares of Common
Stock with respect to which such limited right is being exercised.
(g) The term "Acquisition Price per Share" as used in this paragraph 9
shall mean, with respect to the exercise of any limited right by reason of an
acquisition of Common Stock described in paragraph 7(a)(ii), the greater of (i)
the highest price per share stated on the Schedule 13D or any amendment thereto
filed by the holder of 30% or more of the Company's voting power which gives
rise to the exercise of such limited right, and (ii) the highest fair market
value per share of Common Stock during the ninety-day period ending on the date
the limited right is exercised.
(h) The term "Acquisition Spread" as used in this paragraph 9 shall mean an
amount equal to the product computed by multiplying (i) the excess of (A) the
Acquisition Price per Share over (B) the option price per share of Common Stock
at which the related option is exercisable, by (ii) the number of shares of
Common Stock with respect to which such limited right is being exercised.
(i) The term "Spread" as used in this paragraph 9 shall mean, with respect
to the exercise of any limited right by reason of a change in the composition of
the Board described in paragraph 7(a) (iv), an amount equal to the product
computed by multiplying (i) the excess of (A) the highest fair market value per
share of Common Stock during the ninety-day period ending on the date the
limited right is exercised over (B) the option price per share of Common Stock
at which the related option is exercisable, by (ii) the number of shares of
Common Stock with respect to which the limited right is being exercised.
(j) Notwithstanding any other provision of the 1996 Plan, rights granted
pursuant to paragraph 8 may not be exercised to the extent that any limited
rights granted with respect to the same option are then exercisable.
(k) For purposes of this paragraph 9, "fair market value per share of
Common Stock" for any day shall mean the Market Value for such day (or if there
were no sales on such day, on the next preceding day on which there were sales).
10. Non-Transferability of Options and Rights
Options, rights and limited rights granted under the 1996 Plan shall not be
transferable otherwise than by will or the laws of descent and distribution, or
pursuant to a qualified domestic relations order as defined by Section 414(p) of
the Code. Options, rights and limited rights may be exercised during the
lifetime of the employee only by the employee or by the employee's guardian or
legal representative (unless such exercise would disqualify an option as an
incentive stock option).
11. Award and Delivery of Restricted Shares or Restricted Units
(a) At the time an award of restricted shares or restricted units is made,
the Committee shall establish a period of time (the "Restricted Period")
applicable to such award. Each award of restricted shares or restricted units
may have a different Restricted Period. The Committee may, in its sole
discretion, at the time an award is made, prescribe conditions for the
incremental lapse of restrictions during the Restricted Period, for the lapse or
termination of restrictions upon the satisfaction of other conditions in
addition to or other than the expiration of the Restricted Period with respect
to all or any portion of the restricted shares or restricted units and provide
for the lapse of all restrictions with respect to all restricted shares or
restricted units covered by the award upon the occurrence of an acceleration
date as defined in paragraph 7(a). The Committee may also, in its sole
discretion, shorten or terminate the Restricted Period or waive any conditions
for the lapse or termination of restrictions with respect to all or any portion
of the restricted shares or restricted units. Notwithstanding the foregoing, all
restrictions shall lapse or terminate with respect to all restricted shares or
restricted units upon death or total disability (as defined in paragraph 13).
(b) Upon the grant of an award of restricted shares, a stock certificate
representing a number of shares of Common Stock equal to the number of
restricted shares granted to an employee shall be registered in the employee's
name but shall be held in custody by the Company for the employee's account. The
employee shall generally have the rights and privileges of a stockholder as to
such restricted shares, including the right to vote such restricted shares,
except that, subject to the provisions of paragraph 12, the following
restrictions shall apply: (i) the employee shall not be entitled to delivery of
the certificate until the expiration or termination of the Restricted Period and
the satisfaction of any other conditions prescribed by the Committee; (ii) none
of the restricted shares may be sold, transferred, assigned, pledged, or
otherwise encumbered or disposed of during the Restricted Period and until the
satisfaction of any other conditions prescribed by the Committee; and (iii) all
of the restricted shares shall be forfeited and all rights of the employee to
such restricted shares shall terminate without further obligation on the part of
the Company unless the employee has remained an employee of the Company or any
of its subsidiaries or any combination thereof until the expiration or
termination of the Restricted Period and the satisfaction of any other
conditions prescribed by the Committee applicable to such restricted shares. At
the discretion of the Committee, cash and stock dividends with respect to the
restricted shares may be either currently paid or withheld by the Company for
the employee's account subject to the expiration or termination of the
Restricted Period and the satisfaction of any other conditions prescribed by the
Committee, and interest may be paid on the amount of cash dividends withheld at
a rate and subject to such terms as determined by the Committee. Upon the
forfeiture of any restricted shares, such forfeited restricted shares and any
cash or stock dividends withheld for the employee's account shall be transferred
to the Company without further action by the employee. The employee shall have
the same rights and privileges, and be subject to the same restrictions, with
respect to any shares received pursuant to paragraph 14.
