As filed with the Securities and Exchange Commission on
November 25, 1996
Registration No. 333-
_________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
SUPERIOR TELECOM INC.
(Exact name of registrant as specified in its charter)
Delaware 55-2248978
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1790 Broadway
New York, New York 10019
(212) 757-3333
(Address of principal executive offices)
(Zip code)
Superior TeleCom Inc. 1996 Stock Option Plan
Superior TeleCom Inc. Employee Stock Purchase Plan, as amended
(Full title of the Plan)
Stewart H. Wahrsager, Esq.
Superior TeleCom Inc.
1790 Broadway
New York, New York 10019
(212) 757-3333
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all communications to:
Henry O. Smith III, Esq.
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036-8299
_________________________________
<TABLE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
securities Amount to Offering Aggregate Amount of
to be be price per offering Registration
registered registered(1) share (2) price Fee
_______________________________________________________________________________
<S> <C> <C> <C> <C>
Common Stock 1,250,000 shares(3) $17.31 $ 21,640,625 $ 6,558
par value 250,000 shares(4) $17.31 $ 4,328,125 $ 1,312
$.01 per share
_______________________________________________________________________________
</TABLE>
(1) Pursuant to Rule 416, there are also being registered such
additional indeterminate number of shares as may be required
to cover possible adjustments under each of Superior TeleCom
Inc.'s 1996 Stock Option Plan and Employee Stock Purchase
Plan, as amended.
(2) Estimated solely for the purpose of calculating the
registration fee pursuant to Rules 457(h) and 457(c) based
upon the average of the high and low prices of the Common
Stock as reported on the New York Stock Exchange on November
19, 1996.
(3) The maximum number of shares as to which awards may be
granted under the Superior TeleCom Inc. 1996 Stock Option
Plan.
(4) The maximum number of shares as to which awards may be
granted under the Superior TeleCom Inc. Employee Stock
Purchase Plan, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and
Exchange Commission by Superior TeleCom Inc., a Delaware
corporation (the "Company" or the "Registrant"), are incorporated
herein by reference:
(1) The Company's Form S-1 filed on August 9, 1996
(the "Form S-1").
(2) The Company's Form 8-A filed on October 2, 1996
(the "Form 8-A").
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange
Act of 1934, prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration
Statement and to be part thereof from the date of filing such
documents. Any statement in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be
modified or superseded for the 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 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. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The General Corporation Law of the State of Delaware permits
corporations incorporated under the law of the State of Delaware
(such as the Company) and its stockholders to limit directors'
exposure to liability for certain breaches of the directors'
fiduciary duty, either in a suit on behalf of such corporation or
in an action by stockholders of such corporation.
The Company's Certificate of Incorporation eliminates the
liability of directors to stockholders or the Company for
monetary damages arising out of the directors' breach of their
fiduciary duty of care. The Company's Certificate of
Incorporation authorizes the Company to indemnify its directors
and officers with respect to certain costs, expenses and amounts
incurred in connection with an action, suit or proceeding by
reason of the fact that such person was serving as a director or
officer of the Company. In addition, the Company's Certificate
of Incorporation permits the Company to provide additional
indemnification rights to its officers and directors and to
indemnify them to the greatest extent possible under the Delaware
General Corporation Law.
The Company maintains a standard form of officers' and
directors' liability insurance policy which provides coverage to
the officers and directors of the Company for certain
liabilities, including certain liabilities which may arise out of
this Registration Statement.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Certificate of Incorporation of the Company
(incorporated herein by reference to Exhibit 3.1 to the
Form S-1).
4.2 By-laws of the Company (incorporated herein by
reference to Exhibit 3.4 to the Form S-1).
4.3 1996 Stock Option Plan of the Company (incorporated
herein by reference to Exhibit 10.7 to the Form S-1).
*4.4 Amended and Restated Employee Stock Purchase Plan of
the Company
*5. Opinion of Proskauer Rose Goetz & Mendelsohn LLP
*23.1 Consent of Arthur Andersen LLP
23.2 Consent of Proskauer Rose Goetz & Mendelsohn LLP
(included in Exhibit 5)
*24 Powers of Attorney
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 (a)(1)(i)
and (a)(1)(ii) do not apply if the registration
statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
_________________
* Filed herewith
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New
York, on November 22, 1996.
SUPERIOR TELECOM INC.
By /s/ Steven S. Elbaum
____________________
Steven S. Elbaum
Chairman of the Board,
Chief Executive Officer and
President
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed below by
the following persons in the capacities and on the dates
indicated.