(c) Upon the expiration or termination of the Restricted Period and the
satisfaction of any other conditions prescribed by the Committee or at such
earlier time as provided for in paragraph 12, the restrictions applicable to the
restricted shares shall lapse and a stock certificate for the number of shares
of Common Stock with respect to which the restrictions have lapsed shall be
delivered, free of all such restrictions, except any that may be imposed by law,
to the employee or the employee's beneficiary or estate, as the case may be. The
Company shall not be required to deliver any fractional share of Common Stock
but will pay, in lieu thereof, the fair market value (determined as of the date
the restrictions lapse) of such fractional share to the employee or the
employee's beneficiary or estate, as the case may be. No payment will be
required from the employee upon the issuance or delivery of any restricted
shares, except that any amount necessary to satisfy applicable federal, state or
local tax requirements shall be withheld or paid promptly upon notification of
the amount due and prior to or concurrently with the issuance or delivery of a
certificate representing such shares. The Committee may permit such amount to be
paid in (i) shares of Common Stock previously owned by the employee, (ii) a
portion of the shares of Common Stock that otherwise would be distributed to
such employee upon the lapse of the restrictions applicable to the restricted
shares, or (iii) a combination of cash and shares of such Common Stock;
provided, however, unless otherwise approved by the Committee, that an election
by an employee subject to Section 16(b) of the Exchange Act to use shares of
Common Stock described in clause (ii) above to satisfy any federal, state or
local tax requirement shall be made only during a Window Period (as defined in
paragraph 7(e) hereof), and provided further that the Committee shall have sole
discretion to consent to or disapprove of any such election (which consent or
disapproval may be given at any time after the election to which it relates).
(d) In the case of an award of restricted units, no shares of Common Stock
shall be issued at the time the award is made, and the Company shall not be
required to set aside a fund for the payment of any such award. At the
discretion of the Committee, cash and stock dividends with respect to the Common
Stock ("Dividend Equivalents") may be currently paid or withheld by the Company
for the employee's account subject to the expiration or termination of the
Restricted Period and the satisfaction of any other conditions prescribed by the
Committee, and interest may be paid on the amount of cash dividends withheld at
a rate and subject to such terms as determined by the Committee.
Upon the expiration or termination of the Restricted Period and the
satisfaction of any other conditions prescribed by the Committee or at such
earlier time as provided for in paragraph 12, the Company shall deliver to the
employee or the employee's beneficiary or estate, as the case may be, one share
of Common Stock for each restricted unit with respect to which the restrictions
have lapsed ("vested unit"), and cash equal to any Dividend Equivalents credited
with respect to each such vested unit and any interest thereon; provided,
however, that the Committee may, in its sole discretion, elect to pay cash or
part cash and part Common Stock in lieu of delivering only Common Stock for
vested units. If a cash payment is made in lieu of delivering Common Stock, the
amount of such cash payment shall be equal to the Market Value for the date on
which the Restricted Period lapsed with respect to such vested unit, or if there
are no sales on such date, on the next preceding day on which there were sales.
No payment will be required from the employee upon the award of any restricted
units, the crediting or payment of any Dividend Equivalents, or the delivery of
Common Stock or the payment of cash in respect of vested units, except that any
amount necessary to satisfy applicable federal, state or local tax requirements
shall be withheld or paid promptly upon notification of the amount due. The
Committee may permit such amount to be paid in (i) shares of Common Stock
previously owned by the employee, (ii) a portion of the shares of Common Stock
that otherwise would be distributed to such employee in respect of vested units,
or (iii) a combination of cash and shares of such Common Stock; provided,
however, unless otherwise approved by the Committee, that an election by an
employee subject to Section 16(b) of the Exchange Act to use the shares of
Common Stock described in clause (ii) above to satisfy any federal, state or
local tax requirement shall be made only during a Window Period (as defined in
paragraph 7(e) hereof); and provided further that the Committee shall have sole
discretion to consent to or disapprove of any such election (which consent or
disapproval may be given at any time after the election to which it relates).
Upon the occurrence of an acceleration date (as defined in paragraph 7(a)),
all outstanding vested units (including any restricted units whose restrictions
have lapsed as a result of the occurrence of such acceleration date) and
credited Dividend Equivalents shall be payable as soon as practicable but in no
event later than 90 days after such acceleration date in cash, in shares of
Common Stock, or part in cash and part in Common Stock, as the Committee, in its
sole discretion, shall determine. To the extent that an employee receives cash
in payment for his vested units, such employee shall receive an amount equal to
the product of (i) the number of vested units credited to such employee's
account for which such employee is receiving payment in cash times (ii) the
Multiplication Factor (as defined below). To the extent that an employee
receives Common Stock in payment for his vested units, such employee shall
receive the number of shares of Common Stock determined by dividing (i) the
product of (x) the number of vested units credited to such employee's account
for which such employee is receiving payment in Common Stock times (z) the
Multiplication Factor, by (ii) the fair market value per share of the Common
Stock as of the day preceding the payment date. "Multiplication Factor" shall
mean (i) in the event of the occurrence of an Offer as defined in paragraph
7(a)(i), the Offer Price per Share as modified below, (ii) in the case of an
acquisition of Common Stock described in paragraph 7(a) (ii), the Acquisition
Price per Share as modified below, (iii) in the case of an event described in
paragraph 7(a)(iii), the Merger Price per Share as modified below, or (iv) in
the case of a change in the composition of the Board of Directors as described
in paragraph 7(a)(iv), the highest fair market value per share of the Common
Stock for any day during the applicable ninety-day period described below. For
purposes of the preceding sentence, (i) the applicable ninety-day period
described in paragraphs 9(c), (e) and (g) and in clause (iv) above shall mean
the ninety-day period ending on or within 89 days following an acceleration date
which the Committee, in its sole discretion, shall select and (ii) fair market
value per share of the Common Stock shall mean the Market Value.
(e) The restricted unit award agreement may permit an employee to request
that the payment of vested units (and Dividend Equivalents and the interest
thereon with respect to such vested units) be deferred beyond the payment date
specified in the agreement. The Committee shall, in its sole discretion,
determine whether to permit such deferment and to specify the terms and
conditions, which are not inconsistent with the 1996 Plan, to be contained in
the agreement. In the event of such deferment, the Committee may determine that
interest shall be credited annually on the Dividend Equivalents, at a rate to be
determined by the Committee. The Committee may also determine to compound such
interest.
12. Termination of Employment
Unless otherwise determined by the Committee, and subject to such
restrictions as may be imposed by the Code in the case of any incentive stock
options, in the event that the employment of an employee to whom an option,
right or limited right has been granted under the 1996 Plan shall be terminated
(except as set forth in paragraph 13), such option, right or limited right may,
subject to the provisions of the 1996 Plan, be exercised (to the extent that the
employee was entitled to do so at the termination of his employment) at any time
within three months after such termination, or, in the case of an employee who
voluntarily resigns from active employment at or after age 55 within one year
after such termination, but in no case later than the date on which the option,
right or limited right terminates; provided, however, that any option, right or
limited right held by an employee whose employment is terminated for Cause shall
forthwith terminate, to the extent not theretofore exercised.