Signatures Title Date
__________ ______ _____
/s/ Steven S. Elbaum Chairman of the Board November 22,
_____________________ and Chief Executive 1996
Steven S. Elbaum Officer (principal
executive officer)
/s/ David S. Aldridge Vice President and November 22,
_____________________ Treasurer (principal 1996
David S. Aldridge financial accounting
officer)
Director November __,
- --------------------- 1996
Eugene P. Connell
/s/ Robert J. Levenson Director November 22,
______________________ 1996
Robert J. Levenson
/s/ Bragi F. Schut Director November 22,
____________________ 1996
Bragi F. Schut
/s/ Charles Y.C. Tse Director November 22,
____________________ 1996
Charles Y.C. Tse
EXHIBIT 4.4
SUPERIOR TELECOM INC.
EMPLOYEE STOCK PURCHASE PLAN
Amended and Restated as of December 1, 1996
1. Purpose.
The purpose of the Plan is to provide employees of the
Company and its Designated Subsidiaries with an opportunity to
purchase Common Stock of the Company through accumulated payroll
deductions. It is the intention of the Company that the Plan
qualify as an "employee stock purchase plan" within the meaning
of Section 423 of the Code and the provisions of the Plan shall
be construed in a manner consistent with the requirements of such
section of the Code. The Plan was approved by the Board on
September 27, 1996, initially effective on October 1, 1996, and
was approved by the sole stockholder of the Company on September
27, 1996. The Plan is amended and restated, effective as of
December 1, 1996.
2. Definitions.
(a) "Agent" shall mean the agent appointed by the Committee
pursuant to Section 11(b) hereof.
(b) "Board" shall mean the Board of Directors of the
Company.
(c) "Change in Capitalization" shall mean any increase,
reduction, or change or exchange of shares of Common Stock for a
different number or kind of shares or other securities of the
Company by reason of a reclassification, recapitalization,
merger, consolidation, reorganization, stock dividend, stock
split or reverse stock split, combination or exchange of shares,
repurchase of shares, change in corporate structure or otherwise.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(e) "Committee" shall mean the Compensation Committee of
the Board or such other committee appointed from time to time by
the Board. To the extent that no Committee exists which has the
authority to administer the Plan, the functions of the Committee
shall be exercised by the Board.
(f) "Common Stock" shall mean shares of common stock, par
value $.01 per share, of the Company.
(g) "Company" shall mean Superior TeleCom Inc., a Delaware
corporation.
(h) "Compensation" shall mean the total cash compensation
paid during an Offering Period by the Company, any Designated
Subsidiary or any affiliate of the Company to an Employee,
including overtime and bonuses, as reported by the Company, any
Designated Subsidiary or any affiliate of the Company for federal
income tax purposes, and including an Employee's portion of
salary deferral contributions pursuant to Section 401(k) of the
Code and any amount excludable pursuant to Section 125 of the
Code. Compensation shall not include any contributions by the
Company or any of its affiliates to, or benefits paid under, this
Plan or under any other pension, profit-sharing, fringe benefit,
group insurance or other employee welfare plan heretofore or
hereafter adopted or any deferred compensation arrangement. For
purposes of this Section, affiliate shall mean any entity
required to be aggregated with the Company under Section 414(b),
(c), (m) or (o) of the Code.
(i) "Designated Subsidiaries" shall mean each Subsidiary
Corporation of the Company on the effective date of the Plan and
future Subsidiary Corporations which have been designated by the
Board from time to time in its sole discretion as eligible to
participate in the Plan.
(j) "Employee" shall mean any person, including an officer,
who is regularly and continuously employed by the Company or a
Designated Subsidiary.
(k) "Employer" shall mean, with respect to any Employee,
the Company or Designated Subsidiary by which the Employee is
employed.
(l) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(m) "Exercise Date" shall mean the last business day of
each Offering Period in which payroll deductions are made under
the Plan.
(n) "Fair Market Value" for purposes of this Plan, unless
otherwise required by any applicable provision of the Code or any
regulations issued thereunder, shall mean, as of any date, the
last sales price reported for the Common Stock on the applicable
date (i) as reported by the principal national securities
exchange in the United States on which it is then traded, or (ii)
if not traded on any such national securities exchange, as quoted
on an automated quotation system sponsored by the National
Association of Securities Dealers. If the Common Stock is not
readily tradable on a national securities exchange or any system
sponsored by the National Association of Securities Dealers, its
Fair Market Value shall be set in good faith by the Committee on
the advice of a registered investment adviser (as defined under
the Investment Advisers Act of 1940).
(o) "Offering Date" shall mean the first day of each
calendar quarter.
(p) "Offering Period" shall mean each calendar quarter
during the effectiveness of the Plan, commencing on each Offering
Date, provided that the Committee shall have the power to change
the duration of Offering Periods.
(q) "Option" shall mean an option to purchase shares of
Common Stock of the Company.
(r) "Parent Corporation" shall mean any corporation (other
than the Company) in an unbroken chain of corporations ending
with the employer corporation if, at the time of granting an
Option, each of the corporations other than the employer
corporation owns stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one of
the other corporations in such chain.
(s) "Participant" shall mean an Employee who participates
in the Plan.
(t) "Plan" shall mean the Superior TeleCom Inc. Employee
Stock Purchase Plan, as amended from time to time.
(u) "Rule 16b-3" shall mean Rule 16b-3 under Section 16(b)
of the Exchange Act as then in effect or any successor
provisions.
(v) "Subsidiary Corporation" shall mean any corporation
(other than the Company) in an unbroken chain of corporations
beginning with the employer corporation if, at the time of
granting an Option, each of the corporations other than the last
corporation in the unbroken chain owns stock possessing fifty
percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
3. Eligibility.
(a) Subject to the requirements of Section 4(b) hereof, any
person who is (i) an Employee as of an Offering Date and (ii) who
customarily works more than twenty (20) hours per week for an
Employer and at least five (5) months per year for an Employer
shall be eligible to participate in the Plan and be granted an
Option for the Offering Period commencing on such Offering Date.
(b) Notwithstanding any provisions of the Plan to the
contrary, no Employee shall be granted an Option under
the Plan:
(i) if, immediately after the grant, such Employee (or any
other person whose stock would be attributed to such
Employee pursuant to Section 424(d) of the Code) would own
stock and/or hold outstanding Options to purchase stock
possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company
or of any Subsidiary Corporation or Parent Corporation; or
(ii) which permits such Employee's right to purchase stock
under all employee stock purchase plans (as described in
Section 423 of the Code) of the Company and any Subsidiary
Corporation or Parent Corporation to accrue at a rate which
exceeds twenty-five thousand dollars ($25,000) of fair
market value of such stock (determined at the time such
Option is granted) for any calendar year in which such
Option is outstanding at any time.
4. Grant of Option; Participation.
(a) On each Offering Date, the Company shall commence an
offer by granting each eligible Employee an Option to purchase
shares of Common Stock, subject to the limitations set forth in
Sections 3(b) and 10 hereof. The Committee shall specify the
terms and conditions for each such offer, including the number of
shares of Common Stock that may be purchased thereunder.
(b) Each eligible Employee may elect to become a
Participant in the Plan with respect to an Offering Period, only
by filing an agreement with the Company authorizing payroll
deductions (as set forth in Section 5 hereof).
(c) The Option price per share of the Common Stock subject
to an offering shall be determined by the Board, in its sole
discretion, and shall remain in effect unless modified at least
thirty (30) days prior to the applicable Offering Date, but in no
event shall be less than the lesser of: (i) eighty-five percent
(85%) of the Fair Market Value of a share of Common Stock on the
date immediately prior to the Offering Date or (ii) eighty-five
(85%) of the Fair Market Value of a share of Common Stock on the
Exercise Date. Effective as of December 1, 1996 until modified
by the Board, the price per share of the Common Stock subject to
an offering shall be the lesser of: (i) eighty-five percent (85%)
of the Fair Market Value of a share of Common Stock on the date
immediately prior to the Offering Date or (ii) eighty-five (85%)
of the Fair Market Value of a share of Common Stock on the
Exercise Date.
5. Payroll Deductions.
(a) At least fourteen (14) days prior to each Offering
Date, a Participant may, in the manner prescribed by forms
approved by the Committee, and subject to the restriction set
forth in Section 3(b)(ii) above, authorize a payroll deduction in
a designated dollar amount or in any whole percentage up to
twenty-five percent (25%) of his or her Compensation, provided,
that such maximum percentage may be reduced by the Committee, in
its sole discretion, prior to the Offering Date. The minimum
amount that may be deducted as a designated dollar amount or in
any whole percentage of Compensation by a Participant for each
payroll period shall equal at least one percent (1%) of a
Participant's Compensation. A Participant may increase or
decrease such payroll deductions prior to the beginning of an
Offering Period, upon fourteen (14) days' prior written notice to
the Human Resources Department. A Participant may terminate a
payroll deduction authorization at any time, upon seven (7) days'
prior written notice to the Human Resources Department. An
authorization shall remain in effect until modified or terminated
by the Participant or until the percentage used to determine the
Option price (as set forth in Section 4(c) above) is effectively
increased.
(b) All payroll deductions made by a Participant shall be
credited to such Participant's account under the Plan. A
Participant may not make any additional payments into such
account.