"Cause" shall mean: (1) any action or inaction by the employee that
constitutes larceny, fraud, gross negligence, a willful or negligent
misrepresentation to the directors or officers of the Company, their successors
or assigns, a crime involving moral turpitude; or (2) the refusal of the
employee to follow the reasonable and lawful written instructions of the
President or the Board of Directors of the Company with respect to the services
to be rendered and the manner of rendering such services by employee provided
such refusal is material and repetitive and is not justified or excused by
actions taken by the Company in violation of any written agreement between the
Company and the employee, and with respect to the first two refusals employee
has been given reasonable written notice and explanation thereof and reasonable
opportunity to cure and no cure has been effected within a reasonable time after
such notice. Unless otherwise determined by the Committee, if an employee to
whom restricted shares or restricted units have been granted ceases to be an
employee of the Company or of a subsidiary prior to the end of the Restricted
Period and the satisfaction of any other conditions prescribed by the Committee
for any reason other than death or total disability (as defined in paragraph
13), the employee shall immediately forfeit all restricted shares and restricted
units. Awards granted under the 1996 Plan shall not be affected by any change of
duties or position so long as the holder continues to be an employee of the
Company or any of its subsidiaries. Any option, right, limited right, restricted
share or restricted unit agreement, or any rules and regulations relating to the
1996 Plan, may contain such provisions as the Committee shall approve with
reference to the determination of the date employment terminates and the effect
of leaves of absence. Any such rules and regulations with reference to any
option agreement shall be consistent with the provisions of the Code and any
applicable rules and regulations thereunder. Nothing in the 1996 Plan or in any
award granted pursuant to the 1996 Plan shall confer upon any employee any right
to continue in the employ of the Company or any of its subsidiaries or interfere
in any way with the right of the Company or any such subsidiary to terminate
such employment at any time.
Notwithstanding anything else in the 1996 Plan to the contrary, if the
corporation employing an individual to whom an option, right, limited right,
restricted unit or restricted share has been granted under the 1996 Plan ceases
to be a subsidiary of the Company, then the Committee may provide that service
with such employer or its direct or indirect or subsidiaries in any capacity
shall be considered employment with the Company for purposes of the 1996 Plan.
13. Death or Total Disability of Employee
If an employee to whom an option, right or limited right has been granted
under the 1996 Plan shall die or suffer a "total disability" while employed by
the Company or its subsidiaries or within three months (or, in the case of an
employee who voluntarily resigns from active employment at or after age 55,
within one year) after the termination of such employment (other than
termination for cause), such option, right or limited right may be exercised, to
the extent that the employee was entitled to do so at the termination of
employment (including by reason of death or total disability), as set forth
herein (subject to the restrictions set forth in paragraphs 8 and 9 with respect
to persons subject to Section 16(b) of the Exchange Act) by the employee, the
legal guardian of the employee (unless such exercise would disqualify an option
as an incentive stock option), a legatee or legatees of the employee under the
employee's last will, or by the employee's personal representatives or
distributees, whichever is applicable, at any time within one year after the
date of the employee's death or total disability, but in no case later than the
date on which the option, right or limited right terminates. For purposes
hereof, "total disability" is defined as the permanent inability of an employee,
as a result of accident or sickness, to perform any and every duty pertaining to
such employee's occupation or employment for which the employee is suited by
reason of the employee's previous training, education and experience.
14. Adjustment upon Changes in Capitalization, etc.
Notwithstanding any other provision of the 1996 Plan, the Committee may at
any time, in its sole discretion, make or provide for such adjustments to the
1996 Plan, to the number and class of shares available thereunder or to any
outstanding options, rights, restricted shares or restricted units as it may
deem appropriate to prevent dilution or enlargement of rights, including
adjustments in the event of distributions to holders of Common Stock other than
a normal cash dividend, changes in the outstanding Common Stock by reason of
stock dividends, split-ups, recapitalizations, mergers, consolidations,
combinations or exchanges of shares, separations, reorganizations, liquidations
and the like. In the event of any offer to holders of Common Stock generally
relating to the acquisition of their shares, the Committee may, in its sole
discretion, make any adjustment as it deems equitable in respect of outstanding
options, rights, limited rights and restricted units, including in the
Committee's discretion revision of outstanding options, rights, limited rights
and restricted units so that they may be exercisable for or payable in the
consideration payable in the acquisition transaction. Any such determination by
the Committee shall be conclusive. No adjustment shall be made in respect of an
incentive stock option if such adjustment would disqualify such option as an
incentive stock option under Section 422 of the Code and the Treasury
Regulations thereunder. No adjustment shall be made in the minimum number of
shares with respect to which an option may be exercised at any time. Any
fractional shares resulting from such adjustments to options, rights, limited
rights or restricted units shall be eliminated.