(c) In the event a Participant makes a hardship withdrawal
of employee deferral (401(k)) contributions under a 401(k) profit
sharing plan of the Company, a Designated Subsidiary or an
affiliate or any other plan qualified under Section 401(a) of the
Code that contains a Code Section 401(k) feature, such
Participant's payroll deductions and the purchase of shares of
Common Stock under the Plan shall be suspended until the first
payroll period following the Offering Date commencing after the
twelve (12) month period after such hardship withdrawal. If a
Participant who elects a hardship withdrawal under such a 401(k)
profit sharing plan or such other plan has a cash balance
accumulated in his or her account at the time of withdrawal that
has not already been applied to purchase shares of Common Stock,
such cash balance shall be returned to the Participant as soon as
administratively practicable.
6. Exercise of Option.
(a) Unless a Participant withdraws from the Plan as
provided in Section 8 hereof, such Participant's election to
purchase shares of Common Stock shall be exercised automatically
on the Exercise Date, and the maximum number of whole and/or
fractional shares of Common Stock subject to such Option shall be
purchased for such Participant at the applicable Option price
with the accumulated payroll deductions in such Participant's
account. If all or any portion of the shares cannot reasonably
be purchased on the Exercise Date in the sole discretion of the
Committee because of unavailability or any other reason, such
purchase shall be made as soon thereafter as feasible.
(b) The shares of Common Stock purchased upon exercise of
an Option hereunder shall be credited to the Participant's
account under the Plan and shall be deemed to be transferred to
the Participant on the Exercise Date and, except as otherwise
provided herein, the Participant shall have all rights of a
stockholder with respect to such shares, including, without
limitation, the right to receive dividends on the shares and the
right to vote or tender such shares.
7. Delivery of Common Stock.
(a) Certificates for whole shares of Common Stock shall not
be issued to Participants unless and until requested or as
otherwise provided pursuant to Section 8, but in no event shall
certificates be issued earlier than sixty (60) days (or such
shorter period of time as the Committee, in its sole discretion,
may determine) following the Exercise Date on which such shares
of Common Stock were purchased. If a Participant requests
certificates for whole shares of Common Stock, any fractional
shares of Common Stock shall remain in the Participant's account
during his or her employment, unless he or she requests cash in
lieu of the fractional shares. A fee fixed by the Plan's Agent
or transfer agent, as the case may be, may be charged to the
Participant for the issuance of certificates of shares of Common
Stock and for the replacement of lost certificates. Certificates
for a fractional share of Common Stock shall not be issued under
any circumstance.
(b) A Participant may request the Agent to sell all or a
portion of shares of Common Stock for which certificates have not
been issued and receive cash for such shares, subject to any
brokerage fees or commissions.
8. Withdrawals; Termination of Employment; Disability or Leave
of Absence Prior to Termination of Employment.
(a) A Participant may withdraw all, but not less than all,
the payroll deductions credited to such Participant's account
(that have not been used to purchase shares of Common Stock)
under the Plan at any time prior to the Exercise Date by giving
seven (7) days' prior written notice to the Human Resources
Department. All such payroll deductions credited to such
Participant's account shall be paid to such Participant (without
interest) promptly after receipt of such Participant's written
notice of withdrawal and such Participant's Option for the
Offering Period in which the withdrawal occurs shall be
automatically terminated. No further payroll deductions for the
purchase of shares of Common Stock shall be made for such
Participant during such Offering Period. A Participant's
withdrawal from an offering shall not have any effect upon such
Participant's eligibility to participate in a subsequent offering
or in any similar plan which may hereafter be adopted by the
Company.
(b) If a Participant retires or terminates his or her
employment with the Company or any Subsidiary for any reason
other than death, the payroll deductions credited to such
Participant's account (that have not been used to purchase shares
of Common Stock) shall be returned or distributed to the
Participant (without interest) as soon as practicable following
the Participant's retirement or other termination of employment.
The Participant shall elect, within the sixty (60) day period
following the Participant's retirement or other termination of
employment with the Company or any Subsidiary, (i) to receive
certificates for all of the whole shares of Common Stock and cash
in lieu of any fractional shares of Common Stock credited to the
Participant's account under the Plan, (ii) to have all shares of
Common Stock (including fractional shares) credited to the
Participant's account under the Plan transferred to an individual
brokerage account established by the Agent for the benefit of the
Participant or for the benefit of the Participant and his or her
spouse as joint tenants with rights of survivorship, or (iii) a
combination of (i) and (ii). In the event the Participant does
not make an election within such sixty (60) day period, all
shares of Common Stock (including fractional shares) credited to
the Participant's account under the Plan shall be transferred to
an individual brokerage account established by the Agent for the
benefit of the Participant. A fee fixed by the Plan's Agent may
be charged to the Participant for the issuance of certificates of
shares of Common Stock.
(c) In the event of the Participant's death, the
Participant's Option shall be exercised in accordance with the
terms of the Plan such that the payroll deductions credited to
such Participant's account after the Offering Date (whether
before or immediately following the Participant's death) shall be
used to purchase shares of Common Stock in accordance with the
terms of the Plan. The Participant's beneficiary shall elect,
within the sixty (60) day period following the Exercise Date
following the Participant's death, (i) to receive certificates
for all of the whole shares of Common Stock and cash in lieu of
any fractional shares of Common Stock credited to the
Participant's account under the Plan, (ii) to have all shares of
Common Stock (including fractional shares) credited to the
Participant's account under the Plan transferred to an individual
brokerage account established by the Agent for the benefit of the
Participant's beneficiary, or (iii) a combination of (i) and
(ii). In the event the Participant's beneficiary does not make
an election within such sixty (60) day period, certificates for
all shares of Common Stock (including fractional shares) credited
to the Participant's account under the Plan shall be transferred
to an individual brokerage account established by the Agent for
the benefit of the Participant's beneficiary. A fee fixed by the
Plan's Agent may be charged to the Participant's beneficiary for
the issuance of certificates of shares of Common Stock.
(d) In the event of a Participant's Disability or Leave of
Absence, payroll deductions shall only be taken from Compensation
that is due and owing to the Participant. To the extent that any
cash balance has accumulated in the Participant's account, such
balance shall be used to purchase shares of Common Stock on the
Exercise Date. With respect to a Participant who becomes
ineligible to participate due to a Disability or Leave of
Absence, shares of Common Stock held in such Participant's
account shall continue to be held in the Participant's account
unless he or she elects otherwise under Section 7(a). In the
event that such individual's Disability or Leave of Absence ends
and such individual returns to work as an Employee and satisfies
the eligibility conditions under Section 3, payroll deductions
shall resume automatically in accordance with his or her most
recent payroll deduction authorization form in effect prior to
the Disability or Leave Of Absence, unless he or she elects
otherwise. Section 8(b) shall apply to any termination of
employment with the Company or any Subsidiary following a
Participant's Disability or Leave of Absence. The terms
"Disability" or "Disabled" shall mean a permanent and total
disability as defined under Section 22(e)(3) of the Code. A
"Leave of Absence" shall be determined in accordance with the
personnel policies of the Participant's Employer.
9. Dividends and Interest.
(a) Cash dividends, if any, on shares of Common Stock
acquired through the Plan will be automatically paid by check
directly to the Participant by the Company. Dividends paid in
property other than cash or Common Stock shall be distributed to
Participants as soon as practicable.
(b) No interest shall accrue on or be payable with respect
to the payroll deductions of a Participant in the Plan.
10. Stock.
(a) The maximum number of shares of Common Stock which
shall be reserved for sale under the Plan shall be 250,000,
subject to adjustment as provided in Section 16 hereof. If the
total number of shares which would otherwise be subject to
Options granted pursuant to Section 4(a) hereof on an Offering
Date exceeds the number of shares then available under the Plan
(after deduction of all shares for which Options have been
exercised or are then outstanding), the Committee shall make a
pro rata allocation of the shares remaining available for Option
grant in as uniform a manner as shall be practicable and as it
shall determine to be equitable. In such event, the Committee
shall give written notice to each Participant of such reduction
of the number of Option shares affected thereby and shall
similarly reduce the rate of payroll deductions, if necessary.
Purchases of Common Stock under the Plan shall be made by the
Agent on the open market, or in the sole discretion of the
Committee, may be made by the Company's delivery of treasury
shares or newly-issued and authorized shares to the Plan, upon
such terms as the Committee may approve.
(b) Shares of Common Stock to be delivered to a Participant
under the Plan shall be registered solely in the name of the
Participant or, at the election of the Participant, in the name
of the Participant and his or her spouse as joint tenants with
rights of survivorship.
11. Administration.
(a) The Plan shall be administered by the Committee, and
the Committee may select an administrator to whom its duties and
responsibilities hereunder may be delegated. The Committee shall
have full power and authority, subject to the provisions of the
Plan, to promulgate such rules and regulations as it deems
necessary for the proper administration of the Plan, to interpret
the provisions and supervise the administration of the Plan, and
to take all action in connection therewith or in relation thereto
as it deems necessary or advisable. The Committee may adopt
special guidelines and provisions for persons who are residing
in, or subject to, the laws of, countries other than the United
States to comply with applicable tax and securities laws. All
interpretations and determinations of the Committee shall be made
in its sole and absolute discretion based on the Plan document
and shall be final, conclusive and binding on all parties.