15. Effective Date
The 1996 Plan shall be effective as of July 30, 1996, (the "Effective
Date"), provided that the adoption of the 1996 Plan shall have been approved by
the stockholder of the Company. The Committee thereafter may, in its discretion,
grant awards under the 1996 Plan, the grant, exercise or payment of which shall
be expressly subject to the conditions that, to the extent required at the time
of grant, exercise or payment, (i) if the Company deems it necessary or
desirable, a Registration Statement under the Securities Act of 1933 with
respect to such shares shall be effective, and (ii) any requisite approval or
consent of any governmental authority of any kind having jurisdiction over
awards granted under the 1996 Plan shall be obtained.
16. Termination and Amendment
The Board of Directors of the Company may suspend, terminate, modify or
amend the 1996 Plan, provided that any amendment that would increase the
aggregate number of shares that may be issued under the 1996 Plan, materially
increase the benefits accruing to participants under the 1996 Plan, or
materially modify the requirements as to eligibility for participation in the
1996 Plan shall be subject to the approval of the Company's stockholders to the
extent required by Rule 16b-3, applicable law or any other governing rules or
regulations, except that any such increase or modification that may result from
adjustments authorized by paragraph 14 does not require such approval. If the
1996 Plan is terminated, the terms of the 1996 Plan shall, notwithstanding such
termination, continue to apply to awards granted prior to such termination. In
addition, no suspension, termination, modification or amendment of the 1996 Plan
may, without the consent of the employee to whom an award shall theretofore have
been granted, adversely affect the rights of such employee under such award.
17. Written Agreements
Each award of options, rights, limited rights, restricted shares or
restricted units shall be evidenced by a written agreement, executed by the
employee and the Company, which shall contain such restrictions, terms and
conditions as the Committee may require.
18. Effect on Other Stock Plans
The adoption of the 1996 Plan shall have no effect on awards made or to be
made pursuant to other stock plans covering employees of the Company or its
subsidiaries, or any predecessors or successors thereto.
IN WITNESS WHEREOF, the Company has caused its duly authorized officer to
execute this Plan as of the _____ day of ________, 1996.
TransAct Technologies Incorporated.
By:________________________________
Title:_____________________________
Exhibit 5
July 29, 1997
TransAct Technologies Incorporated
7 Laser Lane
Wallingford, Connecticut 06492
RE: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to TransAct Technologies Incorporated, a Delaware
corporation (the "Company"), in connection with the filing by the Company of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission relating to 600,000 shares of the Company's
common stock, par value $.01 per share (the "Common Stock"), to be issued
pursuant to the TransAct Technologies Incorporated 1996 Stock Plan (the "Plan").
In connection with this opinion, we have examined the Company's Certificate
of Incorporation, the bylaws of the Company, as amended, the Registration
Statement, corporate proceedings of the Company relating to the issuance of the
Common Stock, the Plan and such other instruments and documents as we have
deemed relevant under the circumstances.
In making the aforesaid examination, 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.
Based upon and subject to the foregoing, we are of the opinion that the
Common Stock which may be issued under the Plan has been duly authorized and
when issued in accordance with the terms of the Plan will be validly issued,
fully paid and non-assessable.
<PAGE>
We hereby consent to the use of our opinion as herein set forth as an
exhibit to the Registration Statement. This opinion is rendered to you in
connection with the Registration Statement, and except as consented to in the
preceding sentence, may not be relied upon or furnished to any other person in
any context. In giving such consent, we do not thereby admit that we are within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ Hinckley, Allen & Snyder
Exhibit 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 12, 1997 appearing on page 13
of the TransAct Technoloiges Incorporated Annual Report on Form 10-K for the
year ended December 31, 1996.
PRICE WATERHOUSE LLP
Hartford, Connecticut
July 29, 1997