(b) The Committee may employ such legal counsel,
consultants, brokers and agents as it may deem desirable for the
administration of the Plan and may rely upon any opinion received
from any such counsel or consultant and any computation received
from any such consultant, broker or agent. The Committee may, in
its sole discretion, designate an Agent to administer the Plan,
purchase and sell shares of Common Stock in accordance with the
Plan, keep records, send statements of account to employees and
to perform other duties relating to the Plan, as the Committee
may request from time to time. The initial Agent for the Plan is
Smith Barney, Inc. Such Agent shall serve as custodian for pur-
poses of the Plan and, unless otherwise requested by the
Participant, Common Stock purchased under the Plan shall be held
by and in the name of, or in the name of a nominee of, the
custodian for the benefit of each Participant, who shall
thereafter be a beneficial stockholder of the Company. The
Committee may adopt, amend or repeal any guidelines or
requirements necessary for the custody and delivery of the Common
Stock, including, without limitation, guidelines regarding the
imposition of reasonable fees in certain circumstances.
(c) The Company shall, to the fullest extent permitted by
law and the Certificate of Incorporation and By-laws of the
Company and, to the extent not covered by insurance, indemnify
each director, officer or employee of the Employer (including the
heirs, executors, administrators and other personal
representatives of such person) and each member of the Committee
against all expenses, costs, liabilities and losses (including
attorneys' fees, judgments, fines, excise taxes or penalties, and
amounts paid or to be paid in settlement) actually and reasonably
incurred by such person in connection with any threatened,
pending or actual suit, action or proceeding (whether civil,
criminal, administrative or investigative in nature or otherwise)
in which such person may be involved by reason of the fact that
he or she is or was serving this Plan in any capacity at the
request of the Employer, except in instances where any such
person engages in willful neglect or fraud. Such right of
indemnification shall include the right any such person engages
in willful neglect or fraud. Such right of indemnification shall
include the right to be paid by the Company for expenses incurred
or reasonably anticipated to be incurred in defending any such
suit, action or proceeding in advance of its disposition;
provided, however, that the payment of expenses in advance of the
settlement or final disposition of a suit, action or proceeding,
shall be made only upon delivery to the Company of an undertaking
by or on behalf of such person to repay all amounts so advanced
if it is ultimately determined that such person is not entitled
to be indemnified hereunder. Such indemnification shall be in
addition to any rights of indemnification the person may have as
a director, officer or employee or under the Certificate of
Incorporation of the Company or the By-Laws of the Company.
Expenses incurred by the Committee or the Board in the engagement
of any such counsel, consultant or agent shall be paid by the
Company.
(d) Participants shall be fully responsible for (i) any
brokerage fees and commissions charged for the sale of Common
Stock, (ii) any fees for certificates of shares of Common Stock
issued to a Participant and (iii) any taxes owed by them as a
result of participation in the Plan.
12. Designation of Beneficiary.
A Participant may file, on forms supplied by and delivered
to the Company, a written designation of a beneficiary who is to
receive any shares of Common Stock and cash remaining in such
Participant's account under the Plan in the event of the
Participant's death. Such designation of beneficiary may be
changed by the Participant at any time by written notice. If a
Participant is married on the date of his death and no
beneficiary had been designated by the Participant prior to his
death, the Participant's spouse will be presumed to be his
beneficiary. If a Participant is not married on the date of his
death and no beneficiary had been designated by the Participant
prior to his death, the Participant's beneficiary shall be his
estate.
13. Transferability.
(a) Neither payroll deductions credited to a Participant's
account nor any rights with regard to the exercise of an Option
or to receive shares under the Plan may be assigned, transferred,
pledged or otherwise disposed of in any way (other than by will,
the laws of descent and distribution or as provided in Section
10(b) or 12 hereof) by the Participant. Any such attempt at
assignment, transfer, pledge or other disposition shall be
without effect, except that the Company may treat such act as an
election to withdraw funds in accordance with Section 8 hereof.
(b) All rights of a Participant granted under this Plan,
including but not limited to, the grant of an Option, the right
to exercise an Option and the ability to authorize payroll
deductions shall relate solely to a Participant, except as
otherwise provided in Section 8(c) hereof.
14. Use of Funds.
All payroll deductions received or held by the Company under
the Plan may be used by the Company for any corporate purpose,
and the Company shall not be obligated to segregate such payroll
deductions.
15. Reports.
Individual accounts shall be maintained for each Participant
in the Plan. Statements of account shall be given to
participating Employees at such times prescribed by the
Committee; such statements shall set forth the amounts of payroll
deductions, the per share purchase price, the number of shares of
Common Stock purchased, the aggregate shares in the Participant's
account and the remaining cash balance, if any.
16. Effect of Certain Changes.
(a) In the event of any increase, reduction, or change or
exchange of shares of Common Stock for a different number or kind
of shares or other securities of the Company by reason of a
reclassification, recapitalization, merger, consolidation,
reorganization, stock dividend, stock split or reverse stock
split, combination or exchange of shares, repurchase of shares,
change in corporate structure or otherwise, or the distribution
of an extraordinary dividend, the Committee shall conclusively
determine the appropriate equitable adjustments, if any, to be
made under the Plan, including without limitation adjustments to
the number of shares of Common Stock which have been authorized
for issuance under the Plan but have not yet been placed under
Option, as well as the price per share of Common Stock covered by
each Option under the Plan which has not yet been exercised.
(b) In the event of the complete liquidation of the Company
or of a reorganization, consolidation or merger in which the
Company is not the surviving Corporation, any Option granted
under the Plan shall continue in full force and effect unless
either (i) the Board modifies such Option so that it is fully
exercisable with respect to all of the Common Stock subject
thereto prior to the effective date of such transaction or (ii)
the surviving corporation issues or assumes a stock option as
contemplated under Section 424(a) of the Code.
17. Amendment or Termination.
The Company, by action of the Board (or a duly authorized
committee thereof), may at any time terminate or amend the Plan.
No such termination shall adversely affect Options previously
granted and no amendment may make any change in any Option
theretofore granted which adversely affects the rights of any
Participant. No amendment shall be effective unless approved by
the stockholders of the Company if stockholder approval of such
amendment is required to comply with Section 423 of the Code or
to comply with any other applicable law, regulation or stock
exchange rule. Upon termination of the Plan, the Company shall
return or distribute the payroll deductions credited to such
Participant's account (that have not been used to purchase shares
of Common Stock).
18. Notices.
All notices or other communications by a Participant to the
Company or the Committee under or in connection with the Plan
shall be deemed to have been duly given when received in the form
specified by the Company or Committee at the location, or by the
person, designated for the receipt thereof. Each Participant
shall be responsible for furnishing the Committee with the
current and proper address for the mailing of notices and the
delivery of other information. Any notices or communications by
the Company to a Participant shall be deemed given if directed to
such address and mailed by regular United States mail, first-
class and prepaid. If any item mailed to such address is
returned as undeliverable to the addressee, mailing shall be
suspended until the Participant furnishes the proper address.
19. Regulations and Other Approvals; Governing Law.
(a) This Plan and the rights of all persons claiming
hereunder shall be construed and determined in accordance with
the laws of the State of Delaware without giving effect to the
choice of law principles thereof, except to the extent that such
law is preempted by federal law.
(b) The obligation of the Company to sell or deliver shares
of Common Stock with respect to Options granted under the Plan
shall be subject to all applicable laws, rules and regulations,
including all applicable federal and state securities laws, and
the obtaining of all such approvals by governmental agencies as
may be deemed necessary or appropriate by the Committee.
(c) To the extent required, the Plan is intended to comply
with Rule 16(b)-3 and the Committee shall interpret and
administer the provisions of the Plan in a manner consistent
therewith. Any provisions inconsistent with Rule 16(b)-3 shall
be inoperative and shall not affect the validity of the Plan.
The Committee may establish and adopt written administrative
guidelines, designed to facilitate compliance with Section 16(b)
of the Exchange Act and Rule 16(b)-3, as it may deem necessary or
proper for the administration and operation of the Plan and the
transaction of business thereunder.
20. Withholding of Taxes.
(a) If the Participant makes a disposition, within the
meaning of Section 424(c) of the code and regulations promulgated
thereunder, of any share or shares issued to such Participant
pursuant to such Participant's exercise of an Option, and such
disposition occurs within the two-year period commencing on the
day after the Offering Date or within the one-year period
commencing on the day after the Exercise Date, such Participant
shall immediately, or as soon as practicable thereafter, notify
the Company thereof and thereafter immediately deliver to the
Company any amount of federal, state or local income taxes and
other amounts which the Company informs the Participant the
Company is required to withhold.
(b) Notwithstanding anything herein to the contrary, the
Employer shall have the right to make such provisions as it deems
necessary to satisfy any obligations to withhold federal, state,
or local income taxes or other taxes incurred by reason of the
issuance of Common Stock pursuant to the Plan. Notwithstanding
anything herein to the contrary, the Employer may require a
Participant to remit an amount equal to the required withholding
amount and may invalidate any election if the Participant does
not remit applicable withholding taxes.
21. No Employment Rights.
The establishment and operation of this Plan shall not
confer any legal rights upon any Participant or other person for
a continuation of employment, nor shall it interfere with the
rights of an Employer to discharge any Employee and to treat him
without regard to the effect which that treatment might have upon
him as a Participant or potential Participant under the Plan.
22. Severability of Provisions.
If any provision of the Plan shall be held invalid or
unenforceable, such invalidity or unenforceability shall not
affect any other provisions hereof, and the Plan shall be
construed and enforced as if such provisions had not been
included.
23. Construction.
The use of a masculine pronoun shall include the feminine,
and the singular form shall include the plural form, unless the
context clearly indicates otherwise. The headings and captions
herein are provided for reference and convenience only, shall not
be considered part of the Plan, and shall not be employed in the
construction of the Plan.
EXHIBIT 5
November 22, 1996
Superior TeleCom Inc.
1790 Broadway
New York, New York 10019
Dear Sirs:
We are acting as counsel to Superior TeleCom Inc., a
Delaware corporation (the "Company"), in connection with the
Registration Statement on Form S-8 with exhibits thereto (the
"Registration Statement") filed by the Company under the
Securities Act of 1933, as amended, and the rules and regulations
thereunder, relating to the registration of: (i) 1,250,000
shares of Common Stock, par value $.01 per share, of the Company
to be issued by the Company upon exercise of certain stock
options granted, or to be granted, to certain employees of the
Company pursuant to the Company's 1996 Stock Option Plan; and
(ii) 250,000 shares of such stock to be issued to certain
employees of the Company pursuant to the Company's Employee Stock
Purchase Plan, as amended (collectively, the "Shares"). The
foregoing two plans are referred to hereinafter collectively as
the "Plans."
As such counsel, we have participated in the preparation of
the Registration Statement, and have reviewed the corporate
proceedings in connection with the adoption of the Plans and have
also examined and relied upon originals or copies, certified or
otherwise authenticated to our satisfaction, of all such public
officials and of representatives of the Company, and have made
such investigations of law, and have discussed with
representatives of the Company and such other persons such
questions of fact, as we have deemed proper and necessary as a
basis for rendering this opinion.
Based upon, and subject to, the foregoing, we are of the
opinion that the Shares are duly authorized and, upon exercise in
accordance with the terms of the applicable Plan against payment
of the exercise price therefor, and upon compliance with
applicable securities laws, will be, assuming no change in the
applicable law or pertinent facts, validly issued, fully paid,
and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement. In giving the foregoing consent,
we do not admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the Securities
and Exchange Commission promulgated thereunder.
Very truly yours,
Proskauer Rose Goetz & Mendelsohn LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form
S-8 of: (1) our report dated September 11, 1996 (except for the
matter discussed in Note 16, as to which the date is October 2,
1996) for Superior Telecommunications Inc. and subsidiary and DNE
Systems, Inc. and subsidiaries (to be reorganized as Superior
TeleCom Inc.), (2) our report dated October 2, 1996 for Superior
TeleCom Inc. and (3) our report dated February 24, 1995 (except
for the matter discussed in Note 14, as to which the date is May
11, 1995) for Alcatel NA Cable Systems, Inc. and Alcatel Canada
Wire and Cable, Inc., each included in Superior TeleCom Inc.'s
Form S-1 dated August 9, 1996, and to all references to our Firm
included in this Registration Statement.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
November 21, 1996
EXHIBIT 24
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose
signature appears below constitutes and appoints Steven S. Elbaum
and David S. Aldridge, or either of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, to act, without the other, for him and in his
name, place, and stead, in any and all capacities, to sign a
Registration Statement on Form S-8 of Superior TeleCom Inc., and
any or all amendments (including post-effective amendments)
thereto, relating to the registration, under the Securities Act
of 1933, as amended, of shares of Common Stock of the Company to
be issued pursuant to the Company's 1996 Stock Option Plan and
the Company's Employee Stock Purchase Plan, as amended, 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 requisite and necessary to be done in and about the
premises, as full 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, or any of them, their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
November 22, 1996
/s/ David S. Aldridge
________________________
David S. Aldridge
________________________
Eugene P. Connell
/s/ Steven S. Elbaum
________________________
Steven S. Elbaum
/s/ Robert J. Levenson
________________________
Robert J. Levenson
/s/ Bragi F. Schut
________________________
Bragi F. Schut
/s/ Charles Y.C. Tse
________________________
Charles Y.C. Tse
